below or to the district court analyze the statutory claim so i think the answer is yes the district court decision addresses this issue read pages twenty three to try to talk about the statutes at all it talks about talks about delay it talks of a delay and it talks about the seven circuits decision in thomas it basically adopts the government's argument which had teed up this issue and this is and a forty seven and fifty to the argument that for him raised and that the government takes he got up and just on this preservation issue i've you know i think the key point from my point of view is there's nothing to be gained by not addressing an argument that was that delaying the d c e parole hearing isn't just some procedural change it has a substantive a factor the reason for that is that i district law has set up a system where the earlier  regulation might be fine but it's still something that came into being after the fact and so you'd have to apply the preexisting regime to our client a meter i'm sorry to to mr ford climb right so we agree with that i mean there's no with already for delaying ford's parole hearing arguments are so close together i think it's fair to read one is preserving the other so this thomas decision that the government and the district court relied on is a nine hundred ninety two decision and act came into play before actually the commission took over the duties of the d c board parole and just holds that the approach of the commission is a lawful but the reasons why i think that is a lawful are also the same or the reasons i guess i should say you that his original as calculated at the time was twenty ten that i think has to be a consequence of preview and analysis and that's actually the death penalty received by the defend and he said well you couldn't have given me the death penalty on the date of my offense because although there was a death penalty statu description by a statute where the statute existed and it was invalidated here what we have is this court takes an administrative interpretation of the statute and says that interpretation you have has never been a second guess one other point about this discussion about how do you write that twenty ten date is that's not an argument the government has ever made here so i think it's not really in the case i'm a pretty good question i think there is there's two different ways could look at it the way i think you should look at it is the question you ask is is there anything in a preexisting d c or federal law that authorized the commission to do what it did here and push back towards parole hearing the answer that question is no and my first my answer is that should be enough but if you disagree with me about that then the question should be well at the bare minimum when you have a rule and we also maintain the argument about the grounds on which the commission denied for parole but you know again candor there's only a very narrow space you try to fit that argument and after  applied yet but no citation as to what that new and different rule was right so i have got a citation for that i think the new and different rule is just not to apply the principle from delays are you drill a series of arguments so in this kind of situation if it were true that there the regulation comes into effect and either it can't be applied retroactively to ford or that it was in violation of the statues to begin with what's the relief and that sort of situation given that the question is the concern is that hearings should have happened they didn't keep on do that so right so i think that the remedy here is actually pretty straightforward and has been done limitation on the discretion the the border the commissions exercise we seem to think not in bailey but so i think there's the answer under bailey i think is there point of the sort of similarities and differences at the district court level this report is not allowed to presume that within guidelines sentence is reasonable so there is no safe harbor there the main obligations are all other considerations and it seems to me under bailey that that's perfectly reasonable for a board to do the border commission do that isn't that what you're running up against at the end of the day so we read the commission decision differently i think i may i agree with you or rather i guess what i would say about the commission's decisions as they're pretty terse it's hard to get at what the reasoning is because they're kind of boilerplate and there's a few sentences c law which is very clear that the risk or as an actuarial or all assessment that you have to use to assess how someone's level rests and so absent something in the decision is the contrary that's the presumption this court should have to for the united states crawl commission issues that are not presented beloved and in light of bass i don't understand the first argument you started with because ok that it seems to me it just treats the grid as just entirely irrelevant white why isn't it the case obviously the grid has some work to do our other otherwise why have right handed it least hasn't papering a fact and then it tells you this is a number that you start with you may be absolutely right that you can depart from that number in the reasons that cause somebody to deny consequences as each of the decisions of the commission has noted it look it's identifying what the great score is and then says but wait there are these other things that sort of subsume the grid score and that is the all he started with a two might be different suppose this that and then we know a moral certainty that where you start with matters right right first well i would say that under philips the question at this point is is there a home today to mr ford from the most recent parole hearing that's in the record and i submit that there is not because even at that time the griswold indicated in two thousand and twelve that he should be cool there's also the sweet sixteen which the court can or can't look but even at that time he says he's been indicated for parole now since tw have an argument that when he was a three even if he would have been at two it wouldn't have mattered because we know what they did when it was a two and when he was a two wouldn't time has looked at mr ford all of those times the score has already indicated he should be paroled event never said we're never going to let you out till he had no and i don't think they will sit up every time they're going to look and look at him at role i think that is a overall assessment of mr ford at that time there may come a time when frankly he is old enough i'm not strong enough to pose the risk that they're afraid he would pose a parole but that's not the case i think it was an evolution and for ex post facto purposes it is a new articulation of what the wall would be prospectively from that time but when you're doing it i suppose that the analysis you're looking at further so there's four points i'd like to make the first one is a very minor one i just got on your question of whether the government agrees with us and that the commission has to follow our d c law another place to look for that is j fifty six her answer where they can see that they security should have had in two thousand and twelve and we should have come to the commission with both this favorable hearing officer recommendation he received and also a lower grade score which i think should have either banned zero or one kind of depending on how you do the math about what would have happened in there for sure time if you had gotten the one it would he would have you know so i think when we're looking at these discretionary decisions you should give some you a for a broad range of facts potentially matter and i think that's that's sort of in the nature of this discretionary world that we are in and it's certainly true that nothing happened between twenty twelve and twenty sixteen that made him a worse r goods and then he's the kind of person for whom this in matters of you my friend on the other side talked about well at some point he might be too old to pose a rescue seventy years old nearly as ben in prison for thirty eight years never had any violent conduct in prison