don't look very carefully at your memorandum and the arguments that have been made in this case in you've got a long hill to climb to convince me you didn't invite that error because that's the very argument that you made before the district judge and then after the district judge is obligated to respond under the thirty five fifty three factors as to what you're arguing then you're arguing now she has bit supported to bear in mind that what we're talking about is involuntary manslaughter involuntary manslaughter to talk about vehicle or homicide but we're talking about the guidelines that increased the involuntary manslaughter guidelines fortunate that that that argument their belongings are in congress or with the guidelines commissions let me ask you this question are you still were  reality is still the same your honor in the sense that a native american hails into federal court there is a perception it's not in fact disturbing reality that native american people receive senses are far more severe than similarly situated to take offense and will be argued about in this case was that for watch we did not have that situation that the guidelines and the state sentences that they were in parity which was what you brought up which is my opinion a classic example of the invited error in our you want to use what you brought before the district court as a basis to benefit your it right that we don't have that disparity that because of the state of new mexico and the guidelines when we talk about involuntary manslaughter because they come together that's an indication that the guideline sense of what's a opiate that's what we asked the judge to do was to follow the guidelines we didn't emphasize is disparate just say judge you need to vary downward and if we would have done that just problem then i think you had to have a better the structural framework for the argument let concerned about sensing disparities and on behalf of my clients saying we don't have that here and then we have the government coming in and saying well we should and you should go fire and this is another thing that's quite descriptive disconcerting about th case because when this sentence is dovetail together it's not a problem but when the court departs upwards when the court looks at the state and says oh no that's a given what the guidelines recommend these people have been focusing on bringing these down but the guidelines are coming down and my time has to suffer as a result of that sorry council that's that's for the guidelines they talked about as they tried to reach you know in response to that this of twenty two was born in the first tribal issue advisory to try to bring the census more in line and so when you have a situation where native object that is federal census just too long in comparison  it seems like you can't win for listeners if you're a native in federal court and that's a concern and you and i appreciate your honor that you would say well that's really for the gun to progress to consider yesteryears but if you have someone who's being subjected and the two kind of counter the argument made by defense but given the reply the united states never makes independently to use the disparity argument as an additional justification for the hundred twenty months the united states continues to request and ask for that hundred three months and if it does not use this is an additional justification and um and fifty three it's like you know i i i do have trouble with the invited their concern i see the way i've always looked at invited there is you asked the court to do something and when the court does what you ask you can complain about it here this defendant never asked the court to give him one hundred twenty months i'm a black man judge and black people get discriminated against we have a really tough time so when you're going to sentence me for property theft i would you to just take into account put a hard life i've had and discrimination i faced because i'm black and the court says i will take you or i know i'm not supposed to refer to people by their race but you brought it up so i'm going to take given by the of me to consider you're black and i'm going to tell you that because you're black i think that you are more likely to commit crimes than other people and therefore i'm going to double your sins because you're black and i wouldn't done that except you raised your blackness to me and  whole i didn't invite you to double my sentence because i'm black and wasn't the argument and you think that would be invited error that we couldn't challenge disparity he was not saying there was a disparity so that's just not right he knew he was he was not arguing a disparity at all his point was that the his point was that this is a great case that is that there is no disparity but he was not arguing for a disparity that was an argument was a disparity so i mean it seems to me that to say invited areas to say that the court did something you asked for and you can't you know i i we can look at the merits but then you look at what the district court did we have a case that says you know you cannot consider the analogy of what the state systems would be and only look at the district course reason for the sentence and you said additionally as previously discussed referencing this this argument about what the stations might have been the guideline range provided for a significant for a significantly lower sentence then mr bieber could have received in the state court for these reasons one of which then is a comparison to the states in an upward variance is appropriate so the court explicitly said one of the reasons i am just applying my upward variance is because i'm trying to make it cool relative to a state sentence we just said that is wrong is plenty is erroneous plain error it's clear where it's every kind of  is absolutely contrary what this defendant asked the court to do so i'm just having fun i wouldn't have any trouble removing and letting the court reconsidered and would have to consider whether the hundred twenty months is reasonably substantive right or not prohibit we don't say it's ok to try to find corella to fit the state long as you throw in another reason or two to support you as well we say that is improper and she said that is one of the reasons i am relying on that there was such a tragic event the psychological harm to the mother as well as the defendant's nature characteristics and his history because at that point she goes through and she's relied on the ship spiritual vehicle itself to any of the opportunities that strongly affected additionally as previously discussed and she previously attributed this to the government's argument the guideline range provides for a significantly lower sentence than mr beaver could that what the state of things would have been so long as she has other arguments to support her argument as well and i just question whether that is really interesting that yes mr marshall's correct there are two reasons that may have been a driving force in this case but it wasn't as if the government did not advance this argument they did they compared vehicular homicide today involuntary manslaughter guidelines they talked about the length of time that would be resulting from i if you're a homicide sentence it talked about the defendant could be sent to up to thirty eight years that was all from the government when we've been talking about whether you can use an analogy to the state and then i think the question is when you argue about the length of the sentence and you filed a sensing memorandum saying you shouldn't post within the guidelines is that enough and leave it to your good judgment and