to raise any non frivolous objection to the new pre sentence report ziegler in ninety four when a sentence is ordered vacated and the matter is remanded for a response and think the defendant reappears before the court with a clean slate noble matter isn't that what we're really talking about up here is whether or not the trial court properly because it looked to me like you raised these issues but if it's the court has  me to where the court simply said i am not going to decide i'm going to and she believes the district court believe that it had discretion to decide not to decide and that's where we differ with the district court and with the you may be right that we never decides to sickly this we have language in some cases that may suggest there's not discretion we certainly have language that some cases explicitly stating that the court has as there ever been a case in which the district court exercised what it thought was its discretion not to consider an issue and we said no you have to consider there are and in cases like that are there right i don't think it's cases say the court has discretion we're not down by any holding when the circumstances of this case are we we're in the minority in having the default rule of an open re sentencing so a lot of the other circuit tends to have don't have these kind of open remounts that the tenth circuit routinely does and there's discussion about in the west case latter she recognized the government's argument that on an open rematch the district court has discretion and she agreed with that position and said and there are many point i think in my  overarching at variance arguments one was the database argument about unwarranted disparity and that she felt like she just didn't have enough information on that one on the true first offender argument have the right to raise new back before the court when you came back and assuming that we agree there which the question is were is the error that subtropical or committed there was sufficient and you can from this record i can see you where the trial court refused to look at that information and after looking at it in the trial court's opinion there's not enough there so so let me put it this way i don't think we'd be up here arguing an abuse of discretion if she had simply denied the various i think her reasons might have been slightly different but the fact that she chose not to did not you know not to rule  that she wasn't yet at the decision making stage so was that ok to not make a decision and that's where we differ with the government and the district court both on both legally and on the reasons that she gave which you can good morning may please the court care example for the government here the district court case rational reasons for its decision not to decide the variance on what point is the rational reason she ga defendants in the district of kansas are sentence at a much higher rate based on ice versus a mixture of methamphetamine versus the rest of the nation so on that issue the district court found that despite the fact that the defendant had provided a lot statistics a lot of data on this point the data that did not answer the key question and the key question is ok there's a difference i see a difference based on your statistics however what is the reason for is different under thirty five to fifty three a six that have to be an unwarranted disparity here the district court found that the data the defendant presented did not answer whether the parity was warned this which would have been fine no basis for her a very unfair or unwarranted and the reason for that is in the defendant or the district court excuse me put this on the record she had several questions for example is there something about the nature of the cases that are brought in were district of should conduct the post conviction conduct all right so as opposed to the first trip through offender arguments right all right so a couple points there are in the defendant's sentencing grief he broke out the various arguments proposed to make for a variance and so there was the first true offender argument even worth one hundred eighty hours towards the  if he was wanting to demonstrate that he had gone straight the yes wasn't going to the peace that should be considered in the reception saying yes or honor and so that was it in his sentencing memorandum now once we the sentencing proceeding that the issue of post and conduct came up was when the defense counsel was referring to just in general giving examples when in general district court was the low end of the new guideline range the district court doesn't have to is right there every argument for leniency so that we don't we don't know but it may have been factored into that low under the guideline if you agree with defense counsel in the state of the law are there any holdings in the circuit in this factual context where the district court said i'm exercising my discretion no consider an issue on remains and we are said the district court did have discretion or we said the district court heard because the dis had to address the issue are there any holdings in that context as opposed to various statements that are a little bit inconsistent so you are wrong case that comes to mind is and i'm publishing the hopkins case if i'm recalling defendant bracket may be can under it whether he will engage in future criminal conduct central factor that the district court must  at the initial sentencing it's a different gain when there's been a reversal and the defendant tries to raise issues that were great the original sentencing and that's what we're talking about here does after the original this chap as he claims worked one hundred eighty hours towards g d he graduated from a two hundred forty hour english as a second language class had not had and the court says oh well that wasn't raised before well bob dobbs you couldn't have been raised before it hadn't happened so i don't understand your argument nor your answer judge hard to question therefore this is what is this case about why are we here what's the question for us the question is whether the district court abused its discretion when it decided not to decide to arguments for v this circuit yes all right i see that i am out of time thank you thank you i just wanted to point out a couple of quick things about pepper and then add one more case to the next obviously judge hart already figured out that pepper was about every sentencing and the difference come before or after and the district court refused to hear about at the new sentencing because the defendant had not given that information at the first sentencing and this court said and part of that was because of the statutory language but it was included in the statutory language i did earlier this organist taking a turn that i was in expecting that i need to clarify something my interesting what the district court refused to consider with respect to the first offender argument was i'm not going to get into all these statistics in the data whether a true first offender should be just english from someone with a criminal history of one who has one point i'm just not going to get into that not that the district court said i'm not going to consider whether the defendants here as acted properly understood behavior in the time between the  the case requires there's a real distinction between those two arguments because the one regarding the data should have been raised before and wasn't and so you could say you know you're not entitled to raise