was saying first vacate once you vacated correcting is no longer available because by really imposing be the case i really don't think you can be the case you may say in this particular situation yes but the  the boot camp issue was at least out there and the court was not unconscious of it the first i want to make sure that you've been very clear that i'm not saying that is that there are not cases and probably the run of the mill reimposed that three months with no six amendment pilot filing findings on the enhancement with the now knowing that boot camp not available and the other  constitutional impediment that's why we were trying to say judge please follow these open versus canvass which basically says you have to follow the statutory directive instead of using general  post race the dots then start with now i don't think there's is there a specific book or problem here we have a guilty plea we don't have a sentence being calculated based on factual finding there's or applies to more than just cases we go to jury trial but i'm not sure there's a specific sixth amendment problem here there's a non constitutional problem in that that booker has now excised the mandatory element guidelines so that our court we've got is not found the same thing in any pre book or case they do the guideline calculation and if there is not a if there hasn't been a you know  prior to book or if there hasn't been it was treated as a mandatory guideline and there was no sixth amendment binding was no binding beyond a reasonable doubt you don't need it here because there's a guilty plea what finding is there that at issue do you want us to fashion if it's a real simple one all we're saying is that under that the procedure for once there was a finding that there should have been that there was a miscarriage of justice or whatever reason for amending the supervised release once there was that binding the first step in the statute was to vacate the sentence that since there is no vacating of the judgment that was fair and so that should be vacated and it should be recently in the when the court decides whether to resentence then i believe that underhand and matthew's courtship consider all factors because of the impediments to a correction in terms of interest aside from that is the fact that during the litigation of a number of factors came out that i think are very important which i hope the court will consider including the statements about you know when in terms of the reliability of the p determinations they were saying they didn't have sufficient funds etc when there's we now have testimony that it was all happening in a very short period of time that there were no studies conducted especially direct the record and that inconsistency is about the time factors are also provide the court for alternative grounds for providing really sentence nor is it even a direct appeal from the denial of a twenty to fifty five motion this is a direct appeal from the denial of a motion to set aside a judgment close during the hay vs corpus kit and the eleven violation not cognisable under twenty two fifty five and also it was never raised in her will sixty be motion so it was waived it was raised in the first instance by the government when i got the case from the now in terms of the whole but then we get into the issue of the reset and se and whether or not somehow that supervised release from violation somehow justifies the recent thing we argued to judge brown that it did not give her discretion completely reopen restart and thing and judge brown rejected that and i would call the court's attention to judge grants opinion and it's the excerpt of record at seven thirty two judge brown holds that she has jurisdiction to defendant's motion for relief from judgment and then she goes on to say that in the exercise of her discretion she declined to make any other sentencing adjustments she has already exercised her discretion in th therefore even if you work a hole yes the door was thrown open and the court should exercise discretion she's already done it it's in the record and so therefore there would be nothing to be gained from a remailer judge brown has made her we're left with is the fact that the government pointed out that there was an error in the supervised release terms and mandates that judge brown vacate the entire sentence she imposed originally in two thousand and three and completely respect and under bachar and again this is twenty five this court held in united states versus cruz booker does not apply to convictions that you can final prior to the date book or was decided this conviction was final for about a year and a half prior to the supreme court's issuance of her so therefore they're just there is nothing left to do on renay i think judge brown has answered the question she answered it comprehensively and there's simply no relief left so unless the court has any further questions i will submit pointed out that judge brown has already exercise her discretion which she may or may not have but many cases suppose she does and she says she will not make any change other than to reduce the supervised release from five years to four years i think that's the difference between exercising the discretion based on the equitable powers of jihad and tickle the sense you know full recent thing under the andrew supreme court case that we said on page thirty seven of our open  reef i believe that you have to have allocution of course if there's going to be a resentencing i think there's been a i think you refer to her statements at the outset which is if i knew what i knew now i would have done something different i think we can take her word for that in fact if there was a full resentencing with all the facts that you may well have you think that she has a different discretionary scope and the full research and saying then she exercised earlier ye