on the docket this morning we welcome you here to houston and just remind you that we have a traffic light system when the yellow light comes on most of you are well aware you have two minutes and when the red light signals please conclude your argument as quickly as possible unless you're answering the court's question the other point i'd make is that we have read the briefs in record excerpts we may not have read the entire record factory probably not and so we really need your records citations when those are proprium the first case of the morning is number seventeen five zero three nine two united states versus figure garcia and we'll hear first from  categorically has as an element use the term to use or threaten use of physical well in order to move this along i might point out that the government is not to be fending the the categorical nature of that crime a this case is harmless when the district court considers both what's now realized to be the incorrect range and what's deemed to be the correct range sentencing this court will find that the government has met its heavy burden to show error but only if the court makes it abundantly clear that it would impose the same sentence the guidelines calculation error i don't believe the government can meet its burden under the record in this case the court said a lot at sentencing i scoured the sentencing are the same or close to it i believe that the court use both direct and indirect language to explain that it considered the thirty seven to forty six month range in ad if insufficient to punish and that it would consider the twenty four to thirty month range sufficiently in adequate to get mr vegas attention but does so clearly the judge considered both range i mean weeks not a situation where it's like objection overruled but we don't know what range the would have been a feedback projection sustain the judge a new considered it considered that the range that the judge found to be correct and then went way higher than that one so how do we have harmful error here or not harmless or whatever the right phrasing is because of the requirement that this court has recognized that it's not sufficient simply for the district court to make clear that the range would have been insufficient there is a difference between finding that a lower range would not have been sufficient to punish and that the range would have yielded the exact same sentence here the district court varied significantly from the thirty seven to forty six month range well she noticed but you know she that because a fellow and you had he had just gotten off of a sixty month sentence for illegal reentry immediately come back into the country and he engaged in striking an elder which some of us take very close to heart i don't know about judge moses but anyway so since the sixteen month sentence was clearly not enough to deter him from a life of crime why would a thirty twenty four to thirty six month why would anyone think why would even you think that on remand should go with thirty six months your honor i agree i don't think the court that there are no magic words i agree that in all of the cases cited in the government's free and my briefing in fact probably ninety percent of the cases cited in our briefs in this case were cases where the district court explicitly said i would impose the same sentence so we don't those are magic words and i mean i really you know we have a judge who spend probably ninety percent of her time sentencing people i don't think she doesn't understand the process doesn't understand the booker or some such thing i think she's got and here she did and we have plenty of cases where they don't consider both ranges and then i think that case law is very helpful to you but here she clearly did and she was clearly on a pathway a mission if you will to be sure that this mr garcia got a sense that maybe would send the message that the sixteen months didn't so it's hard for me absent magic words absent i saying look district court you must say i would give the same and i recognize that the court is not going to want to require some type of talismanic magic words but these are more than the magic words and again the cases are replete with instances where district courts when defendants are arguing and objection doesn't come out of nowhere a defendant is explaining to the district court you're using the is but beyond that to say i understand that you're making a legal objection and regardless of that legal objection i would impose the same sentence and the fact that we have so many instances whether there magic words or simply a district court and are standing with this court is going to look at when it comes to determining whether an error is harmless a court can explicitly do that well let me you know some of us have a visor the district court time and time again to do that and some of them do it with greater clarity than others but let me just say this is not a difficult issue we are familiar with this issue in general so why don't you not to not to foreshorten all that you may choose to argue longer but if you have a couple of cases that you want to cite we pretty much  understand your argument yes there are i believe the best case is to look at in terms of differentiating between when a court clearly expresses that it's going to find a lower range insufficient in no uncertain terms and finding that that's not the same thing as saying that i would impose the same sentence regardless of an error are the  by the defendant in that case that guideline wasn't legally in effect yet but the court was being asked to consider it as the a political range given that its effectiveness was imminent and the the court made clear that that would be insufficient and then went on to sentence within what it believed to be the correct range and later this court reversed that and said that was not in fact the correct range the correct range was a fifteen to twenty what's the bottom line is that even when a district court makes it clear that i higher range then the one that the court goes on to deem correct sufficient that we need more specificity the court did not find that the government met its burden to re assess contrary as to show that the error was harmless