you're one of the talent contest the reasonableness of a hundred and eighty eight month sentence based on the determination that he was a crew offender based in substantial part on a two thousand and seven conviction for residential burglary a crime of violence according to the p s r and the police reports facts were introduced that suggested that this appellant had a key when he burglarized the is that established what is the record tell us about that fact that the initial fact came from the present investigation which was conducted a review of the police report reports evidently the government's brief also addresses the source is a summary were that's what he said that's what it is that victims say well he said he was sick he turned the police on to the fact this guy had robbed him because when the victim was in jail over the weekend he said well i think if you this guy had access to my  property he didn't say a key specifically that's not in the record but he said that he was he thinks that this guy had it because he had access to my property i think that's a fair representation did it without specifically identifying a key so with that that's correct your honor it was it is an element of residential burglary that the crime he committed without authorization and it seems to me that a key is pretty much defacto authorization in fact  stolen not if it's stolen that would be true but given the fact that we don't really know how he got there we don't usually you're suggesting i guess the implication from that access remark suggest it yes it is seems that these were guys who well acquainted with each other the person had maybe been been at my kind of been at that the property previously he identified from getting out of jail on monday morning it seemed that he identified i think you should go talk to travis max felt and in fact he had stolen his t v and other items and his car but incident interestingly enough he wasn't charged with stealing the car maybe because  the state's attorney didn't think that he was really stole the car in fact since he had access to the premises so at least common denominator it was a residence and he did steal self so he pled guilty to residential burglary the defense argued and work up for sentencing objection to the sentencing sensing investigation finding that this appellant was a career offender on this conviction it was substantial raised his office level from twenty district judge really just give a very routine assessment of she considered it she rejected it and said i'm going to take this into account the under thirty five fifty three a  sense at the bottom and right that's correct she looked at a lot of factors there's no doubt about it we have to worry or the area that is that i think the judge was unduly constrain by her decision not to look at the very said anything about the key she said the district judge said she acknowledged the facts were a bit different they were a bit different they may have lacked the statutory element of the crime of residential burglary once they lacked the statutory element he was convicted and he was convicted your honor the state just because the state court determined that all the elements were satisfied doesn't mean that this court was stuck with the result wait a minute in terms of whether th e counted under the guidelines or in terms of how much weight to give it in discretionary well as a regulation as i stood before the court several months ago it was the argument was that it over represented his criminal history right there's no doubt he was properly convicted in a residential burglary is there well that depends upon whether you believe that there may have been more information that wasn't properly considered by the circuit court that's all just supposition the district judge maybe the convictions wrong those don't get a reality that at sentencing in terms of whether you count you can make the argument it's over representative you made the argument judge listened to it said no we gave him a low instance the judge didn't really address this aspect of the key to the extent that if he had access i didn't see it but i don't think the key has any relevance today it's really a question of whether or not at the genie is out of the bottle a little bit in terms of residential burglary isn't it a question of how violent is it if you have access to the guy's property whether he had a key he was acquaintance with him you know it's coming in with if he's coming in without permission what difference does it make whether he's got a key or the door is unlocked and he opens it up or he slides a credit card in jimmy's the latch well maybe today we might say that it's a lot less potential for violence because of the fact that he i don't think so i don't get that m suppose suppose now i do think it makes a difference if you've been given that key which sounds like permission to enter although not a surly every day but if someone has stolen entertained some of those concepts with respect to specifically the argument we raised in pre sentence investigation objections and also a request for a variance or downward departure then maybe that it would have been a satisfactory  interpretation of all those factors but the result was basically she said look he pled guilty to it and basically stuck stuck with the fact of judgment a conviction in this case and  gesturing judge feeling constrained well look we agreed she correctly calculated the guidelines right yes ok in that sense she's constrained that far and this is a judge who surely understands she doesn't have to give a guideline sentence right that's correct ok so weird does she indicate in some reversible way that she feels constrained because a judge just simply without pointing to the specific language i hope you go and look at that i read it and she says look the facts are a bit different but he pled guilty to it and to the analysis he pled guilty to it so if you plead guilty to it it's all over it is that sufficient what if it's all wrong what if your purposes of the guidelines that's correct right when linda she do that with respect to thirty five fifty three a well maybe her interpretation of what it means to be a career offender then is is skewed based on her inclusion of this or her or failure to consider all aspects of the previous offense if this is such terrible conduct that he should be a career offender then it needs to be explored further your honor and i think that's the use of discretion is just the wall that seems to be built i mean here historically by saying he's pled guilty it's over well because based on my judgment based on the judgment and these offenses qualify i mean the guidelines require that the predicate offenses be determined by the charging indisposition documentation is that all there is i asked to go further i asked the court to go further and certainly the two may have been there is some other discussion because she kind of broke it up well because it has to be broken up right yes because you've got you've got to do the guideline calculation and if you don't get it right it will reverse rate and then you've got to take it into account of the thirty opens question and michel louis is the key established and the answer to your honor is no the offense the residential burglary is described at paragraph fifty eight and the p s r and what the r stated is that and i'm paraphrasing just a part of it but it says the defendant admitted to entering the residence and taking the quoted in my brief on page twenty five she said well maybe the predicate offenses the facts were a little different it's not like the wasn't guilty of those offenses so there was no so there was no argument to be low your honor or that this wasn't  should not have counted as a as a crime of violence it was really a very much a procedural question whether the district court abused its discretion in declining to give a bully career offender guidelines sentence clearly the court did not as judge hamilton stated the court considered all the arguments astutely recognized that what the defendant was really arguing was the defendant's history and characteristics under the thirty five three a analysis and noted that there were as judge hamilton said too there were reasons here for a high end guideline sentence she talked about the defendant was just recently paroled before he committed the instant offense she was very troubled by the fact that the defendant on february twenty sixth had been caught manufacturing methamphetamine was released with a warning from law enforcement to stop and seven days later sold methamphetamine to a confidential