well the problem of problems which i believe the government raises is that these kind of prison culture arguments have been rejected by this court and other courts around the country were not outliers in this respect because the alternative is just unacceptable saying you know let people swing these socks filled with rocks around or people solve their own problems with whatever violence they have been used in mitigation about what the actual sentence should be be at thirty five fifty three a factor why is it mitigating though why why should you why should there be a rule of law that says if a prisoner feels that he needs to take matters into his own hands that qualifies him for a somewhat lower center it may may not be but it's a point that the judge has to address once we raise it it's one of the issues wrong only if it's considered a serious enough point in a non stock argument enough like that why wasn't the judge entitle to look at this court's jurisprudence and say this argument is just not one that is a sound argument  absolutely is yes but she did not say that she said she couldn't consent or which is a different argument i'm not sure she can consider it i mean i as a matter of law if you're saying that there's any element of excuse from this prison culture is awful argument i don't know where you find a law that supports that well your honor we all know that the culture in prison is different than the culture in the streets we know fine that be open a mirror of prisoners and structures guards the first thing they do is take care of themselves and then they worry about the person there's there have been cases where prisoners were murdered while they waited to get enough guards together to take care of the fight that was going on the question becomes what's the man's state of mind and that's what the real issue is on that point you know i'm not saying that she had to say a would there be a lesser sentence in any way shape or form but she had addressed argument well i don't understand that then because she does actually have a pretty thorough discussion of the arguments and she repeats on a number of occasions you know i understand this you know put up got to come up first with the right guideline  calculation i know i have thirty five fifty three a discretion and she she says all of these things and she's also saying that she's not inclined to revisit what bill p is doing in terms of administrative segregation or the other internal prison consequences she keeps saying she wants to stay in her lane but you know i i don't see why district judges disqualified from taking that view i think that if she would not have also said that she could not take it into consideration it shouldn't we would i wouldn't be here but i think the term she use a different times made it quite clear that she believed that she could not consider that i think she could consider it but she could reject it well she said she would relate a gated ministry actions or decisions by b o b that's correct your honor most of that i i believe was looking at the solitary confinement issue where she agreed that she believed ten months in solitary confinement was torture and i do not argue that below paid her presence to make she says my obligation is to impose a sentence in this case sufficient but not greater than necessary given some factors that's what i intend to do and she she's saying that she's going to focus on what you did in april of twenty fifteen or i believe i agree with you there your honor which keeps on coming back to the fact that you cannot consider what the administrative punishments work and i do believe that you can consider it you don't have to relive to get it because obviously it's done there's nothing to litigate but you have to consider what was done to the person because of his actions well that you considered to be a reason to lessen the punishment that you're about to give him for what he did so she just said the opi has its concerns and it can you find any cases where anyone has said you know well you've already served you know twelve months in segregation and i'm going to you know your honor sentence i have not all right but that's what the basic argument is the basic argument is do people have to consider it to trial judges have to consider the man's state of mind and the ministry of punishment and i'm not saying they have to give the reduction because a but i believe they have to consider it your honor i think you'll understand the issue here also during the you may say the rest of your time it's fine thank you mr certainly that i could find as a mitigating factor an argument that the inmate felt that they had to take matters into their own hand and could on their own decide because i don't want to be labeled a snitch by going to the guards that i can do this on my own to to alleviate them from that responsibility the defendant certainly has presented no no a lot of that effect but in addition the problem is also that the defendant did not support his argument his argument with any evidence before the district court certainly the government believes that the district judge in this case did indicate despite this court this this court's repeated disfavored view of that kind of an argument she never indicated that she would under no circumstances consider it she said over and over again that you haven't presented me with any evidence that there was any kind of provocation on the part of the case so i think that is a an additional problem pm the victim was sitting at a table by himself with a pair of bulky headphones on you can see the defendant in this case mr fuller circle around the common area in the prison unit he pauses over by the wall make sure that no one's around looking then he crosses through several other inmates to get to mr dixon pulled out a sock filled with two large concrete chunks with rocks and swings it in his ear on the left side of the head right into the headphone if they shatter they go across across the room he has a deep laceration across his face or side of his face and all indications would be that the injury we've been much more severe had he not all that goes to show if i understand they were the court is going with that that there simply was no kind of immediate threat that would even arguably bring within this course jurisprudence on when an inmate could rely on that kind of an argument certainly for defense and i think the same would certainly apply to mitigation as to present alive i believe was a larger and larger some kind of article by someone complaining about solitary confinement he never presented any evidence that he was subjected to what would be considered consolidate solitary confinement to the conditions in marion marion segregation you maybe the prison revoked six months of good time credit something like that would you say that the district court in the sentencing proceeding for the independent prosecution is banned from taking into account the loss of good time credit or should comment on whether or how that was taken into account where you are assuming that that that argument was supported with sufficient factual evidence again in this case there court that was addressing of the court should have varied from the guidelines or departed from the guidelines and the reasoning laid out by that court why there are separate there are separate harms being addressed by the two by the administrative sanctions on the one hand on the criminal sanctions on the other that the interest be served by imposing punishments of both kinds are not the kind are not the same and that reducing one on account of the other would not serve those those legitimate separate interests that post booker case i think there's a difference are right there and my clients allocution was in fact believed by the judge she said she believed what he said was saying about the state of mind and there's no saying there's no where that requires you to put on direct have believed by the judge should be enough for her to make a decision whether or not she wants to stay within the guidelines but we know that she had given the fact that we know that she believed that we also know that it didn't seem to influence her sentencing decision as much as he would have liked well you got the