you when you're ready g if that isn't it what is your position if the district court in fact if we think the district or did rely on the fact that this defendant was from out and state in crafting a sentence does that make the sentence substantively unreasonable does believe the district court judge relied upon a fact that was not reflected in the record at sentencing and i he is from out of state he is from out of state your honor the district court rely on that in sentencing i believe the district court judge did rely on its support allowed to rely diamond for obvious reasons but he does exist and sort of seems to address a slightly different question the diamond and specifically the court finding that the bringing of drugs in those drugs into the state was know an aggravating factor at some level justifying the sinners and we give says that's fine diamond says you can't base it just on where someone's from right but tell me how you read those two together factual argument to me seems harder because that's actually bringing drugs into the state which was proven in mcgee and not proven in ms mccall's and i want us to know can i jump in because i think we are both wrestling with the same question here i thought  said it was in big us and mcgee whether the district court was focused on where the defendant was from or where the drugs were from and so you could read it as this is a district court who were composed the same sentence on in state resident in drugs and that it's ok to look at where the drugs are from you just can't look at where the defendant is where the actual defendant is and my discern is that in the i mean i think it's pretty clear from the transcript but even in the written statement of reasons one of the court has a chance to think about this he says the point is to deter the defendant and other persons intent on the legal gain from entering west virginia exactly like it's about where the person is from where the person is from which is  there's ambiguity because the judge also says no no no i'm not doing this just because he's from out of state and that's it one fifty three he's right where he says he's not being simmons because he is from detroit right i mean just sort of i think he's saying i would have judge gave that explanation and i feel like it seems clear to me at least from the transcript that people understood it that way because even after that colloquy the government is still saying you need to give a high sentence because people come from out of state to sell drugs for profit exam which doesn't look to me like the defendant being from out of state was taken off the team i agree your honor and the district court judge when he was going through his  this extensive discussion about the more quantity of methamphetamine that was found in the apartment with the guy and all the way made a finding that it was not properly attributable under the guidelines to your client district court have said listen i find it is not properly attribute one of the guidelines but as one of the thirty five fifty three a factors i consider the fact that maybe it's not you know doesn't qualify on the guidelines but i consider the fact that he's a billionaire did with folks that are bringing in large quantities and they've got gone and so that affiliation although maybe not he maybe not responsible for it that that is part of what justifies my upward variants could he have done that here and i would argue that that he would not have been able to do that why because in order to is reliable that they were there the only part of the question right is his relation there's no doubt the drugs were there the gun was there and he has some connection with it is not sufficient dorning responsible right under the guidelines but scratch what i'm what i'm asking is i agree it's got to be relevant it's got to be proven right but if the judge had said listen i don't find the attributable but i am considering his affiliation whatever that affiliation is as part of my the court gets to consider those things more broadly without a preponderance of evidence standard by thirty five fifty three a doesn't require products of their balance it just requires consideration of those things and so what i'm what i'm getting at is and he didn't do it here right so that's great but and probably the answer is we shouldn't opine one way or the other but i'm interested in whether he could have because it seems to me that that might have been part of the motivation here to to go up so  high i mean the history in characteristics where you stand up any progress those things they are they're usually readily provable of their you know you have backing up information for the things that you're saying just  again there any other questions like thank you very much yes or you have some let me let me interject here for yes or so the the one point one grams of math could be sold your classified that is ice right for guidelines purposes i don't know if that was or not you converted to drug way the thirteen hundred dollars that was recovered from him when he was arrested was hurt drug way was additional amounts of methamphetamine so exactly what i'm trying to get at is it do you do you know you know do you know the answer was it considered a mixture and substance containing methamphetamine or was it considered for guidelines purposes and or do you know what it actually was either answers i know that it was methamphetamine i do not know if the one point one gram this idea of the drugs being brought in from out of state and if it's not and i'm having a little trouble figuring out what the basis for that determination was so if it was  i can understand the idea because ice is probably not manufactured in west virginia it's broadly on primarily across the border but if it's not i saw it as lower quality methamphetamine that it may well have been made in west virginia right that's why i'm struggling here right if it was ice then at least there's a factual basis for believing it was brought into west virginia but if it's not ice which i think you're suggesting that that's the only record we've got i don't even understand how the district judge could make  even that that was brought