believed that its discretion was limited refused to consider certain of the arguments i missed the words i missed the last word in your sentence state again the court believed that its discretion was limited it refused to consider certain of the arguments prior opinion that wrapped up what booker health that's correct that's correct and i think i don't get it i thought that the judge plainly looked at the guidelines consider them for the advisory value they had form recognized that he had discretion to treat them as fairly advisory and then sentence i don't get what the problem is the problem is that we  based upon a number of factors that were consistent with both thirty five fifty three and then were departures gave drugs considered and the judge did not consider them well the judge said he did you said the judge read your memorandum it was on your memorandum you so here  you so you read the memorandum and you cited thirty five fifty three and everything like that so you're say it was everything you're about to tell us today was in your sentencing memorandum and you're saying the judge didn't pay any attention to it i'm saying the judge read the memorandum but at the sentencing hearing said that the guidelines were higher than what we've requested and that the arguments that have presented to reduce the sentence were were not none of the arguments that were presented are available and or persuasive and some of them are contrary to law or persuasive is what gets me i always have trouble when somebody says the judge didn't consider something thinking how do i know whether he just overlooked that or whether he considered and rejected the contention and when he says persuasive what that means to me is i considered what you said and i disagree with that i reject it and i think the problem is that the court didn't say persuasive she said unavailable inherently ambiguous at she means or persuasive obviously right you don't have said and slash or as but it's the only thing it could mean but one thing when she says that why doesn't that mean some of the arguments i don't think are available by law and even if they are right and i persuaded by because that's not what the court said and to the extent there's ambiguity about what the court said what this court  on that narrow ground to clarify whether the court believed it could consider my arguments the arguments that we made for a reduced sentence were all the available to the judge and none of them were contrary to law in spite of that the court said none of the arguments have been presented to reduce the sentence are available and or persuasive and a couple of them are contrary to law well what arguments were you making that might have been contrary to law and i do arguing that any priors had to be proved by a jury found by a jury to be true no your honor the government raised the points of the terrorist tours shephard issue with the prior convictions my sentencing memo is abundantly clear that i was simply preserving that for appeal i did not in the memo ask for a reduced sentence on that basis and it was not discussed at the sentencing transfer the senior member of the home interest or as argument right it is in the memo and one of the arguments a  is on page ten of the excerpts of record it's entitled objection to use of a prior conviction on page eleven i acknowledge that the laws against me but line seventeen i say raise the issue to preserve it for further review and for none of the arguments plural are available and are persuasive and a couple of them plural are contrary to law second i did not ask for a reduced sentence on the basis of the stores argument it is that the end of the sentencing memo involving the issue of reasonable notice it is the question in this case maybe a little bit different in that do we have jurisdiction to sister that's correct and i did notify the court of one other panel i know that is considering it no other courts that i'm aware of in the country have agreed with the government on that position most of them have cited the straight language of booker which says that the courts will have jurisdiction for reasonableness over sentences that are within or without the guidelines let's assume that's assume that we do have jurisdiction without addressing the broader issue of the cases of the ninth circuit have said so far cantrell is probably the case that provides the most assistance thus far which sets up the two step process first an appellate court reviews the one got one year one got two years which dozens would be reasonable that would certain it would be unreasonable it would depend on the facts of the case it has to by definition be an individualized determination that was the whole point of the book or opinion the constitutional opinion which was that there was a sixth amendment violation or arising from the lack of discretion the remedy was to restore discretion i still don't get why we should think the law is right there and thirty five fifty three you made your arguments the judge says in your quote of what he says none of the are going to have been presented to try to reduce the recommended guideline sentence are available and or persuasive and a couple of them are contrary to the law basically a couple of more and as for the rest why shouldn't we just assume that the judge did just what he said he considered everything for reasonable miss under thirty five fifty three under the guidelines and he just wasn't persuaded and he is the district judge because she didn't consider everything she considered only the arguments that as you know she didn't consider everything because she stated that she believed some of them unavailable and a couple of more i mean if you write something and you've got a capable diligent district judge who says that