the next matter on our calendars united states versus  district court did not have the benefit of holiday of holloway and the combination of factors in this case indicates that the district court believe that it's th as subsequently be lowered and maybe attracted by the united states since and so the combination of these facts that the court d only mentions and it's in its written ruling the career split the supreme court will decide that so without arguing the language i would argue based on principle if the the case i s there is no limiting principle the discretion i mean no standard to guide the court's exercise of his discretion and this is a a very significant statute is a bipartisan statute it's a combination of  if we even if we agree with  may please the court assistant united states attorney could our bod here for the united states the district court did not commit any are let alone plain error in finding that defendant pose a more hernandez was eligible for re sentencing under the st step is a matter of the court's discretion that his sentence would not be reduced debriefing before the district judge at the trial level show that the party submitted extensive briefing on the circumstances of the offense which included the sale of a firearm to sale to undercover officers and intercepted communications the parties to brief the playbook guidelines which remain unchanged from three hundred and sixty months to life and the parties to brief the defendants conduct since the sentencing in two thousand which included a number of very serious incidents while incarcerated with all of that argument and all that briefing the district judge exercised her discretion to keep his sentence as it is in a substantive ruling a few forms of discretion that are not limited by some consideration that has to be made do you agree that that her consideration is unfettered she could do whatever she wants a judge have in this case we don't believe that this court needs to take a side in the circuit split that's developed among the circuits because here it based on the judge's ruling based on the briefing and of course based on the afterwards the record shows that judge fresca did consider the three thousand five hundred and fifty three a factors so i don't think the court needs to take a position on whether she had unfettered discretion whether the thirty five to three factors are required or not of course as we've seen in the ruling noted that there was no mandate or decide to rely on the three thousand five hundred and fifty three factors i think what it what it reminds me of is the district judge saying i wish i didn't have to rely on the sentencing guidelines but here are the guidelines and that's right judge pooler judge me case he did make comments about the the guidelines as they bound him prior to booker but notably judge havey did say that he would have been forced a slightly lower sentence of twenty four years to oppose the circumstances here of the underlying offense were quite serious involving of course a firearm and a broader narcotics investigation but the particular circumstances of the defendant here to really jump off the page this was the defendant serious narcotics conviction by the age of thirty one he had one prior conviction for escape immediately after he was arrested in this case he was released on bail and then fled bail to massachusetts when he was later arrested he was of course put to trial she testified at the suppression hearing and judge mckay the ultimately did not credit his testimony she later was the only defense witness at trial and of course the jury did not credit his testimony because he was convicted so unique circumstances of this case i think certainly warrant the original judgment and at the time the government thought that since it isn't theirs to more than just the very would she have said that if the issue wasn't raised below the judgment was commenting on on the standard for evaluating for a step back to applications but it has not been briefed by the yesterday there is an ongoing split amongst the circuits so the district court certainly did not care we don't believe they erred we strongly believe they did an error in a way that was clear obvious next it was not there was no error in a way that affected his substantial rights the parties kind of reference to the factors into discretion is enough to constitute raising that argument in the court below such better be evaluated under a lower standard but it appears that the judge pressed thought that that argument was being made because she expressed it responded to she said i don't have to she noted as a matter of law that she was not that there is no mandate for the thirty five to three factors but i think the salient those issues in the brief time before the judge and then she noted of course the criminal history and the fact that the guidelines that are insane which are of course to two key thirty five to three factors