court should have added one criminal history point rather than to the p s r is clear that the first sentence the original sentence was one hundred eighty days spent in for one hundred fifty five days for two years of probation which equals twenty five days in custody the revocation sentence was one hundred eighty days with one hundred fifty five days suspended which also equals twenty five days in custody fifty days in custody under the guidelines forty one point one c should have been two criminal history points now the government relied wants to rely on the two thousand and twelve revocation p s r rather than the two thousand and fifteen p s or for the new offense where the  applications in the two thousand and fifteen p s are and that's in the four eight five nine record page one eighteen that's the transcript and in that same record of page one forty one which is the statement of reasons so it's clear that the district court lied on the two thousand and fifteen p s or and made a plain sentencing error that was contrary to the plain language of the sentencing guidelines the government's brief in its summary of the argument but nowhere else also says that the court imposed the fifty four month sentence under thirty five fifty three a as sufficient but not necessary but that's without merit to the district court did not state that anywhere at the sentencing and the sentence was not read variance at all it was a departure downward based on family circumstances the government wants to make this into a factual dispute but isn't this is not a case about  if there's no reason to credit one over the other well there is your honor because the the district court adopted the twenty fifteen p s r is plainly contrary to any twelve p s r right but the district court adopted the twenty top p s r the government the government did not object in the court below to the district court's adoption of the twenty fifteen p s r what if we but we see from the record that there's a conflict between what the district court said he conceded they just didn't object right and under the united states supreme court decision in green mom if they thought there was a problem they should have cross appealed they haven't cross appealed on that so the record is what it is i mean if they had a problem with the district court's adoption the p s r said every right to file a notice of appeal following our notice of appeal and say wait a minute this is an incorrect factual error given that they didn't the facts are is the district court adopted them the with regard to the third prong of plane error your honour's the supreme court made clear in molina martina's that when the district court uses the incorrect guideline that is sufficient to demonstrate a reasonable probability of a different outcome and under martina molino martinez also the supreme court says that that's true or gardner so whether the sentence falls within or outside of the sentencing guidelines and is this court found in martina's rodriguez just handed down this year money to martinez over rules this court's prior  decisions and pratt and so forth that look for additional evidence for a difference in the outcome now with regard to the fourth prodding your honor this court in the past has stated that in erroneous guideline application is sufficient for both the third and fourth prom and that underprice this court held that it would be unfair or impugn the fairness or integrity of the guidelines to deprive the defendant  opportunity to be sentenced under the correct sentencing guidelines pre rock a double count the third prong doesn't collapse a third and fourth prong and we've said you can't do that if said that but you've done it who done the less i mean the courts clear if you look at this court president they do collapse a third for the problem you can say they haven't but those cases that found it sufficient haven't been overruled your honor so there may be a conflict in this court's precedent but that would be for the  probably well it's not automatic your honor but the nonetheless the cases have found what was sufficient for the third was sufficient for the fourth i agree if you're saying it's not automatic i agree with that but let's even given be rather extraordinary proposition given the very nature of the sentencing and number of cases well i would agree with your honor that not every deviation has to be noticed for example i think just recently the court found there was a one month full court has found with far less difference in the guideline range that the fourth promise satisfied number two the court departed downward by sixteen months in this case and it ran the  i don't think it does your honor i mean like the guidelines say you don't run any of the revocation sentence concurrently you don't do that and nevertheless the court when against that presumption memory and two months of that  currently and this court in i think it's mars a go salazar in two thousand and fourteen looked at a sentence that was much like this and said the court carefully structured the sentence to be at the minimum of the sophisticated proxy market they work daily with the sentencing guidelines routinely they know them inside and out and eric schmidt right through and nobody paid any attention to it and we get up on appeal you pick it up and now you're arguing that it impugns in their integrity in the court i just find that something flawed in the whole system but you view does a way with rule fifty two b is a federal public defender in the district court below well forget about it there's no fifty to be there's no nothing because surely the federal public defender wouldn't notice that but that's not the rule your honor it doesn't matter who was in the court below even if it was clarence darrow fifty two b applies and here as i said the first three prongs are satisfied given the difference in the sentence the guideline range given the departure downward let me just ask you about your view of how we deal with the fourth promise something that we get to the fourth prong  you have mentioned and i certainly agree there are panels that have collapsed the fourth prong into the third or that it was only a very small amount of time that in the in the