from out of state again it would go to  the answer is nothing just say it right i'm not trying to fight you here but you're not sure the court if he answers there's nothing to support that other than where this guy was from there was no direct evidence of that in this case what i would say is historically what we are finding in the southern district of west virginia is that there is typically no methamphetamine manufactured so does that mean that everybody gets ten years from this judge when they sell meth in west virginia no not everybody does ok on a why not not everybody has the same history and character is there always instantiate upward variance because he always assumes the meth came from out of state there is not your honor ok isn't there like a sentencing disparity issue here that was never discussed by the judge  never discussed were in a unique situation in the southern district west virginia where we are inundated we have one of the highest rate i said it was genuine question watch and i think it's maybe sort of the same question as just judge richards and why this guy why was he the one who got singled out to to address this problem which i'm not denying at all because miss him around i used firing in solely on the detroit aspect of this i'm not you know i'm asking you what where does the judge explain to me why is fin there's this huge problem in west virginia a lot of the math that's being sold in west virginia is coming from over state lines i'm thinking this guy he's getting ten years to fix this problem where we have a judge i also looked at other history and characteristics defendant other than just from being from detroit he looked at his criminal history what about his group was very violent what you said that it was you told the judge and his criminal history category five under represented his criminal history in what way that is correct because you could have crimes of embezzlement mail fraud and non violent crimes grand larceny had to conceal ultimately be a criminal history five with other nonviolent crimes and could still end up a criminal history five in this case it's pretty clear that the defendant is first conviction was before he was even an adult that he's prosecuted as an adult it was for carjacking and assault commit murder and that's a bit of a double edged sword right because the defendant argue that that showed that criminal history five even represented his history since one of those was a juvenile conviction it was an adult conviction i'm sorry i committed as a juvenile adult conviction committed as a juvenile and i did the district court address that is for the potential mitigating i'm not sure if he did because isn't the the fact is that when he made parole on that charge and my he was on parole he committed his second felony offense still yet by he's a relatively young man for distribution of controlled substances he was sentenced to twelve months on that case and serve six i got as he's got out and then he committed another felony possession of drugs so it's the government's position that this is a very a particularly egregious category five history it is your honor and there are any there were two different times in his history that wh he was on parole he committed his next crime when he committed the crime in west virginia he was on parole in the state of michigan when he came down to west virginia our position was that he was coming to west virginia to sell court say what he found why he found that the criminal history why it found that the criminal defendants criminal history was not adequately reflected in the capital but if i know that missing or asking it argued that analysis right ok but he did not go back to the and i know we've gotten off on the the the crime of history but i want to go back because we transitioned to judge harris's question you begin by saying that there's no math manufactured in west virginia  and bright but here's what my problem is that's what you've got right to the one point one gram isn't this high quality mexican imported you know high grade i guess right at least where the record reflects is what you get is one point one grams of jar exactly the type of stuff that gets manufactured in the southern disk of west virginia on a regular basis i cannot say one hundred ten percent whether it's junk or whether it's our eyes for the reason being that it would have categorized that way mean what it is but what we've got before us is that it was not categorized as high quality right which that is correct which means it is categorized for our purposes on review as low quality which means it far far more likely that it was manufactured in west virginia then somewhere else because nobody imports the low quality meth they import the high quality men because it's worthwhile but the low quality meth that some guys making with the two liter bottle  back like that's not moving state to state it's being made in the backyard i don't think that just because it's not established that it was ice that we can say it was absolutely joe or that was manufactured in the state of west virginia but you certainly can't say i didn't carry them out of state that is correct which means there's no factual basis to support the judge's conclusion that the drugs came from out of state which means so there are only two possibilities right the judge either on the drugs came from out of state under mcghee and that's really terrible and so we need to punish that and that might well be an acceptable outcome if the facts support it but that we i think we've established the facts don't support that so they were left with only one of the possibility and that is that he did it because the person was prompted troy and that's what diamond tells us like that's problematic right and we were concerned about if you talk about the problem of drugs flowing into the state i get it that's mcgee and maybe that's a perfectly reasonable thing to do but if you're just basing it and since there's no evidence the drugs came from out of state you're just basing in a where the guy's from that problem of drugs being imported or the problem of people from detroit coming to west virginia it's one of those two we've