united states versus birds at the very least consider the sentencing guidelines to provide a presumptively reasonable for a rate of sentence that is in violation of reason thirty one of the facts the excuse me the statement or reasons for the sentence impose counsel who is arguing that facts that are not alleged in proof beyond a reasonable doubt cannot raise a sentence beyond the county used by the guidelines to made sense within the on the within the guidelines themselves this is a point watching off a print but that seemed to be this kind of discussion where one person is talking another person interrupts will bit and says well isn't this really the other thing that's how the colloquy reads on paper and i see it the same code it's use for recessing now that's the quote it's used for a recent thing now now looks to me like nothing more the district court judge saying booker's got relevance to me now in the context of this recent saying i don't understand him to be saying book exception saying you can take this is an interesting point take it up on appeal secondly you have the district court itself considering the recidivism aspect of the bench criminal history you have properly raised arguments by the deprived poor counsel under thirty five fifty three that are irrelevant under the guidelines themselves his age his his drug addiction and so on he's cut killed on a that he screwed up because i'm not following ok i'm sorry you're saying that the fact that the judge  doesn't mention them he doesn't consider the facts in theory that they did that the former counsel raises an under thirty five fifty three when imposing sentence he does not your honor he cuts him off when he's raising those properly raised arguments and goes right  record i believe you take that as a whole it shows what it shows one of three things it shows a physician who are applying is mandatory apply it is a reasonable range of sentences for the record itself doesn't give sufficient reasons and that may be the heart of the problem appear that you you you you're getting it your honor i think there's no doubt that he considers the cruel mystery but he doesn't consider the other factors that are properly raised by this defendant he doesn't bear it doesn't consider the fact of his age  twenty three heard those factors but i believe there is a distinction between what is before the court and what the court considered so to ensure it's rigorous question i think that what he missed was those factors and then come off the same that the judge has to say however there has to be some mention some indication that these factors are considered great so why don't you look if you would have page twenty of the read brief your opponents brief with a bit which apparently here says here are legit instances that demonstrate to you judges of the third circuit that the district court judge did consider a variety of things covered by section thirty five fifty three and then tell us if you disagree factually or if you if you think that is a matter of law those aren't enough your honor i don't dispute the fact that these eleven f before the court either in either by virtue of the pre sentence report or by virtue of the defendant's argument however the record itself in this case does not indicate that he considered the factors instead considered these factors among the other has a exceed granting an exception and grants him right to an appeal under booker the argument that was being made by former counsel respectfully is wrong ok i understand ok idea i'm done considering the fact it was completely wrong here but it seems to me even fan really was nothing more than a judge trying to gently say you don't get anywhere with me take it up if you want to is that really a basis for turning the judge around your honor if that was the only thing you did that point in sentencing it doubles the record i would agree that it would be a generous before ok but at the end he does it again and says you should take it upon pill for clarification in addition you have to i think it is a significance to the point in which this  the fact of his criminal record ok and the fact that his criminal record is compares contemplated by the guidelines there's nothing prohibiting in georgia to take into consideration in the thirty five fifty three also however there are other factors that are properly before this said there are a couple routes a person could take this point i think based on the history you're likely to take that route the receipt of is a route that that's how that reads to me but not but why does it read that way to you your  this case you may have that he didn't apply the mandatory you may have that he didn't do the presumption we don't know that concretely because the reasons themselves are inadequate and respectfully i think it should be remanded to be should be remanded for this judge to be able to  else beyond what was stated in that sentencing memorandum that i could see that would have wanted that he would have raised at that point he spoke about his alleged drug addiction his age the circumstances of the prior offense that he thinks he can be rehabilitated he's got a young son he wants to come out to see all of which were precisely the arguments that were raised and no more than the arguments that were raised in the sentencing memorandum that was is there anything in the record that would show the judge considered addressed several of the issues that were contained in the sensing memorandum specifically requested whether or not the defendant qualified as a career offender and the question of dropping weight and by adopting a pre sentence investigation report where have been prepared to that which address those issues that i believe that is the same as if the judge says i read your sentencing memorandum and i however i adopt the findings of the probation department in that regard instance judge caldwell again sentenced the defendant and there was an objection her request to depart below the guidelines range and a request to deviate under the section thirty five fifty three a factors based on haiti and  clearly his reasons for the sense that was imposed he led the defendant speed guessing squire to consider what had to say that there's even a conflict in their defense counsel claim that the root of all of the defense problems were drug addiction the defendant when he was given an opportunity to speak said i was going to college and i needed some money and i got into this problem so they kind of refuted is i think this is more closely aligned with what the supreme clarification are required about whether booker was mandatory not what's what's your response to that i don't believe the judge was being polite or you have was an individual who was representing his client sentencing who apparently was quite confused in his argument in terms of in which case and base what position and the court clearly agreed that it was a pretty issue but told the defendant if you disagree raise that on appeal and see that can be clarified i don't believe that the judge was treating that as mr joe also suggests that or that should be considered as an indication in court about the guidelines were mandatory but simply the judge say that's not relevant ah i don't need to consider those factors of a guideline range is the statutory maximum that's where you're getting the court said i've adopted the pre sentence report these are the reasons and gave a statement  i don't think the court as in the reading decision or in durham no needs to touch upon explicitly every thirty five fifty three at a back to just indicate to the court that there was a reason basis for  decision and these are the reasons that the individual twenty three and committed to belly drug offenses and was on parole for a felony drug offense at the time that he was a distributor in this particular job tailor a drug distribution operation it is a fairly typical sentencing case and and there wasn't anything extraordinary that would have required course to go into extensive coll the course when you have a defendant there on drug trafficking charges to be sentenced just called well i respectfully suggest did give adequate reasons and again as the court and really said if you were to look at this the opinion it appears that the haiti consideration was mentioned on the record and considered with respect to this defendant you've got a sense in the end that deals with a downward departure on the issue that is not addressed the objections are there and clearly they're over of the court didn't take that into consideration and finally runner i'm not the one exclusively exclusively upon judge calls decision or judge calls opinion that this should be taken up on appeal but he does mention it respectfully twice to the defendant t