difference of the potential difference they have exercised her discretion i hope you're not suggesting that we are balanced by the way that prior panels exercised their discretion in other words we still have free and open discretion do we do we not even under our rule of orderliness to to say that that our judgment is different from that previous panel's judgment and in another case your hon i agree i think that under the third and fourth round i think every case has to be evaluated by the court on its own and exercising under the fourth prong it's own discretion side i do agree that every case has its own fa you know whether a case is published on published based on the facts not you know based on the unique circumstances of the case i think the court usually as i'm aware seeks guidance from what its other panels have done and so i submit those cases to the court to show that other panels have seen facts far less compelling than this to find that the fourth promise satisfied your honour's if there are no further questions a misapplication guidelines may be sufficient to show every probability of a different result absent there but not always in and usual circumstances such as this case the defendant has the not what the district court did was apply a downward departure under application of nine to two a one point two which would require our departure departed off of guidelines requires its unique downward departure what application no nine requires is that the district court make an independent assessment of the defendant's character and an personal history his ties to the community or to the united states and and at the district court consider which which excuse me which are the the the syncing factor under thirty five fifty three a one and that the district court in determining whether to grant a downward departure whether the the departure would increase the risk of public harm increase the risk of public harm which is the factor under the sensing factor objective under thirty three eighty three thirty i'm sorry thirty five fifty independent but individualized assessment of the defendant's circumstances in the case and with the court did in determining that a departure was appropriate it not only sent his beloved the  incorrect if you want to call it an incorrect guideline range a mis application but he also since below the correct what the district court did was worse impose a fifty four months since which put him and within a level twenty one which is not challenged and a criminal history category three which is the level below the correct range with the district court did to get to that point was have to assess determined that he had anywhere from four or five or six criminal history points to to get to a level five which would be the purportedly incorrect guideline range would require a level ten to get to the correct gu arranged to since within the correct guideline range would require seven eight or nine criminal history points what the district court did in substance and i think in fact actually remove four pronged history points just to get to a criminal history category three and in effect corrected the misapplication they have to weigh i mean for a one point one assuming that it occurred was  are in front of them were just on the record is that is that the part of the information that was in the included in the two thousand and fifteen was obtained from the two thousand and twelve two thousand and twelve was transferred with it or whether the probation officer officer here obtained it but the point the matter is is that is that the information  there is a discrepancy between the two the two thousand and twelve when the federal district judge in new mexico calculated the criminal history points for the defendants two thousand and eight what the what's in there is that he received a one hundred fifty five months in it's post replication of his probation was in the two thousand and fifteen is that he received a twenty five months and that's now the reason for the error is is because we don't know we don't know which we don't know which is an error do right but have the district court i mean our position is that the district court had both before it and the information in both was before the district court had a we know that included is reflected on the docket sheet i know that the information that the federal district court of new mexico transferred  but i don't know whether it's reflected on the order of transfer it may be i just don't have it in front of me regarding the plan below not just below the incorrect range but below the correct range and where the district court actually made a it basically conscientiously applied the guidelines in granting the departure under under no nine and in so doing based the sentence imposed on an individual assessment of the the independent using that word but i mean individualized assessment of the defendant's character and create character and personal personal character and and history and the the the thirty five fifty three to actually i just like to point something out to the court in the statement of reasons on page one forty two of the four zero eight five nine record the court checks the box at the court departs from the advisory guideline range so it was a departure the court did not check anything on the following page page one forty three which is the page you would use for thirty five fifty three a sentence  in addition it's clear the court use the twenty fifteen p s r a page one fifteen of the five nine record the assistant united states attorney or cites the criminal history category five in the seven hundred eighty seven months post booker can assess the guidelines the defendant's family history and family responsibilities which i guess the judge did and gave a sixteen level departure and assess whether  that same departure is appropriate to affirm would be to say that causing a person to spend a year or more in federal prison does not affect the fairness of or integrity of the proceedings because the judge departed downward by sixteen months if you affirm that becomes a three months the parcher by my man sixteen minus three years thirteen and a federal a sentence of federal prison of a year i