and five k or five k two point two three and the purpose of the intersection is to give my client a path home from prison to year sooner than the district court is presently allowed through the imposition of a two hundred ten month sentence at the crux of this my client is convicted of a racketeering that's under the guidelines that offense should have been credited because the offense spanned one nine hundred ninety nine to july two thousand and sixteen so in the relevant conduct there is then the nineteenth of the two thousand and nine aggravated unlawful use of a weapon conviction he received no criminal history for that but that's not relevant in the government makes the argument that it should count for criminal history we don't dispute that but the problem is that the guidelines require consideration under by one point three b and then through the commentary five k two point two three to account for the fact it doesn't record the guidelines don't require that five key to one two three its departure analysis absolutely if i may not it shall no doubt totally obsolete after book book or the judge can address it or not as she sees fit the case law says that the logic of the departed provisions are still relevant to the analysis by g one point three has the mandatory language and then through the commentary and of course the language five k two point the mandatory require anything so it's still a principle argument that was made that should be accounted for under thirty five fifty three and we pointed to the guideline provisions both the mandatory language of five g one point three b and  the now obsolete but nevertheless relevant analytical proposition of five k two point two three to show that under proper procedural analysis the imposition of sentence the judge should have accounted for the fully discharged sentence and she did not she accounted for a different sentence in state court in the closing remarks of the sentence but the defense argued and i believe it's at expat just thirty what was the clearest request to the judge to use five k two point two three there was nothing that explicitly reference five g one point three b or five k two point two three however as this court's noted opinions judges are presumed know the law the guidelines are there for anybody to read and to consider that would seem to suggest that we should reverse freely newer human strays don't appeal for  departure requests that were never made there was a request judge there was a specific reference to the guideline provisions but there is clearly a request that is made and i understand that but but it's not tied to anything in the guidelines which is a no not specifically when that argument is made as i recall but nevertheless it put the issue before the court the court has an obligation under sentencing guidelines to correctly calculate sentence this is an argument that fits within the provisions that mentions i'm skeptical but skeptical that the court would have the obligation to address the of the argument in proper pursuit wasn't a sentence to address an argument that was not made well again and i don't want to slice it to finally judge him well aware what you're getting at but the argument was made these specific right but the two provisions that i mention are related in so five g one point three b and five k two point two three discuss different things that are related concepts the ultimate effort of course is to make sure that rule for racketeering and in fact i gotta say i'm there is some irony here about arguing that this is mitigating at all in the sense of the argument that the that the defendant was convicted here of participating in a seventeen year long course of racketeering activity is a fairly senior leader of the latin kings gang including conspiracy to murder in the argument seems to be that it's a mitigating factor that he was arrested convicted and imprisoned during the course of that wreckage theory activity and then returned to it again but this central thing would be they could get criminal history for the a conviction it could be considered as part of the guideline calculations and furthermore to say as mitigation i wouldn't want to forget the fact that that's an invalid statute now my client did two years on it in balance statutes serve that time that is further mitigation suggest that this option been taken in consideration by the points that was he did it was dropped in the guidelines calculations such didn't factor into the guidelines calculation at all so he wasn't but the point is it should why are there not overall imposition of the sentence not in terms of the the range but rather in terms correctly applied the guidelines in this case to account for the fact that he did time under invalid statute for time that is relevant there's no doubt the government has not are going to be even that's not relevant content is so relevant conduct past the properly considered and i pointed to the guideline provisions that are essential in that analysis and this is do noble review lead for the corrected position in the guidelines and calculations to ensure that the done correctly so why not people serving more time in prison than they should for stuff that they've already been please the court good morning your honor the district court properly considered defendants request for a reduction in his sentence based on the amount of time that he had spent on both the discharge for the discharge portions of state cens as well as to take into account the time to and named on one of his state sentences and the court did that by applying for sentencing the defendant to the low end of the guidelines and ordering that the sentence be served concurrently with the remaining portion of his his ongoing state sentence despite the fact that the that the defendant's crime here was obviously at the highest level of seriousness the government agrees that there is some defendant was a natural for an extended period of time he rose through the ranks to very high level of rank he participated in the games violent activities including participating in shootings and beating key he really he was at the top of the line here and the guidelines do specifically provide a special set of rules for the record carrying counts precisely because it's been determined that it is not appropriate that the defendant's conduct be disorderly conduct as part of a racketeering conspiracy be discounted based on the fact that it has previously produced state can actions in fact there's a there's a very good argument to be made that that should result in an increase in defense to a sentence because obviously it's smaller sentences have done nothing to dissuade him from continuing his his unlawful conduct and its membership in the game the district wasn't wasn't a discussion the council focused on a different conviction and i didn't see any point where the district judge specifically addressed this particular conviction and i agree that the  district court did not the sting rish the convictions or talk about what the district court did was take as a whole this concept of the defendant having spent a significant amount of time in jail and considering the issue which was which primary issue that was raised here which was it should be good in spareness the defendant argued again and again it's only fair that the defendant receive a discount based on the state sentences and the district court treated that argument as as a general fairness issue taking into account the fact that he had spent substantial time on funds but insists that that is sufficient for it to t account the defendant's argument particularly since what was stressed there was a general notion of fairness and in fact acted on that and granted a reduction in the sentence over the over the government's objection  if it's simply the case that the court decided that a reduction in the full amount by five offended was not appropriate so what we have here is really an argument that relates to the degree to which the court took into account the defendant's request for not sure and i've been i've been operating under the assumption that it was two years but as your honor points out with respect to that conviction it was very seriously under charged in the nature of the fa i mean the whole the whole idea of it is is you know not and as you know that i'm sure that the aguilar decision has to do with the constitutionality of the of the offense based on second amendment concerns not concerns that relate to the defensive to the specific conduct involved in the defendant's case here the guidelines provided that where where a conviction is fine and validated later you do not receive criminal history points for that conviction  judge hamilton to your question about whether the a u w offense was considered page forty eight of the appendix says the district court is taking into consideration another offense singular she did not take into consideration both offenses that's very clear from the record can you clarify that two years two hundred forty five days discrepancy not easily judge because by ref my recollection the record was two years until your honor mentioned two hundred forty five i was feeling fairly certain on the two years but i can address it in the twenty j letter it's not clear from the p s are but my recollection is not beyond that i will say this though that there is a special set of walls that applies to criminal history as the government sad but that's only to criminal history day in prison where you shouldn't be there is too much but that's that's a must not me situation we're still within the discretionary zone here and so your argument is basically the judge has to overlook this two thousand and nine conviction not enough that she had to get credit for it  your point your honor but those two provisions are tightly woven together and still analytically the obsolete departure provisions nevertheless are supposed to inform the imposition sentence and we've had this in other cases and i could cite forty to the court subsequent to the argument  where the courts district courts have relied on this this courts of based on the analytical provisions are never less relevant to the analysis which for the proper imposition sentence is a procedural matter we review do know this man is doing two years maybe two hundred  thirty five days whatever the amount additional in prison for time that was never considered by the district court is clear from page forty eight of the appendix so we ask that this court remain free sentencing so all this can be properly considered