at the original sentencing the district court said mr cody's criticize patient in the april fourth gun fight was a very important consideration in a determination of which sentence recommendation was appropriate this court away instead the district court found that the incident had never been on the balancing scales at all not ruling or that finding did not comply with the mandate and a lot of the case in this court should remain and for a new sentencing but they didn't have any effect on her her ruling that she had previously considered on the sentence didn't she say that what she said was that she had not previously considered the april fourth incident in determining the sentence which contradicted her previous statements and contradicted this court's decision but she said the record was not sufficiently clear she did back off of that i agree with you that and whether she would give the same sentence but at the very end she says several times that she is not considering it and her and backs off her saying she didn't consider it the first place by saying the record was clearly not sufficiently clear the record is clearly not sufficiently clear is agreeing with the prosecutor statement which comes immediately preceding that that he says it's not in my impression based on the last sentencing that the court in a properly considered anything that it should not have considered she interrupts to say the record was clearly not sufficiently clear and the prosecutor do well when what the district court did was say i won't consider the april fourth incident but what it needed to do given this court's opinion was say i did consider it previously but i will subtract that now from my calculus and see if that makes any difference in a sufficient but not greater than necessary sentence that's that's what the that's what the court said in its opinion not simply don't consider it but you considered it before now take that away and see if it makes any difference and that's that's the sentencing that mr cody failed to receive based on  comments by the way the government doesn't make this point but i didn't see anything in the sentencing hearing that indicated the feds counsel their raise it was plain given this court's decision oh i see and i think that it had there was an unfairness and there certainly was the appearance of an unfairness when this court says to a judge you considered something you should have considered now take that out of your calculus and see where you are going on this is that what we said we said we cannot conclude that the consideration of the before evidence did not  right because this court can't be in the judge's hands so you know she considered it but you don't know what weight she gave it i said perhaps she gave it very very little weight and it had really no effect at all or perhaps she considered it a very important consideration and gave it a lot of weight so only we do go that she considered a very important circumstance and a very important consideration of the course the termination of which sentence how it went back before her she said she disagreed and said i did not realize the first time she's wrong about that we held that she had but she did what we asked her to do which was to consider mean to recently or without consideration of this april fourth purported gunfight you mentioned is what she what she actually did was what the government asked her to do fin what he said i think that she was agreeing with him she interrupted him to agree with him and then said i didn't i won't consider it and i didn't before meaning my counsel is has not changed this the scales are exactly where they were previously and so i will do the same thing she needed to she needed to recognize you know mine she needed to say the scales are now different how does that affect me that does that move me to one fifteen months does it not move me at all but but she didn't engage in that kind of analysis because she disagreed with this court about whether she had considered it in the first place and she was wrong about know i i'm using that to point out that she appeared to be in agreement but i think you'll notice in my brief there was no discussion of what the governance it's what she said different i disagree with what the court of appeals said my findings were and so nothing is different i want to apply it i won't consider it now just as i didn't consider it previously and that's not what mr  absolutely she says that but she said then she says and i didn't previously meaning i don't have to rebalance i don't have to subtract from from my calculus my calculus is the same as it was previously that's where the  of the many times opponent had been arrested found with a gun and or drugs in his possession and his immediate recidivism following those arrests were among the very important consideration  she goes ahead and  impose a new sentence for the reasons excluding the gun fight and she says the record which was clearly not sufficiently clear your colleague says perhaps not according to the circuit well that's that's not correct and then goes on to say i don't think anything happened incorrectly the last time and the same analysis therefore applies this time aside from a lack of reasons for urging that and she found the other reasons so there was absolutely no this s a t and at least i think it was highly improper amendment and then says but you know i do what i'm commanded to do in this case it's a finding it really does it has to do with you know what's in her head and of course no one but she can know that but but when the judge is saying i didn't do what the court of appeals sa d that does that that's a problem with in this court's remain under sorrily and it's a problem with the public's perception and very different from disagreeing with the legal interpretation she needed to make clear to mr purdie and to the public that she was following this court's mandate by considering all of the factors having subtract what she had previously considered thank you thank you