departure or as a variance i'm sorry to interrupt so early but do you have a position on which this is a departure or i think that the government has conceded that the that the district court didn't provide a written explanation as required for its departure so i believe the real fight here is on whether the variance procedurally unreasonable i think that is how the court should analyze it because i think the departure is so plainly defective we don't know what the district or even thought it was doing not really the district court purported to mitigation for example that he had a deescalating criminal history that most of his serious felony convictions had been when he was young or that he was in fact a drug user who was at best a low level drug dealer and that the gun in this this court's blue ross land charter and others and i think lou is particularly instructive lou is actually a within guideline sentence unlike this case which is a significant variance upward and the district  actually in that case give a more fulsome explanation the district court did hear there the district court considered arguments on behalf of blue with respect to his history and characteristics noted his substantial history category in the series  noted that he had an older sibling who had a history of engaging in similar criminal activity the court also recognized his opiate addiction and this court vacated it remained in saying that because the district court didn't explain how the three thousand five hundred and fifty three a factors or their principal shaped sentencing decision didn't show that glue is immune to other means of deterrence and didn't engage counsel in a discussion about the merits of his arguments it simply heard all of those things happened here and it's even more egregious because this was an outside of the guidelines sentence this court has held repeatedly in cases such as moral and dalton and hampton that the farther the sentencing court diverge is from the advisory guidelines range the more the reviewing court must carefully scrutinize the probation probation officer this is someone who can't comply with the terms of supervision time and time again who can't follow the rules when incarcerated this is the court making these observations throughout this hearing and then at the end alludes to that this is a dangerous person but you make it sound as if nothing was said if i listed to be from beyond two or three pages of comments that she made about why he was a dangerous person and and deserved observations in shorthand when it did the variance i say this is this is a dangerous person and that's just what i read about he can't be supervised he doesn't lessen the seventy nine infractions and that's repeated throughout the explanation was given it was just sent i don't think that's correct your honor my reading of lou is that the district court had said quote it considered arguments on behalf of lou with respect to history characteristics the court notes blue substantial criminal history category and the seriousness of the offense the court notes the blue with respect to his history and characteristics was influenced a great deal by an older sibling who had a history of engaging in somewhat a bit but in lieu i thought that there were entire arguments in mitigation that the district had never  why she took the break because that argument was made that the last while it was when he was twenty years old and she then actually broke she wanted to know what the recent conduct was but she was clearly an individual examination i th that's where i think the district court erred in failing to address the fact that the most serious conduct and it's no doubt that mr nance is rehabilitation has been iterative and incremental at best but he his most serious conduct was when he was young and that was something that his counsel addressed both in a sentencing memorandum and at the sentencing hearing i also believe the district court failed to address the fact that mr nance had a drug addiction himself and that this was a relatively low quantity of drugs that he possessed that he never reached for the gun or used it in any way during this offense and he was already significantly punished within the guidelines for his prior criminal history he nearly everything was scored except for a few offenses that were committed when he was a teenager and in fact he received six criminal history points for conduct that occurs when you are twenty made to the court on jay eighty one and talk to fact that he had reform he had a child he had something to live for and now he was a different man this is what the courts say right now the son is the source of great tension as discussed in paragraph thirty three and your explanation of why he was charged with breaking  entering to terrorize or injured must be criminal trespass in and of the trial phone you're saying that that was his effort to see his son he's basically saying the sun has actually provoked further violence that was her response now whether we agree with these things is another question but there is no question the district judge was engaged fully engaged i'm saying gauged as much as i've seen on case this time she gave a lot of attention she did show that your honor that the district court adequately addressed the three thousand five hundred and fifty three a factors and how they affected her sentence and why as a lower sentence would not have been sufficient but not greater than necessary to deter mr nantz specially in light of mr nance as explicit argument that he received a guideline sentence of seven years incarceration to be followed by five years of supervised release which would put him under the auspices of the federal courts for twelve years until he was forty five years old and i think this court's case in province is instruct is but it still is going to get sixty months that's wrong it's about three years it's three years but we're in times the low end of the guideline on the drug sentence and where are you going the low i mean this guy clearly is procedural reasonable misses in fact in a recent case in province neither party raised the issue of procedural unreasonableness both sides argued that the context of the questions made clear what the district court was doing and the panel nonetheless vacated  focused on an arrest record which is also problematic because these were charges that were proven at best buy probable cause at sentencing the standard is not high but it is certainly a preponderance of the evidence and in this case the government had every opportunity to present additional evidence related to past charges or conduct that was concerning to it but it didn't take that opportunity and so the district courts significant focus during the few questions that she asked were targeted toward these arrest records us is that the district court was considering an improper factor i actually arguing that