case in which is so unreasonable that no matter how the decisions come down and pardons of reversal is required because in this case there was uncontroverted material evidence submitted by the plaintiff's firm sorry by mr  the district court refused to consider and was required to consider under section three five five three the evidence was that mr paterno had resided in mexico for two and a half years since his last year partition he married there had a child there his wife became ill and he couldn't support her and provide her expensive medications on the meager salary that was earning in mexico so he returned to the united states with the expectation that would be a temporary stay so that he could earn money to send back to his wife also to buy a motorized scooter so they could start a business in where mr past where mr patel volunteered also submitted evidence that was uncontroverted he came here temporarily intending to return to mexico and to support his family and the district court said there's no reason to deviate from the advisory guideline range without making  finding of fact as to his motivation for returning but didn't make a finding of fact as to his motivation at every turning in fact didn't consider this material evidence that the court was required to consider under three five five three because it was relevant to the nature and circumstance know you get so many are you know so so many a point off you're sensing and you're under the guidelines if you comply with the fast track program right now but in this case we're saying we're not arguing out of the sentencing guidelines for arguing under thirty five fifty three which states through the thirty five fifty three factors right that's correct yes so it seems to me where we take take and take into account whether there's some just don't want to disparity in the fast track is in the first part of the of the of the sentencing determination namely whether this is a proper guidelines so seems to me all cases still control on that issue well i think we're not raising it as an issue under the guidelines where vintage and i think the ninth circuit is still trying to decide in cardigans of all how to address a lot of these issues but i think that the issue of unwanted sentencing disparities is an issue that has to be addressed under the thirty five fifty three factors separately from the sentencing relevant to the nature and circumstances of his offense we're not denying that he returned to the united states illegally but the fact that he did start to support his wife that he tended to reside here only temporarily that he worked steadily while he was here that money back to his wife work did and i think that all the evidence that we submitted was that he worked hard he volunteered he was very religious and he helped his church and so everyone spoke very highly of him and and everyone stated that he had come back here to help his family and entirety of the sentence was driven by his criminal history and the court said in light of this criminal history and without making a finding of fact the reason for his returning i'm not going to deviate from the guideline range and we're contending that the court was required to consider those factors and that's really five fifty three and was also required to make findings under rule thirty two u s court time so i'm not sure that there was a specific request to make a finding there or that there were issues are major discrepancies between the oral ample imposition of supervisor lease conditions at sentencing and the written judgment the court did delete in the written judgment some of the chat conditions that we challenge here but there's no explanation why which is why we're well one of them is condition six the fact that he's required to report the predation off have to return to the united states that was upheld in rodriguez rodriguez but that's also where there is a petition for rehearing pending in that case we think one of the reasons for the petition for the hearing in remanded because there are so many other issues here i think there needs to be more than a limited amount so that plus there's more graph obviously has to be reversed and personal reasons the condition that you take all prescribe medications in williams going to requires the court to make on the record findings that it's medically grounded a specific finding of overriding justification medical appropriateness no such findings are made in this case it was simply imposed and there was an objection so it's not  prescribe medication it was bombs that just like it's just it's a part of his sex offender treatment and he's required to take any prescribed medication so you know what it is right we don't know what it is but potentially it could be within the scope of williams convictions thirteen fourteen and seventeen which limit him and his activity frequenting parks and public areas which are used by minors as we know not a priest that was approved in rearden but in weird and there was a history and a finding that he posed a risk for minors were in may please support matthew sloan for the of healthy united states of america your honors i think that the primary issue here is indeed whether or not this seventy month sentence for mr pluto was reasonable and the government submit that whether the court in the on bond panel in saval a card to be ultimately adopts the government's position which is that the guidelines the advisory guidelines are presumptively reasonable or whether the court honor the government would argue that in this case the guideline the advisory guideline and the ultimate sentence was reasonable and that the court followed the appropriate for seizures in determining the appropriate sentence first of all in this case although the government is argued that it was appropriate to consider the advisory guidelines as presumptively reasonable and this court the court really used it just as a starting point there's no evidence that the court i think that the court initially said and i'm referring to i think page sixty four of the excerpts of record the six sixty four good sixty four this is when the court initially pronounce suspensions in the court initially says that  the court sees no reason to deviate from the advisory guidelines range without making a finding of fact as to the defendant's motivation for returning subsequently don't the following page on page sixty five the court after it has taken into consideration not only the advisory guideline range but a series of other thirty five fifty three factors including the defense lengthy criminal record his risk of receipt of his i'm the court set forth the t a specific please yes i'm referring to page sixty five and i think the court looks at that you'll see that the courts use the guidelines as as a starting point it considered the other thirty five fifty three factors and then it actually says in the middle