be entitled to have the original judge who was chief judge lloyd said on the case because the case why in the case with the exception of death disability retirement the original judges sit on the case in this case judge what's right and that's the primary reason we appealed in the primary reason we requested aree man three sentencing and it's still not understandable to me but when when judge had in recent mr lester was no record due to as longstanding dispute with our u s attorney bill mercer that bill mercer had previously over time criticized judge malloy downward departures and in particular a downward departure in this case with mr lance and some some litigation this is of course was brought up at the beginning of the recent hearing and the opportunity was given to mr lewis to ask project to remove himself and he declined accept that offer of course there is no judge what about the preponderance standard at the sentencing hearing why isn't that appropriate the preponderance or the the guideline in the emmeline opinion written by judge ward was there's a lot of language about how booker should be applied in how the booker principle should be reviewed and i think that in this case judge had never never did address anything talked about by just one way of mitigating factors and perhaps most importantly the factor that's required under three by five three eight which is disparity in sentencing and we think that's a real important finny case was cited in our letter to the court recently counsel when was that letter sent i have a copy of a letter from mr donovan did you send a separate letter no it was the one to give lower time and we get a different judge that gives more time than the prosecutors arguing for more time when the prosecutor the previous prosecutor with a pile of money had argued for less time that  for the second prosecutor who was not piled attorney to say we want more kind he would have had to explain on the record why his argument without me and we also think the judge had and doesn't explain in writing ust we assume the judge hadn't was aware of the full record of the prior case no we don't the judge hand says that he's off the record he doesn't say he read the transcript he doesn't say you thank you and certainly will hear from the government sent back to the saying district court judge who had   to the mandatory nature of the guidelines and maligned did not in any way restrict judgment loys ability to transfer this resentencing transfers are only improper where there some indication in the right heard that there was a bad motive that the transfer was for improper reasons there was certainly no indication in the record or even an allegation in this that judge m likely decision when there was a tremendous demand as to whether enhanced men had to be tried before the jury well so if the government decides not to case to say that if that judges unavailable for any race and and those reasons can go beyond death disability or retirement that judge can transfer the case to another sitting judge what's your view of what the record shows i presumably it's because at least as i understand it because i wasn't on any of those panels but as i understand it it's the idea that the sentencing judge now has more discretion then the judge thought at the time of the year earlier sentencing and therefore that thought process should be allowed to be completed by the same person who started it and if that's the rationale why wouldn't that apply that your honor  getting some sort of inherent right to read the reasons why the same judges have the protection you're talking about well in here right i think that's what was the case damn once again we didn't get that because them lined out afterwards  and then the other point is that judgement why specifically said the sentence would would be lighter and even if you disregard and whine if you analyze judge