case number thirteen three zero one six united states of america versus brandon jones arguments not to exceed fifteen minutes per side mr redeker for the according to circuit case law mr jones this case presents an issue of ongoing concern to district courts throughout the country whether a judge has to apply the career offender and handsome the language of the district judge at trial  problematic when he stated i can't say you're not a career offender because you are well i mean i would have to ask the the language because we can discuss exactly what he meant by it but i take your submission to be as i read the brief that a judge who makes the legal and factual findings that a person is a career offender may disregard that in calculating the guidelines mr ok and you your brief says about a chorus of people doing various things but your best citation seemed to be this new house case in which the judge says and i'm quoting from his i will determine the advisory guideline range and then he says i would consider whether to vary based upon my independent obligation including any policy disagreements with the guidelines so as i read the judge to know in your own case says i have to calculate the guidelines correctly i e i apply the career  guideline and then i vary from and if that sort of your best case where do you have anything that says that a court can not corrupt calculate the guidelines not as a starting point what happened in this case was that the judge confuse the initial calculation of the sentence with a final determination in this case the court is obligated in new house in  in and pretty much any career offender case you're going to read by so if he deems that the defendant is a career offender then he has to start by calculating the guidelines he must begin with the sentencing guidelines under booker but that doesn't mean that when explain why he was given a lower sentence and what's procedurally unreasonable about that he did exactly what goal says a district court should begin all sentencing proceedings by correctly calculating the applicable guideline range it isn't at all he's saying that page thirty because he says that and then several pages later he starts explaining i guess they call it a very and then he explains how he's very just  the language is i mean i would have to ignore the law i can't violate my oath on that this language strongly suggest in concrete terms that the judge thought that the imposition of the career offender enhance was mandatory which is not the law well but i thought you just said that it was are you said i'm sorry go ahead i mean here's my understanding of your argument and and tell me if this is where you are there are multiple steps in the sentencing determination the first one the starting point is the calculation of the guidelines you're not arguing right that he could have disregarded the career offender provision for purposes of that initial calculations that correct correct and what you're saying is that in determining the ultimate sentence he should have considered moving off this criminal history category which is a departure if i understand this correctly rather than a variance he felt that he couldn't do that he felt he could only vary and so i guess  one of them's a vertical axis and one's horizontal and you wanted him to be to recognize that he could move off criminal history six which i guess is a quicker way of reducing his guideline is that i mean am i getting the right step rightly but after that according to booker according to a new house according to wiki and many other cases the judge can do whatever he wants but we're going to i was going to ask a question about the language i'm page thirty because i mean you're a career bender because their calculation is correct but i still can do some take into consideration the fact that all three of those times were committed in the thirteen month or so timeframe and i'm going to do that this right so he says they calculate it right but i'm going to do something about your criminal history and what he does is he decides to fix it his way which is to do it by citing a specific thing on the vertical access history but i'm so yeah i mean just because he could have said ok i'm going to fix it and then later on fixes it by changing the criminal history instead of the vertical access i don't see where that matters he says i'm going to fix it so what do i do with this language that says i'm going to fix your criminal history i may fix it a different way but i'm going to fix it yes your honor and indeed he refers to his own discretion in doing so but the district court's downward variance does not imply discretionary career offender a variance in this case is not mutually exclusive with the application of the curb i don't think we're doing here because ok he says i'm going to get to the right settings and i'm going to do it by going i'm going to do it on the vertical axis i know you only did these within the thirteen month period which is the criminal history thing but i have different ways of doing this so instead of doing it on the criminal history line i'm going to do it which is horizontal i'm going to do it on the vertical line just right and it seems to me that if you thought a different sense was warranted he could have gone down from twenty six to twenty two in his mind yes but he didn't think that was right for so i'm not sure that we have a difference with him that makes any difference are you referring to harmless error not particularly i'm just thinking that this judge makes a decision as to where he thinks he should come out and he does it on the vertical scale that's what he says he's doing yes or no but one thing is certain in this case it's that imposing the career offender enhanced moment in a mandatory fashion is not the law and the like the problem we've got is we keep going back and forth between whether he's doing it in a mandatory fashion or not because the level thirty one is just as much part of the career of bender in hand as the criminal history six right if you were a career offender to calculate the guidelines correctly which i think you agree he did you end up at thirty one and six right ok at that point i guess i'm not even sure i agree with a judge  criminal history category he says i'm going to fix the sentence now at