good morning i'm page nichols here on behalf of matthew clark the appellant may it please the court i'd like to focus mostly this morning on our issue number one which is the claim that mr clarke's methamphetamine sentence w substantively unreasonable and i'll start with the presumption of reasonableness i'd like to focus attention for just a moment on a couple of passages in rita where the supreme court held that circuit courts may apply a presumption of reasonableness to within guideline sentences read it gives us several justifications for that presumption and i think those justifications are simply weaker in a case involving actual  purity methamphetamine one of the things rita said there are two justification i just want to pull out about rita and then i think that will help get us into this particular case so one of the justifications that rita gay for the presumption of reasonable was it's the supreme court's understanding at that point in time that the sensing commission had taken an empirical approach to the guidelines and so that empirical approach helps assure us that those guidelines are reasonable well down the road a bit the supreme court comes back in kimbrough and recognizes that well the commission didn't actually take that empirical approach when it came to drug guidelines so so the presumption maybe has a weaker justification generally in drug cases but when it comes to methamphetamine cases one of the other points that the majority made and rita was this it may well be true the court says that this presumption will encourage district courts to impose guidelines sentences but that's a good thing because the guidelines are designed to to to work against unwarranted disparities and to encourage uniformity in sentencing and that makes sense and it might have made sense in the early days of the methamphetamine guidelines but as as the methamphetamine trade shall we say has has changed over time and has as district courts have learned more about that particular drug we come to where we are today which is  uniformity and methamphetamine sentences and not especially not uniformity in whether or not drugs are tested and whether or not the drugs are treated as as pure or as a mixture at sentencing so those are two reasons that really gave for the presumption that are really weak and in a case involving purity and methamphetamine so i've asked this court to i think i worded it as disregard the presumption in cases involving i think there are really three ways the court can look at it i believe that a panel does have the authority to shape a general rule the general rule is that this court applies the presumption so i've asked essentially for the court to make an exception  different specific distinct arguments that were made in the district court and i don't want them to get like all smashed into the disparity so i want to make sure i cover all of them but the spirity has come about it appears  maybe simply as a district courts have become dissatisfied with the guideline but what has happened so before two thousand and ten i think it's pretty clear especially before twenty two thousand and seven that methamphetamine purity very quite a bit and it wasn't that high usually but since two thousand and ten the evidence is that most methamphetamine is very pure at ninety three percent or above that puts it at ice level that puts you way higher in the sense of guidelines and like twenty years ago you might have forty percent purity would be usual in a case even though the the purity levels have gone up you should expect to see the guidelines should have gone up across the board too as purity has gone up but they haven't they go up the site yes the census is that you appreciate that the sentences should go up but they have remained pretty much steady across the board meanwhile what's happened in methamphetamine cases  is fewer and fewer courts are imposing guideline sentences so so then you have the kansas experience periods and we know a lot more within kansas because judge robinson took the trouble to ask probation to review all of these pre sentence reports and determine that even within kansas we have a disparity because it looks like what's happening is kansas city tests more and the census in kansas city are for actual or ice methamphetamine above ninety percent of the time whereas in wichita it's only fifty some percent of the time and into peak it was forty some percent of the time and it looked like the testing rose and fell with the sentences so there's a look at the geographic draw it looks like and even the prosecutor said at one point it seems to be geography and in struggling to figure out the was there any other factor taking into account there so they look at  information and it did not it was not examined in the reports that we were provided through the probation department so we're in an awkward position here because we are the only players here who don't have access to the just talked with counsel a bit about sort of the culture in the different offices and determine that you know there may be some differences in types of cases in kansas city but she concluded that it didn't fully explain us at all because there are similar long investigation cases for instance it takes longer in kansas city to get from charging to sentencing so they looked at that time frame but judge robinson was not satisfied that that explained the disparate disparity so i think her conclusion was that this is this is not and explain disparity and as for other regions we don't know except that if you look at for instance they were talking a lot about san diego where you would expect there would be a lot of pure methamphetamine coming in from the border and they are much less likely to be much more likely to be sensing from mixture there they also have some fast track programs there which may account for that but then we look again at the compare methamphetamine within guideline sentences to across the board you look at the sentencing commission mixture or the purity guard all right so we can't i think with the sense in commission data what it tells us i guess is that we have way fewer than half of defendants in methamphetamine cases being sentence sentenced within the guidelines so there's a disparity just in terms of and i understand i think maybe our is getting in fact we just don't know that many details about why there are so few guidelines and since in methamphetamine cases with your problem because i think that's because the mixture guideline gets us to what is for other reasons an appropriate sentence for this defendant so this is part of the problem with the true so what i i sent a letter of additional authority and on the recent opinion in cookson which i recognize it's a below guideline sentence case but it gives us a little help because cookson reminds us that that an excessive reliance on a single factor can be problematic and that's what we have here and we're even getting caught up in this in this discussion right now at least i am on focusing on the guideline when in fact it is a single factor and so that's one of our arguments is that the court excessively relied guidelines i don't see i guess i don't see that and maybe i'm not understanding your argument but it did seem like judge drums went out of her way to say you know to hear all this and to inquire and as you say she did some digging but at the end of all that she said you know i'm not saying i might not why not do something and in another case but then she very carefully went through the reasons why in this case she wasn't going to bite off on this argument and i don't see how we can say that's an abuse of discretion so let me try to get at it from a couple of different angles and one of them is that you know you  appreciated judge robinson's really struggle through this case because i think it is one of the hardest things judges do is sensing and the supreme court has given really mixed messages by saying on the one hand look the like rita says  guidelines are there just a factor they're just one of many factors and this court has said it should be a holistic balancing of all the factors right but at the same time the supreme court also says it's the anchor it's the place you start and so it's hard to get away from the guidelines but but one of things that judge robinson said