humans not raised before the district court for plein air however i think the most recent case in this has been a bone of contention in the district there in the ninth circuit as to when errors plain however i think the most recent case and decided by the supreme court in molino versus martinez made clear that even if you're one tick above a guideline structure in other words if the error is with the district court's calculation rule fifty two b applies and in moline of martinez molina's level was should have been seventy seven to ninety six or is the calculation by the p s r was seventy seven and ninety six months when it should have been seventy to eighty and here's a question i have that that troubles me about this whole case is there's two appeals correct correct ok so in the first appeal the parties had stipulated to the up to twenty and then there's  appeal in the district court then there is an appeal and mr packer never raises an issue about that and nothing in the court in the appeal then on appeal the ninth circuit says of course there is one problem with the the comparison in the district court's comments in terms of sentencing but there's nothing about the twenty and at this point mr packard hasn't challenge that and anyway so i'm having some trouble procedurally and i went through the briefs in the first appeal and looked very carefully some having some trouble procedurally to know how you can have a whole appeal and then come back and now raise something that you never raised even in principle in the first appeal well i think your honor that in the in two thousand and thirteen when mr packard was sense of temper two thousand and thirteen united states versus when there had been decided which held that the residential burglary it i missed it on the first and i missed it on the second however i think at the time when mr parker was sense the second time around that was october of two thousand and fifteen  johnson had been decided in june of two thousand and fifteen and not intel actually two thousand and sixteen did the supreme court to sag mathis and mathis held that the iowa state burglary which is that which the supreme court found was broader and that the elements i mean i understand all that but i still don't understand how you can have missed it have missed it and it's a question of was a categorical or not no may have turns out that it wasn't but at the time with the offense level stipulated  don't i just don't understand how you can come back on the second i like anything really so that's all i know the case progression because we're inundated on the johnson issue as you might imagine i think we are we kind of eat and sleep johnson but i still having some trouble procedurally and maybe you can help me out sure if the  the case law says that it is enough that an error be plain at the time of the appellate consideration which would be this time so that for that error to fall within the rule of fifty t b now i think regardless of whether i didn't bring it up the first time or even at the second sentencing i think because of mathis now that spend and i should have argued it but i didn't but if you're ok i said i will let judge comment ask this question i still don't have an answer procedurally to why you should have but you didn't but now you get to but that's a separate issue and i think i think that's covered because now it's clear under matheson because the appellate court is now reviewing something that i missed i think because now the math this decision comes out i think this court can look at it and see that there was plenty near what without regard to that first issue the district court said that it would impose the same sentence even if it were a difference thing rating don't we don't we afford that statement a fair amount of deference in determining simply because it's in that that it insulates insulates the decision for review but the record is replete with statements by judge rice that he considered this case to be outside the heartland and that what really drove one hundred forty four month sentence was the facts that were before the district court i mean you know the goal bags which indicated pretty serious intent to engage in future violent behavior the internet searches for the parole officers residence and so on and that to me speaks volumes as to why the district court thought the shaving of the eye and the addition of the shrapnel on the weak side of the body so that it would be directional i mean this is a pretty serious case so how can i how can i agree with you that there's been a gross miscarriage of justice by the imposing the same sentence record first of all i think you have to go back to the memorandum itself your honor that this court will the ninth circuit victims i'm sorry there was no victims no i'm not sure we said that i mean well i think it's significant that the that our prior panel did not set aside the district court's reference to the fact that your client had mortal intention and in fact we say in the memphis vote page four that the district court's conclusion in that regard was not clearly erroneous which means that it's not reversible error and i agree that i have to live with that your honor but don't know what this guy had in mind but he was well equipped to do whatever nefarious thing he had in mind and if you look and i'm out of time i've got a minute left but if you look at the facts stick in that in the court of appeals made clear that the bomb was not loaded at the time but it does it was however does it i mean that it also that the tests also show that it did have powder in it at some point but apparently he'd emptied it out but it didn't take long to put the powder back into the pipe bomb does it well and they did find explosive powder in the search of the premises and they they found powder yes but the also the mean what had he had everything he need including detonating device he had everything needed but it did it didn't go beyond mere preparation as a score