eighteen months now the court didn't do that by analyzing departure issues in applying the guidelines the court didn't depart so to speak from the guidelines and in all fairness to the district court  occurred you know shortly after booker and before this court's decisions in many whether in those winds of cases but nevertheless what i what i would argue to the court here today is that there were in  fact no issues that would support a partner under the guidelines and that the district court's decision here was based primarily in large part on its view of the offense and i think it's has to be an appropriate calculation and you're not challenging that because that produced a four to ten months is that right that's correct so then under the the general or general factors that are committed to the district courts discretion  then he went through it he seemed to focus heavily on the particular nature of this offense the grabbing the passenger and creating terror fear amongst passengers and the  like to some extent the under represented criminal history and then there's the suggestion that there was the structure of justice because he didn't show up with one or two of the we're not i'm not arguing that technical flaws here or there or there might be in that we weren't given notice but i'm i'm not going to raise that issue for the same reason that's not really taken technical issue on the last case evolving regime we're all wrestling with what should he have done what in order to are you saying there's no way he could go to the above guideline range or what should he have done to justify draw the well i tried that i guess for a couple of reasons number one distributes conduct on the plane was really fairly similar to the type of conduct that these kinds of defendants get in a court could depart upward for obstruction of justice but there had to be something unusual about that something taken it out of the heartland of the normal obstruction if you will and here what happened it's just this defendant  church fish or pointed out there were a couple of other factors but yes with the obstruction of justice i think he did because that that had already been taken into account  so unless there's any other questions i'll reserve to remember my time calculation and my understanding from reading mr nash's briefing and hearing his comments before the court this morning is he doesn't necessarily contest that there was a and i can guideline calculation by the court the second step down really terrorized people on this plane he placed his hands on a passenger which is certainly a very concerning thing i think any of us would agree that and when you're in a confined circumstance and somebody placed their hands i learn context of many traveling other people that that is a serious situation i the bottom line from the united states perspective it is that the court consider the guideline range you consider all the circumstances of this fancy as well as all the three thirty five fifty three that that just sort of pertained to his general approach to the prosecution and the commission of this crime and i knowledge that it was worse after the commission of the crime but i don't think it's something that the district court was necessarily require three factors yes i am your honor i am going to get this because it's the government's position that i'm weighing the thirty five fifty three a factors that we're not looking at a departure there were simply considering a factor let me ask you this question if this was pre book or and we were guarded by these guidelines would you agree we'd have to send it back because of double count correct issue do so if the district court judge is going to rely to some extent voluntarily on the guideline and the district judge makes a mistake on that guideline and should we have the district judge reconsider based upon the guideline the thirty five fifty three part of the process but though it was obstruction under represented criminal history and danger to the flight crew in th  restricted from considering in the course of making the thirty five fifty three a calculation and some matters that may have to change the guidelines