policy disagreement with the quantity amounts contained in the methamphetamine guideline we know that the district court misunderstood its authority both based on the words that the court chose to use such as example saying it can't provide a basis but also based on the reasoning behind the court's denial of the request for a variance it's the comment that the court made as it relates to kant's provide a basis is in mr purposes sentencing at age seventy nine there the court said in my judgment that it can't be those arguments can't be can't provide a basis to displace policy decisions that congresses made and that the sentencing commission has based on them so not only did the district court err by saying that these arguments can't displace the policy decisions of congress in the commission it also erred because of the reasoning behind that and that is a deference to the institutional competence of congress in the sentencing commission which kimbrough explicitly said does not apply in the quantity context of the guidelines because the work that the commission and congress did in this instance isn't based on the normal imperial work that the commission did when it created the guidelines the court also use words like choose between two alternatives choose between implies the court recognized it had a choice and it seemed to me that if you look at the analysis that incorporated in this case a little tricky because we're not only looking at it the sensing hearing transcript but also the one that was incorporated in the incorporated one the court rejects the premise of your argument in other words it's not a question that you present an argument that says oh well you know this is all based on relative harm and  and in essence the guidelines are arbitrary because they rank crack cocaine less severely than meth and meth is and crack cocaine is less is more harmful the court it i would get the premise of that and therefore  because i reject the premise of that i don't buy your argument and yes it talks about institutional competence but if you have the one what i think the government prefer to use cherry picking in and if it didn't it seems to me that fits i mean what goes so i'll stop now explain me why i'm not right your honor i agree that the court said the words like judgment and choice but the choice come in the court is talking about is actually the nd example that i was going to provide about error when the court said choose it was in and as the court pointed out the other cases transcript at page one thousand and twenty one i'm forced to choose between my own assessment of empirical data about various drugs relative harm and the judgment made by members of  choose the latter that's consistent with my view of the courts in our system of government in particular the role that the courts play in that system so i understand the court use the word choose no question but the court wasn't stationing it as a choice between the policy disagreements that we put forward in the bases or the reasons that congress created for pegging the guidelines to the mandatory minimums instead the court said when i'm faced with that choice i always choose congress i believe that's by her role as a judge in a separation of powers context and this is the the nd sort of category of error institutional competence separation of powers that normally that makes sense the court should defer to congress which is already rejected your you your harm policy argument and if it's rejecting your harm policy argument it this is what i want to understand is it does your argument go so far as to say that if a court is is faced with a policy disagreement a potential disagreement it looks at the disagreement it talks about it it understands where you're coming from and it says you know in this point of lack of uncertainty i recognize i can make a choice to do what you want me to do but i also recognize that the sentencing commission has a lot of smart people in if in this well move on certainty i prefer to rely on the sentencing commission is error if the court doesn't at least in gauge somewhat in the underlying reasons for those if the court is this court engaged in your underlying reasons it rejected your harm rubric you said look this is are in essence this is arbitrary because structure so the court engages with it it says you know i don't i just feel by that and therefore it's as well in the situation in never use the word always it to talk about its institutional role but what i'm saying again if the court chooses to do that always that's inconsistent with kimber but it it's a it is or is that we're always in there i'm looking at the context in which this comes up if you had given it a slam dunk policy reason to disagree in the court recognizes its basis to disagree that it can it's authority to who's to say that it would have done so and then there's nothing i didn't see always in there your honor i agree literally the word always does not appear in the transcript  flash for move for nd to your preservation issue of course that issue occupied a lot of my mind because it seems to me i just don't see how that can work in explain to me water i'm wrong your why aren't you obliged to object when the court speaks your honor the way i understand the way the court phrase it a very or to articulate i do think there's two sort of divergent paths in this  i think there is i don't i would call it fair to articulate but maybe we're talking about the same thing a figure to explain of a lack of sufficiency of explanation for a particular thing that the court does so the court for example imposes a condition of supervise release or or whatever that particular issue is and then the defendant on appeal says the court didn't provide enough rationale or basis to support that in that instance i believe you're correct the court this court gant is a case that the government pointed to in the reply brief requires an objection at that point but that's not the air that we're complaining about here were complaining about a legal error that the court made when it denied something that mr purvis affirmatively requested the rule anticipates the scenario federal criminal procedure fifty one dollars explicitly says in subsection a that exceptions are unnecessary and we cited a th circuit case bartlett in the reply brief that explains that this is what an exception would be do you object again after the court provides its ruling or the basis for its ruling i really i'm sorry good the rule in subsection b explains there's two ways we could preserve a claim of error the st is by as the r says informing the courts when the court ruling order is made or sots of the action the party wishes the court to take which we did we filed a supplemental sentencing memorandum requested a variance requested it again at sentencing so clearly that was made in the nd part i would almost it doesn't say one in two in the rule but i would almost say subsection two were the parties objection to the court's action and the grounds for that objection it doesn't say and so we did the st we sought an order filed supplemental sentencing memorandum we cited lopez of below which is a two thousand and seven case from this court's that i think explains this distinction this is a case where colorado doesn't have a fast track program apparently maybe that you