she's considered the arguments and that she saw persuaded by them why shouldn't we instead of assuming that she didn't because she didn't reciting each one assume that she did just like she said i think the court is taking this a step beyond where we need to be if it was simply a matter of the court not finding my arguments persuasive the court would have you asking us to do i'm asking the court to remain and on the very narrow ground asking the court that it was error that the court if the court believed it could not consider certain of my arguments as a matter of law and where did the court sentence your client sentence we ask for the first time yes if you're already if you can do that she didn't know she could do that she didn't know that she could consider my arguments in support of doing that i will reserve my t good afternoon erica frank on behalf of the united states may please for court i'd like to address three points today first the procedural reasonableness if you will the decision then the jurisdictional issue and finally the and she can stated that she considered all of the defense submissions she did not indicate that she was that she felt bound not to consider any of that and she still imposed within the guidelines set so what do you think she meant by not available well i think the fairest reading of the record is that she was referring to the prior convictions argument possibly the request for downward departures which that analysis has not changed post booker and i think if you look not at the defendants sent the memo but at the government's opposition it starts out refuting the the prior conviction argument and then moves on to the downward departure argument and so there are at least two arguments that were unavailable and contrary to law and that is the i'm not sure i understand the question here well you know we law we have burdens of proof we have different different burdens of proof right we each we quire each side of a case to have certain burdens of proof upon the defendant it's my understanding that sentencing is now the way it was pre book or that is that it's a preponderance standard because the guidelines are now advisory so there's no constitutional dialed only tell me specifically burden it's my understanding your honor that the government must prove that it's more likely than not in terms of sentencing facts but that that's obviously for the district court to decide to prove beyond a reasonable doubt or preponderance of the evidence somebody say that the sentence was reasonable the stands well first of all that there it's important to distinguish between procedural reasonableness if you will which is following the supreme court's analysis in booker applying the thirty five fifty three a factors and doing the proper procedures and then beyond that there is this further step that suggested by cantrell that in some cases the court can go beyond that to look at the ultimate sense that it's is looking at the length of the sentence it's the government's position that the court does not have jurisdiction to reach that second question in this case because this is a within the guidelines sentence that was procedurally proper let me ask you something about the facts of this case to make sure i understand them for their bearing on reasonable ness i don't know whether to judge reasonable ness you start at zero which one might infer from  ferguson's question or whether you start with the guideline range which you might infer from what the supreme court said in booker or whether if start with the statute which is what congress said that leaving that aside in this case if i've got the right case and i understand it right what's up dr convicted at this time was reasonable or the guidelines this reasonable well even and this circuit has already reached that question and has definitely said without a doubt that the guidelines are the starting point we believe the guidelines are entitled to substantial weight in the inquiry because they already cover many of these thirty five fifty three a factors the guidelines also reflect almost twenty years of collective wisdom in terms of what is a proper sentence to impose and the guidelines help to reduce the sentencing disparities among defendants which is another thirty five fifty three a factor so certainly we believe the guidelines are the benchmark and that any guideline sentence is presumptively reasonable guidelines well certainly it's the government's position that that a reasonable sense here might very well have been much higher than the one that he received based on very extreme criminal history you don't have to worry about proof of that because it's but if that wasn't why the sentence was higher if the judge said gee you know i didn't really think enough about this donut shop thing i didn't give you enough time the first i didn't have my mind on the donut shop then it wouldn't be vindictive right us want to go back just briefly on the on availability controversial law issue i think we have to take the district court at her word you don't say unavailable and or unpersuasive and a couple of them contrary to  if you're talking about unpersuasive did you ask for clarification did not district courts were still very much struggling and they are still struggling but at this point back right after booker was decided this court in this instance believed itself found in a way it was not  because that was error and it was a sentence imposed in violation of law this court can remember on that very narrow ground without reaching the broader issues that have been briefed extensively and are at issue across the country substantially presumption of reasonable s any of those issues thank you counsel thank you united states versus sobers submitted will here united states versus