therefore we believe that the sentence i was on reasonable and the authority that i'm going to rely on is united states versus booker in united states versus booker it says that the district court judge must must  come to a guideline calculation in order for the defendant to be sentenced correctly in this case being a career offender mistake our bread was guideline calculation was one hundred eighty eight months to two hundred qualify for the november two thousand and fourteen men and he still does if he would if we deny this request you could still make that motion good you know i don't believe so not that i know their friend there but i don't know if we find  the government's conceded that johnson applies are correct so if we accept that concession and then no reason why i wouldn't accept that concession and find that your client is not a career offender but if we don't we're to reset and you still have a thirty five eighty two motion available to you that you know yes read of your ok so what's wrong with that there's nothing wrong with that but we would like the court to instructor district court the guideline range would be me want to wait to one thirty one well if we say he's not a career offender wouldn't that make the guideline range that range i mean the question would be death and then stick with that they should apply the reduction might but and you don't respond to that in the reply brief so i just would like to get your response that the government says the court finds a sense in your harmless when it is clear from the record that the district court decided to vary from the advice we guidelines such the guidelines very did not of in with the sentence so government's position i take it is that the court here made it clear that it was given the sentence that thought was fair and appropriate and offend me as a career offender i believe and the guidelines being so high i think there is a certain our prejudicial effect on the defendant yes the judge granted a sixty eighth month variance based on  hundred eighty month eighty eight month lowing and said i think this is the minimum fair sentence the do with the things that thirty five fifty requires us to do right yes but being a career offend there when you're looking at the entire picture of the top you know i'm not saying this defendant is a model citizen he certainly is not however when you're a career offender there's prejudices you know that you're you're trying to deter you know specific deterrents as much as well essence the guideline rangers want to wait to run thirty one with a mandatory minimum of five years i believe the thirty five fifty three act factors would have gone at least to the  experience that sometimes the district court judges will go within the guidelines range or lower than the range now specifically on these the drug cases you know where there are mandatory minimums and and if the court knows better than i would all the changes in the  potential more changes in the future is it is it fair to say that the defense and government are on the same page in in saying in effect all the briefing about whether death by auto was manslaughter is at this point irrelevant because there can't be a  criminal finding on this guy's record since johnson wipes out at least the eluding conviction as a predicate i believe so while i think you'd have to ask the government that but but that's certainly your position yes and i've spoken for the government you know many times i believe that was a little position so in this case boils down to one thing and one thing only at this juncture and that's the prejudice question i yes  whether or not he's a career criminal at this point are off the table the government agrees with the defense that he's not a career criminal based on shots and and the only question now is prejudice based on the se and we still sent it back and said well we don't know that that's the case if you done it right for if it had been done correctly we don't know what would come out here and since we don't know that we're going to go ahead  and and and make it go through the process so that we can be confident that it was handled correctly and this really is how you would come out on the set of this court to say that but let me show proof to this court that it's highly probable that things that this would have been imposed and judgments opinions that for the court explained how the government can go about that it's probably easiest to do when you get the gist of court issues an alternative lower i think that's pretty compelling proof that the guidelines calculations didn't affect the sentence i'm playing a review is that the defense burden not just to say there's been an area here and it's likely it's possible that it affected the he still has to be to clear homicides to victims that are dead because of his contact right and alluding conviction and those are all fair grounds sure but but isn't that the very  why one could make or i don't want to put words in your post and colleagues now look up your answer we want to see it but i'm assuming the response would be sort of like the briefing which is we don't we it's impossible you can't say that oh this was this would be the same so even if the burden of proof is on them that's the purpose of this sort of presumption that if it's if the undermine the integrity of the sentencing process we're going to presume that's a problem i guess my question to you is are you saying that because one player review that presumption just doesn't operate well i can't really say because knight was a player case and there's night's adoption of a presumption was i would take issue with likely wrong when it was adopted but it's certainly wrong in hindsight with the benefit of four subsequent supreme court opinions in response to your statement you make if you're in that it's impossible to know if start right correct so i mean that's it's not up or would it go up what go down i mean you can we know the guideline range is going to go down it's just a question of how far it goes down right that's correct but that's true in every case of a sentencing but there's a got a contested guidelines issue the the initial calculation step one would have been different the question for this court is have the defendant prove that without if the career offenders ignition had applied preserve claim of guidelines are right and that this court said even if we