today for immigration offenses many jurisdictions do this a lot immigration cases in some places it speeds up the process maybe not there's been some discussion though in our in unpublished decision about what lopez of means what it stands for and how the rule is or not in that case without before i get to that i would want to talk about this question of what you asked for what you asked for was a variance the court didn't give you a variance i don't think there's any question at all that you can object to the fact that the court didn't give you a variance subsume reasonable miss you could make that argument that's not the argument you're making the argument you're making is the court did not recognize its authority to give you a variance how do we know that the court didn't recognize its authority to give you a variance because of what it set and so when it said what it said and sought that's is there language in your in your supplemental the one that you incorporated that specifically talks about the courts of the worthy to do what you wanted it to do we said it jimbo obviously in our supplemental sensing memorandum that lays out much of the court's authority the government's response sided spears i mean those cases were certainly before the court the issue here is and i think what the court is asking for for what to occur is would apply i don't think is any limitation on it st of all i think what the court asks here would apply to every single sentencing issue that comes before a district court oh a guy like can i just jump in there and i think the problem is if you're standing there and the court is still saying things that you disagree with and you're not saying mr district court you're wrong with that you are misunderstanding your authority you're not saying that at that time and that causes us to be here today right trying to piece together what was actually meant to i mean so that's the difficulty rate is that i mean had there been an objection you know court you misunderstand your authority the court would have said no i don't i understand or yes you're right i yes i misunderstand so that that's the problem that we that were put in today is going back and trying to read what happened when there's no objection your honor we we saw a ruling we gave the court the proper authority if this is correct i mean we're again we're not complaining about the of the explanation you didn't give enough explanation we're complaining about the legal basis that's every sentencing issue that a district court or this court would see but if there's no is it really i mean you what you would there is a distinction between asked let's assume you asked for a guideline adjustment you wrote in a memo sentencing memo saying give me this adjustment i want this adjustment blah blah blah you get to the sentencing hearing the court denies you the adjustment i don't think anybody's going to question that you have a right to appeal that you preserve that but when you speak the words that indicate that you didn't do it and why at that you know there's this sort of substantive were home a procedural error where you ask for a thing and you don't get it and then there district court and when the court gives an explanation the court may err we may give the court the standard for an enhancement of the gun guideline in connection with in connection means x y z then when the court explains why it's denying our objection to that enhance court explains in connection with improperly even though we've explicitly said here's what this means we're going to appeal and we're going to come before this court and say the court didn't understand him apply the improper rule to in connection with and the court air should have been applied so i don't think there's any limitation on what the court proposes here it's been applied to every single error again it's inconsistent with the rule but this court's authority and with the recent supreme court decision holding her hand as if i could reserve that last minute i james brown for the united states your owners the record does not reflect in any way shape or form that the district court thought it lacked authority to vary based on a policy disagreement supplemental volume one of the record on a at pages one thousand and twenty which which the court referenced in the in the in the colloquy with my colleague but show unambiguous leads at the district court consider defend its arguments appreciated it had discretion to vary based on those arguments decided those arguments could not carry the day in the courts mind and ultimately decided not to there at the bottom the court had a policy agreement with the guideline not a policy disagreement with a guideline and based on that policy agreement the policy agreement was to punish methamphetamine offenses more harshly than crack cocaine offenses based on that policy agreement that is embraced in the guidelines they were flex the sentiments of congress and by extension the will of the people the district court and what's the policy i mean a policy is not a harm policy because that policy would be arbitrary when it based upon the arguments are making so that's not that's not what the policy is decided we think that that kamber well we don't think cameras aside correctly no we don't think it's decided correctly we think that all the court has to show to get air here the defendant has to show that the court thought it lacked  the authority to vary based on a policy disagreement that's it and here the record just does not show that the council can i just stop you so what maybe you can express lee address what do you do with the court's comments how do you it and then after you and you see what the district court did district or talked about his reasons talked about the relative harm and parable basis what went on at length about the history the methamphetamine guideline what congress thought and didn't thought of congress did it didn't do and then rejected the defend its basis for a very it's based on the on the empirical evidence i think you can say that the district court considers are it argued his arguments and rejected then now the ambiguity comes in this because the court used the word can't provide a basis the court could just as easily use the word does not provide a basis or may not provide a basis but we think that when that comment is viewed in the context of the various other comments the district court made we think that comment is written so it will with with our argument we don't dance not it's only comment i mean does it go to the point the judge i deluded to the court now goes on and it's in the with my view the court jester right of government in particular the role that the courts play in that system divorce just saying the court made that comment after saying i agree with the guideline i agree with the guidelines for the reasons judge browning said in his opinion and if you go to judge brown ins opinion judge brown talks about how those guidelines represent the will of the people expressed through congress for as a policy reason to treat to treat methamphetamine offenses more harshly than crack offenses and in the courts and says i defer to congress here and the reason is because i agree with congress i agree with the policy reason i agree with the policy argument i cited the browning decision the browning