first being a procedural error regarding the district court's apparent conclusion that the current thunder application was not discretionary in this case and are you arguing on that that the defendant didn't technically qualify as a career offender or are you saying that the court didn't have to sentence him within that technically correct guideline calculation a second he did technically qualified imam in a similar question because when i look at what the read judge said when he says but the career offender application is not a discretionary call for me i understood that to mean when he calculated the guidelines and we know under call you have to start with the right guideline calculation even if you think it overstates your understates or does something wrong and so he's right if he means you know i have to calculate the guidelines correctly even though i might think a minor marijuana offense shouldn't even be in there but if it is then you start to do that and then you move on to the next stage he makes it finds a career offender and then he starts the job i think your honor that given the occurred between defense counsel and judge dirk and so in other words when you when you look at it judge durkin's question your career offender applications non discretionary call for me on a page seven of the appendix well that's perce i defense counsel talking about the court having discretion as to whether to impose you know or whether to fine career offender status i think that's that's what explains judge durkin's comment it's because defense counsel career funder defense counsel was an argument that i think what defense counsel was doing is saying you know this is a thirty five fifty three a argument and that's what the court says he says i well your arguments are good one hundred thirty five fifty three a that the guidelines as a overstates the entire fountains case but doesn't the court say in this is at thirty one of the appendix the defense argument that the marijuana offense overstates the seriousness of the offense and that's what you were arguing upfront it certainly does raise the offense level i believe higher than it normally would be and he goes on and talks about so i recognize that argument but then he goes on to talk about the other thirty five fifty three factors isn't that sufficient to say he's considering that i think it to be argued this in our brief is that there's a difference between saying ok i recognize you're making that argument and i've considered it but rejected it and in that goes into the two cases we cite the  court's language while not completely clear one way or another leads to that ambiguity and leads to recent and in this matter but there is the further point the after what judge saying you just referred to a issue for feel so and that the government certainly doesn't rely on garcia cigarettes to say or the just this is waived because the defense counsel said there's no but it's one thing to say you've preserved it for appeal and another thing to say you haven't sufficiently addressed it and that's what judge darkened was giving the defense or the opportunity to do here i think and i was not defense counsel so i can't say exactly why but but the feeling that the that the judge had addressed a clear funder perhaps not in and retrospect the exact same way that it was argued which is part of the problem it's also in conjunction with the dean issue in this case and the dean issue was not preserved roberson was not top of the guideline sentence and that that does not take into account the difference between the career finder guidelines and the non clear federal guidelines which the court may want to do with additional discretion granted under d was there any discussion of robertson at the district court level no none whatsoever and that's not uncommon given how seriously this court had reaffirmed roberson several times prior to dean being decided don't you think th mr wilson's offense conduct sure i think that's true in most of these are like star wars this is this is on the far end isn't it of very serious extreme bank robberies firing shots that had a teller at the tellers desk during the bank robbery i suppose i'm not the best person to ask about how bad it is because i do know who this what the conduct was in wheeler someone was shot nearly killed saved only by the fact that there was remain and mr puritan already been sentenced three times prior to that limited remainder he got the same sentence twice so if that's not enough for this court to affirm without will remain and remain and i think the seriousness of the offense is one thing but if we say judge you might have discretion to change your sentence we know this is a serious offense they're all serious of consequence would you do that that might be one of these cases the wouldn't the fact that judge durcan sentenced him within the middle of the guideline range in addition to his comments about the dangerous nature of the defendant wouldn't that signal that he didn't feel constrained by robertson at all i don't think it's that clear and i think that's where it gets into the curate and category is that puritan also received a middle of the guideline range the sentence and there were comments about the horrific nature of his  ambiguity i think in real or real or took a different tack the judge said it was absolute time for the guidelines you well deserved that was and it was pretty clear from that case the judge would not have considered different  good afternoon may please the court last by me half of the united states this court should have affirmed the defendant sentence and there was no procedural error the district court did exactly what it was supposed to do in the sentencing hearing when it began by calculating the correct guidelines range considering the thirty five fifty three factors and that imposing a fair and just sentence and the one statement that  made which we believe has been taken out of context that the career under application is not a discretionary call for me that was in direct response to defense counsel saying be an abuse of discretion for the court to with respect to the defendant's second argument that dean requires remain and this case falls into the category of cases like dealer and star walt where there is no ambiguity where there is no concern that the district court was constrained by oversight how do you distinguish character that's well this is closer to wheeler and star walt because of the sentence so the guidelines range in this case was three hundred eight three hundred fifty five months of imprisonment and the district court imposes sentence of three hundred forty eight months which was right near the very top of the guidelines range and so under those facts and given the rest of the record the c