sentence of sixteen months based on a combination of thirty five fifty three eighty factors including the disproportionately harsh guidelines for offenses involving crack cocaine and the inappropriateness of the guideline range for in explaining that only congress had the power to remedy the overstatement of the card line range in this particular case second as a matter of policy in suggesting that it could impose a harsher sentence in this case to protect defendants in future cases and serve as a matter of fact when it stated that statistics showed that the that the punishments for crack cocaine powder cocaine methamphetamine and heroin guidelines different from crack cocaine is to powder cocaine as being subject to a claim that the distinction is racist and against black people hasn't ever been was the change how does the change between the guidelines becoming advisory as opposed to mandatory i think the claim that the distinction between crack and powder whatever decision or decisions come out of that case on this case obviously that case isn't going to address the propriety of just a district court making any comments regarding crack cocaine for instance so that relevance of that case to this case that is really mr johnson's argument is that his senses not reasonable it isn't that somehow it just require it can unilaterally and judicially replace the one hundred  cocaine is unreasonable that is her say that and if he gets it then everybody else gets it right because he's not different from anybody else well i think he is different from other people his trial lawyer made several arguments that this is  unsophisticated street level dealers in fact in this particular case the government agreed not to charge him or not to require him to plead guilty to any specific amount because the government twice acknowledged that the amounts involved in this case were relatively one hundred one want to to one ratio in this particular case the government chose not to require mr johnson to admit a specific quantity and they did that and they twice and both in their papers and out of the sen hearing it was because he was a relatively small player so we're not saying that it was ever in every single case eight sentencing guideline sentence in a cracked case would be per se and reasonable what we're saying is that a district court is required to exercise its discretion its quire to look at all the thirty five fifty three a factors and in this particular case the district court judge made three highly problematic statements when it was  one hundred twenty month sentence and those are the three statements that i referred to earlier one this is out of my hands go to congress ask mr sensenbrenner to do it for you too you know if i give you a lower shit and this isn't going to hurt us this is going to third way that we would argue that the district court erred is that it accepted these kind of bizarre statistics that the government proffered and the government proffered the statistics relating saying that basically crack cocaine cases should be viewed as analogous to crystal meth cases and obviously the reason why the government proposed that comparison is because those two are analogs under the guideline but the statistics that the government presented were related to  may please the court chan and ryan for the united states the government asks this court to affirm defendant sentence because in the lower court defendant raised only a categorical not an individualized argument with respect to the cocaine based guidelines the district court properly declined to consider that argument in selecting defendant sentence and troubles in this case all of defendant's arguments as they related to the issue of the cocaine based guidelines were generalized arguments that would apply in every cocaine based case defendant argued that the cocaine base guidelines were dramatically higher then the powder cocaine guidelines and computed his sentence in several instances both in his papers and at the hearing under the powder cocaine guidelines which were not involved in this case defendant alleged that there is a racial disparity in the discrepancy between the cocaine base guidelines and the powder cocaine guidelines it's the only referenced in the record to an individual ised argument something that related to this defendant mr johnson the only reference is at the sentencing hearing one portion at the beginning of counsel's arguments he states to the court the guidelines overstate this man's malicious and then he goes right back into the categorical argument the cocaine base guidelines are so dramatically higher than the powder cocaine guidelines they have just brought effect on african americans all of the evidence that was introduced in the lower court all of the exhibits regarding the united states sentencing commission's findings their recommendations to congress all of those deal chan really with government is saying that the defendant a juice no facts that just frenchy aided his case and his claim from any other cocaine based case that were to come before any court i gather what argument is today that fact what was defendant's relative culpability with respect to this offense and other drug offenders more generally that fact was raised by the government and it was specifically addressed by the district court with respect to how it was raised by the government respectfully if the defense counsel argues that it was not raised in the context of the effect of the government decision not to seek a mandatory minimum sentence in the sky the government raised the issue of defendant being a street level dealer in sentencing papers and at the sentencing hearing saying though the amount seized in this particular case did not make defendants among the most serious or the most culpable of drug offenders just based on quantity that defendants restated this on the fact that he had three prior felony drug trafficking convictions among other convictions that one of those drug trafficking convictions involve the use of a firearm and that one was specifically for possession of cocaine base that all of those facts combined with other personal characteristics of the defendant that those facts under thirty five fifty three a supported one hundred twenty month sentence so the government raised that fact to consider it among other aggravating factors in support of the sentence it recommended and the district court at sentencing immediately before it imposed sentence that he has one consider the guidelines and that it has to be considered all of the factors under thirty five fifty three a record ninety nine days just record it said that it's the only based on the evidence before it that defendant was involved in distributing much greater quantities than merely the amount seized in this reasons first of all it reflects the district court was very much aware of the factual record those facts were not argued specifically by the government at sentencing they were in the p s r at paragraphs nine and ten and they reflect information from the wiretaps in this case that defendant was involved in conversations regarding obtaining trucks with hidden compartments to transport q one gram quantities of drugs so the district court was fully aware of the facts number one number two with respect to this argument about defendant being only a street level dealer the district court just a grade based on the facts before it with that specific argument and ultimately the district courts comment shows that it did consider all of the thirty five fifty three a factors that it's sentenced this defendant as an individual which poker and thirty five fifty three a require it to do so in this case the district court based on this record completely fulfilled its obligations with respect to defendants claimed errors just briefly with regard to the three of them and this is from the defendant draws on these errors from a very limited passage at the sentencing hearing where the  some remarks first defendant claims that the district court said only congress has the power to remedy the disparity meaning the disparity between the cocaine base and  government say go ahead consider the categorical disparity if you wish court and the court declined to do sell saying the problem is that's a question for congress to decide now this court has not specifically addressed the issue post booker but one case out of the seventh circuit to have addressed that issue and that's gibson g i p s so when i get in the party's papers one that court has addressed a similar issue and that is when the district court declines to consider this argument in imposing a lower sentence is that jaclyn ation error in that case the district court likewise dead this is more of a legislative policy type of decision and the seventh circuit said no the district court is not mandated to impose a lower sentence based on the discrepancies between those  stanton's would harm other defendants that comes up in the context of the district court's remarks about a particular congressman mr sensenbrenner and at this point the district court is a pining as to what it believes will be the result when these arguments are taken to congress it does not directly relate to the sentence imposed in this case or what the district court's view of its power is and finally with respect to the statistics and arguments presented by the government in that regard i see i'm out of time may just conclude this between the cocaine based guidelines and the powder cocaine guidelines may miss the point that in fact the cocaine base guidelines are no more harsh they are entirely identical to the guidelines the cocaine based guidelines so the government was simply drawing on of a righty of facts to show that the defense's position regarding this narrow comparison was perhaps not well founded just very briefly your honor to correct the record as to whether the argument regarding any street level dealer versus kingpin was made in the district or it was made in the district for e r thirty one in which the mission to say that the that the defense lawyer was making only a categorical argument actually the defense lawyers to near those findings because the government routinely and indents this case as well has argued that the commission is the expert the commission is the expert as to the thirty five fifty three a factors so we should just impose a guideline sentences because the commission is the expert and the guidelines take into account all of the thirty five fifty three x factors that argument was made in this case in the papers the defendant to preempt that type of argument noted that the commission itself thought that these guidelines were overly harsh and finally to come back idea that mr johnson was asking for a categorical departure of the powder cocaine guidelines you know lead ins to papers that the guideline range for powder cocaine would have been twenty seven to thirty three months he did not ask for twenty seven