date defendants request as that request to excise thirty five fifty three yes from the statute and it felt that that was not necessary because there was you know a pretty problem in this case a case of thirty five fifty three f i should say i am not arguing that this court should exercise thirty five fifty three  that booker does have an impact on their way that now a safety valve provision must be applied and construed and there is the reason the simple is because now we operate obviously under a system sentencing guidelines system that is advisory and thirty five fifty three one the provision that we are concerned with here makes specific reference to the sentencing guideline system now my argument is under did re medial or booker that that a book or remedial opinion made it clear that we don't have a situation where sentences are in jeopardy of point because of the application only way that he would not have that sentence is if somehow he can get some relief under section after act like  if the district court is reading fine if the section after and that were to read your principal into section after which is basically  i cannot quite understand how it is that you get away from the statutory requirement that you can have more than one criminal history point the way he did it would be and again point of course the court is not finished and the court can now say again in an advisory guideline system if court can say i don't think the two points are responsible  not in an arbitrary fashion the court simply cannot say well you know i think that i don't like one point because for whatever like the court again mustn't be engaged in some kind of recent analysis after it co what that would under your theory the court could say well i know you have to criminal history points but i think that really overstates the situation  so i wouldn't say you have one i would just say it overstates the situation therefore i will depart from the statutory minimum well actually no i don't what i would say is that it overstates the criminal or it but i would instead of being do it really should be construed as being one this individual really has one point if we get into an over representation type analysis ok so so really it seems to me to come down to if you're trying to look at this as a statutory construction issue in light of the book or remedial statute that's correct i'm wondering what another way to look at it is that we never really get to you problem how would that change this statute to it i think to me we would still have to interpret the statute according to normal statutory construction and so do you have a means by which where it says if the court finds it certain thing that the defendant does not have more than one criminal history point you're saying that the finding o criminal history points over represents the seriousness of his criminal history now if the court recognizes that it's appears to me that this court is exercising his discretion and not finding overrepresentation criminal history points and in the record the district court i went through an analysis and it was aware at the time of the pereiro case and i will point out that for the court that would began with the print he and culminated in booker was a prohibition against it which would result in a sentence that was greater than the maximum penalty it was not a prohibition against to dish a fact finding particularly f one now as we know and as this court has has have repeatedly stated district courts are required still correctly calculate the guideline range prior to prong in determining what the criminal history category is that determination is to occur before any departures are taken into consideration therefore according to the guidelines it would be improper for a judge to make a calculation find that the defendant has two or three criminal history points and then apply overrepresentation analysis to get him down to eight criminal history point one and then apply the safety valve if the individual actually had one criminal history point this calculated by the guidelines and then under booker the court would not have to impose a guideline sentence correct mandatory minimum sentence and this case to be anywhere from probation to life in prison would be the range to statutory range of punishment because of this this particular offense implicates the mandatory minimum the range of punishment is ten years to life in prison now interestingly there are six of the circuits that have addressed the issue and that booker has had on the safety valve and those of the first second third eight tenth and eleventh circuit and in all of those opinions that came out from those various targets they have all held that booker did not make the safety valve advisory and did that or any effect on the safety valve whatsoever in fact are we fusil to a statutory minimum sentence based on judicial fact finding did not offend the sixth amendment these are the circuits held this circuit to my view to my knowledge has not spoken on the issue interestingly three of these  circuits the second the third and the eleventh circuit dealt directly with the issue that is before this court the second circuit in u s v dealt with a very similar situation in that case the defendant had to criminal third levon circuit addressed that issue and u s b gram and there the defendant had four criminal history cloyd's the defense made the exact same argument that wait a second bookers now rendered the guidelines advisory and therefore the court and of thirds the circuit case also rejected the same argument that is being asserted by the defense in this case and although the defense does state that he's not arguing that section three five five three a one be excised the practical effect of siding with the defense in this case would be to effectively render three five five three f one meaningless because then the sentencing judge judge would have the full discretion to anyone's criminal history category into or make it so that it would satisfy that prong and once this court determines or finds that booker did not have any explicitly that section thirty five fifty three is not ambiguous and that it explicitly precludes departures from mandatory minimum sentences where the defendant has more than one criminal history point a did this court acknowledged that this court lacks the constitutional authority to adopt a new exception to the mandatory minimum sentence so for those reasons your honor the government has requested this court also follow the rationale the logic of the the other six circuits and find th booker did not affect the safety valve provision in affirmed the judgment of the lower cour the guidelines under a mandatory and or excuse me under a day out remedial book or opinion that would be if we go ahead and read that literally as being a sentence under the guidelines