as to our argument we have two arguments here we have an argument regarding the a pretty partner of fifteen months regarding criminal history and we would like to rest our briefing for that issue and focus on the issue regarding  a new rule of law that has actually been established by the district court which urges that car fentanyl and fentanyl are not adequately addressed in the guidelines there are no reported cases actually in the united states no federal cases regarding car federal sentencing so in a sense this is a case of first impression one thing that we do have here is about one hundred percent deviation from the guideline calculation and as this court has said before the more the court buries the more compelling the justifications are and is a threshold matter i notice there's an error in the judgment in this case in the judgment regarding count four s underneath or of the offense it says that there was car fentanyl involved in that particular mixture but there was not in the in the in the income for in that transaction but nevertheless the district court added eighteen months even to call it for even though we're talking about fentanyl which is a pencil analogue which is less potent than fentanyl so all the more reason why i am asking this court today to to do a review denotable because i don't believe that this is an abuse of discretion case regarding the no because we're talking about an application of the facts to the guidelines so what the district court did since just distilling the his reasons for this judge frank said that i simply cannot set aside the potency issue i looked at the potency and so in my judgment i must add eighteen months for the serious issue there is no presumption that the guidelines are unreasonable i'm sorry a fentanyl analogue is not insignificant if mr edmunds had dealt with five point nine grams of only heroin his sentence would have been his guidelines would have been twenty four to thirty months if he had done dealt with five point nine grams of heroin laced with fentanyl the guideline calculation would have been thirty to thirty seven months but in this case he dealt with five point nine grams of fentanyl analogue and for infer that the guidelines provide forty one to fifty one months so for fifty five point nine grams of fentanyl analogue for five point nine grams you get an extra year a whole year in prison if this had been a kilo you would have got six years in prison so there is a significant increase in the penalty as a federal analog not what the government presents is that under section two d c the drug quantitate will no eight the entire weight of a mixture should be assigned to the controlled substance that is result of the greatest offense level there's no question about that but this consuming lab work it makes things easier so then the government what they conflate it with is common not six it says that deep in it in determining the appropriate sentence the court may also consider whether the same quantity of analog produces a greater effect on the central nervous system in the control substance which is an analog that's true but there's two ways to look at this the same amount of parts of per fountain all is one hundred times more powerful than the same but in the case at bar here in similarly similarly situated cases these dosages are never the same quantity it's the court to take judicial notice that merchants don't wan society the second the second argument that the judge frank talked about in the government documents i'm starting to run but i'm struggling a little bit with isn't this an issue for the district courts discretion i mean we ha previously held that district courts at sentencing can consider a variety of factors and in essence can even those factors that are already anticipated in the guidelines and can fashion a sentence that's appropriate in the district court's opinion based on the facts of the case what is it about and i'm struggling a little bit what takes it out of the general rule here well the general rule is general is this court first of all has never dealt with with cardinal is it a somewhat unusual but secondly the they were talking about an application of the guidelines to the facts i think the case that we cited there was  wells i think this is a case where the court could look at this denial as opposed to us strictly and it as an abuse of discretion there was not much of a record developed regarding this there were as there were it mentions of look at this denotable and come up with some sort of a guideline that that will that will work and have that put together with more research by the court will well let me ask the judge coaxes question a little bit  neither neither one of those i'm reading that what the court did not do but the court did not do was take the mom not sure and that's a good question judge i don't quite understand what with which one of those that is where you're not contending that that a guideline was was a provision was was in correctly applied correct i mean you're not take issue with what the district court did after this the guideline range was was calculated correct yes if you see say that the court  excessively viewed the the identity of this substance and its involvement in the case and took that into account in in reaching the ultimate senate and viewed it as an excessively aggravating circumstance or factor i'm saying the court did not act fully explain how it got to that it talked about putting c but didn't talk about the relationship between potency and the amount of time i mean the court could have said well carton those hundred times more powerful why didn't they give twenty four months why didn't he get twelve months we have no rule to go on ok so is it is a contingent then that the the district court did not all and also to depart operates on the basis of the defendants under represented criminal history to spend the majority of my time on the same issue that opposing counsel spent his time on the district court acted well within its discretion to vary operates by only eighteen months based on uncontested evidence at sentencing that car fennell is as much as two hundred times more potent than fentanyl and that it had resulted that it had caused more than ten documented overdose deaths in in county over just a four month period in two thousand and seventeen i want to highlight as i think both of your honor's were questioning opposing counsel about that the defense has been linked to multiple overdose deaths both in the middest in the district of minnesota and nationally and so there was no contrary evidence because presented to the probation office or to the court at  cing that would detract from that factual finding and on review the proper standard for any factual issues that may be implicit in defendant's argument is plain error it is not a day novo there so you say that you know usually it we look at plane error when when the appellant before the district court doesn't make it make his or her record doesn't object opposing counsel tell you during his presentation is that he feels that there was an insufficient factual record to support the reasoning that the district court provide provided for its upward variance and an adequate explanation that it was one of the last i came counsel stated yes and i and i will get to the inadequate explanation argument but just as a calamity or matter i want to stress that there was no disagreement between the two parties in terms of the factual record about car fentanyl and the p s r was adopted by the district court without objection from the defense and so to the extent that the defense is making