sing for the following reasons the first is that the sentence imposed in this case was procedurally an reasonable because a district court failed to meaningfully consider informally rule on the pending downward governance  your out of the jackson exception is when the governor as i understood review opinions when the government concedes afford to just its authority to depart under a certain guideline ground and then that is that concession gives gives this court or gives this quarter basis that the silence by the district court therefore means that denied the motion for downward departure right so let me read you something here from the sentencing transcript that's mr clancy is conceding discretion at that point i thought that the plain language is there let me in and why isn't that exactly jackson because jackson your honor in that state there are two reasons number one in this case mr clancy on two occasions is asking for a formal ruling by the district court so the government is asking for growing it's not only asking for a denial it's asking for an actual ruling on the record number two your honor in jackson well hold on the city number one them why is that a problem why is it a problem for the court to urge them or for the prosecutor to urge the court go ahead and exercise your discretion and say no oh you're right it's not a problem for the government to do that what it is though is it's giving the court notice of two things  saying you have discretion and rule so not only is the defendant asking but the government itself is asking for it and in general i sure how that distinguishes jackson well i think the next step does your honor i think in jackson there's silence by the district court in this case there isn't silence by this record what you have is you have the government's usually the court at when it's pronouncing sentence making a statement in which it says the government is asking for a ten year sentence which is the statutory maximum and  than the guidelines would provide for this offense that's not the case your honor unfortunately unfortunately for the court the guidelines provide the statutory maximum so there is two things that are operate well that but the the court then goes on to says and it's very presentation  impressed on the factors that a variance could be granted in this case considering all factors i will make a slight variance from the statutory maximum penalty your honor on the variance argument he does say that but then he goes on to say on the court i mean i thought your briefing was that the court did not rule on the departure that is my briefing the quoted novel so if it did if the government said and you've rightly conceded it because it's right there on the transcript that the government did acknowledge before the district court you've got discretion judge you can depart we don't want you to and the judge and the judge doesn't rule i'm having a hard time understanding how that's not well i think the court's silence in your accent with respect to the departure is different from this because what happens in this case your honor is that you have a statement of the defeat of the confusion regarding the ten year statutory maximum and the guideline range in this case they become one in the same when you say confusion the court says i mean it's true that under the guidelines the stats straight maximum becomes the guideline range but it's also true that when you calculate the was going on that seems an awful big weight to put on a lady in ri your honor i believe that there is a the record has to be looked at as a whole and despite the concession by the government that there is discretion to deny them the authority or deny the downward departure motion you have to look at what happens in the entire record and that includes the government asking this court to dish according scuse me to make the formal ruling he doesn't ok then what happens is that you have these statements that sentencing him position of sentencing regarding the ten year maximum then you have his judgment go has gone or is going forward we guarding the regret or how you want to characterize it but the the policy considerations regarding these guidelines give those three facts going on at the same time that in my mind your honor distinguishes it from jackson because if it was just enough for the government to concede discretion then it would make other decisions of this court and specifically the more recent decisions of this court in thomas through the substance there and in this case that's what happened you don't know where the starting point is under the guidelines you don't know if it's a well at least under jackson we've said that we infer that the court understood it had discretion if it's if the government tells it it's got discretion so that if it doesn't explicitly rule we will infer that it was that not that it was knowingly denying that's the tenor of jackson's right you know i would agree but the inquiry doesn't stop right then you can go beyond that and you can deal with your country step three well and i don't think we run to step three on i still think we're stuck at step through  reference to the recovery efforts you say that helps you because the court didn't really rule on the addiction as such but it shows that you know awareness of this of this situation awareness of the facts that really support you know what you think the departure should have been your honor it shows an awareness of some of the facts because the facts of wrong for the court to say i've heard i've heard your various arguments for various and i and i think they've got some merit i'm going to in fact very weird the error well your honor the error is in  say your position is that since prior counsel argued he's got an emotional problem mental illness with o c d he's got an internet addiction he's got i can't remember what other problem where there's and and we've got to point to problem because the deconstruction argument that in order for this not to be reversible the district court had to go through and say well here's what i think about your o c d here's what i think about here's what i think about your inner diction here's what i think about yourselves your son's a guideline argument here's why it's not enough to say i've heard your variance arguments i think you've got some traction and i'm going to go ahead and give you their eons your honor respectfully i disagree and then explain why there's two problems with the number one is that the three step process is there for a reason but and i understand that the three step process inform step three ok stuff one step two so i think it is important that this language of this court has been formally rule of the step two but going to step three with a variance arguments and i don't want to concede that i just want to put that out there what the court says at sentencing i think it's important to look at one thirty one thirty two of the record it says first of all i want twenty seven the court apologizes to mr henderson from posing the sentence and then he goes it's at one thirty one and one thirty two he says mr han  had nine or eight years is a rather long is rather is a long sentence