case on the calendar united states versus the district court at pages thirty two dollars to thirty three dollars the sentencing transcript which is at the appendix one hundred and sixty seven two thousand one hundred and sixty eight incorrectly determined that only cooperating witnesses could receive extraordinary acceptance of responsibility so that that just continue with your answer the judge summons question but you're making that you're out of the argument as a procedural error yes that is a procedural ever in which abuse of discretion applies because there was a contemporary to contemporaneously a contemporaneous colloquy with mr gilani counsel in which she disagreed with the district court that that is the only way that someone could get consideration for extraordinary acceptance of responsibility rehabilitation or good works voluntary restoration or remorse should not be limited only to cooperating witnesses that is not consistent with three thousand six hundred and sixty one which states that no military action shall be placed on sense that kelso stated i disagree with your honor's position but that is the limit of the objection but we think that sufficient on the rule fifty one that counts of the not need to go further and state that there was more you know a concrete objection other than counsel staining its position in this record denying their position and going back to this point in paper the supreme court made clear that the sentencing judge should consider the fullest information possible concerning of the friend's life and characteristics as people as previously mentioned these were not trivial concessions by mr g alonzo and his wife and his family to give up their home in which their children resided these were extraordinary acts by a man his family tried to make right what was wrong while mr g a larger was not entitled to a particular result he's entitled to a process in which the district court considers that evidence in mitigation evaluation that you would want in terms of an outcome but that's not the same thing if you didn't consider your i think the record is clear and that the district court stated that only you cooperating witness can receive credit for extraordinary acceptance responsibility and even on the matter of voluntary forfeiture the district court made a comment stating well the government could have gone after the forfeiture regardless of the fact but that is not the fact the fact is he all factors that should have been considered on the three thousand five hundred and fifty three dollars if you want in addition the district court in varying upward did not identify sufficiently compelling reason to support the variances impose other than relying on factors that were already accounted for in the guidelines including the fact that mr g alonzo had received separate penalties for his prior case and two violations of supervised release in addition he received i thought that that sense missed the alonso was punished three times over he had shown acts of atonement and remorse in connection with this and those factors were considered in the guideline range he received three criminal history points for his prior case he received two criminal history points for the fact that he committed the offense while on supervised release that put him in a category three that elevated the guy lives and was already accounted for in very awkward and bolts  court relied on the same factors that were already contemplated and as this court has stated it wouldn't have done that had acknowledged it was doing the i'm sorry on the record did have varied upward based on those same factors had it explicitly acknowledged that that's what it was doing saying i know these factors are accounted for but i find them particularly egregious in the case of your client and therefore i am departing upward in that sense your honor i think that may have been more prudent but i don't think that still justifies the major variance that were imposed because they used the same factors to impose a very oh if that had been done with that had been a procedural errors substantive  that would be a substantive substitute right he got too much time regardless the factors were already considered and weighed in varying i want to have it acknowledge that the factors were considered in a way but i'm giving them extra weight because yes you are then that would lean towards a substantive all right error but in this case that's not what happened the district court did not make specific findings as to why those factors which were already accounted for would elevate the guidelines in the same holds true with records explanation that this was a long period of time when there was many x the relevant acts were considered in the guidelines in those units drove up the guideline calculation so each and every factor that district court identified was already accounted for and as i said mr g alonso suffered severe consequences for each violation and his prior case he served his time on those offenses he should not have been reported just based on those factors and he was technically because the guidelines like i said already accounted for the fact that he had to allege supervised release and committed the offense while on supervised release and his criminal history category elevated to category three based on those same factors i see good morning your owners may please the court keith edelman for the united states and i was counsel for below all of the defendant claims which are reviewed for plain error are without merit and therefore the sentence should be affirmed beginning where counsel began his argument the district court simply disagreed with counsel's characterization of mr de alonzo's acceptance of responsibility as extraordinary she did not preclude consider preclude the defense for making that argument she considered the fact that he pleaded guilty she gave him three points reduction for acceptance of responsibility she took issue and disagreement with the word extraordinary and that was simply the judge's determination not to give as much weight to that that it views extraordinary response except its responsibility as only dealing with cooperators defense counsel said quote i understand your honour's point but i don't think that the only way one can accept responsibility in an extraordinary way is by cooperating with the government that's not an objection sufficient to justify or sufficient to avoid planar review that is a again an argument with the district court about what weight that the district court should have assigned to that factor  sufficient as a next explanation for the variance of the court well that's not the only thing the court cited in its explanation as to why that sentence was justified but the court was noting as significant sentence of eighty seven months did not to the defendant when he got out he needed he committed additional crimes but as i noted there are many facts that the district court cited that were not accounted for in the guidelines number one the fact that mr committed many of his crimes from jail is not a factor that is accounted for in the guidelines for the criminal history calculation number two the fact that mr g alonzo was responsible as relevant conduct for sanctioning two arsons of two vehicles was not something that was calculated in the guidelines accounted for in the guidelines the