ultimately the defense filed a motion to unveiled cake as at war based on construction of rule thirty five the judge ultimately agreed with that proposition and imposed the same sentence of forty eight months he originally imposed but during the proceedings on the post initial judgment were initial sentencing activities he acknowledged that in writing that's joint appendix one seventy six that to a three point one the substance of god line is flexible to a sexual abuse case was improperly used to calculate the substantive basis of fence level to quote the district court in addition he said during the hearing on that on the jurisdictional question that quote what should have been done is not to adjust the base offense level but to use it as an enhanced meant and quote i've seen in this district court also sa that the airways harmless two fifty three so does that require a farm judge i think with respect harmlessness the question again first of all it is it is really the it was clear error to apply the god lines the way he did it to really get to the starting point of between five and eight times what the otherwise properly calculated guidelines or even guidelines with a four a three point one analysis would get us to do is if you if you calculate the guidelines wrong you have got your foot off base at the beginning and in decisions from this score harmlessness can sometimes be found if the the district court specifically addresses that and says whether we're this whether i determine the guidelines this way or that way i would come to the same result i don't think district but rivera cites the dixon case of two thousand and three opinion from this court as quote affirming departure based on defendants prior arrests involving misconduct similar to the offensive read the circumstances of the what what happened here i mean it was it was really we talk about it as a sexual battery misdemeanor but that really understates what happens here because this was a rape pure and simple at least of yes our reports it and i'm not sure that it was the with the judge maybe have done the same sentence it's do we have evidence that that regardless of the error he made either in the issue of god lines and i see no reason conceptually to take a different position i made a mistake in where i started wrong he then honestly when he says he got to fifty seven to seventy one and i'm still unclear on how the district court even under a different version of  another person to engage in a sexual act by using force against a person so what i'm asking myself who was in the harmlessness inquiry was was there a that let me go back at one point in the record the colloquy that the court has with with me arguing the post trial motions basically says so what you want to do is go to the fourth circuit reverse and come well judge first i think on might say jumping through the hoops is what the court's law requires i mean the court in terms of defining procedural resemblances reasonable ness goes not just to the sentence imposed but i think the sentence report was fifteen to twenty one months judge pain did go through a or a one point three analysis adding a few more points and ended up saying what that gets me to believe twenty four to thirty months so bump in the criminal history category as applied from from category four to category six and not that bumped the range up from fifteen to twenty one months to twenty four to thirty months but the only way th what he did was again he entered an order saying i did wrong to go about it this way and he did make some reference on the record to i should should you not used to a three point one god line to adjust the base offense level but to use it as an enhancement to quote him and the stunts a ploy that would have generated a fifty seven to seventy one month range i have the authority to look to be analogous federal statute in deciding how to treat past convictions for sexual battery will judge if i'm there a couple of things on that one is is trial counsel clearly and consistently articulated in writing and burghley at the sentencing hearing the reasons why he believed a sentence of a year and a day was appropriate so he consistently was opposing any different  he even oppose a for a three point one and suggest analysis and suggested that the court should not add additional points this is basically from about page one thirty eight of the joint appendix to about page one fifty of the joint appendix there's a lot of back and forth and again trial counsel acknowledges in the abstract what the court can do in terms of sort of adding to an offense level or adding to it were in the history actually encouraging the court to use the sexual ran or conviction in that way no judge would say that when when one is especially when asked by this particular district court judge what is my authority that this particular district court literally page one thirty nine at first the discussion is really not about applying the base offense level at all i mean there is no discussion of that judge payne does not say well what if i want to apply the base offense will level for sexual abuse and apply it here and judge payne is clearly that the district court is clearly involved in talking about a guideline or guideline based departure and yet he doesn't talk about using that base offense level he talks about and asks counsel about a provision of the existing guideline he says well why don't i get an extra eight offense levels because of this provision in the god line and what trial counsel points out is judge that's because of the offense the sexual abuse conviction with a misdemeanor  conviction was after his last three entry not before and so it really had no application as a guideline in other words the guidelines were correctly calculated and the immigration guideline would not allow simply adding a defense levels for that particular conviction the other thing that trial counsel pointed out during that colloquy was that actually the guidelines had been deliberately changed by the sentencing commission sensibly tasked with with the charge of making things thirty five fifty three compliant and making changes in conjunction with those sort of concerns so if anything even if there were some older immigration lines that mind of treated this person as having a higher offense level those have been studiously addressed  and to answer your question the facts were stipulated to there were no objections to the pre sentence report and its entire content in the sentencing hearing the second point is that it is procedurally reasonable procedurally reasonable to make a was the court certainly said that yes that that he was rethinking it in the subsequent proceeding