we're ready to hear argument in the st case united states versus torres race any sentencing rationale to support your thirty seven months and the nd occurred when the district failed to explain why it had rejected mr torres races arguments in favor of a lower sentence so turning to the st error the supreme court in  has explained that regardless of whether a sentencing court is imposing his sentence above the guidelines below the guidelines or within the guidelines it is required to place on the record sentencing rationale to adequately explain that sentence appellate review and to promote the perception of fair sentencing and in this case your honour's i believe what we have is a district or who was unaware of the sentencing obligation and i say that because when you look on page thirty seven of the join this is at the very beginning of the sentencing proceeding the court is sort of laying out for the parties how it intends to proceed in the case and it says it's going to be following the dictates of united states versus hughes was a two thousand and five decision is required to explain its reasons for doing so and that statement strongly suggests your honour's that the district court mistakenly believed that as long as it was hosing you so doesn't actually mean that's saying one thing does absolutely honor but it does suggest that he thought that as long as he was giving within guidelines sentence he wouldn't have to explain his reasons and that may have all may well also rest with the fact that he says he's following the dictate it's of the united states  what about the fact that the district court noted that it had considered a motion for downward ariens it said they had considered it your honor and i would point out that so mr tourist rance made four arguments to he in the sentencing memo and he presented a additional two at the sentencing hearing itself so the st two rested with at are the bakery's of how illegal reentry case works are you had that continuing offense theory and he was saying st he was making a legal objections to the calculation of the guideline range which we have not brought forward on appeal and then the sentencing memo also said well because of this you have that the case because of this continuing offense  the the disparities argument every time i've seen that argument actually may they point to some actual disparity right and so the challenge of got in and we could talk about each of them and maybe we should i'm curious about is your perspective on how that conclusion restatement but with no information about anything else to back it off that conclusion a statement how that raises in a meaningful way grounds for a very it's so i think what he was trying to point out that you're going to have to exactly similarly situated defendant seemingly reentry case in one case you're going to be able to pinpoint that reentry date right because that's when the p s r could actually say no this is actually when you country and then you're going to have and then other cases you're not going to have same day and so you're going and so then the old  old criminal conviction would not come and so would normally age out right under the guidelines and so i think that's the point that mr martin was trying to make this is the way that whole theory is going to work may result in substantial disparities between a similarly situated so from your perspective the disparities argument that he's making only relates to this criminal history objection that was made it relates to it really no no i don't know it relates to but it the disparity argument he's making is limited to that one issue i believe so your honor and so then the sentencing court says i've read your prison provided specific in general deterrence and he also noted that a shorter sentence would result in savings to taxpayers now i will give you that that is not a very individualized argument i will say that it does have particular so what we need here as this court said in blue is it's important for the sentencing court to explain then why aren't humans have been rejected what we have here is the failure to explain why it's not all important why  's not a harmless error if the court the court clearly understood there were states and it's and try to coordinate with those sentences would think that the district court had already thought th rough so so the harmless error st of all we would contend your honor it would be particularly inappropriate in this case to view it with a harmless error scheme because especially where you have firm if statements on the record indicating that sense in court may have not understood its sentencing obligation because of course if this court chooses not well they're not a hermitage statement on what you're saying is their statements on the record from which you imply that the judge didn't know what he was doing i think it's a little bit more than him implying your honor i think if he had meant to say oh and i understand i always want to explain places those indicate pretty strongly that we are not so much development in the senate since two thousand and five you've got from the supreme you have read you have you have all from this court you have lynn harder slappy blue cross over and over again   a little bit more indication that the district and nobody has cited single case where the continuing offense theory was used in this way correct there is no case where this has been done or correct that's correct or maybe the government can come up with something when they i would just also like to you know speaking about the harmless error you know it is a high burden for the government to show and i think that's why it's not used in a lot of cases the government has cited only a single case united states versus all where and i'm going to get to all where in a minute but i would just note on page eight of my reply brief i have cited to this court in addition to blue and ross a very long string cite of cases in which the government has made this exact same argument a harmless error argument and this court has rejected that argument and said no i think there's not enough on the record here we need to send it back and have the recent sing because we're just not we cannot be fairly assured  confidence that this did not have a substantial injurious effect on the senate and every single one of those cases your honour's if you go and look at what the defendant the defendant received a lower sentence it's pretty strong evidence to show that when you force the dentist since in court actually place at sentencing rationale on the record and when you force the district court to actually respond and explain why that the court has rejected the non frivolous argument s it actually can make quite a difference and actually judge richardson i think your case last month in the united states versus mccall also serves as just an important reminder of how important it is that the sentencing court places  you looked at the reasons that the court gave and you saw that it looks like the district court actually maybe got some of the facts in this case mixed and you also saw that the court may have relied on some improper  again it's sort of promoting the