fact that mr alonzo essentially used his brother in law a family member to commit crimes on his behalf another factor cited by the district court that was not accounted for in the guidelines the fact that mr g alonzo possessed a gun while unsupervised release a fact in the p s r the mr gilani did not object to not accounted for in the guidelines and there are many others as well these are all facts not accounted for  guidelines that the district court cited in its lengthy recitation of why it was giving this sentence the district court's explanation goes on for eleven pages or so and detailing all of the three thousand five hundred and fifty three dollars a factors in explaining wh sentence was justified and at the end of that that that recitation the district court said given everything that has been presented all the facts and circumstances that impose a variance of one hundred and forty four months on plain view to this court that is not that's sufficient explanation to permit this court to understand why they just recorded what is it and to give the public confidence in the nature of those proceedings turning back briefly just to a moment as to the argument of extraordinary exceptions have responsibility i note that mister agreement to forfeit his home was not in any way extraordinary the government had already initiated civil forfeiture proceedings against the house at times reading the transcript one has the sense that the government lawyer was almost trying to egg on the the district judge to get two to go above what  on is simply the government's the surfer strenuous argument for a sentence at the top of the guidelines range the government had negotiated this provision which is not in every single plea agreement that it was allowed to ask for a specific sentence within the guidelines range and time and time again the government said we are asking for this sentence all of the description of the of the defendants conduct all of the fact of his prior history that was all geared to the repeated statement that this is what the government was during sentence never raise an objection to any of the government's comments because the government during its sentencing memo repeatedly asked for a sentence at the top of the guidelines range twice during its oral argument its argument to the court said we're asking for a sentence at the top of the guidelines range and even when defense counsel began its argument the district court interrupted and said i just want to make clear the government you're just asking for a sentence at the top of the guidelines range and we said yes your honor this is not an implicit trying to get something above the guidelines it's a strenuous vociferously argument for a sentence at the top of the guidelines range for the lead defendant in a very serious case who is asking for a sentence at the lower end of the guidelines range and so we submit that our human it was was proper in that a public proceeding of another defendant who was arrested alongside mr de long for his association of violations at the at the v o s r so this was not some off the record colloquy that defendant st intimated in his opening brief but  says statements so there's no indication that even if this was improper which again i submit it was not there's no indication this affected judge's decision and again no objection to that so you know no indication that  your own is just picking up on that point but love this circuit is that the government must meticulously honor each and every promise it makes to a defendant when they relinquish the right to a jury trial in this case there is nothing the government could have done the judge might decide that the even that's not enough your honor and in this situation for example most of the government's arguments were imported in the statement of reasons as to why there should be a variance for example the government told the district court did eighty seven months deter him did that stop mr gilani that was the top of the guidelines range that was the sentence he received in his prior case why did the government make that statement if they were just seeking eighty seven months why would they  district court the eighty seven months to turn him we must send a message the government went further they said the offenses for which you're sentencing to don't even scratch the surface of the criminal history of this defendant they also stated that he committed crimes every day without any specification that's when you're saying there's something in the plea agreement that bars them from ray's all your honor their acts their arguments they're allowed to speak specifically of the offense conduct and they're allowed to see based on that offense conduct the high end of the guidelines but they can't paint such a horrid picture of the defendant that they undermine the legitimacy of the very agreement they made even though they can lose is already there even if the canvas is there but your honor these were more ambiguous statements for example he c every day what does that mean that's not justified by anything in the record other than the prosecutor putting their thumb on the scale also saying to the court listen eighty seven months they did the time before was eighty seven months of the top of the guidelines here so what are you  implying to the district court to do and the district court adopts that very statement in the statement of reasons and says eighty seven months in the prior case the not the rd if the government is supposed to meticulously it's agreement that is not how it's done the district court your honor i think this is beyond the district court this goes to when it is this is one of the most sacrosanct at the end of the day and we are going to write something yes you're on this case and i agree with you remember if we agree listen to make sure if we grieve with you what do we say to the district court what gets done in the interest of justice of protecting plea agreements and that the government must always meticulously honor those agreements this something no this record can then consider all of the factors again in a new sentencing proceeding giving respect back to the court respect back to the public that they have belief in that when the government makes a deal that someone waived their constitutional rights which right now they are always going to meticulously follow that deal that was not done here and i respect we submit this case should be remanded but again you're saying so there was an eighty seven month sentence imposed by judge gaffe is previously i'm sorry and that sentence apparently didn't have the deterrent effect that it should have because he committed more crimes right while you're on it correct ok so you're saying that it was improper for the government to mention the fact that it was an eighty seven month sentence because the top of the guidelines range here was also eighty seven months while you're one of the implicit made the argument that he was eighty seven months which is the top of the guideline range in the prior case that and did the eighty seven months that judge theory gave him deter him from committing more crimes i think the court knows the answer because we're here today right and that's it that's that's as close as you can get to an explicit request to go above the guidelines thank your honor thank you thank you both for your arguments the