williams donning a mask and with a black hood over him and brandishing a gun entered a bank and with his codefendant ordered all of the customers on the ground robbed the bank and then robbed a fense and his role in it was forty one to fifty one months in prison the district court in this case imposed a fifteen month sentence that sentence was unreasonable for two reasons first in weighing the factors under eighteen u s c thirty five fifty three a the district court vastly under valued the seriousness of this violent crime and williams his role in it secondly and you know arriving at this drastically reduced problem one is that i think that the other circuits the circuit has not specifically addressed this question but other circuits have said that the proper benchmark is the guidelines for determining whether or not a sentence is reasonable drastic deviations the more drastic are not with all due respect taking the court's perspective on this taking the guidelines as if they were advisory and therefore should not and i think the courts yes they are advisory but they are not without impact and importance in imposing a reported what the guideline range was under the advisory guidelines and then recommended to the district court that it sentence fifteen months plus was a three years of supervised release minimize home detention so can we supported by the record and in our view would not would not justify such a vast deviation from the guideline range thank you thank you fine line when you're reviewing a discretionary act of a district judge particularly when it comes to a sentence choice but still there is a line and i think the government has attempted to and in fact has crossed that they don't present review under the abuse of discretion standard be legal err legal error would occur where the judge either did not correctly calculate the guidelines or in fact finding made a mistake or reasonable around reasonable six months while i fix and a half months i think the good news is we only have to decide this case and i say that in all seriousness these are very difficult cases this judge sees more bank robberies and everybody in this courtroom what you're telling me is if the ratio between the actual sentence in the mid range of the guidelines was a factor of ten x that would be a reasonable  i think mike this one which is three acts is not i think my view would be that you cannot have a formula and the circuits have said there is no magic they are all searching for a standard is the standard  judge hawkins would give this defendant on this record and if i would give this defendant forty six months which would be the mid range of the guidelines for forty two months or fift that is not our function and so long function is to determine whether it was reasonable or not and that is that we do that determined on whether or not in there the judge made it legal there which he did not hear or whether or with a one month sentence or you might even you think that's very reasoning the fed with court used to do all the time it's the first offense he's got a perfect record he's the kind of person who made a terrible mistake we had put him on five three a factors in here the judge said in the transcript that balancing the seriousness of the crime with the history in characteristics of the defendant it was a close call in his mind but the judge because of the unique combination of factors and he indicated that this made the bank robbery completely a typical found that the history in characteristics of the defendant predominated that's fine that's a thing we agree with but then you take the talking w warranted and the judge fixed it at about fifteen months and the judge decided that when someone has been on pretrial release for one year being supervised and then is going to be in prison for fifteen months and then he's going to get out and be on hundred tension for another six months followed by another two and a half years of supervised release and for a twenty year old five years under the criminal justice system supervision is probably enough and because of the atypical factors opening brief it's a very fact driven argument and i have to say they waived all these arguments and none of these arguments were made in the court below this business with the tattoos and the carjacking and the marijuana use and changing colleges none of that was argued in the district court and they just record in fact found to the contrary as to all of those and now they tell you that we didn't recognize reconcile the history and characteristics with the crime that the judge did his reconciliation was it's a close call but a history in characteristics predominate and i have to say what does the government mean when they say in their reply brief that the defendant w no bathe in the woods i thought they were arguing that he was a babe in the woods and that's why he's category one and i would suggest to this court that all of these arguments are really a request that this court engage twenty eight j letter we sent this morning i cited the smith case from the fifth circuit where they said someone looking at about twenty one months and the judge went outside and gave them sixteen months and the fifth circuit said that there decision to depart from the guideline range was still an application of the guidelines that the court was talking about there was no extended discussion of what the standard of review is for reasonable ness the post book or an else has also with regard to th referenced i would note that in this miss case the court said if the court decides to impose a non guideline sentence the court should utilize the appropriate guideline range as the frame of reference which is exactly what the government is arguing here brief that the average sentence for armed robbery excuse me for robbery not even an armed robbery in the north in the ninth circuit in two thousand and three and two thousand and four was around sixty three months which this would represent about twenty percent of