case with doesn't go back and i won't belabor that i think we all hit it in the supplemental briefing yes that in black petition is granted then and i still don't see that as a problem unless change we don't know that it's necessarily going to be bad here there were a lot of things going on a mammal and i mean we have i mean basically that of course the government is dealing with the plane there i'm actually changing it as we have  is whatever else happened the district judge certainly didn't know what the rules were at the time or if you should have known because we all know the laws has never changed it's always been the same that's as a matter he didn't i don't care what you think that it's if you are if it's getting down to the point is it constitutional lawyer or not starts depending on standards of reviewing what i have to show than it really matters reasons number one is when you actually examine what is the about the last two lines of the remedial thing you know booker we have justice prior talking about and  that standard of review for for what i'm calling the book or the book or error i i i admit i am reading a lot into the words being used by justice pryor in there but i also just it's created some of our cases which looks like if you don't raise an issue with the trial court there are two different ways to go one is playing error standard maybe there's another one  i don't think we've ever actually articulated that we've sort of much to around in it but it looks like it one pays any attention to the rules there are two things there's farmers there if you raise it and there's plain areas you don't and you can call this other things some something else but it's really part of play now seems to me and i never saw a special rule for constitutional suppose the non constitutional playing there i would error and again we have we have the case law talking about what's despised harmless error of you i mean it's when it's just structural the system you don't know what they would have done and this is the only evidence we have of what it district court without it doesn't i think that use matters for the standards we create here but i think that's where just just prior specifically is using the term harm lost fair and but if you opens still in the mine in the ninth circuit because of the pending petitions for repairing i'm not sure where it will come out but i think if your position is no matter what circuit you're in no matter what rule we adopted as there should be a re the prosecutor used the role of the court in fashion for the witnesses credibility in this case and in points at closing the prosecutor prosecutor indicates he represents the people of the state of i don't know even doing this for twenty years that he had he ended in the prosecution team had hundred of years of experience i think that if weight brings to the jurors attention the depth of experience that the prosecution  focusing van on the plea agreements where yes after witness after witness comes out the only thing that can get you in worse trouble years to lie to the core those in a different situation as to plain error issue that i they're sitting here today there's the rub how do we ever judge that under the current rules it's almost impossible standard for you to determine whether or not to judge whatever went on that's whatever they are to determine whether or not the district court was acting reasonably the court would have been using the guidelines there would be in a card like defense bubble the court went to extraordinary lengths in my opinion to reduced reduced reduced explain that i think this particular judge lives out of this particular thing as a general matter i mean the supreme court has done what it's done with the law and now we're supposed to apply  it possibly make sense that in each case we're going to try to speculate what the judge would have done under a discretionary system wouldn't it be simpler  y and there's a lot of evidence they don't try to put in front of the street court because they know that that's your relevant under the mandatory guidelines and maybe there's a whole lot of other stuff i'd like to say to the truth about why these are good guys didn't have all the problems we have now the things that you might have argued to the sentencing judge under discretionary system that you felt there's no sense arguing them under think i think it's just to get down to the nitty gritty if you look at those instances how they started the trial how the cross examine the witnesses the issues they raise for example they submitted they introduce and you know that because of this this mess the defense literally became that this is one big conspiracy by the government and the witnesses the save all of them and make stuff up and that proceeding to say they didn't have a case they claim we didn't have a kits we didn't have evidence we just of the witnesses collaborate with each other and i think if you take that into context with that the comments of those were clearly  trouble than they are now if they lied the court would not give them the benefit of the bargain and embrace the inference that the prosecution wanted the jurors to draw is in this circumstantial case you can rely to if i can back up and go into somewhat the booker issue and how do we know what the judge would do we don't quite frankly know which edgewise or any judge would do if they had the discretion to move at the case to see whether it's the probability or how the judge is looking at the case as a whole and in this case yes judge life did move down he did make discretionary calls in some  is because if we went back and did have this discretion of the court defense counsel would be able to bring in some of these other factors that were not considered factors maybe we would bring in the substantial rights have been affected you can't just say well we don't know what he would have done them in the short we do know the judge was took into account the testimony he didn't find it to be exactly where the government said we do know they didn't have much of the other types would be a prejudicial impact