and i think that some of these penalties for this offense are more serious than they need to be now if the government excuse me if the district court was including ok the variance arguments under the umbrella of i've heard what you've said and i'm going to vary then i believe the court would have said at that point mr hand had twelve years is a lot of time and some of these penalties are more worse and they need to be but he doesn't what he does is he says eight or nine years so he's talking about the sentence he imposed ok which is a ninety six month sentence the next sentence becomes these sentences are more harsh than they need to be what that shows in my mind your honor from reading this record is an ambiguity because it appears he is agreeing with the policy this this a policy disagreement with two g two point two but it also means he didn't consider the variance arguments because if he did he would have said from one hundred twenty that's where you have a district judge saying th are they are prepared to very i mean back very and want to send it back your honor but i want yes in this case i want this case to go back because there were considerations before this district court that were they didn't follow the two step process i believe that what would we tell th court judge to do what are we going to tell it this record judge to do it at the at the level of detail you've just described how does how do we explain to a district judge how to eliminate all ambiguity from the sentencing statement so that we won't have an uprising defense counsel coming to us to say yeah but if he had said that earlier in the transcript it would be different your honor i think the enterprise in common is a compliment certainly thank you i appreciate that your honor but what it what i think the instruction is what has been instructed from this court throughout which is a meaningful consideration of the pending factors this court has said to the district court that if you have a properly raised argument it needs to probably and we have a lot of just approaches who do not like the sentences that are required that are suggested to be imposed on the child pornography and clearly the judge thought this man it was probably not as responsible probably because of  illnesses i don't i agree with judge jordan really places quite a burden on the district court and if you can write that opinion in a way that we all wouldn't have to get out of dodge when we see if street cred challenged in the elevator  it's very tough i think you know if there was one problem and it wasn't mentioned that might be something totally ignored and seen like that the district court didn't even realize it but with the the litany and the testimony of the evidence of all the things that were wrong with this  first one of if you would want to respond to the to the jackson argument that you're posing counsels here i disagree with  my colleague i think this is jackson and i think it even goes a little more than jackson in jackson the the ruling from this court was that if the prosecutor acknowledged the court discretion this court could infer that that discretion was exercised and jackson said that that practice would continue post booker and here twice the prosecutor raised the judge's discretion so there really is no ambiguity there is nothing in this record that could make this court think that the district court did not realize it had discretion with respect to the departure the one  that defense counsel how accounts a would like is for the judge to say the word denied but he did that without saying it defense counsel at sentencing effectively said judge i want to record silence is not something we're happy about it is not we don't for practice right we don't want you doing man and yet here we have the district judge doing precisely what we've said please don't do even in jackson saying please don't do and the government saying we'll let it slide again is there a problem there well i think the district court in this case did a little bit albeit a little bit more and that was say i will grant a variance so we know that's that three that isn't step two doesn't address the step two problem understand it we've got it's we've got no ruling on the step two when we have repeatedly said it's just records you have a rule you can you really have you actually have to rule and so if if every time we're confronted with this we we hear somebody say jackson don't worry about it have we just taken gunter step two and made a nobody i don't think all the time your honor and certainly not in this case because in this case this court clearly realizes that the district court knew of its discretion  and i think that is what the main concern is do we know whether the district court realised to have discretion this is not a case that going forward is that the assistant remind the judge if the assistant did it will be ok if record reflects the district court's knowledge of its discretion this court has said we can and for the exercise of that discretion what if after you're saying that the district court impose sentence without mentioning the word variance or departure if that were the case it might be different but that was not the case so you're saying by also by referencing variance that was it was implicit that he was of the two he was choosing variance had this court said nothing had the district court said nothing i think we would have a problem had the district court done with the district court did in loafing and said i hear the difference between departure and variance and my practice is i don't rule on departures i put on variances that would be a problem but here there was no challenge to the concept that was raised when i reminded the judge she had discretion so looking at the variance piece of this would would you agree that the so called the construction argument that two argument is an on it was argument that's a serious what the court because because this is what this is what jack sense as the case that the government likes so very well it says the record must show a true considered exercise discretion on the part of this report including a recognition of and response to the party's non frivolous arguments that's in the context of the own with thirty five fifty three day it is and when the district court said the words that you read out of the transcript when he said to mr handor and worse the effect of i think some of the sentences in these kinds of cases are too severe i think that tells us that he heard the  deconstruction argument he considered the deconstruction argument and that was part of what formed the two year variance that he granted along with the other things that he mentioned of course your opponent says the that can't be right because when he talked about the sense he talked about the sense he gate with the variance as opposed to the guide light sentence being perhaps so severe what's your response to that that assertion that there's ambiguity there that shows the district court that this record has left us with a record that doesn't reflect the considered exercise of of judgment with respect to this non sarka i think what that does is inject ambiguity where