the first thing to note is that in poker the supreme court stated that the sentencing guidelines were advisory and they didn't make any exceptions to that they just said that the guidelines were advisory so that would include the guidelines regarding criminal history points and when you consider that i think the best way to interpret this is that the district court does have discretion to say that the criminal history points are overstated and especially in light of the fact that since booker the courts are required to look at the other three five five three factors carefully and not just look at the sentencing guidelines and part of that is the looking at the characteristic of the defendant and when you consider that  but we don't have the guidelines advisory and we can decide whether the criminal history is overstated considering the characteristics of the defendant is there anything on this record that would suggest that if we did something like an anomal resolved against us by a pretty but in response to jeff hawkins question of a prior council judge burns did not indicate that he felt that the the if he did say specifically at least the tenor of judge burns as the statement was that he felt that one hundred twenty months was a little more than he would have given i think he would have given the guy li presenting to the court today but i think that when you look at the case law that the other circuits have come out with one of the main points that they seem to make again and again is that section  asked cannot be advisory because there's nothing wrong with judicial fact finding that that acts to lower a mandatory minimum sentence and so booker can't possibly have pie and i would just i agree that book doesn't speak directly to an issue of calculation of criminal history but i would point the court to particular paragraph or two paragraphs in booker that do suggest that there may a fix proposed by the government apparently the government's proposed fix was to make the guidelines advisory where the constitution would forbid judicial fact finding that is where the where the judicial fact finding would act to to raise the said we don't believe we do not believe that such one way leavers are compatible with congress intent so it wasn't a constitutional issue at all but only an issue of what congress had in what would congress have intended had it known that there was this constitutional problem and it said we believe that congress would not have authorized a mandatory system in some cases and a non mandatory system in others given the administrative complexities and so forth and there is no book or issue with the safety of our calculation because there is no constitutional judicial fact finding problem with it i think that the answer to that is to step back and to look at what justice prior says the court can consider congress intended or would have intended had it known that there was a constitutional problem with some portion or some aspect of judicial fact finding and so when you look at this case what does as determined under the sentencing guidelines mean when you're looking at criminal history it's not the case that anyone is really asking that the court find this portion of or this aspect of as determined by the sentencing guidelines advisory for constitutional reasons but merely because congress would not have wanted a mandatory system to apply in some cases like this one and a non mandatory system to apply in other cases congress can certainly establish offenses and systems in which some people may be included if they meet certain criteria for better or worse depending on what the system is and some are exploited if they don't meet that criterion but when congress does it when congress did it in this case it did it under a system in which argument this case isn't about that as at least as we see it from a stressed be no so this case isn't about making an exception to a mandatory minimum or or ignoring a mandatory minimum it's about how to apply a safety valve statute that itself already carves out an exception to the application of a mandatory minimum this court doesn't have to do anything to make any novel  rejection of a mandatory minimum statute because congress already did it in the safety valve statute this case isn't about ignoring a mandatory minimum it's how to understand what congress meant when it said that you get a safety valve or you're eligible for a safety valve reduction if you have no more than one criminal history point quote as determined under the sentencing guidelines that already exists you're not three prior convictions has always been   nor when it occurred nor any facts about it what what the issue is is how do you how do you define quote as determined under the sentencing guidelines in section  one and when congress established that statute as defined under the sentencing guidelines meant as defined under the sentencing guidelines in their mandatory form but that's not what it means now it means now as defined under the sentencing guidelines in their advisory form because as justice prior wrote in booker the sentencing guidelines are advisory as to every case whether there's a constitutional problem with a judicial fact finding mechanism or not the guidelines are advisory as to every single case because that's what congress would have the tenth intended and so it's not an issue about the fact of a prior conviction or the effect of a prior conviction it's how to define as determined under the sentencing guidelines now that the guidelines are no longer mandatory thank  judge burns sentenced defendant the desk motherf to several years over the mandatory minimum so if if the erotically he believed he recognized at that point that the guidelines were advising and not mandatory and had he years over the mandatory minimum was enough in this particular case but certainly implicit in that decision is that something above the mandatory minimum was necessary given the various factors in this case of pointed to a number of the cases both within the circuit and out of the circuit have found that the plain language of thirty five fifty three f prohibits courts from imposing a sentence follow the mandatory minimum w defendant has more than one criminal history point and given what those courts have found to be the plain language and evidence in congress's intent that not occur i don't see consistent with congress's intent in fact congress took a holistic approach to defendants that it didn't want to see and sentence below the mandatory minimum and to whether to strike one prong and essentially find that it's discretionary not mandatory would lead to perverse outcomes someone who you know although they didn't use violence or possess a firearm or do in any of the other things that are provided for   the courts are right in that we really know what congress well you can look at the plain language of the statute and as interpreted