compounded errors committed by the district court in fashioning a roughly one month sentence for an armed career criminal facing a statutory minimum sentence of fifteen years as a result of these errors united states argues that the sense was both procedurally and well actually that would be one perhaps our biggest argument but it might actually be the second argument behind the kind of threshold issue that arises out of cases like vampire nation brown and this court's from a decision which was issued think thirty five fifty three has to be your primary argument because we've got a mandatory minimum here well right at the point i was trying to make sure i was from particularly some language in from all saying that if the court is going to grant a departure as from those sentencing guidelines which i guess you did at least in terms of the assistance factor pertaining to the mandatory under under the correct then the court takes that into account and then step three the court  in as a factor for consideration under thirty five fifty three and that would be the variance i thought what you were saying to bounce it is look to go from one hundred thirty five two hundred sixty eight months or under the sensing guidelines down to one month served is such a variance that under from oh it's not true there you just can't do it well it's problematic as a variance is problematic as a as a departure and then the court he wanted your departure granted the departure however did not fight to say why he say the five k one five k one thirty five fifty three and that it was filed under both granted that departure but then did not indicate how that would affect the guideline calculation which is something that this court as i recall additionally there was some concern because there was a page loss that he maybe you perceive that you you were he perceived that you were asking him to go below the guidelines which of course you were right and that is what sparked our thirty that is correct so that would be have to be playing error here but if not well if there was an objection raised to the ultimate sentence then no but that was good as you that he didn't have the page and didn't know you were recommending hundred thirty five sure it wasn't a judge you did the wrong thing because you can't do this on any basis it's right that specific argument was not raised by the trial when we read three thirty five fifty three eighty we have to find that under our case law it is so plain as to what he should or should have done that it's plain air we think it's not just one of the case law would be under the statute thirty five fifty three and five k one the language within there as well which limits these types of departures to reflecting the assistance which it says you know i'm not sure that says has authority to impose so as to reflect substantial assistance that either that period such sentence shall be imposed in accordance with the guidelines and policy statements issued by the sentencing commission five k one point one there's a guideline dealing with substantial assistance and a departure under that guideline which does set forth specific things that are to be considered in fact the judge here did examine some of those when deciding whether to grant the departure in the works but i mean twenty eight u s c nine hundred four is not just five k one it's the whole ball of wax right yes and i would argue that you look at the statutory scheme and you have in congress deciding that if someone is an armed career  criminal they are going to be subject to a fifteen year mandatory minimum sentence thirty five fifty three a factors and everything else that has to do with with the guidelines no matter how much a judge considers those you can't go below that fifteen and then sets forth in thirty five fifty three a very narrow limited exceptions i will in the case of someone who's providing substantial assistance we're going to allow the door to be open a little bit to make a departure and reduce below that minimum  i guess from the united states perspective we don't see that is then opening the door and saying ok everything gets considered once again we're going to toss out congress's consideration but i'm just wondering what then why would they refer to guidelines and policy statements under the guidelines if it's you know if you've got fifteen years and you reflect in substantial assistance and you say oh well it was really good assistance so i'll give you know two levels down and give you you know one hundred one hundred  point one i understand your point that it brings in all of the thing is it reference i mean i point i just are and all of us or all of the the guidelines the guidelines changed over time and you know the statute doesn't and so i think there's some probably some leeway built into the statute to understand there may be changes to five k one point one or other departure motions that they might be filed under the guidelines and they didn't necessarily want to restrict it i don't think the united states would agree that it throws the door open to consider a ng absolutely everything under the guidelines of the thirty five fifty three a factors let's assume you're right on the that you can only deal with assistance factors you're saying that if you go below the mandatory minimum under a five one point one and a thirty five fifty three b that you can only take into account the system's now what happens if can the court take into account not assistance factors if it wishes to say ok otherwise i would have gone down by x number of months but i'm not going to go that far because of non assistance factors other words can errol point your way with on assistance factors under thirty five fifty three well under this court's reasoning the cahsee on his case which was pre book or and dealt with five k one the four that said that yes that's a markedly different position because the limitation that congress is putting in thirty five fifty three is on the extent of the departure and how far down the sentence reduction is going to go sounds like a heads i win tails you lose type of proposition it may very well be that way but i think this court's reasoning in casi are now set forth why that might be a reasonable result and again that dealing specifically with five k one and pre book or i understand that things might have changed somewhat after that but it's nonetheless somewhat persuasive as far as the government's position is limiting the use of thirty five fifty three a factors standard variance factors once you are using a thirty five fifty three each departure go below the statutory minimum that's the approach that the eighth circuit took and bonk in the burns decision also then adopted by the tenth circuit and it's a b decision basically saying what we've been arguing what i've been arguing here today on behalf of the united states now as is the second point that i made in the in the brief with regards to if this is characterized as a variance there are still problems with the sentence you know how far below the through the below that what we would we wouldn't make that argument i would say that it had to stop at one thirty five descript district obviously has some discretion there of the recommendation of the united states whether that last page is actually attached to it on the filing or not well certainly that it be in the one thirty five or one sixty eight month range the district court certainly