and make comments exactly to that effect i got i frankly will argue here certainly to that effect did you cause i feel no you know you and i were satisfied with the sentence as was imposed and then despite all the procedural steps that we took especially in that subsequent hearing it came out the same the same sentence at two thirty four to thirty five he says whether or not the district court substitute a base offense level or just applied an approved variance to forty eight month sentence was appropriate and below the range the court might have applied through other methodology he says on page two thirty six of the appendix that rather than imposing an erroneous sentence it might be more accurate that the court had just used the wrong term which would not constitute  error thirdly later on to thirty six and to thirty seven he says either way the district court noted that at bottom any error is harmless given the forty eight month sentence was appropriate and below the range the court had considered to structure a variance as opposed to the analogous statute and then finally in the aug thirty one twenty seven team order he concluded that any error was harmless he says writes if i may quote because the court ultimately barry downward from the errantly calculated departure guidelines in this case and did so in order to impose a sentence that it independently determined was sufficient but not greater than necessary under thirty five fifty three a any error in calculating the departure was harmless for that reason the court vacated its order vacant chair and reinstated the original sentence so you have the district court on equivocally saying that he considered it independently two different methodologies and came to the same conclusion and there's no way to read this record other than judge payne expressly said that he reached it either by straight variance analysis because of the horrific facts of the case understand they got lines or fifteen to twenty want oh yes that was that was stipulated to at the at the start of the of the sentencing page  y one one fifteen and sixteen there are no objections by both parties the court then exception adopts the p s i i paid one seventeen and the range of fifteen to twenty one's twenty one months of course he later imposes the forty eight months sense and a sentence as a upward variance and with regard to that the judge very clearly had specific reasons for why an upward variance we know that i mean that doesn't seem like enough or various oh no no it's an upward variance from fifteen to twenty one months but if you go back if the court goes back and uses the appropriate analogous offense and question no i think the just record said very quick unequivocably that while the analogous federal statute twenty two forty two in the sexual assault on title eighteen in applying the thirty base of offense level increase from from the guidelines has in the p s i i he considered that an error in the subsequent hearing and said so and then he downward from that figuring  that forty eight months was appropriate and avoided disparity and he articulated the reasons why that should happen in that case so that was one track but then he also does the classic variance analysis in which he says under the thirty five  be certain that the sentence would be forty eight months other than yes i know the judge said it after the fact but at the fact you just said it didn't go through just that it didn't go through the the end the analysis the proper analysis that because there are two answers that i think one is that some of the statements that i just reference were at the sentencing hearing because in the discussion with mr shelton as to well ok if you're correct mr shelton that i shouldn't reference that even though counsel has judge wilkinson pointed out did in fact concede that the court had authority to look at that analogous federal statute but that issue aside there was in the discussion at the sentencing there was consideration he says well ok if that's wrong even under straight variance analysis i'm going where i'm going and then he listed out if you look from start at one twenty two and going up through  sixty one seventy four you see various classic upward variance analysis by judge payne very particular he wants to do the more head old way of doing it so he's very particular on procedurally getting to that point and he and i think the record is very clear that he took two tracks at that point and in discussion with mr shelton made that clear that he was doing two tracks and he says either way this is the appropriate sentence under these facts then if there were any issue as to that certainly the august opinion after the subsequent hearing he makes crystal clear beyond any imagination that he thinks that the forty eight month sentence was appropriate under either way and in fact he says i went under the sentence i could have calculated under classic methodology of upward very and so i don't i think he did it in both places  dancer your question if i follow your question directly but in any event the first the first point is that there was ample reason six reasons as stated in in the sentencing transcript for why an upward variance w appropriate in this case and that remains there to determine reasonability of the sentence both in terms of the methodology is used and then the harmless error analysis the second point about a court using an analogous statute to objectively determine the extent of variance it is just one method that i submit the court has frequently ruled is an appropriate way to go the gary case of this court talks about you have to have a principled determination method to decide the extent of upward variance and from that opinion this court has written analogies to similar offenses or aggravating circumstances may prove the best method for principled determination of departures and looking at how sexual assault is treated under the federal code and therefore the relevant guideline is a principle method i would submit for determining the extent of variance allowed and i say that only in terms of determining the ceiling for what one should treat that relevant conduct i disagree with mr gill's point out that this sexual assault was not part of the offense i submit that in fact it was relevant conduct under any number of guidelines you can look to what the defendant's relevant conduct his criminal history was pretty imposed violation here and that's exactly what happened here and we had a circumstance where  yes yes but that does not stop a federal court from considering that offense in that conduct to determine what he should do with regard to the immigration violation and the principle is not a hard