were to agree with all three of the areas that the defendant brought up he got a sentence that's that's within the range that would have applied without all these an enhancement and that's sufficient to run it is harmless now if the government could meet its burden there right by logic the defendant in a similar circumstance couldn't meet his burden of showing it's reasonably probable that he would have gotten a lower sentence that's that's a very interesting position to take because the what you're saying in essence is that even in a case like this there was zero incentive to object right we're not talking about player in the circumstance where you know so you're going to get a heavy burden fall on you because you should have the jackie did the supreme court of the united states had said that the error that develops here because it johnson was off the table our own case why the career center argument was off the table and yet so there was no incentive for this defendant to make the objection but  conviction the i guess the question i'm trying to ask you is you seem to be suggesting that it's the defendant is in precisely the same position that the government you know academic by johnson but that his vehicular manslaughter conviction wasn't sufficiently recent so the district court certainly understood that there was an issue over the equipment or provision and that but not this issue right i guess that's that's the point  what judge issue was asked about this in a miscarriage of justice here if a legal point that nobody had the opportunity to think or argue about becomes relevant and the defense is told it doesn't matter you don't get to talk about it because that's the government's position here doesn't matter that there's brand new law and that it's dramatically reshapes what the guideline range would be you don't get to talk about it is that is that just discussion in light of the circumstances of this offense and make defendants background to show that this is a just sentence that mr sanderson you say does get to talk about it i guess is true he's talked about it here but he doesn't get to talk about it in front of the sentencing judge that's the question  any the legal landscape has changed dramatically and yet the government's position is he does not get to go in front of the sentencing judge and say things are really different he just doesn't get to do that because we should it's going to be the same that's in effect the government's position right positions he has improved that that it would be different he does get all the benefit of the three five eight two motion that he wants to make because as i pointed out of one our letter figure so when you say you still have to show you would have got a different sense since he was sentenced using the one eighty eight to thirty five range and it's arguable that it's true guideline range was eighty seven to one hundred eight months which leaves a gap in there of what some eighteen months from the bottom of the one he was into the top of the one that would have been end doesn't that can that bear in our analysis about showing where the things would have been different just the very large disparity doesn't that have some bearing  well it might but i disagree with the premise of your question that his range would have been eighty seven to want to wait if his correctly calculated range at the time was one awake to one thirty five weeks except that his the eighty seven assuming he got the benefit of the two point downward that everybody else got but he didn't because he was thought to be a career right so that seemed to me a fair assumption but maybe we'll get into the same question about what would have happened but arrange within appropriate for this defendant and this crime and i guess my question to you is is that that actually cut against the government and not you make the point you're making in here that very point that this was the district  it should but if the if the district court is very downward and saying these are too high i got it i got to do something recognize that i need to move away from this doesn't that indicate that with different ranges things would indeed be different that the court is an anchor to a higher range with lower ranges thanks will indeed be different now the mere possibility that the insufficient to meet her burden does it matter that this is a due process violation that the johnson points out johnson talks about this in terms of due process it makes no difference thank you very very one point that i would want to make with respect for the sentencing guidelines judge jordan made is that he would have had the benefit of the two potentially the benefit of the two points when your sentence prior to the amendment being implemented certain drug cases or the drug cases that i was involved would actually got the two points are so you have to waive the appellate rights one thing that every judge every sensing judge has to follow is they have to follow the guidelines and in this case the guidelines were one you know as one of the products which is the answer what's your answer to the assertion from mr sanders that you have the burden to show that things would have been different not just that they possibly could be different but that they would have been different when you used your in that when a judge uses his part of his analysis is to use the guideline calculation when the guideline calculation was one hundred eighty eight to two hundred  thirty five months as opposed to either one zero eight to one thirty one or in this case it would have been eighty seven to one zero eight then i think that that's part of his analysis that he had to use a that these argument that it's not good enough for you to say things might have been different you have to say things were that there would have been a different sense and here's something in the record they can point to to show that the government would have excuse me that the court would have given a different sounds this is wrong in that assertion and if he's not wrong what are you pointing to in the record to show it would have been different i'm pointing to specifically the calculation and the prejudicial fact of any sentencing judge sentencing a career fender as opposed to not sentencing a career and there in addition to that broker says you must come up with the correct by morning calculation and in this case it was not ok