it does not exist this court has always told district courts that it must be able to tell that there was careful consideration of the thirty five fifty three factors and that there was consideration of non frivolous arguments and the court has never required district courts to parse out what goes under each factor and to explain what fits into each compartment it allows the district courts that discretion to speak as they do and go all the way back to the supreme court's ruling in rita where it was a very very thin sentencing transcript in the supreme court said where a matter is as conceptually simple and the record makes clear the sentencing judge considered the evidence and arguments we do not believe the law requires judges to write more extensively this court has never required its district courts to use some magic words and to fit all of the reasons for a sentence into neat compartments and what we see in this sentence is not only quite a bit being talked about at the sentencing proceeding itself but that departure motion raised in the pre sentencing memoranda that and that the fence pre sentence memo was extensive and it's clear from the record that the district judge read that in considered all and then gave out and sent will was it was the argument made to the district court that all of the second circuit or decision that this guideline is upper end of the guideline it makes it impossible to make individual eyes the solution is there anything in the record that we're reflects engagement with that argument i i wouldn't call it an engagement  went to its final statement and impose sentence the sentencing guidelines for these kinds of offenses is one of the things he talks and unless this court is going to impose on district courts some kind of length requirement or or depth requirement about how it responds to all those arguments i think it has to take this amount the judge said in this case i sufficient it shows u that the court considers the argument that the child pornography guidelines are too severe and the court also knew that the calculation of those guidelines was one fifty five to one in one and that the statutory cap on the offense brought the guidelines down to begin with so it's not like there's nothing that can give us the impression that the argument was raised and it was completely ignored by the court that certainly is not the other thing looking at the sentencing memorandum it refers page twenty two counsel says is requesting a downward departure and or sentencing variance and then when the downward departure is actually referred to it's referred to in light of the fact that he suffers from mental health condition and has taken extraordinary measures to rehabilitate himself and that the judge in this you know handing this to you is furthers your argument i guess the judge does refer to his efforts to rehabilitate himself he certainly did and to the extent you say that that's kind of the the proxy for that argument that might might show certainly that's true but what if anything should we do to help district judges to address shift back to gunter step two now for a minute you tried by my count like three or four times to get the judge to rule on the departure motion that was at least twice in the sentencing hearing and and it was mentioned in papers too on the mistaken so you try to get the court to do it and we certainly recognize you know we're not encouraging the age of sais to run up to the bench and grab the judges by the collar say no no you know you really actually have to do this so you did what you could but is there something we should do what would the government have us do recognizing that there's this precedent to get judges to rule on departure motions should we be saying something well i think the court has said it already and i don't know it's not working right i don't know if it warrants reminder but the court does allow inference from what is said on the record and in this case i think there is enough to uphold this sentence i i'm loath to say that this court should to use magic words because quite frankly there was no departure motion filed in this case there is a section four of a lengthy sentencing memorandum with the heading the applicable hansen's are directly related to mr hans mental health conditions and then in the first line of this the small print respectfully requests the court apply it to our departure but if you're reading that you know is there an archer requested in here if you don't have a motion you have in the memorandum the district court judge i might if kind of glossed over that myself well and i think the difficulty with that is you know glossing over it to the point where it is not addressed at all it is not considered and then that puts the question on defense counsel of fact of representation so we do many times we we take that reference in the sentencing memorandum we elevate it so to speak to a motion for downward departure  and we write about it we talk about it in court and here we are but i don't think if i can get back to the to the very beginning the core in my last minute what this court has always looked at is whether there really is ambiguity in the record as to whether the district court knew it had discretion and in this case there's nothing in the record to give us the feeling that the court did not know it had discretion and if that's the case and we know  that were made by defense counsel in granting that two year variance off of an already capped guideline thank you thank you was an eight or ten months being i'm sorry eight or ten level departure being the high end of the range in that case it was not it was not germane to the sentence into the issue which it was remanded for but there was a cautionary instruction to the district court to formally rule on any departure motion and did exercise its discretion i don't know how clear in those type of caution or rewords this court can be the district courts i think in this case is one in which a remain and should happen for every sentence him to formally rule on the departure motion  step two to make the process clear and then let them go through it step three informally rule on the step three motions i think there is ambiguity on the record i think this case is more like loafing than the government the government pretends it to be involved think yes there was a blanket i am not going to consider downward departure motions but instead of them it's that three the court doesn't deal with the downward departure motion in this case and does consider some of the factors at step three that doesn't cure the failure to rule step two when it goes back deny the departure when i think i mean it's going to the shortest might be the shortest resentencing undermanned your honor it may be the shortest sentencing known to man however it is something that the defendant is entitled to and this court isn't to which is a clear record and that record may be that he may he may deny the downward departure motion he may deny the variance motion he may impose ninety six months but at that point the record will be clear as to what he intends to do and what factors into his sentencing decision and what doesn't