dire circumstances in this case the defendant did present an issue in mitigation that had recognized legal merit it was fully supported at sentencing with extensive facts putting testing in this case the district court's only com regarding the issue and it reads argument was that read had a functional healthy family this statement also all together which is in the record it is really a passing comment regarding the family circumstances demonstrate that the district court completely disregarded the facts in the argument made by reading his family situation was completely opposite of functional and healthy now the district court did not as i recall  not know whether this was because of timing or because they just record just decided not to do it go through any kind of garcia's sykora you know have i covered all of the points that you wanted to raise your major points nothing like that he just rolls with the function family yes you're yeah josel did what about the written statement of reasons for the sentence where the judge clarifies more that he enjoyed a healthy and functional family life as a child goes into the health issues of his wife and children now and then explains that he has since the superiority of the of the crimes  the giving of the guideline sixty four month sentence and after it alternately was a to two different appearances before the court sentencing with the extensive information that was given the reaction from the court or the sense of the fort and at that time i made a point of articulating many of the reasons that your honour's just read an aggravation but paying no time to the particular issue that we're raising here i feel i think that it's more telling i understand with the court saying no i mean what we've got are we not allowed to look at no you want to end it but it's it's going back to clear up obviously from the defense point of view it's clearing up a record that had been made at the time well you're now asking us to send it back to clear it up two years later rather immediately and i think that in order to deal with that what had been presented i think what the this particular issue which is not to be frivolous issues this is serious it's not frivolous but these are that unusual circumstances they are not your honor i know they're not the idea that financial and care taking the void that's caused by someone's actions are self inflicted those wounds are self inflicted but i think they're self inflicted and they're almost universal but what i'm asking the court to consider in this case is basically under five each one point six under the thirty five fifty three factors that it's extraordinary why not just conventional and i mean that it just maybe to flip up a term it's not i'm i'm not i'm not disagreeing that it's a legitimate serious argument i'm just saying having seem a lot of white collar crazy cases these circumstances don't look terribly unusual to me they may be a little unusual in terms of severity but when you've got a crimes as aggravated as these and you know the false proffers the attempt withdraw them your trial guilty plea and so on and we've got a district judge who in the written statement of reasons addresses these matters and makes clear that they're not convincing to him it's difficult for me to see a and here i stand of course position i do i think under the circumstance tell me when i'm wrong i don't know if i can see or all i can say but in this particular i can say what at the time of sentencing and i guess that's that's life and person were present our emotions are flowing everybody is doing what we did we know what kevin ray did in this case as far as what your honor just said about the proffers about that plead guilty in the middle of trying and coming back and trying to withdraw as guilty plea how that is what we have classify as not acceptance of responsibility which i believe mildly well we have it in the ramifications apply to guidelines as well as thirty five fifty three and just as  to i think that that point was made clear and i think in the end that was the driving force obviously behind the sixty four months that a punitive sentence based because of his behavior in the system i'm saying that despite that despite that being well aware that that occurred we still have the significant mitigation that needed to be presented that almost for lack of a better way to say it in spite of kevin rudd to argue on behalf of those circumstances that it did exist so your point has to be that it is you are starting to say timing matters that if that if this had been considered at the right time in the right place maybe that other memorandum wouldn't  sentence i think in the opinion of the fence was based on more of not necessarily what the crime was and then just going to consider what the co defendants received after the sentencing and their involvement  somewhat equivocal or maybe not as significant as kevin reid's role it's almost punitive because because you exercised a right that he may have under under the law ultimately whether he accept responsibility or not was clear because he went to trial ultimately he is penalize for playing penalize in the sense that he would not get consideration for a guideline point for playing in the trial but ultimately that became incensed more than just the crime more than the damage that he caused more than the the pain and the tragic financial loss that he may have caused that became predominant and i think that and i can't say that that might not even be fair but the fact is is that this issue was given short  and i believe at the time when it was right when it was the heat of the moment that's what happened and i think that i know your honor and he he did he wrote a written findings that that he didn't state in open court it is part of the record i can't discount your honor saying i'm saying that i believe that the defendant should be entitled to have he we had a fair hearing about it but i think she had a fair resolution in court about what that the court actually believed about the extensive evidence that was presented it wasn't cursory it wasn't just a prophet it was it was established in the sensing memorandum with medical records his wife to testify that's point and i think that's that's where i'm i'm resting my argument that's if you can say if you would like you could save some rebuttal time or not judge which i will did there is another issue raised i would indicate to the court that sufficiently explained on the record that the court of review can determine the reasons for this and some post that's true but you know what i guess what worries me we have a general rule that the oral sentence you know prevails if there's any conflict with what's written down later and the idea of making sure everything is put before the judge at one time is to get that balancing if you will between whatever it is that would point to a longer sentence versus something that might point away from it and so there's always a risk in a memorandum of of cleaning it up you know it's coming up with some after the fact justification that might not have been a justification and these were i think serious healthy issues that that he was trying to bring to the court's attention i wouldn't trivialize them i don't think that the court trivialize them you under the or didn't say anything at all about them on the oral actually the claimant would differ from that the court did make reference to the evidence that was gripping you know it's nothing really engaging with the health issues that either his wife or his son are facing well but still the court explained based on the aggravating factors oh and there are several of why i know i remember certainly several that's true and factors the court also made reference to the fact that the argument the defendant was making was first sentence of probation he wanted no prison time based exclusively on the family circumstances that were presented to the court and the district court specifically stated that but unlike anything his sentence in the oral hearing that actually  his argument in mitigation this argument medication i have been searching for one well he makes reference to the supporting evidence it's in the defendant's appendix at eighteen he's a twelve good father good husband that's right that's what i'm looking at to actually have it marked and it just says he has numerous letters i don't see anything about autism i don't see anything about meniere's disease i don't see anything i don't see what you're talking about well but the those sorts of considerations judge go to whether or not being deprived of the defendant or being with his family oh as a caretaker and i think that the district court could look at that there's no sentence that says even though your family members rely on you heavily as a caretaker i think that's outweighed by the despicable nature of your behavior and the i just the sentence is not there that sentence is not there but on disability he has a learning disability and his father's presence in his life is something that's a positive aspect for him and probably helpful you know i'm not aware that i'm just saying you are saying that now and we both know that this isn't the record but it's not there in the judge's explanation of his sentence it does not need to be though your honor because if there is not the most important mitigating factor he has but it is and it is not a factor that the court overlooked and that's really all that the to quote numerous letters and statements attesting to his character and his decency period close quote i believe that the reference to the evidence presented in support of the mitigating argument and the reference to the fact that talk about somebodies most important mitigating factors all i have to do is say i look at all the evidence and i don't like the sentence recommendation and now here's my sentence there right it's really meaningless well but  if the record establishes why the court chose the sense it imposed if it shows that the court engaged in the discretionary balancing of the mitigating in the or giving factors of this court he says also say that a judge is not required to spend a lot of time talking about mitigating factor not on stock arguments we've said if this is your main argument it's not a frivolous argument and nobody's saying that this is excellence i mean i feel as though if the question had been asked by the court is there anything else i haven't talked about that you want me to say something about and and defense and said our whole home but the i think that this record establishes that that the reasons for the district court finding the mitigating argument that was considered to be not persuasive in light of the aggravating factors