established there's no evidence for the former so it seems like it has to be the latter and on this aspect that would we're not involved in that but i'm concerned about is that he relied upon something to do with out of state interaction and we've established there's no evidence the drugs came from out of state and so that only leaves us with the conclusion the lot of the fact the guy was from literally right away is bolstered by his written explanation of the sentence where he says it's because the defendant and or west virginia and he entered western i don't mean to be yelling at you by the way i'm john i've been there and i'm not all that but it is a frustrating position to be and i agree but i would also reiterate some of the questions that you were asking mr murawski about whether or not the judge could also consider we still have evidence that the defendant immediately prior to the drug transaction entered the apartment but the key but stop there right so i mean that you know not i'm happy if you tell me want to but you agree that if we find that the dischord improperly relied upon the or the the home residence of the defendant we're not going to sit up here and weigh the thirty fifty three eight factors a new based on what we gather from the record right if we find that that was improper we make that single finding and it goes back and somebody who does aspects about that apartment based upon thirty six sixty one which says there's really no limit as to what the judge can consider with sentencing and the united states in the guideline won't be one point or which also puts that there's no limit  it is a preponderance of the evidence i'm just saying that the court can still consider the fact that the defendant not less interesting that entered the apartment ok you know immediately left that apartment went to the control drug right the without any sources of employment not a whole lot more than is thirteen hundred dollars which in a lot of math it's about one hundred he sold his gram for one hundred dollars so view about thirteen grams and thirty three a sense in fact he did want to make sure that it was a just punishment for this ban he wanted to make sure that there was a deterrent effect for this defendant especially looking at his criminal history and as well as for other defend he also wanted to protect and he was very clear in his record that he wanted to protect the public from further actions of this defendant which is also very clear from the fact that the defendant committed at least two allowed us to assume if it's in the p s r that must be what he relied on well and that's why the courts have continuously apparelled that the sentencing judges are the best position to sentence these defendants that you know i find the criminal history to be significant or aggravating or whatever the exact language that that sort of implicitly making that conclusion yes your i mean will sometimes say that when it's and this is a huge departure relatively speaking and i finally found i was looking for that even if you give him the full fifteen grams here he got he went up to the advanced level that you would get for five hundred gra very substantial upward variance and so what i'm getting from reading the transcript is that it was mostly this idea of deterrence account and i want to put to one side for one minute whether you're even allowed to think about  people from coming in from out of state but even if it were just the drugs from out of state it was really i want to make an example of this guy this is the guy i'm sick of what's going on and so i'm giving him ten years i sure hope we're against back to detroit or who is from  it just seems to me that if that's the rationale there really ought to be some discussion about disparities like how do you pick out one person to send your message like how is that fair that is one guy is going to carry on his back every time you think the drugs are from out of state i know that my time's about up is that ok go ahead and answer this question of i just don't want to run over my time he did not address necessarily the disparity  that that's clear if you're in the care and hindsight is twenty twenty i wish to ask the question now about judge let's address the disparity in sentencing but i did not do that but in looking at bat i think we've got to focus on more than just the detroit bang there is a turn of the bat there are many drugs funneling into west virginia from outside sources he's trying to deter  questions i'll be happy to answer them of thank you very much did have a you know a criminal history the district court judge addressed that we addressed it as well in terms of how it was reflected in his criminal history category that  received it's you extra points for being on for all that time and this bends can i ask a question our very expressively tell you you don't have to answer this because i know you get to go back to west virginia do you think that it is necessary appropriate or have no opinion of whether the case if reversed on the ground that we focused on here the out of state he she the case would need to be reassigned to a new district judge your honor i was actually researching that issue i believe that it is something that the court can do you himself is a person that's troy again that is simply inefficient and in my opinion unfair to rely on that factory and posing  question i think this is this would be very helpful for me to know i mean you just said that relying on the fact that he's from detroit would be inefficient and a bad reason to do such a  so i still see you sort of not wanting to argue you just can't do that why is it you're trying you seem to have a concern about a rule that would say you're not allowed to take into account for but i would maintain categorically it is not a reason to very awkward can't it be categorically because i think this is what we said in diamond so it's not really up to us anymore the fact that someone is from out of state and coming into your state to commit crimes is not something you can rely on yes and i very much agree with that position but i thank you because i understand the concern is the court has any other questions think not