conduct to the offense of conviction namely the defense being found in the united states in august of two thousand and five and what the district courts had the effect of doing was reducing the defendant's country which is what the defendant hernandez gonzales did in this case now the other case a judge to sheen i believe that you are referring to is the lead case which is also you know political here because a careful reading of that case discloses that the court decided simply that even if you accept what the defendant advocated for that it would harm the sentence because any  is why this case must be remanded and it must be remanded because well the conduct is a factual determination and the court did not have the opportunity to decide whether it whether those two  returns to mexico would have cut off the relevant context in this case the court did not do that because the defendant took the opposite position as he takes now its appeal in the district court to defend the greet that he had  and left a number of times and came back and was found in the united states and finally prosecuted for that and with the fifth circuit said was that the only time going in coming wakes up the room and conduct change is when the that there were at least two visits back to mexico so the government simply hasn't met its burden even under its argument of showing that the most recently entry was before two thousand and three  mean these facts seem to be so critical to both of your perspective or you that's why don't have a full hearing on the record and give the district judge a choose to make poignant susceptible to the review by this court you know i really have no she committed book or error because she said this is a factor i didn't want to consider i am concerned about the fact that there are that then that's it exactly this gentleman is position who are getting much lesser sentences and i want to consider that but spirit can be considered to be other factors likewise its track to security although it was not unwarranted disorderly for the purpose of the basics it can be considered under one of the other factors for example it can be this was before the circuit had distinguished between departures and various shifts i agree to that but she would not be the only judge to the circuit to appreciate the important distinction between the departure interference before this court articulated in written opinion but we know that she was using departure in the broad sense because that on page one fifty three she makes her offer pretty clear she says but i'm going to consider it and that's the fast track issue when i sentence him within the guidelines range she's already said i can't consider it said the city council of the guideline range but i am going to consider it when i said this with a gun i made because i am concerned as i said that we have at the bottom of the range in part because of this issue so she gave her some credit but it didn't give him his much credit as you would what but on this issue she was free to consider as a basis for going below the guidelines range and she just didn't recognize her already to do that legal matter she's not saying i'm rejecting as a matter of my discretion she's saying as a legal matter that not the kind of just spirit that's men met who are oh who are otherwise should consider it at least in the sense of invites the defendant to argue or priest use as an example of someone who continually we enters the united states and goes back to their native country and defended makes no statement that he is one of those people it is clear happened was it only the only fair reading of this record is that the district court fully considered this issue and did appropriately the only thing that did the defendant raised as the basis to be granted a sense of the guidelines