that point what do you have in the terms of any law that says the way that he does it is subject to attack as i understand the law he could have said i think i ought to go down about ten years he could say what he did here is i'm going to go down five levels he could have said if you look at the chart he could have taken you know i'm going to keep the level but i'm going to take your criminal history all the way down to one or two any of those with let him give chose to say i'm going to keep the criminal history at six and go dale and he clearly didn't treat the career offender as mandatory because he blew off the thirty one right answer on the problem in this case is that we have a problematic lehi starting point without career offender but but but it started with the problematic lehi starting point that means the crew the guidelines calculation was done incorrectly and i keep sort of shifting about whether you're attacking the starting point or not and just now all of a sudden it sounded like you were wanted to explore i mean just explain what you meant by that honor so so a judge in this case must begin with the career offender calculation in this case it's one hundred eighty eight to two hundred thirty five months since the judge believed that mr jones was a career offender he ended up varying downward to one hundred twenty months because he changed the number of criminal history points that mr jones had in this case however from thirty one he didn't change the current book your whole point was he didn't change the criminal his history category or all that of course you said earlier in and you agreed with judge boggs that the thirty one points was part of the criminal was part of the career offender mandate here i don't see that in section four b one point one i just calls out the offense level doesn't it that the defendant would have yes or no as part of our brief i'm sorry if i came across that way what we dispute is the criminal history category six right as having a problem obviously having off the points doesn't mean he's rejecting the mandate of the career offender status does it yes your honor we believe his language suggests that he was bound a post career offender and as a result of criminal history category six had to start at one hundred eighty eight months and then when he very downward moved two hundred twenty but but but the record is the record and there is ambiguity here with his language even if reasonable minds would disagree isn't it correct that once you determine someone is a career offender equally mandatory under forty one point one is that he goes to level thirty four of an offen level he comes down to thirty one because of exceptions for responsibility in the calculation but the thirty four thirty one is equally part of the career offender guidelines yesterday which he was willing to blow off yes ok so what's your answer i mean how do you explain why you think the court continued to regard the career offender designation as constraining its ability to to prescribed in forty one point one why should we conclude that he felt he couldn't move off of criminal history category six your honor i see my time as it is which i go ahead and finish your question  so if i'm understanding your your question right we were in agreement that criminal history category six is part of the career right offender guidelines but what you're concerned with is that the movement downward from thirty all part over far you're saying he felt bound by the career offender designation at the third stage of the sentencing where he's determining the proper sense yes or ok and but judge barnes points out that the career offender designation mandates not only criminal history category but also an offense level yes or the court moves off that offense level yes why doesn't that support a conclusion that the court did not feel constrained by this designation in the manner that you are arguing yes because in this case the judge did exercise some discretion that he had under booker he felt that he could vary from thirty one to twenty six but for some reason he felt that he could not very under criminal history category six which is actually the part of this sentence that creates the huge disparity between not being a career offender and being a career offender it talking about different kinds of discretion he felt he had discretion to vary from thirty one twenty six but he felt he did not have discretion in refusing to depart from criminal history category six they could kill you would have your time  my name is dan hurley and i represent the united states i think counsel just wrong about what the district court understood the court says at several different points i can exercise them just scratch and i can go through individually i can take into consideration and the court granted a variance and the variance that it gets it calibrated by offense level is still variance what do you make of this you know sort of monologue goes off on about i can't say you're ender because you are i can't violate i would i mean i would have to ignore the law i can't violate my oath on that i mean this is pretty strong language that we don't see  responding to the request for a departure under the guidelines right for departure isn't that exactly what mr redeker says he felt he couldn't just court apparently felt he couldn't do no your honor but art from a variance i mean the pair of the problem is mr r you apply everything that is relevant that leads to a true history category and offense level a corresponding guideline range that gets plugged in under thirty five fifty three a to the mix of factors that the court supposed to consider in determining a sense official but not greater than necessary in the district court mr jones asked for a departure under forty one point three the argument was the criminal history category is overstated the district court specifically addressed that and said you can't say it's overstated in terms of his likelihood of recidivism because he's back for the same offense he's engaged in the same kind of guns and drugs that as i read the transcript the district court specifically considered a departure and rejected a departure not because it couldn't but because it's not warranted on these facts if the argument is a departure is warranted because category