compliance with steps in procedures is required is especially where the diminished capacity to encourage departure ground was presented for the first time on a rematch for a response and help me out on something here and i'm having trouble getting to first base on one issue the departure if you actually find your argument kind of persuasive that the particular way in which this guy was not just as paranoid schizophrenia and  bipolar disorder would explain why he was so noxious as far as the judge was concerned and really explain the charges reaction and what bothers me is do we have any jur diction over the judge's refusal to depart absolutely your honor there is a the court has at has absolute discretion absolute power to review a misapplication of the guidelines and we don't get back into it by saying well we made some legal error or something like that your honor that goes back to cool to count two to walter all cases that are cited in the briefing in which in each of those cases in one way or another the district court misunderstood the basis for that i think special i think kuhn was where the district judge to this i am not permitted to depart for this reason and it turns out yes so guy like here we have a guideline that says the problem with reading it that drove like is that if your district judge you know very well that if you recognize your authority to depart it's a non reviewable exercise of discretion so there just not to call upon the district judge to articulate is legal analysis with the same care as in a reviewable area you are i think that the obligation is just as strong to assure that there has been a great application for example if the court were making a decision based on believing that unless i prove beyond a reasonable doubt that there is diminished capacity that's that that's a legal error in the application of the guidelines on an encouraged basis for departure that is surely reviewable by this court mr vacating doesn't i'm i'm having trouble following of my problem of yours what's the legal error you say the judge made here there are at least five legal errors first no connection and this is after you made all your arguments and that would get us to walter which says that if there is a erroneous finding of fact how can it be an erroneous finding of fact because first because i think he said look i've looked at this thing it's not a question of minimal for minor or material or something i don't find any connection that's a letter that's what he said or you say that's erroneous on this factual question on the legal question of whether he made a mistake what are the other legal mistakes that you say he made the when he was explaining why he was exercising discretion not to depart at the same time as finding no connection he said the reason i find no connection is because i have searched this man in court while he was on trial and i interpret the interrelationship between him and his lawyer during the trial as joint that he is an arrogant manipulative person who is just a bad person and i'm not going to give many breaks because of that how do you know that's wrong because of the gathers case the supreme court said that there is a constitutional right to consult with counsel during trial first of all we don't have any records at all of what happened we have no way of the court reviewing facts or was it just  and expressing himself with regard to what he thought of testimony and the problem that i have with that is not with the constitutional right to communicate with his lawyer it's with whether the church recognized that this kind of no it's used as an aggravating factor which is just wrong and that's why this should they should go back to reception also lucky and i correct that even though you lead off with the failure of the part you actually don't need that but if you mean when you told the court after making all your legal arguments i understand the court understands the legal grounds that the i was going into the discretion to do the splits that state court had not addressed the split but let me move over to something else that's bothering me here and it's probably evident to you from my questions that if i were the district attorney pretty sympathetic to your argument that it's the guy's mental disease that's making him so irritating in court as a characteristic of psychotics to be unpleasant to be around however the district judge didn't buy it and i'm not the district judge and i'm this because there is a combination of both legal and factual errors that do allow the court to review it we are not helpless to have any district court judges say because i think out of the magic word discretion there is no review its legal standards and fall if there's constitutional  can you determine the mental capacity of a person my looking at it i believe god and i also believe that the intelligence of a person is not necessarily at all correlated to the existence of mental illness or not which also argue that the court and you know abuse of discretion review is not the same thing as no review it doesn't mean never it just means hardly ever maybe not even hardly ever just that we won't substitute ourselves for the district  have jurisdiction to review it's just hard for me to see how i can say the district judge could act correctly find no connection between the way he behaved in court and his mental disorders we indicative of jack's i'm not disputing that he has a mental illness but let me tell you whether or not it was controlled with medication whether or not this man was a very good employee for social security and i are asked whether he received numerous promotions whether he did very very contact with him and i'm not saying that mental illness can't be hidden and that sort of thing but it doesn't mean that every mentally ill person doesn't have the ability to get the really very easy ones or do their best it's not so you get into the talking to about the f b i and stuff otherwise but he's not admitting anything more than a crime he's not going to be a snatch and he doesn't seem really contrite to make right and what we wrote in our in our decision was don't matter he put out he gets a two points right he didn't say that contrition is no longer a proper consideration for acceptance and in fact there have been multiple cases since you broke pants including cloris in which the court i think it's not any we think the district court was wrong we think the defendant wa been on the fringe for forty nine years and i've never seen anything like that and then the judge goes down the line and says based on what i have seen in this courtroom in my dealings with  documents in response to their requests for more information in none of those instances when he when he showed up for work or when he responded to requests for that in more information to get this benefit issue  know i just like make three quick points one is that the government can't have it both ways either he exercised her discretion because he found a connection if you don't have a connection you can't exercise your discretion so  important in the case of mentally ill clients is the instructions not to be looking into the soul of the person steps but that is really what we're talking about because that is not what we're not really quick to do that we can determine whether the person has said yes i did those acts and those and with no apparent show or emotion and this is the up first we have somebody who has a difficulty doesn't have the sophistication and as a matter of fact impaired in his ability to communicate what a judge expects to hear trying t