and that is because of the precision and we're think the court would in this case but that's not my burden to show the government has to show that the court would have and we're talking perception here and a way that we do not talk about when we the district court essentially did the same thing well let me just say since you've decided you need to argue a lot i would just point you out the lengthy paragraph where the judge goes into operating a vehicle without owner's consent a felony a scapegoat felony criminal trespass many misdemeanor disorderly conduct and she says and it goes on and on trespass operating motor and then starting point when the public defender chooses to appeal errors of what amount to elocution or allocution on the part of the district court i dare say  haven't talked to them but some of them are probably going to react rather negatively to that as a policy matter and because you know recent recent singham poses a serious burden and you  probably know more about this than i do but i daresay a lot of these district judges come back in and impose very similar sentence to what they had before they got vacated in remanded so i'm just saying there's you know there's a court yes i have seen the court imposed the exact same sentence but i've also been surprised to see the court give a lower sentence and i think the court does consider advisory guideline range as it's required to do and it can affect the ultimate sentence imposed so i would agree with judge jones that often we see the same sentence imposed again the sentencing commission of my own curiosity and i couldn't find them readily available i think in this particular case judge moses made very clear from the outset that what was what was controlling her decision was the defendant's criminal prior illegal entries in the del rio division back in eighty's and they had an illegal reentry out of houston and that's the one that he got the sixteen month sentence for and she keyed in on that very early in the sentencing her concern was seriously which would be about seventy miles well i think what's interesting is that if she started with the five years which is what the sixteen month sentence was in in this when she went to six years which is what seventy two months was what i was going to say is that yes i understand the theoretical argument that counsel opposite is made about there is space between sixty and seventy two and we can again i'm not great at math but we can do the math and say that's true but practically looking at this record i just question that because it seems like there was a great logic to five years didn't do it let's add a year as opposed to adding you know three months or six months or some other number that's between sixty and seventy two you know it to me that makes a lot of sense and that seemed to be very much where she was heading having considered again the now deemed to be correct range the lower range because you seem to have up to i think it was fifty seven months and she was going to give more than fifty seven months because you got sixty months on the last two legal reentry and i would point to the court to it to there was a question about magic words and there's two sites on the record one is on page record on appeal page one sixty two and she is engaged in a conversation with with defense counsel and she makes reference to whichever guidelines i apply and then she interrupts herself and then she asks  clarification now you're asking this is level thirteen criminal history category four but i think she was in her mind and i think she's communicating it didn't matter to her which guideline she was going to make the guidelines findings but she was not going to be bound by those guidelines and she said very early on this is a non guidelines case and then after the sentencing was done page one seventy five she get made right reference to regardless of the guidelines and she was talking about trying to clarify the general objection that defense counsel was trying to make at the end but i read both of those to be if they're not magic words they're pretty close to the magic words that in her mind guidelines don't matter and our burden is to show that the iranians guideline calculations didn't affect the sentence and i don't see anything in this record that suggests that even if she had selected the twenty four to thirty month sentence that that would have changed what her calculation was and her calculation was hear better but he had already had sixteen months and just get your point if she wasn't doing a multiplier of the guidelines range where that would be significant she was saying five years didn't do it let's see if six years does this right and then i would imagine that if he came back again after the six year she'd say have a bad seven and eventually hope that mr vega garcia would finally understood the law counsel said fifty seven months was the maximum but in fact the range under the twenty fifteen guideline with the sixteen level adjustment would have been fifty seven to seventy one month then the maximum would have been seventy one months and i think that that did have an impact that we had in incurring effect on the district court's determination can you point to anything other than the math to support that  no your honor other than the recognition in prior cases molina martinez supreme court cases cases and this car court that actually that seems to cut the other way because it seems like she could have been easily given what sounds like a guideline sentence she could have said there would be a guideline sentence under that you know and given seventy one months if she thought that was enough but clearly she wasn't heading in  rexin of all those different ranges she was really looking at five years now six i don't i'm not sure i agree with you on the clarity w which she was choosing a specific sentence i understand that threshold appeal of the notion that five years wasn't enough let's do six because we think in terms of years which makes sense whereas the guidelines district courts tend to think in terms of months and so i think the fifty seven to seventy one month range could have had that incurring a fact the incurring a fact that's been recognized by the supreme court