one it's that an alien who comes here and violates thirteen twenty six a by repeatedly coming here she is subject to one sentence but an alien who comes here does the same violation but then commits agreements offense in this case  everyone was characterizing it a rape even though it's a conviction of sexual assault under the state code the facts are they are in their own contested that alun i don't think should be treated differently than then the earlier and simpler case that i mentioned and you know that this court's decision in must lay if i'm saying that right in two thousand and four makes that exactly that point the court wrote the reasonable ness of departure may be evaluated by treating the aggravating factor as a separate crime and asking how the defendant would be treated if convicted of it importantly an up or departure should not exceed the sentence that would result under guidelines if the defendant actually had been convicted of the conduct underlying the departure now we have a circumstance where because that sexual assault occurred after his illegal entry it doesn't get factored in for that eight level bump under the guidelines and so the question is should the court consider that grievous conduct done after illegally being here because but for his immigration violation that would have occurred and the answer has to be yes has to be yes and the court in must lay made very clear that in that circumstance you in fact do look to that offense and if he'd been convicted under the federal code what would the treatment have been just to set a ceiling and that's and you ask if it was a separate crime how would the defendant be treated if convicted of it and so if he had been if it been a separate crime prosecuted in district court here how would he have been treated and the answer he said but i think under the totality of circumstances that's too much greater than greater than necessary to meet the guidelines the objectives of thirty five fifty three which is exactly what we want a sense in court to look at next right and then he said ok so then let's look at the variance and then where would i end up otherwise and that's when he ends up at forty eight months and that's why i say in answer to your question i may not have been particularly clear i apologize but that's why saves unequivocal that the judge took two different tracks to get to the same point in one case he went up to one twenty and then broke it back down but in the other case he went took the original p s i i and then went up based on the circumstances and the six thirty five fifty three factors that he specified in the sentencing transcript and then he says i'm at the same place in colloquy with mr shelton and then if there was any issue as to that he makes that crystal clear in his  in the reply brief about disparities and i just want to make a point that disparities is not the issue under the statute it's unwarranted disparities and there is nothing on warranted in this sentence where the defendant comes and does the conduct that  he was there judge wilkinson made the point and we make it several times in our brief that in the discussion at the sentencing counsel made very clear that you can look to the analogous federal statute he said you can look to now it is federal statutes for state criminal convictions to determine an objective we reasonable amount to upwards apart vary and for variance purposes it would go more to the offense level defense counsel says that he also says that you can take those same factors and under thirty five fifty three a look to i mean that's what exactly judge payne did  shelton said you can easily link this to protection of the public history and characteristics of the defendant and a sentence of ten fifteen twenty years could therefore be appropriate he says we do not dispute that the court has absolute authority if it chooses and that's that is the record there which brings me to the third point and that is harmless error there are two tests that the court has articulated one is knowledge that the district court would have reached the same result even if it had decided the guidelines issue of the other way and second to determine the error i'm sorry what was the error well that's it's if you say well the defense is arguing that it's and we're as to that and as i say that's all that the judge did here but the court specifically said as i as i in response to judge factors question said numerous times that he would have gone the same place by the barents analysis and he had ample authority by the by the thirty five fifty three a factors he applied to get to that point of forty eight months it was not even a heavy lift to get to that point because it was below what he otherwise would have been under a classic variance he would have moved the base fence level to result in a fifty seven to seventy one month range and he said i'm even under that and so he said that  it was a harmless error and most even under his analysis yes i do note you know that the defense raised as i run out of time here there whitehead decision that your honor and your honor were opinions on there with regard to that but i submit that whitehead said very quickly very clearly only something more than a review of thirty five fifty eight three factors is needed and in this case we have an unequivocal statement s versus roy to the same point last point if i may make i gotta stop here is the standard review also applies you where you have two reasons and least one of the rationale supports the guilty grey similarly is of as about a case in which extreme violence threatening mail communications were the sentencing was much higher than the guidelines as to the proposal to well you can you can get there by saying his conviction for the sexual assault was somehow relevant conduct was being here in the united states i think that presents many problems not the least of which is if that is the rule of the fourth circuit then there are going to be some people come in and commit a number of crohn's after their reentry and those by the working of relevant conduct law will not be being part of the criminal history because it's deemed part of the the relevant conduct of the offense of conviction i don't think the court wants to go there judge dr i would simply say you're in the proposition that perspective matters and when the judge is saying i'm giving the tendon a break by coming down that makes that much more critical where you start and how you get part of it i guess i'd say we certainly didn't hear articulated at the original sentencing and that's what the judgement of course reflects is what the original sutton saying was done we do not have anything from the district court