has discretion may have decided to go lower and even if it had i didn't necessarily know that we would've been here appealing that decision your point is that the one month is going down beyond the pale fifteen year mandatory minimum to one month and three days we do think is an abuse of discretion that it's goes a little bit beyond what's reasonable that's thirty five to fifty three we're not dealing with a five k ok now i think the government's reading of thirty five fifty three is overly broad when we look at that statute the only limitation inferred there is that you need the motion by the government in order to depart from the mandatory minimum sentence there's nothing in the wording of thirty five fifty three either that gives this court any guidance or th months under the sentencing guidelines or that the recommendation of sentencing guidelines but it can go as far as as it did then take into account non assistance or first of all cannot take into account not assistance factors thirty five fifty three he is limited to assistance and when you take into account all these other factors it doesn't it doesn't work secondly there are going that it's just there was never a ruling on the armed career criminal status of mr weinberger until after the government filed their motion for departure from the mandatory minimum when we appeared at the hearing on the was the first the trial court had ever even mentioned that he determined mr weinberger to be unarmed career criminal so we went into this hearing not knowing where we were going as far as are we going to proceed sentencing today or are we not so i think when you take that into consideration at the trial court was relying on that government's motion before you made the terminations of your inquiry criminal it gives you a sense of what the trial court was caught and yeah it's kind of not not fair but then you didn't you also didn't cross appeal the  satisfied obviously with the sentence he would be received because and we're talking about it now but i mean you didn't cross appeal before us in the event that the government is correct well no we didn't because of frankly went through what he kept is the guidelines that the first step required now in the sense in process right he started off at the eight to fourteen months and said this is what it would be however with you being an arm career criminal it goes to this right now i've never even asked for a variance because for the first time in my twenty nine years the court came out and told us prior to imposing sentence what he intended to do the core comes out and says scuse me b i'm giving you supervised release so i think we have to look at this or it's a departure as opposed to a variance there was never a request for a but if the law required fifteen year sentence  rather is a mandatory minimum right everything goes out the window absolutely under that other than the thirty five fifty three and that's what was filed exactly thirty five fifty three was filed by the government and the t position that at that point in time i am free to in fact it says in conjunction with the sensing guidelines well the sentencing guidelines are advisory and he did consider the thirty five fifty three a factors in imposing the  at the individual's age he looked at the individual's health he made comments about the type of crime it was and writer his opinion as to whether it was actually an illegal act or not illegal act how are all the other circuits wrong when we have the courts of appeals wrong in saying that when it says limited authority and says the courts will have the authority to impose below so as to reflect substantial assistance period and they've read it to say that is the limited authority to do anything other than fifteen years how do we then affirm the district court's doing anything other than that limited one and there is discretion as to how far to go here this this is an indication of the scope of the authority we have no distress no authority to go below fifteen years none other than others i suppose anschluss is ok and then the motion is filed that gives the trial court of the district court the opportunity to impose a sentence below that now in light of booker in light of gaul trial court then has the opportunity to impose whatever sentence he deems appropriate so long as he takes into consideration the thirty five fifty three a factors and in this case he went through the thirty five fifty three a factors and it was his the terminations that a sentence of thirty days followed by supervised release was an appropriate  factors he considered really guideline factors of certainly they were you are when you talk about he talked about his health and the need for medical attention he talked about his age he talked about his prior criminal conduct he talked about how this weapon was being used and your honor having lived in bucks county and relocated the williamsport i can explain to you bradford county thinking is a little bit different than thinking would be and they major metropolitan area  but i get your drift yes were we were talking about a man who has no running water who lives in a trailer and how to use the hunting rifle for the purpose of feeding him self that was when the court was the terming saying that he was sure he used to be legally i think he was making the point that this is not a man walking down the street carrying this weapon so although as a felon he's not he's not allowed to have a gun right absolutely there's the i mean that's my point i guess is that he should get a fifteen year mandatory minimum except when the government files a motion and they filed a motion right and i think that opens up the door and i understand that the third circuit in burns are the eighth circuit the burns case takes a different approach because they say this this court took a different approach even in the cassiano case saying you can consider these things the what other point destruction are a downward departure for substantial assistance good meaning considering the factors in that case was that the senator was complaining who had raised the a pail and the court said well we really can't we don't have jurisdiction to review that issue and i think it should be on the other foot as well the extent of the departure as long as there is a basis in what the court trial court found i don't think this court has the authority to go and put yourself in the position of reviewing it i understand the standard is is something very reasonable but again i think you have to consider that the trial court is one of sitting there in front of this gentleman who has read the pre sentence report was been through all those and it's and just briefly here on our own on opposing counsel final point about whether this court is able to look at a discretionary determination i think first as to get through the threshold issue of whether there was a proper use of discretion and that's what we're arguing about here you know there's obviously stark difference between what the posen counsel and the united states believe thirty five fifty three zero allows a court to do once a motion is filed in getting to the point and very briefly that opposing counsel is making about the factors that were concern wasn't so much about whether he could get adequate care in the opi custody but how much it would cost the taxpayer which is not a factor that's less than thirty five fifty three unless there are any further