district court judge is not obligated to mention them or even acknowledge them he she is giving the reasons for the particular sentence that she has decided to impose those are not the types of arguments that mr morris submitted to the district court here  support of his request for a sentence of eighteen months imprisonment mr morris put forth before the district court judge two principal arguments that were well developed and particularly with regard to his request that the district court exercised her discretion are clearly that risk is always there i i don't i see that the arguments that mr morris put forth here are worth the risk this particular issue the one to one crack to powder disparity this particular district court judge has in several cases varied greatly from the otherwise applicable crack cocaine guidelines and imposed sentences well below those so and as i set forth in the brief the the difference for mr morris is is quite measurable had the court had the court adopted that argument and even rejected the second principle argument that he put forth his range was twenty five was twenty one to twenty seven months and again the the sentence that we requested was only three months below the low end so again i think it is worth the risk particularly in light of the fact that this judge has varied on that basis in these types of cases in the past here in addition to that particular argument mr morris put forth an argument that his guideline range was driven by the inclusion of forty five grams of a lookalike substance that was treated as crack cocaine for purposes of calculating the guideline range he submitted that argument in a sentencing memorandum to the judge approximately one week before the sentencing hearing it was a five page single spaced document and then when we went to court for sentencing on may twenty first of this year the prosecutor took the opportunity to respond to mr morris's argument she did not discuss the request that the court use a one to one ratio but did address the inclusion of the forty five gra but was also quick to say that she wasn't asking for suggesting to the court that a within guideline range sentence was even appropriate in and i think that circles back judge rovner to your initial point that not even the prosecutor was suggesting that it within guideline that i put forth to the judge that it was mitigating was there were three there were two actual controlled buys a counterfeit substance here and the total was ten point seven three five grams the imitation substance was almost four times higher than the actual understand it why is that a mitigating circumstance if it indicates a willingness i would be very good see or you would create a greater risk of violence not under the circumstances you need to this case your honor what was happening here was that it was a a confidential informant that was working at the direction of local authorities so if the risk of violence i don't think is present here would presumably your client didn't know that he was dealing with c r so if he's willing to sell counterfeit drugs on the street why isn't that an indication really of aggravating circumstances which well the evidence that we have in this case your honor was that at the time that the that the exchange was made of the country of the counterfeit substance or the look like substance that mr morris was in fact very suspicious at this point that the gentleman that he had previously sold to was a confidential informant he had become suspicious of that man the de beers that counterfeit is the counterfeit drug counted given the same w the harm that we're looking at here is the actual quantity of a controlled substance that mr morris put into the community then that's ten point seven grams but the guidelines do say you treat counterfeits as if they were what they are port but i don't know can kind of a defendant just say to a judge well you know this one to one ratio  cocaine and what have you and i don't want to get into this you know i don't know one to one ten to one three to one or at the very least shouldn't judge to adopt her own i have three responses to that your honor the first is that this particular district court judge as i mentioned is aware of the disparity and has in fact departed on that basis or varied on that basis in the past but she's never said i do want to want she has never adopted her own book a but the question is does she have those she have to adopt her own ratio  when the when the defender has failed to present any actual evidence that one to one she certainly is not required under any circumstance to declare that a particular ratio of one to one three to with the with the counterfeit drugs are we what i did in the written sensing memorandum was asked the judge and we do this repeatedly is to ask her to apply one to one in every case where that involves crack cocaine and in the written submission i cited several cases where from different districts across the country where those judges have applied a one to one ratio and the reasons that they've done so you did submit a writ and you didn't come she made no comment whatsoever your honor that's correct i was your first response well the other two to pick with you should be above that that i just i mentioned the other two that i in fact i did mention to the district court judge that other districts across the country are doing th cited those cases so she was aware of that and the last one is that this this particular judge as she's got a long and storied history in our district and certainly has heard these cases many many times and was aware that not not in any of those cases has she particularly has she chosen to adopt a specific range and apply that across the board but she does vary on that basis i thought part of your answer would include a reference to our decision and john so were we so that had there was a deserve response yes but as the government points out there is some tension between johnson in our opinions and the girth of schmidt's just to pick the recent ones whether a district judge needs to respond to  argument has well established legal merit in that and in this particular case it wasn't just a generic challenge because i tied it into not only are are his guidelines being driven by the forty five gram lookalikes substance but then that the inclusion of that amount is being treated as crack cocaine which in and of itself is being treated disparately by the continued use of the eight hundred to one gram so that argument in this case really was tailored to the circumstances of mr maurice's offense but i think your suggested a minimum she should have said something like well i'm not going to consider the one to one because that's you know that raises fundamental questions only getting to that but crabbe imposed sentence she turned to defense counsel said anything further and defense counsel despite having raised the sentencing and hanson argument and the one to one ratio request sat there and told such crap no nothing nothing o there anything further sounds no that's not a good or from anything further could be understood to mean do you have additional arguments you have made right or right in a panel of pinion from this court july with her oversight of the two issues that his lawyer argued she did she could have discussed the sentencing enhanced knowledge it further meant that she didn't fit issue is an interesting i mean you know judge hamilton which is that this is supposed this fellow actually is his action to crack is very limited and so really he's basically a counterfeiter well then he's really not a major deal no there's the violence issue the challenge but but on the other side is the fact that maybe the fact that he sells counterfeit goods crack means that he just doesn't have good access so he he's not at least he's not making people drug addicts maybe he's getting them angry right now which could mean a mile an hour further they feel just  just as listless as they did before this but as the government pointed out at the sentencing now i know the court didn't class it out as well as she could have perhaps but the government pointed out something and if it was really good to the one to one if the judge just and has miss well said that the judge said just said look i can't i can't go there i can't get into this wonder why and that's beyond my knowledge th business now would be fun ok but but if the judge doesn't mention that it doesn't but again this court has held that just a blanket look at what you've misunderstood that further further means or certainly can be understood reasonably to me do you have additional points you want to make no she doesn't want to make additional points she would like you to address the point she may well it's the government's contention that any error in this case was harmless as judge rovner pointed out he did receive a below guideline sentence so in effect some variance from the eighteen by one ratio as a question is not whether he received a below guideline sentence but how far below right so maybe if the judge had thought about these points about counterfeiter maybe about the one to one she would have reduced to s slightly i think because judge crabb focused on the fact that this was his second federal drug conviction he was not supervised really you know when you're in the making right now what you do it is this would be very easily answered by having the judge reset so but instead you're making up theories as to get inside the judge's mind and say second conviction this that says if you knew what judge crypt would do well those were the reasons she gave when she impose sentence your pardon the that's what those were her words that's what she said when she impose sentence but she seems to have overlooked two arguments that may have gone the other way and giving them a bunch lawful right right while the government's position is fully set forth in its brief and we would ask the court to affirm base that any procedural error was harmless thank you