reasonable this review as this court is very much aware can be in a review for an abuse of discretion and frankly the failure to exercise discretion can sometimes be abusive in the context of this case there's two aspects that are kind of troubling st the physical circumstances aspect as i'm sure you're on is are aware most of the time when you raise a physical circumstance issue very often you hear from the other side of the surgery in february of two thousand and eighteen but when they came out of surgery and sent him to the surgeon the problem here was the surgeon says we can't really fix this condition he has a plate in his jaw that is impinging on his teeth that is also causing persistent pain and infection and much like judge lynch's analysis in the him in his case there's a difference between physical circumstances scenarios where an individual we're talking about a potential for a problem whether it be a heart condition or whatever but we have an existing condition that's causing consistent pain infection plus blood all sorts of problems that are accruing on a regular basis frankly even the government acknowledged in their sentencing letter to the court was incorporated in the memorandum that he has persistent pain and affection yes i it sounded like a terrible situation physically for your client it wasn't clear to me that it could be remediated by anyone it wasn't just that it was not remedia by those in the prison medical system but that this was a going to be a chronic condition and you know it was very unfortunate but it did i miss anything in in that fact it's a chronic condition that exists to this day that he has and what somewhat disappointing a little bit is when you raise that issue you would expect a little bit on the district court level to engage the process let's engage this problem in a way that really meets with the issue much like judge lynch did in yemen is because he did in fact engage and make this distinction between potential  but the district court gave a recent and detailed review of your client's circumstances and gave his reasons for his decision not to in typically we hold those to be non  distinguishes these the fact is judge i would say to you if your honor really and i'm sure you have looks at that record of the judge's decision with the judge does is he look basically incorporates the probation  then the judge summarises counsel argument on both sides and then on the physical circumstance question the judge simply says in one sentence i'm simply at hearing to the arguments demonstrated above but then again we tend not to find those decisions refuel less there's an indication in the record that the district court misperceived the scope of his or her authority to depart i didn't see anything suggesting that in record i missed something you know i don't think you have misjudged missed on that issue judge and i do recognize that the case law in general has that proposition but what we're addressing here is substantive reasonable this and a question of when you have an actual impactful elice that is sustained on a daily basis shouldn't the district court make that type of probing inquiry analytically to say why this case  some sort of departure consideration that's what did not occur here and it not only occurred here but it also occurred to a certain degree with the nd issue which i think is an interesting wrinkle that you do not see every day in a particular case not only did we have the physical circumstances you ation but we have a young man and it does mean a lot eleven months is a big difference between category three and category four that's a significant amount of time in jail time who's on the th point who i  he's one point lower he's in category three acknowledging and what is the one point ironically it's a two thousand and fourteen marijuana conviction which in the present day and age would not even be prosecuted you get a summons to go down to three hundred and forty six dollars broadway and you pay your ticket or andal it in whatever way you deem is appropriate but that one point placed missed in those from category three into category four now i would acknowledge your honor as you've indicated on this issue we just got a little glimpse from the judge very little frankly as to what the analysis was which was the marijuana issue is not dispositive but on the other in the court said i'm concerned about violence in the past although one of those incidents and i do acknowledge the one when he was fifteen years old is a serious incident this was a young man who was basically a teenager with a psychological issues in a history kings county psychiatric hospital mother it's filed the pins petition obviously came from a very poor area that doesn't condone what he did it fifteen but it did place it in some sort of marginal perspective you simply asked the court to consider and i recognize what your honor is saying a category four to a carrot a gory three departure it's not asking for an extraordinary necessarily relief and yet what the court kind of did is it only really engage the question in one single a sentence and then didn't really engage the physical circumstances you in any sentence in any way did you move for reconsideration after the district court imposed sentence i didn't even know that we could make a motion for potential sentence to be frank about a judge even though i've been brought this in for thirty five years the point that may not be ordinary but just your ear i assume you made the arguments you making to us to the district court on the st go round not only was it on the st go around but the interesting thing judge in and frankly i'm looking at it is only you really look from a district court is engagement embrace the issues discussed the issues fully what i believe the district court does and i don't mean to say it is the judge incorporates the entire probation report puts the two councils arguments in context as part of his decision but doesn't gauge any gauge mean of the issue in any way beyond that point sort of just that a category three departure would be appropriate just for justice for the district judge to sentence you've ever made i'm sorry judge argument you never made it to the district judge the st time oh no i certainly made it the argument in fact i even argued at the point that you could consider two or three but certainly a category three departure based on america and then the same thing with a criminal history is made all those arguments that absolutely judge all of those issues were raised fully and the government responded to those issues accordingly as well but all of those questions were completely addressed in full development before the record before this is that somehow a judge to respond to you that he understood or really properly evaluated those arguments to a degree that's my argument in terms of the engagement of the physical circumstances issue because once again this physical circumstance it was within the guidelines correct it was a sixty month sentence guidelines were from fifty seven to seventy one months correct in the range correct there's no question that it's a guideline sentence but the question that as i started out to say was should the court of exercise some discretion for these issues and more meaningfully should the court have really engaged both of those issues in a more meaningful way the reason why we are here is precisely because the physical circumstance issue is pain that is present that is pervasive that happens on a regular basis which as i said was conceded by the government did we really engage that process on that and then the marijuana question is a very very unique little issue that frankly should have been completely developed by the district court most respectfully the court did say that he did not find it dispositive which i understand but was it a real engagement on the criminal history analysis because the guidelines obviously allow for that type of departure possibly one level down etc and it seems like they were almost clairvoyant that if you establish the proper reason for a court shooting gaijin it any other questions thank you very much we'll hear from the government please the court my name is andre spector and i represent the government a subpoena i was also one of the prosecutors assigned below there's no doubt that mr snow suffers physically and the government below agreed that it was a condition that the district court could consider under