by both the circuit and other circuits that  more than one herman history point unless a sentencing court finds that the criminal history overstates the seriousness of the the person's prior criminal conduct so i mean you could with three or four words make clear if you intended to adopt a and then in terms of deciding what the actual sentences they are to consider the thirty five fifty three factors and in pronouncing a particular sentence but i think judge burton was right in this case at the sentencing hearing when he indicated that the safety valve prong that relates to criminal history is really a mechanical problem it's calculating the number of criminal history points it didn't that regime did not adopt the departure regime that the overall sentencing guidelines always overstated the seriousness of a particular defendant's criminal history and that obviously then move what the sentencing range would be that that the sentence the courts were selecting a sentence from even under the mandatory regime so well what  courts would have what you would have expected to see if what congress was providing for was a regime more in keeping with the overall structure of the sentencing guidelines namely not only counting points but also determining whether departure appropriate you would have expected pre book or for this and other circuits to find that although courts may not have discretion on imposing the sultanate sentence and departing from the guidelines they do have discretion to depart downward in criminal history and in fact this circuit decided the exact opposite in a lunch and drafty where even though the sentencing court believed the defendants criminal history was overstated and recognize that had the ability to detect part downward in criminal history this circuit found that that particular departure regime did not apply to the safety valve statute because of the pla progeny but even in the more fact intensive context of deciding whether a defendant was truthful in a safety valve debrief this circuit has recognized post poker that's an appropriate area of judicial fact finding and given the fact that the traditional view of criminal history is being in the purview of the sentencing court there would she seem to be no reason to make an mandatory minimum the court although it could take into consideration consideration the sensing guideline range it would be free to sentence the defendant anywhere between the mandatory minimum and the facts authorized set maximum sen plying the guidelines were things well no it wouldn't have the discretion to do that because the sentence the mantra minimum sentences or as a result of facts that have been either admitted by the define in the context of this plea or found by a jury following a trial so in this case the facts that are used that trigger the mandatory minimum are facts of that very nature each of the defendant reasons too to cause a sense higher than that but certainly he had full discretion under thirty five fifty three to fashion appropriate sentence between the mandatory minimum and the statutory i thought somewhere i recall that he did  discretion and then he made various factual findings including the fact that he believes defendant the desmond was the main player and various other things that led him to impose a sentence above the mandatory  as you're getting up let me just mention for counsel that this panel doesn't have priority on this issue that is whether berg booker affects the ability of a district court judge you know the safety valve  blakely and not booker and here we have a separate issue aside from this whole constitutional issue and that is that the supreme court said the guidelines were advisory and so it's almost like a technical question yet now the sentencing guidelines are visor e and so it's the defendant position that concert considering the cases after booker and considering that the court has to  still required to calculate what the sentence would have been under the guidelines and three there's always been an exception following a pretty to the treatment of prayer convictions so what's wrong with all or any of those russian argument were correct it would be a constitutional violation to calculate the sentence under the guidelines right and that's clearly not  well it is to tune to hold any of the guidelines as mandatory it is and also and we guide to their present the exception actually i think appending it narrowly tailored and they're just talking about of prior conviction but we're not talking about fact of a prior conviction we're actually talking more or less about the weight that you give to the criminal history it's not the fact that with a defendant had you know had a conviction because that's why exception came about is that that's an easy fact that a judge can decide because you know you just look at the certified copies of the judgment or whatever and you know he had one a prior conviction i didn't the one when talking about the criminal history we're talking about you know kind of the number of points you want to give it the weight so under your theory the district court would refer to the guidelines nationally to  improper calculations you don't say five when it's you know one i mean obviously you make the proper calculations so that and then let's just in this case let's assume hypothetically the district court says ok i've looked at the lawns and i believe there's two criminal history points right at that point is the district court free to ignore that well right because it's if i do the district court could say that but it's overstated therefore you know i'm admitting in a point with exactly and that yes that's the whole point in the fact is yes you look at the criminal history point you can't you can't computer correctly but then the judge can say but look i know the defendant i know his characteristics i think this is too w correctly and whether you have to impose a guideline sentence or that you're not imposing guidelines hans's what i'd like to address the we've been focusing on subsection f one today but subsection after generally says that if the district court finds that a defendant does qualify for the safety valve provision then it says the court shall impose a guideline sentence what does that mean now there are some district courts that say that it means that you have to impose an advisory guideline sentence and i recognize that this court this panel may not reach that issue today but i raise the question because i think that it's important for the court to consider both of those provisions in deciding what either or both of them mean because that it has to be consistent in this respect if they shall impose a guideline sentenced names but not really then as determined under the sentencing guidelines one criminal history point also has to mean in a non mandatory way and that's the last point that i would offer for the court's consideration