and that the portion of that sentence that corresponds to the career planter guideline here and the other counts was at the other will the guidelines range had your client would have been if you were not a criminal a career offender i'm specifically she said the court believes that defendants career offender status overstates the seriousness of his actual criminal background and therefore departed to an offense level of twenty six dollars and a criminal history category of five court did state the age and the role in the offense but priests booker departures were very very limited and effect the guidelines have a specific offender characteristics section in five age one point one the guidelines that were back at the time that talk about age and say that age including cute is not ordinarily relevant in determining whether a sentence should be outside of the a political guideline range and then go on to say that age plus some type of medical disability might be sufficient so age alone pre book or i know it's different now we look at three thousand five hundred and fifty three a factors but pre book or age alone really was not a basis for a district court to depart from a guideline calculation so how do you get around that in in the pre book or world that mr millis was sentenced in age alone might not be sufficient but here he goes to his guideline sentencing scheme other than adjusting the guidelines themselves from minor parole can you cite something that would have permitted the court to downward depart based on  i'm not sure i agree with you that it a pre political or world courts hands were pretty tied on what they could downward depart from in the the court here did downward depart on the criminal history overstating the seriousness of of the criminal background that was a legitimate reason in a preprogramed world to downward depart but these other factors were were really founder constituted actual prejudice what about the label allows you to make the argument that there was a hydraulic effect such that that sentence was higher than it would have been otherwise a it was limited based on the group and hence the well let's get back into the argument that you started with which and that we started with in terms of our questions about whether this was a career offender sentence at all because of downward departures that the judge applied and whether there were any further legally available downward departure is below that that would have been available so we've covered that ground there is a concession by the government here that the district court as expressed some skepticism about concerning the st two steps morning your honors and thank you may please the court i'm scott simpson on behalf of the united states by my kilt this is michael miller says thirteen collateral back on his sentence and we probably would not be here this term if he had been convicted after congress backing of nine hundred and twenty four dollars c convictions under one indictment that's the true source of the petitioners complaint here as millis is brief i'm sorry miller says beef is really with the former statute not with how he was treated under the guidelines he was actually treated very well under the guidelines although they were mandatory as we've been saying been no us was convicted in one thousand nine hundred and three the district judge essentially disregarded the probation officers classification of millet's as a career or offender and gave him a sentence again on the counts not controlled no your honor is as i understand what the guidelines provided for at that time the judge could not have had to park it down for her and looking at those three counts that were not affected by the stat but actually if i could clarify talk a little bit more in detail about the mission officemate that last calculation was incorrect since the probation office was using the wrong count for the level in calculating the range for the group bank robbery and felon in possession counts in their probation had done that correctly the mandatory guidelines range without the career offender des nation would be one hundred and thirty to one hundred and sixty two months so what the judge actually gave him on those counts not affected by the mandatory minimum was one hundred and ten months at the bottom range time and given their mandatory status offered no there we go basis for downward departure and that's my understanding your honor my understanding is he could not have departed down further so the question is did he suffer a miscarriage of justice i think i think that history answers that question obviously that's not a miscarriage of justice to get such a low sentence based on what the guidelines were providing miscarriage of justice quote given that he received the lowest possible sentence under the mandatory guidelines close quote so millis his argument boils down to theorizing two is speculating that the judge  might have departed even lower if the probation office said not classified him as a career offender but that argument is contrary to this court's decision and hawkins we've already referred to the decision on denial of rehearing of the hawkins opinion is that a miscarriage of justice does not occur based on the mere possibility that the judge might have given a lower sentence if he had not calculated advisory guidelines range nor why is the defendant was both designated and sentenced as a career of offender as this court said it's on page six hundred and twenty seven dollars of the navarre is decision quote it is not clear that mr navarro is i'm sorry it is now clear that mr navarro has never should have been classified as a career of offender and never should have been subjected to the enhanced punishment resort to such repetitive and violent offenders close petition is brief cites quotes a statement from the bars decision to the fact that a defendant has a quote unquote absolute right not to stand before the judge as a career offender that was that the ver and the paragraph near the end of the decision in a section that was simply responding to the government's arguments right before that absolute right comment the court said the government is corr that mr navarro is does not have an absolute right to a lower sentence so so so so it seems like that the court's comment about absolute right was basically prompted by responding to the  we were correct to say that that mathis committed our facilitated burris we do talk about some additional issues in our brief and more difficult issues about this court which because of the issue that i've been talking about we don't think the court needs to address here but as to as to the poor of your corruption judge brennan as to whether as to whether came from mathis yes i think that was a correct concession but i could talk a little bit about about the petitioners for the sentencing judge's comments they talk  about the sentencing judge judge's comment that he would have given millicent even lower sentence if he could have really again as reflected in chief judge sykes very st question in this argument the judge's comments seem to have been largely prompted hearing in fact the judge talked about how he had looked into the six circuit case law to confirm that indeed the government could stack that nd one hundred and twenty four c conviction and found he found that the case law supported that and he went on to say he said if i could quote just a few sentences from the senate saying judge this is from page five of the sentencing transcript quote it seems to me a strange law that you then he hesitated i can see if you committed one robbery and then were convicted of it and then committed another after it that in the hanssen of twenty years would be appropriate but to have an enhanced when they both came together before you were convicted seems to me to be unusual but it seems to me the law seems to be the law so again that reflects that that the judge saw this whole the what he saw as the excessiveness of the sentence as caused miscarriage of justice because today the port did not in fact apply the career of offender guideline to the petitioner i could talk just briefly about one of our other arguments and i hadn't planned  to talk at all about all of the many difficult chasing related and and davenport related issues here an alternative to the to the holding we've been talking about that is holding that the district judge did not actually  y the career of offender guidelines an alternative holding is that no us cannot establish a missed kick miscarriage of justice because his ohio conviction was indeed in fact for crime of dollars of the government's appendix to our brief that's a document that in the party's breeze referred to as the plea related document quote unquote that document is actually analogous to a the in looking at those two versions of the documents that the petitioners petitioners submitted and we submitted in our pending there's a there's a fax notation at the top of the documents that we submitted and i don't know the relevance of that i actually was not involved in the briefing of this case so i was not involved in the receipt of those documents the copy of the judgment that have this this intrigue of dismissal document from the prosecutor just like an indictment an indictment obviously isn't signed by the defendant either and that entry of dismissal document signed by the prosecutor indicating  which as which count mr mr miller's had had pleaded guilty to so again the documents are unclear and since the petitioner bears the burden of showing that he suffered a miscarriage of justice you can't do that here again assuming the court needs to get to this issue at all the petitioner can't do that here because at least one of the state documents clearly indicates that he pleaded guilty to what the th circuit has held as a violent  signatures i think there's a practice of redacting actual signatures now of course names you wouldn't redact but i think some of those are so some yet you're all right thank you anything