criminal sentencing proceedings mr brito appeal to seventeen month sentence for illegal reentry after deportation based on three rounds to procedural and one substantive i would like to focus my argument on that you procedural points in response to the government's claim that on the objection to the district courts factual error was waived and to action to the district courts of meaningful consideration was not preserved neither position is correct and both are contrary to this court's precedents understand when a lawyer says no objection in james we treated that as a way for the government seems to read that as a rule saying those objections generally amounts to a waiver how do you suggest that we should read appeal so so in this case i wouldn't even say the council said no objection and certainly there's nothing else because it's such a small record to begin with and if we look at other cases government ration islands affected his substantial rights and the kind of error that this court should reverse not just that that there was an error there but the significance it had for his compelling  and his children and the way that the court looked at his criminal record his children's birth had no impact on his his thoughts about criminality you know so it was a significant compelling was about raising the issue of meaningful consideration counsel's words here where your honor i would like to place on the record fall in the course repetition of mr bridges appeal resit mr brito take the position that insufficient consideration was given to the request for a variance and for the reasons underlying that request this is exactly what this court requires and to do more would actually go against floors me here because one of the reasons that we have this rule is for judicial economy and what the government i believe is proposing is an ending cycle where the court says something there's an objection the court clarifies it defense counsel make sure that they got everything right to object if it's actually doesn't end i think  the overriding mandate of sentencing and overarching instruction and the court didn't do that not as the only the only ground that i'm raising on substantive and reasonable ness it's there's really no way to they really do get down to not only determining how many angels can dance on the head of a pin but what song they're dancing to but yet somehow we're instructing and i know i'm a big believer in the personally but it's a pull we're instructing the district courts help us a three or four years meet the needs of sentencing sometimes a variance just say i hear that it's punitive and not rehabilitative imprisonment that you're going to face you know but that's really just asking that the minimal sentence in these kinds of because if i'm not mistaken he really doesn't have much of a record to speak on he's got one prior illegal entry and this is the nd but other than that i don't see any substantial or any kind of a prior offense record punishment and then finally the lack of consideration of the men who minimally sufficient sentence ms are all very grand scale questions about you know what a court is actually thinking what we can guess from the record what what would show the appropriate consideration for this court but but but this court does require more than what this record is there's just has to be something more to  trying to figure out if the district court did enough you know i look at the language about the request for a variance and i think this could be a sex trafficking case this could be a securities fraud case there's nothing about what the court said that actually pinpoints anything about an illegal reentry defendant in the unique circumstances she says i consider going below the guidelines i'm not going to do in this case and i look at other defendants and i don't see a discrepancy and i don't see i don't see i'm sorry it please the court john amato of the united states i'll start with the raper point you know whether this is a waiver or an invited error or something else i mean it's a unique situation but i was invited here by saying your request was listening well it's a no objection amounts to a waiver i mean is there any basis for or for reading it as turning all those from forfeitures into waivers i think it's probably a little bit more than that but if you are satisfied with what's happening which is what happened in jams in other we have here it's not exactly james it's not exactly waivers and waiver is the knowing you know intentional relinquishment of the known legal right here we're talking about a factual issue but it just seems hard for me to believe that you know the fence council can sort of string along the district court what the court said was went through the st deportation that when it got to the nd deportation the fountain was again deported then talked about this other offense and i think this is kind of confusing because as ms brill points out the defend three different convictions essentially at one time in three separate jurisdictions and just petty then talked about the new jersey conviction and said again when the defendant was deported didn't say the deported was the defendant was deported yet again didn't burden on district courts not only do they have to find time in their good feedback it's to revisit could have been resolved with a contemporaneous objection at your original sentencing but they also have other cards right mr obama to response st of all the supreme court is abo i think not such a big deal so i'm not sure how much weight to put on that but my question is actually about i might agree with your reading of the law except i don't agree with your reading of this record because what happened is she mentioned removal or deportation three times and you have to strain to consolidate that down to two and say it was a repetition so let's assume we've got past problems one and two let's assume i disagree with your reading of the record ok let's focus on problem three now we've got this problem because you want to say in effect it didn't affect substantial rights but it's true it was the bottom of the range but were under you need to know that the at the district court actually relied on this error you need to bridge the gap between reference and reliance what is it in this record that shows that just check if it was so overwhelmed by three just this wrong but got a whole host of things wrong and i think that just checking the i frankly is a conscientious judge who should you know give her the benefit of the best that she could read the p s r just lucky said in two thousand and eleven he was sentenced and the part that is true that is when he was sentenced in two thousand and eleven so there's nothing about what she said that contradicts any part of his timeline she didn't say he committed that offense in two thousand and two didn't say he committed an offense after having a child didn't say any of that what she said  special appendix page three you can read that and very clearly see he didn't continue selling drugs after the birth of his daughter so i think that this whole thing basically involves assuming that judge chuckie committed a whole host of knew that it was going to deportations she would have given an even lower sentence now mind you she gave the bottom of the guidelines brainstems and i didn't point this out as well they should have been my grief that sentence was only an months longer than the sentence he got the st time he committed aggravated illegal reentry so is there really a reasonable probability that it just that they're checking would have given a lower sentence than she already gave simply because he was deported twice instead of three times and i don't think  that's reasonable at all and if we go to the th prong which we haven't talked about yet doesn't it relies heavily on really we need to look at the seriousness of the air in the context of the entire case what what is the  deportation instead of or three deportations instead of two deportations where we can't find any actual reference to that in the courts explanation for exams you know just check you could have said gee you were deported again and again and again or the has now so if anything he's already gotten a huge break in his guideline range and has already gotten a huge break in the sense looking at the whole series when we really say that not correcting this would work an injustice which is what and then to proceed to preserve the argument you simply call you didn't really address you know the arguments for a variance you can explain them and that's not giving just checking a whole lot to work with that's pretty much you didn't do anything you didn't address anything and i think some courts have held and i think rightly so that you should give a little bit more detail so that the can actually address your complaints at that time that would you know give these the court the opportunity and then we wouldn't have to deal with this on appeal as to whether i mean the court did or didn't so if you're for example if the defendant had said your honor we made an argument that it isn't illegal or deportable alien he deserves a in i would just ask that if this court finds that the defendant did enough here then it should make clear that that also applies to to the government as well because there's quite frankly been plenty  and so i would say you know principles of fairness would prevent the government from making the argument that but the court could certainly sentence and she's upset speaking of the government making the argument about a higher guideline range  defendant at that you know we're talking about seventy months or sixty months or what would be appropriate but but any day less in prison would have a significant impact on life and so on to remain free sentencing with the risk that the judge had given up