decision sets forth the reasoning behind that policy decision so crack the court recognized its authority to depart downward it chose not to depart downward and for four added spice it said it said that is consistent it i'd alluded to a situation a hypothetical if you will and what what the court actually did was not necessarily say that it agreed you know affirmatively indorse the view of the policy of congress but let's assume that what it did instead was say well look i'm not particularly persuaded by what you put forward as a policy basis for me to disagree and therefore i'm inclined just to to stay with what appears to me to be generally a uniform system in other words abyss is generally a uniform system yes i can understand there could be deviation but you just haven't made given the a powerful enough reason to disagree so i don't have to say that you know i buy into this wholeheartedly but what i do say is generally they're right and i support that i mean it would that be year no that wouldn't because congress that the district court can agree with congress you know that's our that's our whole point they destroyed can't but what i'm saying is it would be an inclination not a particular allies agreement what it would be essentially saying is you know that this you haven't persuaded me to disk agree and therefore i am going to it here to what is generally inappropriate sentencing scheme well we don't think that would be err because in the courts hypothetical the court has stated i'm not persuaded by your reasons and that's all the court really needs the court doesn't have to have to get down in the dirt and do its own empirical study and come up with its own conclusions and talk about the in purple flaws and and all that the court can say i'm just not persuaded by your reasoning and here the reason that the court ultimately deferred to was that congress expressed a sentiment which is expressed in the guidelines to treat crack offenses less harshly than methamphetamine offenses the district court agreed with that district  knew it could depart or vary based on that reason the district court chose not to there's just no can grow error here there may be lots of atmosphere it's that it looked like the district court might have might have not appreciated its discretion but we think when you look at the entire record which includes the sentencing hearing before and also to raise decision you know it's a very important decision of the court goes well thirty two of that decision the court can see the reasoning set out for  said i agree with judge brown and reasoning in the re is decision and the court directed the parties so that the court goes to that decision that the reasoning is set forth so we think there's no way that this record shows that there was a disagreement and there's no way this record shows the district court thought that it could not vary based on a disagreement the only thing the record shows us is that the district court a greed with a guideline and chose to follow it and was not persuaded by the defendants who directly based arguments to reject the guideline why didn't you raise an argument on the nd on the plane or i mean are you are you that confident that you're right that you would not make an argument on you know when to me that's an easy way to dispose of this if they didn't preserve it well we didn't really we were confident that there was an error we're  in any event if the court accepts the this is that the district court agreed with the guideline then you know the court didn't appreciate its discretion it still goes back to your remit in the court and still agree with that on one plane air we we probably should have your in your regime we would just have spaces it's so many specific objections just constantly i think it's the argument can i get you to respond to that well you know the the the we basically agree with the with what judge holmes was talking about in his colloquy with my colleague and that is that the defendant here made an objection to the sentence argued for a variance asked for a variance if the district court had didn't grant his objection that would be preserved because he asked for a variance that's the rule you saw but here we have a procedural issue and just like failure to explain the sentence you know this court's this court's law is that the district court has to contemporaneously object and i think your honor can appreciate the reasons for that because of your two contemporaneously jack makes us piece the record together on appeal and read tea leaves as to what the court really meant what it all could have just been cleared up a simple objection here to defend it he did not object on the basis of the court mis understood its authority to depart based on a policy disagreement he didn't give the court any reason to think that there was any error procedural error error in the explanation of a sentence or anything like that so we think defendant does have to object to some form of procedural error that is not necessarily encompassed by the ruling that he seeks and what what he what do we do with locus of below i mean it seems to me that eat any fair reading of that failure of articulation it is similar to failure to adequately explain the sentence and this court has very clearly stated that if the you're to adequately explain the sentence to preserve that there must be a contemporaneous objection so we think the court compares to those types of cases and applies the rationale of those cases the name escapes me but that is that is the district court's ruling that i mean that is that is that what this court says you have to contemporaneously object to the adequacy of the explanation of the sentence that's the ramiro case and that's said and for whatever reason we chose to find that it been preserved in my mis remember it i think the court is correctly remembering that we did not reference the lopez appeal a case because we thought it was a clear a clear case of of the air not being preserved it's he didn't object on the basis the district court misunderstood its authority to depart court to brief points in response to some of the arguments raised by the government counsel on the air issue the court judge holmes you sort of put forward this hypothetical where the court just simply for the interpretation  persuaded by the reasons that were given below we respectfully disagree that that's what happened here on in the supplemental records but the other sentence sentencing at page eighteen the court set i start in a very different place than his argument begins so we don't think this is an issue of the court engage those arguments the court consider those arguments the court instead just sort of stepped over and said i defer to congress this is my role all the arguments we've made previously on the preservation issue again will repeat our argument that this is a never ending situation it applies to all sentencing issues and where do we draw the line if if we said judge we think the court is there in this brown in the court provides a different explanation do we then need to object  it would be the case yes we have the rule yes we have the plain text of the rule we're going to have to harmonize that rule with whatever precedent we absence then right i mean that's where we are in the press an include romero right ok