factual arguments and perhaps he's  not those arguments should be reviewed plainer now turning to the question of whether there was a first of all if i could just been one quick minute on the issue of whether there was procedural error i did not read the defendant's brief to read allege any procedural error i also think the sentencing transcript makes very clear that the court correctly calculated the guidelines and that it considered the guidelines as part of the mix of factors that led to its ultimate sentence and now turning to the issue of whether the court adequately explained its reasons i think within the colloquy that the court gave justifying its upper variance it basically mentioned two factors one was potency but the other was societal impact and both of those were sufficient to to explain the district court's discretionary desists decision to disagree with the guidelines range and to make the determination that the guidelines don't themselves arrive at a sentence that is sufficient but not greater than necessary to to meet all of the goals of sentencing and i think the best case on this issue is kimbrel in case that was decided the same day as gall when the supreme court was addressing this issue in that connection in connection to cocaine base and cocaine powder and what justice ginsburg stated in kim breaux is that the district court does not have to  h with mathematical certainty why a particular controlled substance should be we sentenced at a level higher or lower than the then the advisory guidelines range the the only thing that the reviewing courts are going to look at in determining whether the court is acting within its discretion in disagreeing with the guidelines on issues such as post potency and societal impact is whether the the reasons and the ultimate  are substantially reasonable and so you know kimbrough this this case is sort of a reverse of what we normally see when district courts disagree with the drug quantity guidelines or the drug quantity table normally we're here because defendants are arguing that marijuana should be treated differently than the guidelines state or that methamphetamine because meth most methamphetamine is so pure that methamphetamine should be treated differently and just as this court has held that district courts can vary downwards on the basis of new scientific information or new sign societal data about the impact of particular controlled substances the court should also affirm the district court's discretion here in trying to take account of new scientific data and very new information about the societal impact of these extremely potent fentanyl analogs and so the district court gave very significant reasons and well explained reasons for why in this search circumstance where the guidelines treat what is effectively thousands of fentanyl analogues as the same they treat all fentanyl analogues as four times more serious than fentanyl itself where there is uncontested evidence that fentanyl analogs have caused numerous overdose deaths and  at least one hundred times more potent than fent knowledge self that that is itself in pure cool evidence that the guidelines have not sufficiently taken into account the societal impact of the drug i did wan address briefly the arguments the defense counsel is making about the relative purity of car fenton all within a poly substance within a poly controlled substance blend and i think both sides agree that the guidelines treat the entire mixture even if it contains multiple controlled substances as though it is made up one hundred percent of the most serious substance but i think where defense counsels going too far is by claiming that in this case there was any evidence that there were only trace amounts of car fenton all within these poly substance plans the labs in this case did not determine the purity of any of the substances within any of the mixtures and that's for good reason because the guidelines don't take into account the purity of virtually any controlled substance within any blend whether they contain more than one controlled substance or not with the exception  notable exception of methamphetamine where purity is what drives the guidelines calculation and so here there's no evidence in the record that car fentanyl was only a trace amount and that heroin made up the larger amount of these samples and in fact as i think defense counsel noted it is becoming a much greater trend for drug users to seek out fentanyl itself and because these synthetic opiates are typically being manufactured abroad and shipped here  large quantities and because of their extreme potency they are oftentimes the driving active ingredient in drug mixtures that is actually more likely to be the case in these drug mixtures as well that the primary component of these poly substance plans is car fentanyl another another area that i believe the defendant is arguing about is that we should try to focus on the dosage and again car fennel that's another good reason why an upward variance is supported here that's because because it is such a uniquely potent substance the court should not assume that someone on the street who is engaging in street level drug dealing is  enough or has the equipment necessary to dose car fentanyl in a way that is safe and that's why we see so many different overdoses that's why this the entire amount should be treated as though it is all are just very briefly on the under represented criminal history argument i will also effectively rest on the briefing on that issue i did just want to note that the court in addition to the court the court in addition to noting that there was assaultive conduct that did not result in criminal history points it also mentioned that there were numerous violations of supervised release and i don't believe the defendant is contesting that there were there had been multiple prior violations of supervised release and those would have supported the upward departure and then finally your honour's the court can also affirm the op were departure based on under represented criminal history based on other facts on the record here the defendant had forty criminal history history points more than triple the number that would have resulted in criminal history category so ask your question just to just to clarify this you know sometimes it's confusing when we talk terms of variance and departure sometimes they're used interchangeably this was on the under representation this was brought up after the guideline range was calculated correct correct and so the government requested the increase saying it's based on a guideline provision which which permits that correct your end of the up upper departure was based on syncing guidelines section for a one point three which provides four point sorry for a one point three a which provides for upward departures based on under represented criminal history last the last thought you'd like us to take away from the argument perhaps by the way before you began i want to thank you behalf of the court for your service in the case under the  concede that car fentanyl is extremely potent what we do not concede and which we need guidance or maybe some expert advice is the relationship between potency and and the actual guidelines how much less potent this is this is the gist of argument we want some kind of a rule out of there because there are right now there is no rule on car phenol in this case thank you thank you very much thank you for your arguments counsel cases submitted the second clue to our calendar for this morning yes right thank you very much and the court will be in recess until further call