this goes to i think the statutory jurisdiction of the court to impose a sentence so it's i would submit that i think the fifth circuit says well you in this context it's more like  review trying to figure out exactly what the jurisdiction of the court is and i would say that you know we always read your sexual statutes narrowly that if there's any doubt about is the jurisdiction the answer is no until there's an affirmative grant and here i just don't see how you can look at the statute and say that it is crystal clear that when congress sent except for this one thing congress also meant except for two other things and so if there's any ambiguity then i think that that applies here is this short didn't have  apply or we can go to twenty two fifty five have a whole separate hearing you know it to be there doesn't seem to be anybody's interest here it's already briefed before the court in that first case they declined to reach it because counsel i guess you know h six or seven courts of appeals that say that you got that because i wasn't clear and i know there are a lot of cases saying that for the fourth plane or the third to whether this really affects substantial rights in a way that's going to call into question the integrity of the jurisdictional problem for the court and again i would just come back to this court's holdings on on appeal waivers where you cannot affirmatively ever waive your right to challenge and a legal sentence and given that intentional wa five motion to go up again to me that seems like a waste of taxpayer money to have to go back and have a whole new hearing on the district court because there are no other facts that we need to resolve this thing is not it either the court has jurisdiction or doesn't have jurisdiction so i don't know that we need alors and so misdemeanors are between five dollars and i think it's fifty dollars or something like that but but this sentence doesn't fit in any of those misdemeanor classifications and you know why congress chose to write this statute this way you know i don't know  but this isn't fit into any of the any of the misdemeanor classifications i guess is turning briefly to the proceed to the sentence that was imposed here of course ration see any reason why we shouldn't do it that way so that it's crystal clear on review what you all are doing it goes i don't understand i thought we held in this historic case that it really doesn't make any difference you don't have to do the departure first and the reason is that it really doesn't affect the standard of review like either way we're looking for an explanation and if there's an explanation here that will justify the degree whether it's departure variance we're asking the same question so why rules you have to give advance notice to the parties and the court is contemplating doing so and so they're being particularly important to know well are you actually going about as a variance or are you going above as a departure and so i think that's why we say you need to let us know what's what so we can review on appeal what you did as a parent and and i wish it as a departure but to me the biggest procedural problem here is when the judge says i'm not going to make a finding that this is in fact he just  sentence where he just says well i don't know you know what i'm going to put my hands because congress has explicitly directed the judge you have to decide this in each and every case and so i disagree with the government that it is a subjective inquiry i think that if it were you know each case is totally different than congress want to put that in the statute because congress has explicitly direct district courts to make a finding about justice and carter this court held that you all do not make findings about especially factors in the first instance because the district failed to make the affirmative finding here i think that's in and of itself a reason to send it back down to the district court can put its reason on the record and then you all can review it her abuse of discretion but i don't under carter you all say that you don't have the right to i'm going to find that i can't make a finding one way or the other about is this a just punishment and to me that's the most important factor of all of the factors as we're going to judge just what is justice what he did reproach you for your protection  one judge and we have several factors you know and one of them is just punishment for this offense together is you want to make sure that society is protected you know so i think here we're asking about sort of this concept justice and given everything else that's going on you know for example he's going to give this guy twice the sentence he would have had if he were brought in t n t to an airport and so again i think that you know that mr grant has punishment which is a whole lot more dangerous than just carry a gun into a school zone and again you know congress has think there are some people that would say guns in schools are just as dangerous people in and not twenty four a for the term of supervised release and special assessment were in correct and the first circuit hill that it was not plain air i noted several reasons wap i will take issue with one thing that mr the court in over a sanchez did not reach the issue that's actually not the case they held specifically that it was a confusing issue because the defendant raise it below it was not plain error so they did reach the issue does the government have a position what the statute means if we were not under plainer review what's the government's position you are forgive me i'm not trying to be cool if such a confusion issue that i'm scared to offer an for a and quite frankly i'm not sure what it means i will say so if it wasn't we if we weren't here on plain error of you you might be a green with mr anderson so you'd be a lot closer call your i'm not  again i'm not trying to be coy i'm not certain what that passage means i am certain it's not plainer in your arm doesn't have to reach a day i think you could read that in a couple of different ways and i have my own fact you got the overwhelming amount of case law out there to disagree from this grand position seems like by definition it can't be plain arrow and i would also like to bring your our attention to a court and we  a case that we cited in our brief i wish i would have left it out a little bit more because i think this does this the appeal the decision is united states v court we did cite in our brief it was a two thousand and thirteen publish not commit plane air off by following the reasoning of another circuit again if the four circuits not reach the issue a district court just not commit plain era by following the reasoning of another circuit and that's poll they did a poll the senate's it's follow the reasoning of and i mean i actually i have i feel that court order yes i would be very nervous about expanding that rule to mean if you can find some court that just respond quickly to the defendant's argument that whatever plainer means in other contexts here we have a statute that is at least legit i'm sorry a sentence that is allegedly outside the statutory maximum and that that is something address even if it hasn't been objected to blow your i think you hit the nail on the head when you noted that the rule when it doesn't apply and the plain error context and i would take the position that it is to the extent you consider it you would consider under the fourth prong of plain error and in this case you are even if there was an error in even if it was plain which it was not plain but we would argue that the court should not notice the alleged era you know for circus make clear since the jurors decision that the plane or a doctor and saves only particularly quote particularly egregious errors in which a quote a miscarriage of justice would result if you look at the big picture in this case mr grant don't believe that it was but i would note if you if you want to consider whether a mr miscarriage of justice occurs here or if you look at what happened mr grant was allowed to plead guilty to lesser charges under the indictment he faced a mandatory minimum  fifteen years imprisonment and your supervisor release and three hundred dollars in special assessment based on this favorable plea agreement he only get three years superbugs release so if you look at that how can this be a miscarriage of justice in this every thirty but fifty three factor i'm not aware of any case out there this is the district where have to explain and break it down as a percentage it just seems like an absurd procedurally just normal have to say well forty two percent was the poor sure you know his discretion whatsoever he explained the senate's at cynicism his explanation takes up more than five pages of the sentencing transcript is a very lengthy explanation he goes through each thirty feet to three factor that he thought was relevant he discussed the seriousness of the fence the history of mr grant the need to protect the public the fact that he was on career criminal torture imagine a district court that went into more detail about number one mr grant has quite a bad record he's a criminal history get a career six at the time it was undisputed he was on career criminal if you look at the egregiousness of the crime it's not a garden variety felon in possession case mr grant possessed three separate handguns on three separate occasions within one year i just north noted on two of the occasions he failed to stop for a blue light he fled from the police at higher rates of speed at night it was a very dangerous crime the second twenty to fifty five so i you know again efficiency of the taxpayer seems always like a good policy for the court but secondly in terms of the standard of review i would note that in the silas case fifth circuit would say that for that second part of the statute that this is not your typical play error case where we're looking at you know could come out of that either way on either it is a legal sense or it's not and then going guidelines there he says it doesn't matter for the purposes of the constitution whether or not the jury you know found facts that would authorize eight a conviction for burglary but the judge just as him to larceny you can only go with the sentence that the court authorize a term of three years you can't impose it on him as usually noted there are significant consequences to a defendant who violates conditions of supervised release supervised release is part of the punishment for the offense i have tried to argue otherwise in other circuit and i've been told that no it's part of the punishment for the purposes of appeal waivers for example so it's definitely part of the punishment of the offense and so again the district court gave more punishment than congress has authorized and that's just not allowed under our system of laws where and want to thank you for your service to the court for year able representation of mr graham thank you so much will come down in great council and then take a short