error and given the supreme court's decision in moving him martinez i think the court's course is clear i believe that this case is on all fours with marina in that you have better here's why the question is why did the judge she's eighty months it happens to be the midway point of the of the guideline range uncorrected and i soon that your argument is that that was a must a be way on this record that the court can say that it is clear that the sentence chosen in this case is not referenced by the guidelines there is no other reasoning offered in fact the would have been sixty three to seventy eight months your position is that we don't know whether the district judge would have been post seventeen months for supervised release violation absent sending it back we don't release violation and there are advisory range on that is thirty to thirty seven months and so we know that during the initial proceedings the district court was willing to cut the defendant a break i suppose of ten months rather than imposing a sentence within that range could very well be that the district court says seventeen months i like the sun and so i had before you're just saying we need to find that out it's conceivable and the fact that you're saying perhaps i should answer that question because the law requires it to be clear beyond any real debate that that the remained would not result in any change  months the question is why and i think your argument is well actually we don't know why there's two responses to this number one yes i mean the alternative generally a judge stating alternative is not enough the alternative that it  but i would also say that in this case the alternatives are alternative means of calculating the sentence in this case this is an alternative means of documenting where the combined sentence might do i just do it in one exception to a presumption in this in a circuit that there has to be an extensive explanation of the reason and that extensive explanation has to be non guideline based in this case there is virtually no explanation and i can actually fight more at least i have a statement by the judge that he's giving the wind at one point so their statement that it's likely is not based on anything in the record whatsoever and is legally in that morning and they had to support my name is jennifer williams on behalf of the united states as mr fall did not object to the arab allowed this case isn't planning a review which means that it is he that bears the burden of demonstrating both a reasonable on point and it is the fact that it is a combined sentence which means that he has not demonstrated a reasonable probability of a different sentence on green men even if the district court did not say if we have calculated the guidelines incorrectly and in fact it's sixty three to seventy eight months i would give seventeen months for the supervised release violation district court never said that and you're asking us to assume figure we don't know what that was based on i think you have to agree that yes we agree with that and it certainly could have been based on midrange eighteen months certainly could've well except a indicating that eighteen months was the sentence he wanted to impose he then use two different methodology for arriving at that sentence and he also referred to seventy months being a low end of the guideline range he certainly was talking he seemed to be working within the guidelines well that was one of two ways that he thought he could arrive at his ultimate eighteen month sentence one he did reference the guidelines when he didn't our contention is that the guidelines were a methodology one of two methodology for arriving at the ultimate sentence but again the question for the court is whether it not whether he fully explained the reason for his eighteen month sentence because i felt the question before the court the question before the court is whether if the court just in sentencing based on the guidelines he could have impose a sentence of seventeen months and presumptively thirty months to the search consecutively which is the presumption which would have been a sense of a hundred months the low supervisor lease violation he could easily arrive at the same sentence and we believe that the fact that it was a combined sentance and that he does he can play around with the consecutive risk of a longer sentence on remand or would that be viewed as retaliation by the judge for having the sentence appealed it is this of note no downside for the defend thank you for your arguments the cases submitted will take a moment for counsel to exchange places