the district court improperly considered the arrest record or not i don't think we know that for sure because our argument is that we don't understand from the context of hearing it's not patently obvious in our view what the district court was relying on but if the district court was in fact relying on the bare arrest record which it appears to us  for factual information you are allowed to rely on the factual underpinnings but our view is that when it's simply a charge and all that state in the p s r is the allegations there's no additional evidence the th circuit referred to this is defendant would be contesting or objecting to would be the fact of the allegation even though he didn't object to that there wasn't further explanation of context and i think that's important because here even in the allegation the  charge that you alluded to i believe judge harris which was in february of two thousand and seventeen there certainly serious sounding charges but there was no allegation of physical violence and nothing to indicate that a weapon was possessed or if there was any physical violence other reasons why those charges were dismissed that were not explored  this is we believe a heartland case for someone with a criminal history category of five and where there is a more significant variance here triple the low end of the guideline on the drug count the district court is bound to give a more expansive set of reasons for upward departure and an alternative variance the only reason why i think there's any doubt is there was an error or appears to be an error in the statement you use and where the boxes for up were departure and the reason for the upper departure were not checked departure or when you look at what the judge what the district judge said she talks about a an up or departure she goes through the incremental steps outlined in the dalton decisions to reach the to reach the the guidelines level that that she did yours i wanted to respond to this notion about why whether or not it was improper for the district judge to consider the arrests that are outlined in paragraph thirty three and thirty four the pre sentence report these were arrests that did not lead to convictions and i think it's important to look at the actual look at the transcript because the reason that  the district judge was even talking about this is that she was responding to an argument that the defense counsel had had been making on page seventy seven dollars of the of the joint appendix seventy six dollars seventy cents defense counsel is making an argument saying i think it's notable after she's released she doesn't have any more violent convictions these are charges that may look violent but there are a completely different kind than he was engaged in when he teenager and it shows that he's capable of controlling himself and the colloquy goes on a little bit further and in response the court says well his assaults of tendencies are documented in paragraph thirty four d and she's st referring to one of the  not lead to a conviction and at that point defense counsel snaps back and says oh it sorry your honor you can't consider arrests that didn't lead to convictions but then the district court on page seventy eight of the joint appendix as well i think it needs to be talked about in the context of an argument that says he's able to control themselves so the only reason the court is even looking at this is because defense counsel is making an argument and it seems that the district the defense counsel guided to additional explanation actual explanation of a dispute the ad is wife and and in connection with visiting the son that's absolutely correct your honor and so it seems as though here  is put in a position of you know damned if you do damned if you don't on one hand district judge is required to respond to the arguments the non frivolous arguments that are being made by defense counsel and that's what she's doing she's responding to the arguments referring to the arrests and certainly if this were departure or alternative variance had been based solely upon these these arrests without conviction certainly that would that would be an improper but that's not what happened here the district judge is looking at the in the history and characteristics of this defendant she was looking at the nature of the offenses she was looking at the fact that this is a man who has four felony convictions and every single time that she is placed on probation or supply for at least he's violating the terms of probation surprised he's she's looking at the fact that when he's incarcerated seventy nine dollars infractions she talks about she takes the unusual step of taking a break in the proceedings to see how he's doing while while waiting while awaiting sentencing on these very charges so the district judge was fully engaged in the process fully engaged in responding to many different arguments that were made in mitigation and the fact that the district judge found these arguments to be non persuasive does not mean that they were that they were in any way that her actions were in any way procedurally or substantively unreasonable to play ask you a question about your argument and so this is the argument that on the criminal history score doesn't adequately represent the it properly applies our case law in defining a career offender has done it has under ten big basically that that the right answer ought to be as in the column come out the other way i think certainly in in this instance that is the argument we we were making this court in the lawrence decision has said that it's it's acceptable to look to sentence someone as a defacto career offender and i think that's what that's what the government was arguing for a that is this then you shouldn't be advising district courts to violate the law of the circuit should you i don't agree or even if we were saying to the district or that she should be sentenced as a defacto career offender i don't think that that would necessarily be asking the district court to to violate the law should you said and speaking to the court you said you thought mccomas wrongly decided i that's an issue you could raise to us for reconsideration  and this court in the lawrence decision and others said that might be advisable for you not to hesitate in response to the question say we are not as a matter of policy urging d the court not to follow precedent and if you find a way around m um or you can distinguish it from other cases but it seems to me it's important to us to be sure the district courts follow our decisions and they can make if we've done an error we make a lot of them  but not terms and when you look at the government's recommendation and then you look at what the or did i think it further strengthens our contention here that the court crafted in individualized sentence thoughtful sentence and or itself said i'm tempering or this this is