the substantive reasonable step that's the key to this case and in accordance with the goal case this court must look at the totality of the circumstances and determine the reasonableness of the one hundred twenty month sentence the most significant circumstance i look at the plea agreement it says paragraph five which is the key to this case is the parties agree to the following positions as to the blow list and sensing factors only which are not bind on the court in its application of the advisory g range but when you look at ruhleben under rule eleven see one a b and c there's there's two binding ones or a and c correct  c so a is that the government will not bring or will move to dismiss other charters clearly they did they did that they dismissed other charges be is that the current government will recommend or green not to oppose the defendant's request and that's not here there's no recommendation or an agreement not to oppose any defendant's request and says that they agree that a specific sentence or sense in range is appropriate disposition of that isn't what you agreed to as it is essentially what we agreed to because it's the agreement if you don't agree to a specific sentence it's one thing to say well we agree not to oppose what the sentencing fact what the result of these factors comes out to be we have to the offense level unless the judge is bound under rule see the judge can reject those out of hand upon a finding that he or she is doing that but i don't i don't think so in this case was a thing of oh it's not a matter of in this case it's what the rule says i'm sorry but that's what i'm asking at and they did make my question clear sorry yes again under the law all the rules the only time the judges bound is if a specific  sentence is agreed to under the rule eleven isn't that right right the specific sentence or assented seem range and i think that in this case under the terms of the plea we did get to a specific range because the only factors that come into play in this case were all agreed upon i need to get a look at the plea agreement i don't see your brief as raising that issue at all but you're right your honor it's not what you're arguing isn't in your brief no your honor it's not it's not this is the first time i've heard that yes that's correct or on this is new after reviewing the case more this is something that i found if you look counsel on the other side that you found i did not you went it went towards is that this this ruling was an a or this the sense wasn't substantial substantively reasonable it's just adding it's an addition to why it's not substantively reasonable i'm not saying it's you saying this is not new argument really correct great to go towards the substantive  that the parties specifically agreed on the sentencing factors that were terminated of of the appropriate guideline range as an eighteen level adjustment for loss between two point five and seven million dollars that as to the below listed sentencing factors only which are not binding on the court and its application of the advisory guideline range provided that if defendants conduct prior to sentencing changes the circumstances with respect to any such downward level for acceptance of responsibility now that's just a classic plea agreement where the parties recommend a sentence to the judge and agree that they're not going to argue about what the levels are but that doesn't bind the judge on or does it once but mr whitley's argument would be that it has to be under rule in c one it's got to be a b or c and it's not be i think it gives more towards c which is something that binds the court because it's certainly not a recommendation or agreement not to oppose if it's requests that you're arguing then something far different than whether it is a reasonably sub substantively reasonable sentence you're arguing it's a binding agreement under one s or great of that we have to make a ruling and interpretation of the rules against this plea agreement do you agree with that that's certainly a factor i think i think it's a factor i think that mr willie agreed to this paragraph five ind plea agreement was paragraph five and the government's inducement and offering it was that mr whitley he pled early in that they could save their resources and focus on other crimes as they are you that at the sentencing and the court had a chance at the rule live and here in the court said we conditionally agree to this and that sentence in the court accepted the plea agreement they had the opportunity to reject it and i don't understand why they would accept it  then not abide by the terms of the plea but the court accept the plea agreement they've knowledge the fifty seven or it acknowledges fifty seven to seventy one with god on range and both parties are good for sense within the range whole system would be in jeopardy of collapsing if the if the judges aren't going to are going to accept a plea agreement then go back and not comply with its terms you have any evidence of that given the fact they've been doing it for as long as these rules have been in fact knows i don't have have no you're you're on your prick but that's what i think i think it's bad public policy i think it that it certainly doesn't promote this perception of fair sentencing and worse it  circuit bring some of that in question as to what you have to do and whether you know you very or depart you think in exchange totally interchangeable don't make you different well i think in my client's case it does it it doesn't make the difference as far as this is i can do my client a good if if we go back in the judge just says ok well this is a variance and this is why do it and explains it and that's one of bandwidth which do you think gives you a klein or any that i do think so i think that the judge should've said well there's a departure or a variance or what so that we could have today we can look at the case and see if it's reasonable and say why it was i did she depart very in this case the judge simply went over the thirty five fifty three a factors didn't really expand on them just listed them and then said i think she said that he was he preyed on people he was aggressive and  the scheme had significant impact on multiple victims and that was her reasoning but it was and he was dangerous to society and he was on are among the things the reason she gave for giving the sentence that she gave  several victims i think any kind of fraud upon the scheme case you're going to say that the person is dangerous are going to say that they put a lot of pressure on people to do it usually i think so i think the factors that are in to be one point one takes out the heartland but i think as far as the heartline of these fraud cases i think that they're all going to have a he's going to be quite dangerous and he's going to have whoever did it is going to put pressure on the people that he  is that dangerousness is only subsumed in the verb crime that he committed yes he's dangerous to commit fraud or otherwise not a case where he brandish a weapon or somehow he's beyond threat for all he's intimidated so my place the court good afternoon your honors but the district court did here was substantively reasonable let me start off by saying that this is the first time that i'm aware that counsel is making an argument about  breaching the plea agreement and it is our position that he is with that argument he cannot for the first time raise an argument in the court of appeals at oral argument but i would respond to it if the court wants me to do so if will move on to the argument that he did make which is