perception of fear sentencing is so important because the public when we're talking about the public and they're sensing we're mainly talking about the defendant and the defendant's family all sitting right behind him in the all where it does not support the government's argument in fact all war supports mr doris reyes because when you look at because the court this court and delaware actually contrast the facts of that case with the kind of scenario that we have ensure that there is a reasons basis for that judgment the other thing that the court did empower where was to contrast the situation about where the defendant made only a single what this court called very weak unsupported argument that basically amounted to her saying that well people will miss me when i'm gone they're going to kind of be without me and this court said given the weakness of that single argument in contrast to the situation in lynn where in have only a single weak argument we can feel confident that this just report would have been posed the same sense regardless but that's not what we have here because we have the district court without a single sided failing to cite a single thirty five f documents for a variance are that affects the degree of discussion so tell me if i'm looking at the the four i think you've suggested not sure there exactly how there's one up but of those four which one do you think is the strongest argument yes and the reason that i'm i think you're absolutely right about that reason being that the other end that one has developed the other arguments that we've sort of talked about here or maybe sort of raised but they're not fleshed out in any meaningful way and that's the concern i've got and i understand that one and that's one that we talked about but the other arguments out of the four maybe the two that are a while or the ones that don't seem to be adequately developed by percent and however i will point out that they were not they were not frivolous arguments and what this court has said over and over and over again is that the district court is required to explain to address each and every non frivolous argument and assume we cannot assume that the district court truly consider the individual characteristics of the case and truly consider the non frivolous arguments unless the record record makes it obvious and this court said in slapping th good morning may please the court christine fitz on behalf of the united states when you look at the sentencing transcript what it reflects is the court's assessment that the guidelines are appropriate because this is a typical case and the court imposed the bottom of the guidelines defendant then defense counsel then argued his position and in his opinion that applying to continue an offense theory to this particular case would be unfair and it would undo he was not out with regard to the objections of the and i'm still looking for where the court explained its reasoning for rejecting the downward variance in the context of the actual downward variance decision i think in this case what we have is the court after deported twice and he says he essentially says i i'd like you to explain to me where i should go with him the guy langridge and why council so i think it's pretty apparent at that point he has not persuaded by the argument that's one thing he has to it's the court asked to explain why i think it is that the court must not have been persuaded by the arguments because of the ruling but the court has to explain why i think the slightly different way is does the court where the variance is based on the same ground as the objection does the court have to repeat itself with respect to the various maybe it  done i'm not but that's i think sort of maybe a piece of that question is of the objection and hypothesize for us that there's one objection about the criminal history and there's one ground for  this case but just stay with me and he explains with respect to the objection why this doesn't work i overrule the objection for reasons a b and c considers the arguments there and then does not address separately hypothesize here that as a ground for a very it's right the question is why that suffices why if you address the  objection and discuss your views on it there why is that or why should that give us confidence you know as blue suggests that it's been considered by the court i mean what blue suggests is that  judge provided enough information considered artie's arguments when it said so noted yes in response to the objection to the yes are absolutely i think when the court st of all said i've read your sentencing memoranda i'm familiar with your downward departure motion and after this under representation overrepresentation argument is made the court says so noted that is enough and i think that in reading what the court talks about is after hearing actual evidence and argument all he said was i think that the guidelines then and the guideline range is appropriate and he the supreme court says he must of thought there was not much more to say and then the supreme  and thirty eight and thirty nine of the j the court give sort of three paragraphs here about about this objection right so they're talking about the over the criminal history objection and he goes through and says this is why like i comes back and says all right like he said you know the defense lawyer doesn't want to directly disagree with that but says in any event this is like overrepresentation this is sort of the variance piece of that are noted in light of what the judge is just explained his position to be if if the argument had stop simply about the calculation that i mean and and the court hadn't said anything more i think there is some teeth to the argument that all he was addressing there was the legal objection but when after that the defense counsel goes on and argues essentially as you said the variance argument in the court says so say and i'd like to take each of the defendants arguments in their reply brief and ph for the defendant says that there are four groups of arguments that weren't appropriately addressed the st one is that the criminal history but also i do think it's appropriate to actually look at the merit of the argument this may be a meritorious argument for some to ponder but i would suggest that it is borderline frivolous for this defendant to say that his more recent history his more recent conduct is a better representation and is a more reliable basis on which to judge him and i say that because his more distant contract was evading drug charges from two thousand and six for a decade and then being caught by the marshals with a gun so are there any cases that have used the continuing off in theory in the way it was used in this case to enhance the criminal history i believe that t because i'm not as familiar with that line of cases and i'm not just millions specifically because the defendant's not contesting his i mean he has accepted that was an appropriately calculated guideline range so i'm sorry i'm unable to respond to questions directed to that aspect of the court's concern but the fact remains that he's not challenging that the guideline range is appropriate calculated