six substantially over represents the likelihood of recidivism which is the argument that was made the district judge said it doesn't substantially over represent in this case because he's back doing the same things from their point the district court then moves to the three five five three a factors the language that you were courting judge cattle it was relevant to the calculation of the clickable guidelines he can't say he's not a career founder because he is because he's got the qualifying to win this case three predicate convictions this offense is a qualifying offense the priors are qualifying predicates so he starts at thirty four six minus three for acceptance of responsibility then the district court says at two different points i can take into consideration the fact that these were committed with a thirteen month period i can consider your background the specific cases i can use my discretion to fashion a sentence that i think compares it with everybody else in this case and your involvement along with your background and that's further down on page thirty of the sentencing transcript the sense of hearing transcript that's exactly what the district court supposed to do get the guidelines right consider everything in the guidelines manual take that number and then  discretion one of the things it has to consider is the political gallon range and the background and the seriousness of the offense and the need to avoid unwarranted disparity it's not right that's what this district court judge did i'm i write that in the argument for departure they argued it both in terms of the category and the level that is the page seventeen as i read it mr burgess is saying there's reasons for us to depart for you to depart off of level thirty one yes around and they said of the a circuit the geiger case from the circuit frankly i think aggers wrong about a departure on offense level based on the criminal history substantially over representing but the district court understood it had to say provide both ways on departure reasons not to depart they tried both ways on various and he gave them some and not others that that's right although i think the problem is really  is there any law either supreme court or in this circuit that says how a district judge must compute of variance as opposed to saying he can do it in numbers of years he can do it in offense levels you can do it in criminal history category not that i'm aware of your own and i think it's easier for you to review it when the judge does as you suggested and says the guidelines tell me you should be in this range based on these other factors i considered all the ones in the s impose a sentence of ten years twenty years thirty years etc we wouldn't have these issues if it were framed in a term of years as opposed to going back to the guidelines and i think that's where the confusion arises when you talk about variance and departure what mean a departure is a step in calculating what just the the guidelines manual what does it tell us about where the sentence ought to be and there are approved bases for departure there are discouraged bas for departure there are a number of factors approved movement away from the guy from the calculated range of departure in your view yes the guidelines say under four b one point t o i think it's a three they say you can depart one crim history category and so if the district judge had thought that the criminal history substantially overrepresented the likelihood of your judge could have moved one column to the left to criminals to category five very when you said he could only depart one is under under the guidelines under the guidelines is that because that's what the guidelines rule is you can only depart by one period under the guidelines of the galleys ok got to apply that rule you come up with a recommend sentencing range then given them to the departure under your notion under your statement of it he would have been starting up one sixty eight to two to one anyway i think that's right it's a thirty one five and that's it was five or actually go that way this is like an approved departure and then you have things that are departing or unspecified for example the policy departures art approved in the guidelines those are test departures that are allowed by law i don't think they're depends as you are i think the variances i think those are variances those are with much greater levity because the mandatory ness of the guideline range was excised from the statute that is before book or you would have had to do all of your mechanics using departures yes  that's right and then you can do departures and then you can do anything you want because before booker once the court calculated the guideline range three five five three b one said the sentence had to be within that range and so if it wasn't going to be within a particular range that was only because either career offender for a one point three says it's overstated or five k gives you a basis to say under the manual the recommended range is different or something that is a non guideline sentence that is neither quote a departure nor a variance somebody says the guidelines just don't cover the situation i'm going to do something different sensing commission tell us in this collective wisdom of the manual and then the congress and health of the various i'm a sense factor that in and come up with a sentence and we just use the word variance to describe it as being outside the range but the guidelines manual says should be our starting point that so you think would say that if you're not doing this departure that's talked about in the guidelines then you're doing a variance no matter what it's a very frontal i think that's what makes it difficult here but that i don't have a case is that you can't do that i just think it makes life harder for for me and for you facts there are some circuits and some judges who think that is the way to go that's the only do it seven and i know judge easterbrook has talked about this that maybe i disagree and i think that's problematic on the booker because i think then we're we're inching back towards exactly what she said we can't do which is a stand was common sense counsel never had cancer to get to this but the reasonableness thing he says he's going to have a thetan that's