of the page of look at line twelve the court said so when balanced against a fact even if it be one that he was here to assist the family the court finds that the seventy month sentence is reasonable in other words the court although the court didn't make a next yes fighting about the motivations the court said not only wasn't it important to make that determination not only would it not ultimately affect the court's ultimate sentence so in that effect satisfied will thirty two but more of the court says that even assuming that the defendant's position is true that he returned for these altruistic motives the seven the sentence is reasonable and under those  sentencing or because the court will not consider the matter in sentences and i think that it's fairly clear here that the court is saying it would not affect sentencing even if it were true i don't need to make the defining but even if it were true it would not affect my sentence because ultimately i think the court was looking thinking along the lines that judged ashima has indicated that the motivation here is not really relevant and in fact in many of these cases the motivation is a an economic motivation and the fact here is that this person had mr paterno had such a substantial criminal record including not only the aggravated felony that caused this thirteen twenty thirteen twenty six b two but in fact  he had previously been convicted of this very same offense re entering the country illegally after having been convicted of a and deported following a felony conviction so your the type of behavior that he engaged in here which is just what that statute is intended to encompass is to penalize people for re entering the country or being found here illegally after having been deported following conviction for an aggravated felony and that the court takes that seriously and given that and given his substantial prior criminal record and the clear risk of recidivism as evidence by the fact that not only did he have his essential criminal record but he had been deported five prior times and been convicted of this very same offense for prior to this given all of those factors the court didn't need to even take into account the the motivation the and whether whether there was an unwarranted sentencing disparity first of all just to clarify in the central district the u s attorney's office does have a fast track program certain individuals who could be prosecuted under thirteen twenty six are offered the opportunity to plead to either a single conviction under thirteen twenty five if it's their first conviction that would be a six month statutory maximum or in other cases the defendant here defense counsel in the district court brought up that and claimed that there had been that the government had unfairly denied in this opportunity they did submit certain evidence about other consecrated that and she found on that basis that there was no unwarranted sentencing disparity and in fact the the similarly situated individuals that the court should look at when determining whether or not there was a disparity in this case with the other individuals who were convicted of the same offense as this person was convicted of which is thirty five sixty two and for those individuals you know as i said in this case he was  given a sentence which was at the low end of the advisory guidelines although the court did take into consideration the other thirty five fifty three factors  provide any incriminating information there may be reasons why someone could for instance it's possible that someone could have permission to cross the border that they could have gotten permission and that's the reason your honor and   that issue i think that it would be advisable if if this is remanded to the district court that the district court make further findings and findings on the record with respect to whether or on the dispute or determine that a ruling is and that's hysterical and here it appears although it's not clear that the court is saying it's unnecessary for me to rule on the two controverted issues that we've been discussing here today page fifty nine the court says i don't need to make findings then the court is violating booker and section thirty five fifty three because those facts are relevant to sentencing there the court is mandated to consider them in sentencing the court has to consider thirty five thirty three the defendant's history and i'm not going to consider it then the court is violating booker and violating thirty five fifty three well one section of the council so that if it's not found they can be found to going to consider your evidence it's not relevant to my sentencing decision of course i'm saying i'm not considering the thirty five fifty three factors i'm just considering the sentencing guidelines because we're well that's your interpretation the nature and circumstances of the offense defense is illegal reentry but the nature and circumstance and we're not denying that he committed the statutory offense but the nature and circumstances are he intended to be here temporarily while he was here he worked steadily towards his goal there's uncontrover evidence that he was just trying to support his wife and pay for her expensive medications and trying to build a business in mexico and so that distinguishes him from other thirteen twenty six defendants and it's also relevant to his history and characteristics his characteristics whe working hard that he was trying to support his wife that he was trying to build a business so those factors are relevant to two of the thirty five fifty three a factors the fact that all the work that he was doing he was volunteering while he was here he was helping people volunteering just you know a fact of life associated with illegal reentry that's what he's saying so you know what you're saying everybody else but if if that's what she's saying that it doesn't take him outside the heartland again that's a guideline centric and alice's and once you're talking about thirty five fifty three maybe you can say yes he's not outside the heartland he's within that seventy to eighty seven month guideline range but then that's only one of the factors the court has to consider the court can't just stop there the court then asked to consider all the thirty five fifty three who come across the border but there are those factors the factors that we're relying on that with these controverted factors that we're talking about are not encompass in the guideline range in this case is guideline range was driven almost exclusively by its criminal history and the types of elements that we're considering are not and are not compelled now as a by the sentencing guidelines so by saying i'm going to impose sentencing guidelines sense the court is saying we're not going to consider all these other factors that the courts require to consider under section thirty five fifty three