and i would suggest that part of what makes it not a non frivolous  argument and i think it's hard his argument is that because of the continuing offense theory he's being held accountable for very old convictions at the expense of the court focusing on his more recent con and what i'm saying is well that might be true for some defendants who have done wonderful things and in their recent years this is an individual who came back to the united states unlawfully in two thousand and six he was charged with two dr twenty eight and she one hundred grams of cocaine he failed to appear in the court he had given an alias he failed to appear he lives here so as a fugitive that you can write this is these are the things the district court should have said so that we would have to guess what think on this record particularly when you do have the judge who he is familiar with the district courts he is familiar with the defendant's history he talks about during the exchange with government counsel and government counsel arguing he says well yeah and that's when the marshals found him with a gun right that's true that's his most recent state charge he's familiar with the federal or with the state drug charges and that's indicated through the exchange with the defense attorneys as well when you combine the sentences on his state charges with his federal sentence that he's about to receive for illegal reentry we think that's enough and the court says well when is the last when does that last sentence run when does that expire and then the court chooses to impose his federal sentence consecutive  the court also pointed out that he was forty eight years old and had been deported twice at that age you would expect to have learned from your past mistakes so and i do i appreciate that it would have been wonderful for the court to have laid this out more explicit on this record this is a weak argument and i don't think there was much more that the court needed to say he said that he effectively said where do you want me to go within the guidelines and why which is i think the guidelines have it right and the guidelines are supposed to try to embody the three thousand five hundred and fifty three a characteristic the considerations for the typical offender effectively the court didn't think that this defendant was atypical that he was special he was so different in a way that he should have gotten a lesser sentence and i think it's hard pressed when you have cases like rita where saying i agree with the guidelines or the guidelines are appropriate against arguments which were much better developed and r understand i understand that argument and i ask you a different question which is maybe a little beyond this particular one and with judge stackers he she may go a little bit beyond but could a district court mean one of the challenges that we see here right that there's a variance motion that raises one maybe two grounds for a variance and then sort of after the those are rejected in the train screw up the defense counsel raises one or two others maybe at least sort of references the substantial savings argument and i presume in that scenario the fact that it was included in the motion for motion so that they would avoid this problem down the road so that a district court good at sentencing say all right i've got your variance motion i can tick through and make sure that i have it everything that you brave because the district judge doesn't have the benefit of a transcript raise easy for us to go back and say all right did you tick off every single single thing that the defense counsel mentioned and asked right he's trying to remember here she's trying to remember all those things could the district court do that require a written motion for a variance that it didn't if i was the grounds for a variance in order to allow him to comply with this requirement of otherwise that if you where we've held that if you raise it wants the fact that you don't raise it at the end of sentencing doesn't matter but i do think this could be distinguished because the court has expressly and biting the defense attorney  defendant to say listen if i you know for example if you have no idea why impose the sentence that i am pose or if you feel like i didn't address the fissioning argument now's the time to do it let me correct this mistake that you're now complaining about i understand that but that's the or we rejected that i mean i'm not disagreeing with you as a matter of st principles but i think we've rejected that argument already i agree that you preserve the objection but i'm not certain whether the court has addressed a situation where a judge specifically taken a moment to say have i have i done anything have i done everything that i can't i was and i always think if you've ever been to do a sentencing where the judge at the very end and say all right anybody got objections to what i've done i mean every i've been in a few of these like every single time the judge anybody got any problem anybody got any objections here and the defense says objection on this sort of ground and then the defense counsel in sort of explains himself and then the defense counsels goes back and says but doing this by taking that approach this over punishes client and makes him responsible for ancient convictions that sounds an awful lot like the variance argument that is made in the motion for a variance and so reasonably i think we could read transcript as saying here's the legal objection here's why i say rejected defense counsel says ok like you know i understand that ruling but even so it over punishes our client and that makes you responsible for these ancient convictions and that's the variance argument and that's where the district court says so noted sort of acknowledging i've heard we could have given better explanation but just says so noted do you read that is being objection so help me understand so when he says taking that approach over punishes our on that's not a legal objection right that's a listen this is this is too harshly that sounds like a variance argument not a legal objection argument and so i think when you're trying to calculate the guideline range trying to resolve a legal objection it's very much applying well looking at the law and looking at the acts here and looking at or looking at the law and looking at the law and simply on figuring out what the legal answer is looking to case but then when you're talking about the that area and some of the departure you're considering the individual circumstances that case it very defense counsel's argument that this over punishing makes you responsible for these that's the variance or and then so noted maybe that's not a sufficient explanation but that's response to the variance or i think it is it's i don't think it maybe not sufficient but it's a risk i would say your red light is on but i have one question for you are you able to respond to that recent supreme court case that district court is obligated whether the disciplines obligated to adequately explain the sentence and respond to the non frivolous argument so this court i believe has already considered the chavez mais argument in applying it to