with take i invite you to appeal this issue because i don't know if this is really a problem across the board or not and she also said come back if the guidelines change because i want to be sentencing you to a lower sentence then and so if we just start with the umbrella principle of parsimony it seems difficult to understand how it can be true at the same time that to have your guideline sentence is not greater than necessary well at the same time the judge says that in the future some lesser number of years will be sufficient to achieve our sentencing goal ending on the facts that keynes i mean that's seemingly what she said and well i mean she was looking here at the the level of sophistication in particular of this operation and the firearms that were found in arrival in the ammunition and all those things and his prior criminal history and so she she focused on that so when we're in san i guess i've got one question i want you address before we have forget about it here and you're almost out of time and that is that the state concedes that we need to re sentence  they suggested corrections needed on counts four and five why would we even get to the substantive reason most aren't why would we remain so the district court can reconsider the whole package and perhaps you know even reconsider asking i am i am agreeing with your honor that it makes sense to do a general rematch especially given how the government has also argued that the guns were played a part in the reasonable ness of the sentence and you know when you good morning and they are please the court amanda harris i'm happy i'm states i'll start where am i callie began which is the presumption of reasonableness and who can use you can you start with where she ended you that is just because i mean that is a true that we should just free man to not address all the other complicated issues no your honor i don't think that's the correct recourse here for a couple of reasons  the st of which we only conceded that there should be a remand on counts four and five i understand the doctor and have you know a sentencing package but the the court was clear about it since with regard to the other  counts which are not you know at issue with regard to exceeding the statutory maximum and also i don't under i don't understand your argument there we have the sentencing package doctor and seems to apply here where we've got multiple counts  sentenced on more vacating on two counts why isn't the corporeal reconsider the entire package and why doesn't that apply here why would we just correct i think it was a clerical error and here is why at volume two page fifty two  court recites the correct statutory maximum sentences for each count including counts four dollars and five dollars so it was clear that just an oversight on the court's part for not having imposed a lower sentence on court on counts four and five rather  could decide i thought the original sentence was appropriate discretion to impose the exact same sentence that it did here and and could then i suppose that could be appealed but there's no point of having a nd appeal on the same issue because the court would very likely just impose a limited remand on those counts to correct that error but even assuming that's not the case of course the court would be well within its discretion to to impose the same sentence i'll go back to the to the substantive unreasonable s challenge here and start with the presumption of reasonableness we recognise that but we didn't cite that standard in the government's brief and that was an oversight on our part but the presumption of reason less appl recognized in this circuit within guidelines within guideline range sentence that the district court properly calculate it is entitled to a rebuttable presumption of reasonableness on appeal and this presumption of reasonableness holds true even if the guideline  issue arguably contains serious flaws or otherwise lacks an empirical basis and that's the same argument that's being inserted here why the presumption should apply and that this panel is bound  its prior precedent but regardless of whether there was a presumption of reasonableness and this case the sentence here was reasonable and there was no abuse of discretion for all of that the reason cited by the district court the  is more does that matter if we say that the presumption doesn't apply or that it was rude to you if course we we don't when the court to say about that and that's the point that the presumption applies right and so the only think that's work can consider i think under its precedent is whether the presumption is ok thank you and in this case the court examined all of the many factors including the very serious nature of this offense is aware there's a number of firearms there was video surveillance footage of mr clarke handling those firearms his own surveillance this system showed that his own surveillance system also showed him distributing drugs the night before the execution of the search warrant and the quantity of drugs in the cab the amount of cash found as well as the search warrant of his telephone that would show that he had been disturbing drugs for some time as well as  throw out the guidelines altogether because they were helpful on the facts of this case and that's well within the court's discretion that's why we filed a twenty a j letter citing that th circuit case because courts of course may post kemb consider of the problems or underpinnings of the guidelines which defendants can argue to the court but they are never required to accept those arguments and here the court recognized them but just felt that they weren't relevant on the facts of that particular case and that's well within her discretion to do so in addition to all that the court also considered and rejected the other bases for a variance in this case which included mr clark considered all of these things and also i would note recognize that the guidelines is one of many factors that it was considering and so the court knew that it wasn't bound by the guidelines and and explicitly recognized as much and under these facts and it was not an abuse of discretion and i briefly when i address one other thing i think that the comment that the district court made in that doesn't show at all that the court felt it was bound by these guidelines or wasn't recognizing potential disparities that result from some of these whether or not just very quickly on the court recognizing that the guidelines are the lodestar and so for right i think this is the this is the difficulty i have in understanding what it is that is your courts are supposed to do but i don't think they're supposed to i know they have to calculate the guideline i know that's a factor that's right and the court did that the court did that appropriately but then what happens is the court takes that number and walks me walks through their claims methamphetamine a s so in terms of harm to the person and harm to society there epidemiology studies that were cited at linked in the sentencing memorandum that were under the court's consideration for instance methamphetamine and crack cocaine used to be epidemiologist so harm to the individual and society but yes so and then there were citizen study the judge says you know i'm not going to find that he's at low risk or at high risk that's one reason a very so so what happens is and i think it happens a lot and i guess what i'm struggling with this is how how are the guidelines not being get given too much weight when when that's the number on the table and all you're doing is trying to move the judge off of that number and that's exactly what happen you still like to sentence remaindered for full consideration absolutely rather than just have other two counts reduced c s for a bit because under happier when you go back for a new sentencing you can the judge sentences the defendant as if this is you are before me and everything in your life up to this point so that would include his incarceration term and this is somebody who the judge recognized had done a great job in pretrial detention and so his good conduct in prison would be relevant at that point also the judge could take into account the fact that more district courts have been rejecting the guidelines i'm going to thank you very much thank you thank you