my argument on the application of sentencing guidelines for a one point three the issue in this case is whether the district court committed procedural error when it horizontally departed and sentence mr ivey twenty months imprisonment as the record ivey has a criminal history going back thirty seven years one nine hundred eighty it was determined however at sentencing that he was a criminal history category two having only one conviction within the past fifteen years and that a conviction occurred returning that it would up or leave a part of the court simply made a determination that would sentence mr ivey twenty months in prison the court never made a determination as to what the correct criminal history category should be as required by section four a one point three  four but the district court as a variance rather than a departure your honor if that was the case and he did it is a variance we'd be in a very different procedural posture and i and my argument would probably be very different however the district court it is being waged for us and it has to pass of the righty of additional hurdles as a result of the question for a one point three was raised the district court the attorney at sentencing did a rgue that for a one point three should not be applied and that he should be sentenced within the original guideline range calculated by the just require but he never said he said i oppose a departure from my client for criminal history but he didn't say and i also object if you just arrive at a senate and don't take us through why he's a criminal history category for your departure you never made that's not like that should not be required i just ask you whether he said no he did not say that he said he said the four a one point three should not be applied and he said that he should be sentenced with a range of eight to twelve months i think he asked specifically for time served which was just over eight months but what i what you're arguing here is and  in the in that regard having that issue was the very argument you were making to us wasn't at least as i see it but please disabuse me of that notion anyway  that occurred in the court's application for a one point three that was clear the guidelines are clear on to how for a one point three should be applied mr ivy was prejudiced by this given that he received a much greater sentence and this also raises questions on how the courts are perceived given that we have it's given the impression that the courts can just pull out a sentence for almost any reason and impose it without properly calculating the guidelines or certainly was a factual basis for arriving at criminal history category four if the court just said all these bad old convictions and there's lots of indicate that he's his criminal history category substantially under representative for would certainly be a conservative criminal history category for him i wish i was out and on in justice under plane air review except your honor that when you when you're calculating a criminal history category that there's a way to do that not all offenses are supposed to be considered weaknesses when calculating a criminal history kind of or if we look at for a one point two it discusses those offenses that should not be calicut should not be considered it also there's a question in application no for a one point two that offenses that were not similar to the offense a conviction or not seriously dissimilar criminal conduct should not he considered and those were as well so we have for example his convictions for aggravated honor for as operation of a motor vehicle being considered where the guidelines say that though shouldn't we have his conviction for operating out of class of a motor vehicle being considered we have his convictions for disorderly conduct which should not be considered about the three violent assaults thirty and thirty nine fifty nine of the p s or destruction the one fifty eight we're not talking about traffic tickets here no we're not your honor but again we're dealing with the question of which violate which of his parking fiction should be considered and we know that even  all convictions even those that may appear to be serious should not for example the court did point out that one of the parking dictions involved a stabbing but i think it's significant in especially if you compare with the ninth circuit case of bad marriage which is in my papers not all prior conduct should be counted and in bad marriage you had assaults which the circuit decided should not be counted you had other offenses that may sound serious but in reality were not when you look at what how they were prosecutor courts or the stabbing individual shooting individual individuals causing harm to individuals by way of razors razors or knives he slid a couple throats i that might that might be an offense that should be counted then your honor and we're not saying that all offenses may not have been counted but the court should have made a distinction as to which offenses that it was looking at which offenses we circumstance and that's rather formalistic we would be sending him back down to say you've got this war now tell us why he tells us why and it's over and i say that not because i'm predicting that's what he would do but because it goes my much to the question of whether it's playing there well the question becomes whether or not we the first thing that has to be done is the guidelines have to be calculated correctly and once the court decided that it was going to horizontal it apart he kept it within the guideline regime and based on the manner in which he did it in a way he was considering us the guidelines have not been correct correctly calculated so that becomes the planner but everybody knew that and nobody objected to it it was it was not objected at schoenberger me please the court for the government the district court's judgment should be affirmed here and this appeal should be reviewed for plain air just with respect to the standard of review i would direct the court case where the defendant was being sentenced for threatening to kill a federal prosecutor and again and again the district court indicated that it was looking at the offenses in mr ivy's past that reflected threatening individuals or carrying out correct and this is on the government but a number of us have been there where as particularly since the u s attorneys we try to help make sure that the court is doing things right so that we don't have to make trips to new york  and with respect to announcing a particular category it's not a requirement under the guideline or under the law of the second circuit that the category does have to be announced if it is there are sufficient reasons on the record for upwardly departing and there was in this case as the panel has already noted case that says that he didn't have to the judge didn't have to explain why he was treating this is a  versus thomas the cite for that is six f thirty nine sixty and there was similar facts the court was relying on older convictions in criminal history discussed the extent of the criminal history and then simply announced what the sentence was without going by step by step or according to the opinion announcing the category that it landed and were reversed so they know that judgment was affirm him with respect to notice we only need to touch on that briefly of course the basis for the upper departure was noted in paragraph one hundred five of the pre sentence report and in fact the defense counsel advocated against the upper departure before it was imposed by the district court in less the panel has any further questions the government would ask that that district court be affirm thank you your honor i just want to point out that the court never did specifically mention that it was imposing a sentence within category five of the crime was right on i would you disagree with the government a little bit  requirements are that the court do find the appropriate criminal history category and this is within the guidelines where the court shall determine the extent of the departure so that's requiring the court to actually find what the appropriate criminal history category is as judge calibers if i may paraphrase him in one of his concurrences many years ago he did explain the horizontal departure is a decision to shift to a new guideline range and if we're going to shift to a guideline range you have to  but it's either december or january that he is due to get out there's also some errors on his page on the b o p website but if you are going to send this back i do ask that you do it forthwith so that mr ivey does not have to serve any more