and i did some quick research on the issue and i think there are several three cases at least on point in the ninth circuit the first case united states versus virgin distinguishes palumbo and notes and thirteen the individuals with still on supervised year of supervised release and even under the guidelines super i'm sorry one year custody and three years of supervised release even under the guidelines supervised release is advisory when you receive one year or less a supervised release the court here even under that by the guidelines is not obligated to impose any supervised release but impose three years defendant and the government decides to impose an average of harsher without any notice and let me stop you there we're all operating in a new environment so we're feeling our way through but as i read the sentencing transcript i don't know that the district court conceived it as an up or departure and he did that if the guidelines calculation and there doesn't seem to be disputed guidelines calculation he said knowing that the guidelines are now advisory that his judgment was a reasonable sentence applying the factors was something higher and he went there vest on his application of his authority under under booker i wouldn't even if it ever viewed within that well even if we were to view it as a variance from the guidelines and section thirty five fifty three a and not an up or departure this court very recently in united states versus evans martinez and that's four forty eight s third eleven sixty three noted that even in the case of the variance rule thirty two h still a were to be considered very a that would notice is still required and i would know that in several cases and i think bokhari from the seventh circuit which is cited in my briefs know that it's even worse when the district court doesn't specify whether it's a variance or whether it's an upward departure because it makes it more difficult for this court to review what was done in the district court and so i think that is just really one more reason why the court should reverse i'm going to be trouble saying it is variance i just think it was explicit that way and that raises a couple different questions you've identified one and martinez does big to the issue what notice is required and there are questions there but also has an impact on all the other arguments and understand you're dealing with case law where for booker's new there seems to be arguments to say for example that you can't consider the juvenile apprehensions because it's not in the in the list that the guidelines that you consider what's that's kind of off the board now is and so as to those issues and in time is limited but but i wonder if there's anything you have to speak to why it is or is there a specific reason why the juvenile apprehensions couldn't be considered by the judge exercising his post book are already very well i think that the guidelines still being discretionary would provide guidance on that and had i had notice and had i been able to look to the guidelines and explain to the district judge in this case that the guidelines don't recommend an up or departure from the representation of criminal history or they only recommend it in the case of the don't conduct perhaps that would have swayed the judge here i'm not entirely convinced that it was an up or departure he clearly spoke in pre book or language of it being a case of an clear case of under representation of criminal history and so the language  invoked by the the district court mirrors the language in the guidelines so i think that it's not clear that it is that it was just a variance but even if it were the guidelines are still there for a purpose and had i had the opportunity to point out the kind of in the abstract i mean the wording of it's a little peculiar makes a statement which seems to say now this is one of the possibilities you could give consideration to these the the report ultimately recommends no but it is is that sufficient notice or why isn't that sufficient notice well because it didn't identify the specific specific legal basis for a greater sentence here and as this court has previously has identified in cases like you know  the pre sentence report must provide not only the factual basis not only the underlying conduct but the specific legal basis for an up or departure as well and in you know cosell gomez it had i think similar language where they identified the conduct and actually recommended an upper departure which wasn't recommended in the pre sentence report here and this court still reversed level in this case we do not have a higher offense level the supervised release was already dictated to being three years and you know that king's the judge case decided to go ahead and give him the three years yes but again looking at the record looking at the different juvenile contacts he already made that decision it would be speculation at this point as to whether he would give him a lower supervise release or not the possibilities there are unless you can foreclose the possibility i mean we just heard from defense counsel for example that had she anticipated what the judge was going to do she would have had arguments prepared to try to talk him out of the theoretical but that's not going to be in front of my reading of the spencer versus chemically supreme court case and that's where we run into problems when we start doing a speculation and needs to be up some possible distinctions but at the end of the day it seems to me it's essentially impossible to say that it doesn't control  a month ago on and so that's kind of the core of this issue right now i believe and any hearing the discussions previously that whether it be up or departure or variance from the judge had ample justification to make his decision well maybe but that's not really the heart of the issue the heart of the issue was whether  and what what evan says is that that rule is the same post book or as pre book and i think again that notice was there first in the pre sentence report it could be argued that and that's why i say the phrase e ologies little for a few years what identifies the possibility of making a departure under the guideline framework for under represented criminal history doesn't speak to this proclivity for crossing the border at least not directly i suppose you could infer that from the laundry list it doesn't say anything specific about that is that know just enough to put the hundred under the cases the pre book are cases that not well how is that noticed i think it's noticing the fact that what other comments would have been different well i'm considering going higher i'm considering departing or varying upwards because of criminal history and because of would have been the same argument that would have been used in one outside and one of the problems with oral argument and you're experiencing it here is you can't tell what you're going to get you made and perhaps didn't anticipate evans martinez if you didn't dissipated i suspect you didn't already in the speak specifically to the details of the case but you aren't and she wasn't anticipating it appears what she got and so she wasn't ready to say to to the judge your honor if you look at the guidelines is very explicit in what you consider and what you don't for up departures for under represented criminal history these juvenile apprehensions aren't on the list you really probably can't properly consider those now that might have been an argument that affected the district court but she didn't make it because it didn't occur to her when she suddenly presented with this situation it seems to me that's what exactly what rule thirty two and the supreme court's decision was intended to prevent from happening right and you know having that went been at the sentencing i still think are are quite good no question about the gods are quite good the sentence would be the same but for our cases don't turn on would have made a difference after the fact they turn on did the defendant have a fair chance to argue the the utter disregard of what was happening in the judicial proceedings drove the judge to go beyond the six months and you have to take that into consideration to with notice on government briefs page twelve the government noted the district court failed to give notice to them or that it intended to impose a sentence outside of the clickable guideline range on page fourteen of the government's brief the government noted although the district court did not advise him or that he was inclined to impose an upward departure and again on page fifteen of the government's brief the government notes the judicial proceeding was not undermined by the district court's plain error not complying with rule thirty two h so i think that any argument that the notice was proper has been waived by the government and this court has repeatedly said that the government can waive arguments and garcia lopez ing and she's like are still open joe in any event i don't think the notice was proper here under the court's previous case law ago at the beginning of the hearing the district court asked why should i not impose six months which was the recommendation in the pre sentence report it was the high end of the guideline range and instead of imposing six months as was only notes provided at the beginning of the hearing the court imposed double that imposed twelve months which is equivalent really in this case of a two level departure in criminal history category from a criminal history category one t