kind of in line with everybody else i was looking at the ones that were in the record and seem to me the highest one was one twenty five watkins got to forty yes you're on mandatory minimum yes ok anybody else get something higher than one twenty five not that i recall your honor although i don't think frankly i don't think that's a particularly in the transcript where the parties talk about there being a mandatory minimum the defense attorney says makes a reference to a mandatory minimum i don't think there's a midterm and i think it's only reason i ask that is the judge says i'm going to give you the minimum sentence which is one hundred twenty months although that's the minimum under the range that he's just applied to that's right i wasn't quite sure whether there was he saying it's the bottom of that range but you don't think there's a mandatory minimum even though some people thought it was i do not ok not aware of a  guidelines and then the judge sentenced accordingly this defendant did not cooperate did not get a substantial assistance departure was just given a sense of one hundred twenty months because the judge felt that that best reflected his background history and his right and one of them is the likelihood of reset or recidivism which is you correctly point out the judge specifically you know pretty powerful address but the other was the seriousness of his criminal extend i understood their arguments they never asked for a departure or variance on the ground that the seriousness of the prior offenses was substantially over represented and they can't  that for a one point three applies to all defendants and so there are some defendants who have what we would agree are relatively minor offenses i mean you get three points for a sense of more than a year and that's true whether it's murder were the bare minimum but they still triggered the points because of the length of the sense imposed that a clause that applies globally make that argument they didn't make that argument and i don't think they can make that argument because the current fender guideline identifies specific categories of offenses that congress has said are sufficiently serious for the career offender guideline is not a creation out of the blue by the sense of commission congress at twenty eight u s c nine  four eight as part of since reform act instructed the commission to create a guideline identifying specific categories of defendants saying if they commit these types of priors and they do it again we want or send at or near the statutory maximum that's thirty years this defendant sentence is nowhere near that which is also why i think that there is no tenable argument that the sentences have sent is substantively on reasonable unless i see my time's up once the panel has any you my opposing counsel used a number of words to describe the sentencing including money waters confusion and difficult the ambiguity in this record exists whether or not to the ambiguity as in the way in which the judge lowered the sentence do you have a view of the law as to whether the judge the view i expressed was he can do it three ways you can change the level he can change the history or he can just say i'm going to go down to a number that i think right do you have a different view of the law or do you have a view as to how he should have done it what we have to go on in this case your honor is the record and i might ask you about the state of the law that is did he commit some kind of error by choosing to couch his very words the way he did that is i think you agree with me that to the numbers he could have said i'm going to keep the thirty one and make you a perhaps you could refresh i'm a little bit all right he said your guideline range is here i'm going to give you one hundred twenty month at a reason i'm going to give you one hundred twenty months is i'm going to say i'm going down to level twenty six i'm go give you the bottom of that sentence that struck me as a legal matter is there something wrong with that way of couching it as opposed to the other way that i've indicated you could have couched it no your honor other than the case we already cited which was united states versus bold which talks about progressions at sentencing and the imposition mandatory imposition of criminal history category six with the career offender unhandsome and i think we are in agreement on that let me answer you means the court felt that it couldn't make some move that the guidelines them selves with sanction here namely a departure under for a one three is that right yes ok and so that section would allow a one i guess you call it level no move in the criminal history category yes there are two grounds in this guideline on which would seriousness of his criminal history he says that in the district court your client is only arguing the receipt of a part of that is that correct as a factual matter yes your honor this wasn't something  that we raised on brief because we had two separate challenges one of them was substantively and reasonable and we focused a lot today on the actual ambiguities of the language and sentencing in the imposition of the career offender but that is what the if it is if that's the sole basis on which archer was sought in the district court why is it mr who are correct that the district court very squarely answered that when the lawyer sort of perhaps stumbled that a specific answer to the exact argument that that you're arguing the court felt they couldn't consider yes your honor on some level that is that is certainly a challenge to the substantive reasonableness of this case and we've we've brief these issues we didn't get talking about your your procedural argument that the court felt he could not consider this departure because its hands were tied about career center right but the court said no the reason you're saying he's not a career ender no is and now i have to honor that isn't that a fair reading of the transfer no your honor we don't believe so because in this case the judge could have done any number of things as you mentioned he could have moved down to criminal history category five and his language that he would have to ignore the law or violate his oath is not even close to the discretion that he had in this case for the foregoing reasons mr jones deserves