this is a case where my client was caught in a trap essentially he pled guilty to a state case where the sentence in pennsylvania runs eighteen months to twenty three months and just before he finished the minimum eight months when he would have been eligible for parole had the parole with already filed the proper paperwork there was apparently a dictator filed by the federal government and the federal on may sixteenth of two thousand and seven at that time he had fourteen months credit if you count it from march eighth of two thousand and six to may fifth sixteenth of two thousand and seven because our whole argument before judge read was that there was a continuous period of incarceration with no intervening arrest that was never disputed by the government or by anybody else just ok so let's go back to judge across this question though incarcerated and serve the twenty three months this is not true he was never he was never from the time he was first arrested on the state charge until he was finished with his federal time he was never out that does not appear to be variance from that from the record here he was sentenced and it really at the two thousand and four but p s r indicates that he was released he was paroled from state custody august thirty say and i have done the research and about one third of the people who are career offenders are very good a variance and that variance is typically in the last near thirty four point i believe the substantive reason on reasonable because if he admits that there's a variance that is necessary keep in mind this man pled guilty under the assumption that he was going to be so weird in the neighborhood of fifteen to twenty one m district court applied the sentencing guidelines in this case the meekest came to the same conclusion the district court did and the plain language under the non presidential panel decisions of this court established that the district  procedurally correct and calculating this defendant as a career offender in the case are only dealing with a circumstance where there was no one in fact no intervening rast or do we have an arrest or clear up in terms of the record that we ha with criminal activity after he was already sense and serve time for the regional states rights press as a snorer you know i wish i would have made in our appellant brief and i think it does apply here as an alternative basis for affirming the district court but in the first instance the district court correctly found that there were two separate cases with two separate charging instruments sentenced on two separate states and and although perhaps a more direct path might have been the intervening arrests we think that that basis was sound but looking at the record in the case it does appear that this defendant was not arrested on the federal case until after he died in august two thousand and five  and that's that's really what we would have to look at nationalizing intervening arrest because there were there was an initial conviction in bradford county for an isolated possession of methamphetamine in june of two between that initial arrest and the federal indictment that would we believe practically kevin as as an intervening arrest as well in fact i think he was sentenced and they asked in a consolidated fashion at all those bradford county why wouldn't that mistake by the district court be procedural rare this is why we don't think it's procedurally or judge fisher out first of all it appears as if they're for as a technical matter the de did making a motion for again were departure but also argue in the alternative for marriott's and the district court indicated and we think the record probably shows this i think it's a page eighty seven of the  but determined that it was it was were favorable more advantageously for this defendant to proceed by way of a variance i think the district who are actually referred to guideline provisions under the career offender provision that talks about the ratcheting down ratcheting i think is a term of art discord in the district would look at the next rung of the ladder on the criminal history categories and determine whether or not that was a reasonable place to sentence the defend it when the district court and i'm also responding to the court's recent question on december two where the court asked about the significance of what appeared to be the district court modeling  the career offender guideline when in fact what judge grant was doing was assessing whether or not a departure was more advantageously achieve percent same goals the district court was looking to achieve as opposed to a so i think what the district court decided to do was proceed by way of a variance i think that i think you can infer from this record that the district court weighed a departure but determined that he could only go down to a level a category five under the criminal history categories and decided that that range of one hundred forty to one hundred seventy five months i think that's what the court said it at the passion but it does it does indicate that he technical application of a career offender is correct i think he says technical application is correct on the preceding page but the court goes on the say i think the approved way to deal with that is through periods if i were to deal with it through ameliorate the effect of a career federal guideline in this case and then proceeded to step three which would be very sensitive to the extent there's a procedural error and here we think it's maybe because the what the actually to be one point one calculation would have been had the defendant not been a career offender and it just required was also aware that a departure was available under the provision i referred to in the career offender my but decided that that that one criminal history category departure was going to be insufficient and effectively didn't deny the departure didn't affect the rule on the departure but constructive denied it in favor of merits and decided balancing different factors including the potential disparity nationwide that's where the district court looked at the sentencing commission's percentages and came up with as the date for that intervening arrest and you can see from the p s r that that's impossible for the simple reason that he's being said state to twenty three months there's thousand and four that that has to be an error judge because on for eight tool for you to count eight months from there you go to twelve breakthrough for two thousand and four and you're talking about an arrest effects that he was observed he had been paroled and he was observed with drug manufacturing equipment after he was released on that first trast really if that's the case judge then i would concede this entire appeal if that was the case that that  december eighteenth two thousand and four after the november twenty three arrests so so so you're saying the peace are strong yes but what happened in august that what he was but it has to be a reasonable sense judge and it has to be we understand you think it should be less than what it was not just less than what it was but it should have reflected that he is there is no recidivists aspect to understand that but