a tempered fortune with the court didn't follow your recommendation number one and didn't follow your reason it dick or did not your honor and so i think that that goes to that goes to the fact the court responded directly to a lot of the arguments that were being made it considered the government's argument and it rejected it considered many of the defense arguments and rejected those and i wonder take a moment when you get join appendix the court said you had some serious things happen to you as a child that were to happen to you through no fault of your own but now you're an adult and you keep acting against society you keep acting against norms and you need  the what the court was looking at is that from age sixteen to age thirty three there's an unbroken record there's sort of a chain of events of violating the law violating the arms violating any kind of rules continued involvement with with narcotics with firearms and so i think the court was not persuaded because it was looking at this unbroken chain of events from age sixteen to age thirty was certainly acknowledge you know heard the heard the argue heard the argument you know didn't necessarily disagree with it but the court is also looking at an unbroken type of conduct persons who don't receive mercy doing a period of time when the frontal lobe does not develop is virtually likely be a life will spiral in terms of post twenty to have the little bump tell you that it's a kid who's sixteen years old gets in trouble one kid goes home and sit with two parents and say they don't do it again but the other goes to detention studies show is very likely an activity in adult life will continue to spiral its want that the question is tension and it may in it and it is it is something that i think perhaps the district court looking at this particular defendant in front of her was not able to to really address fix this is a much broader issue throughout our criminal justice he did it with the initial convictions that are laid out on page one hundred and thirteen dollars in the p s r the initial conviction possession of a move motor vehicle breaking and entering he got suspended sentences fifty six months in custody suspended all of by probation but then the probation was revoked he goes back again another conviction another suspended sentence on probation probation gets gets revoked so this so by the time he came before the district there was a lengthy history of criminal violations nd chances of violations of probation violation of terms of supervisor of the so that's what the district court was looking at when mr nance came came before her f why i was just wondering a little bit why the courts suggestion that you need a mental health treatment and you had some serious things happen to you the no fault your own as a child and serious problem but i seems to me to the extent that can be addressed wouldn't mental health treatment be the best thing that could be done for citizen in the context of federal prison that that is the best and that's the most that could be done for him and i think that's what was that's what or that's one of the reasons that the court ended up imposing or suggest having that be one of the one of the conditions of his incarceration is that it is that he doesn't fact receive this mental health  sentence was reasonable in terms of a variance the court was focused very much on history and characteristics of the defendant it was concerned about deterrence given his long history of violent conduct and clearly the court was not persuaded by the argument that well it wasn't the drugs weren't weren't that many he didn't use the gun if you look at the conduct underlying counts i believe  of the indictment that occurred on april th two thousand and seventeen this all started because the mother of mr nance the son called the police and said hey he's sitting in my driveway i'm afraid the police came he attempted to elude the police you had one officer who had to jump in the vehicle while it was rolling forward and turn car off when they arrest him they find a distribution of  including his history in characteristics this court has said repeatedly that the district judge does not need to fix through each of the three thousand five hundred and fifty three dollars a factors i think we agree the blue controls here based on the record believe the defendant in that case made about eight different arguments and the district judge only responded to one or two here the record is filled with detailed in gauge mn and response by the district judge to the non frivolous arguments thank your honor she should like to respond to your point about the frontal lobe development which i also believe was not addressed by the district court and it's particularly significant in this case were six of nine of mr nance's criminal history points came from a time when he was twenty one younger and so irrespective of what happened after that time when you talk about increasing someone's advisory guideline range or increasing their ultimate sentence by triple of the low end that is that a general statement it says neurological research i'm sure the court is aware indicates that the frontal lobe which is response for impulse control is not fully formed until twenty five we had no specific evidence that that was the case here but we accept the argument that it was twenty five so that was part of your argument that he is now no longer violent because he's over twenty five dollars and then the argument goes on look at his record afterward he's committed no violent crime since he was twenty out was the argument made below the court then addressed and went into everything we just stuff earlier more market day about this it in the child and the explanation for the fact that since he has been twenty one is not turn the argument was he's not fully developed and he has a child and he's no longer but that basically was substance of why he should be and i'm just and i think the record shows engagement you know on some level with his subsequent history but i think it is a different question whether his prior offenses at ages twenty five and younger should be viewed as severely and that's what the  improvement with seventy nine dollars infractions i don't see that improvement with respect to his conduct charge conduct when he went to visit the charm i don't see that with respect to his current detained in that's what the courts say now if the court right or wrong is another question but the court considered if i may respond yes please there are i think two arguments there and one is that this prior conduct is already baked into his guideline range in a significant fortunately about it wasn't the court didn't address that's right and i did address at the question that even addressed it in error is another argument you'd like to make but i understand i was just research raising the question of whether the record doesn't show