had a lot of pride i mean i guess the question i'm asking you counsel is in the face of these facts why should i declare it was plain error for the district court to say this guy clearly had very bad intentions and i think this case is outside the heartland and whatever the guideline range is i think  the government acknowledged the winner decision in its briefing and really in asking the court about how to approach this the government was suggesting that  plane air standard is is the better way to approach this case given the record this is a unique case it sets stands upon a unique set of facts each year on argues that it is plainer so i'm arguing that it's not simply that you know there's when it was decided in two thousand and three there's been changes in the law since then there's more nuance to it and the washington statute is has a particular wording that  again i point out in my brief indicating that whatever building is used under that broad definition it cannot be a vehicle and it must be must be used as a residence counsel hasn't the government conceded this that washington  assuming that was error assuming that the two points didn't have been added what's your what's your plan air argument please well my plan or argument is that the district the district courts approach this was  that the guideline calculation was clearly inadequate to address the facts and circumstances of this particular case so the district court did what it was charged with doing which was it looked at the correct do we have authority that the court has to recalculate independently calculate if the parties stipulate to a base offense level not that i'm aware of and we do have authority i think opposing counsel's right we have authority that  a trial court can't merely say this is my guideline calculation even if it's wrong i would i would impose the same sentence that's not a band aid that would cure all right i agree with that ok and so we have that sentence i think the judge paul meant point earlier that that that statement by the district court without more would not be enough we got black letter law on that and here there's much more to the record right correct so i don't think that reasonable and but i do think in this case that it was absent of any reasonable and that the court clearly tried to balance the sentencing factors is very thoughtful if you read through the  record of the sentencing hearing and then review the written order that the court filed the court was very clear on its reasoning in its concerns part of its concerns i think went to simply protection of the community felt was necessary in this case i did want to point out that i think that if we if we applied when or in this case and and and the court went back and did a guideline calculation that did not find or that found that residential burglaries and it was not a crime of violence for purposes of this guideline calculation that we would be left with a guideline calculation of a final adjusted offense level of twenty rather than twenty one and i say that because the defense comes up with a level of nineteen in their brief and i think it be twenty because once you drop down because of it you have to recalculate then the grouping analysis and  it does end up i believe adding an additional unit to that analysis and therefore an additional level so i think we're really talking about the difference in range of what the court determined it to be based upon the stipulation  parties or the agreement of the parties fifty seven to seventy one months and with an adjusted offense level of twenty it would be sixty three to seventy three months so sixty three to seventy  months versus the excuse me the court determined seventy to eighty seven months i'm sorry so the court determined it would be seventy to eighty seven months and if the when or were applied and the burglary were removed as a crime of violence it would be sixty three to seventy eight months i believe so and the court determined that the seventy to eighty seven month guideline range was woefully inadequate and i think that's really fundamentally at the heart of this case this is  a unique case that i think both parties approached it really looking at the thirty five fifty three factors believing that that was really where the battle was going to be fought and ultimately the court agreed with that and the thirty five fifty three factors weighed heavily in favor of the sentence according post so thank you thank you mr owens i'll give you a minute calculations even given if the district court did the correct calculations it would have been far less for about ninety two to one hundred ten months or one hundred fifteen months than the core indicated that when the district court looks at this after our decision we find no problem we're not going to read we're not going to remand to a different judge we funnel problem of the court will look at this and it seems that the court was going to our panel didn't say that the district court with somehow obligated to depart to a lower level depart is not the right word but to impose a lower sentence than one hundred forty four might well i think when you look at the structural or the first time and then compare it to the second time when the judge used the same reasoning but the judge's reasoning is that is that this case is outside the heartland and in the court explains in pretty detail fashion in the written explanation that it gave why it five hundred forty four months was appropriate another was what the court is saying is that the guidelines in this particular case are not very helpful in fashioning a sentence that is appropriate for this defendant based on these facts i wish frankly disagree or rather i don't agree that that you don't read the district i don't read the memorandum that way i read it in a cold or memorandum yes ok thank you thank you he's just arguing united states versus how court is submitted thank you both for your arguments this morning coming over from spokane