that the sentence here was substantively on reasonable what the court had in front of it was a defendant who had purposely manipulated and defrauded his friends and family he had done that through a period of aggressive behavior as the court noted and he had done it by instigating a plan telling them that he was going to help them in some cases going after them for a year and a half so that they can invest in a scheme in the factoring business which in fact was never the scheme they did a ponzi scheme he was never involved in any legitimate business he used the monies from his victims to build a big house at the beach he used the money to take fancy vacations to drive luxury cars and to fund the li he imagined he was entitled to and what did this record found was that he had preyed on those people preyed on the people who trusted him the people who were his friends and relatives that he had victimized them that he was diagram clearly a person who limits their crimes to their friends and relatives would be less dangerous than someone who has no limits it's perfectly random strangers and i disagree with the court because the friends  friends and relatives and people that he knew so it was not limited to just friends and relatives just trying to see how is he more dangerous as an outlier because he preyed on family friends and acquaintances versus a person who uses the public as their victim just a phone book randomly call numbers and say  trust what they're saying to you so in the grand scheme of things if you are defrauding people who trust you who have plaister trusted me and emotional toll and that person is greater let me go back to something that the court said the court said that that you are supposed to look at all of the departures and all of that and then very that is not what the fourth circuit has said and deals dot a star you don't have to look at the departure first you can choose to vary and that is what the district court did in this case the district court did not discuss any departures in the traditional departures the district court went directly to variances and varied based on the thirty five fifty three a to that's i think the district courts use the tools that were available to her in this case because this court has set it you don't need to look at departures you can go to a variance and that is a tool that this court has given the district guidelines were changed and they were changed to to adjust to a circuit split as to which there was some difference and risk and the procedure used to arrive at a departure and then and then proceed variance based on the following is a or a whole host of other case yes and there's some question about whether or not at this juncture d s saw the star still is valid there is no indication that  that sort of thing well it hadn't been that also true though that there are some instances where the sentence that produced is produced by using those enhanced months doesn't give enough to lay the wood on the defendant the way he needs to be laid off because he has hurt it preyed on is vulnerable grandmother and that the courts are free to say ok i'm giving you a departure for  vulnerable victim and a departure for position of trust but that's not enough and i will give you some more here so i'm going to give you some or you are a dangerous person you have no regret you are and i'm going to do that but if you're going to do that you have to a go through the process if you're going to be an alexa lee honest of saying ok i'm going to look at whether or not the guidelines structure allows you  think the record doesn't bear that out because first of all in calculating the guideline range the court is directly in the guidelines in the court is looking at the enhancements that apply and the court did that here the court calculated the guidelines and looked at what in a hence ment's would have applied what the court said in this case is that the guideline range that was derived after the calculation of the guidelines was not sufficient for the sentence that this defendant deserved therefore the court went to looking at the thirty five fifty three a factors and arrived at a sentence that i thought was sufficient to serve those factors what one of those factors brought it up out of the guidelines the court did not specify which one of the factors but they did emphasize for example there is a lack of respect for the law i mean that's one of the factors the court also it is factoring in the degree to which the defendant has done certain things and what the court was looking at in this case in this case in particular the defendant had been in bankruptcy proceedings and it was brought to the attention of the district court that he absolutely refused to cooperate with the bankruptcy judge and so that these victims were being victimized all over again and the court noted that  specifically and when it talked about the lack of respect for the law it mentioned you have been in bankruptcy bankruptcy proceedings and you have not cooperated you showed no remorse for your victims the victims testified that he had not as much as apologized to them for what he had done at the point of sentencing he had refused to even the bankruptcy proceedings had not gotten any cooperation from the defendant at the time of the sentencing in this criminal case so i don't think that the guidelines as it was calculated here at taken that particular factor into consideration and a district  six preceded the criminal case then restitution would be something that comes after the bankruptcy in terms of whatever funds were available he was forced into bankruptcy there are certain procedures as a bankrupt that you have correct this was not a voluntary bankruptcy by the defendant it makes a difference it does so he has no right defendant was supposed to cooperate with the bankruptcy judge in a bankruptcy don't you ask me the question of why was why was it that he was considered to be disrespectful of the law and i told you one of the things that the court considered was that also in the record is the issue that even after the defendant had started to be when they started to investigate him he continued to get more victims to be a part of a scheme so he didn't cease and desist even when he knew he was under investigation in this case after he was arrested after after the investigation started and he had been told that he was under investigation he continued his scheme and continued to get others to join which shows disrespect for the absolutely does because the guideline factors factor in all the relevant material in this case it's in the heartland of cases i would argue and the guidelines that's threats to predicate of your argument on some just under the guidelines that's correct but then i think that things like him being dangerous as we've discussed before i think that anyone who does these fraud things i think they're all considered dangerous if can consider him dangerous there's no elder one illness of threat or anything in this there are plenty of people out there who commit frauds and they are intentional frauds but they're not widespread they are not know it isn't somebody who does it one way more dangerous to society than somebody who does it in the least and a less aggressive nasty way don't you think or do you think i'd agree with that but i think that most people who do these kind of things the federal government investigate in the in that gets the federal government charges i think that these are more widespread things so it's in the heartland of the cases as far as when you're looking at the federal sentencing guidelines