cases and i think we're all familiar with our timing system as you know usually we have light that's not an option when we're on the phone so the court session clerk ms geddes will let you know when you have two minutes left and we'll let you know when your time has expired we ask that you please stick closely to the time requirements but if we have any questions that require you to go over the limit of course please finish the answer so the questions since we be asking them unless we wanted to know the answers and we look forward to a great day of argument we'll hear st from the case of the united states of america versus brian matthew cooney and we'll begin with mr lan good morning please the court my name is steve lang's i represent the defendant in the palace in this case mr cooney if i may briefly is my volume ok am i coming through ok for the court yes thank you this appeal challenges the district court's nineteen year sentence imposed in this case as substantively unreasonable i appreciate that the concept the reasonableness is a flexible standard and that a chart involves what is quintessentially a judgment call but this case asked of this court to measure how far is willing to bend before finding an abuse of discretion there is and there should be some way to if not some  substantive review generally speaking we're all very familiar with the standards of review review governing a sense and challenge like this and i'm sure we all accept the combined effect of all the principles that govern and apply the substance of reason most in review and that say that substantively unreasonable sentences are rare that sentence in this case however is one of those rare instances in any given  sentencing structure i would humbly submit that there are two questions on which the court has to answer the st question is what is it that the defendant did wrong and then the nd question probably more important is what are we going to do about it now the construct is we start with calculating the math now and mr coon each case he pled guilty without a written plea agreement to simple possession of materials containing child pornography so his statutory range was between zero and twenty years in terms of the guidelines for which there was no objections he was calculated out at a range of seventy eight to ninety seven months so that's roughly six and a half to eight years so walking in the court in terms of the math the worst possible sense he could have received was twenty years the master just six and a half to eight years now in this case what we would submit are what we suggest when we look at the record on this case what happened was despite mr toonies presentation despite his argument despite his medication despite his exhibits if you will that were submitted to the court ahead of time the district court in this case simply for lack of a better way of describing it ignored that  procedural reason this argument how do we square that with with the the transcript of the sentencing hearing and i'm referring to pages thirty nine dollars forty cents of the sentencing transcripts where the portion where the court hears everyone hears the arguments and then gives it sentence and the court says i that's the defendant should not be pronounced sentence there is no cause the parties have made statements on their behalf and i and we have the opportunity to make any objection or any further statements and the court has reviewed the pre sent report and the advisory guidelines that's the st thing out of his mouth it's the st sentence in the course of discussing why the sentencing the way that that he did how can we say that he didn't start from the guidelines the toughest honor i think in any of these cases in terms of substance of reason most review is this idea of an organic and holistic approach meaning we simply can't give form the weight and credibility over substance because whether and i heard the language here was or we get into a procedural or substance of analysis argument is to say overall when we look at a nineteen year sentence given the record on appeal that's given this court as all the surrounding circumstances are presented even though the magic words are we cited in terms of the transcript when you look organically at thirty thousand feet of the case and what was taking place here yes i appreciate that the language was used yes i recognize that the district court said look i've read the pre sentence report i looked at the advisory guidelines and back at the beginning of the transcript the math was actually calculated but then his following language goes on to say in terms of giving him mr c ordinary kid but now what i've heard sentencing it is not an ordinary case and congress has authorized a maximum sentence for this for at least some cases and i think this case based on what i've heard is close to that so that's number that's how is that not a correct and fair reading of the transfer of number one and the question two is isn't by statute the court required to consider the background history circumstances of the defendant in making that determination and hearing that the defendant in fact or hearing evidence that the defendant both admitted that he had some sexual activity with i d hearing that the  that he admitted that both in the chat room and to his ex girlfriend on how is that not sufficient for the court to consider that information and deciding that this is not just a regular possession case i hate to criticize counsel fellow colleagues in this instance but i submit either we are going to correct the mistakes made now or this case may very well come back on two thousand two hundred and fifty five because in terms of what was presented whether it be through agent hire or through the mother it simply wasn't subjected to the adversarial process no project emanation was given age and hires testimony we need to base our sentences on specific and reliable facts and all these higher indicated was hey i talked to mr cooney ex girlfriend and she told me that he said sudden we're dealing with nd generation hearsay supposedly that was never subjected to any notion of adversarial process what about what counsel what about his statement in the chat room what about his admission there that's not nd level hearsay that was included as relevant conduct everything that agent hire had to say everything that the mother had to say was outside of the confines of the p s r was included as often as conduct that was included as relevant conduct it was included as this guy is not reliable is not reliable information s framework when i was reviewing this the arguments that are being the strikes me as procedural reasonableness arguments and not substantive reasonableness arguments of course if you make them as procedural reasonableness arguments you would run headlong into a problem that you're talking about right now which if there are no objection to that be subject to plain her refusal and so i wonder if you can import what are procedural reasonableness arguments  support doing that i hope in the in in the minutes i think i have left in terms of addressing this answer if we look at procedural and some limits the argument that we're making here is in terms of one thousand years when we canvass the case law nationwide or jurisprudential least what we discover is that there is an overlap between procedural and substance of analysis in this instance the argument presented to the court for your review is whether nineteen years given all the surrounding that this is a sensitive reasonable to argue that that sweeps in all of these other considerations would render any distinction between procedural and substantive unreasonable meaningless and it would deprive the district court of the opportunity which is the point of objecting of doesn't have to recite any magic words it doesn't have to say anything in particular other than i balance these factors and we credit the court when it says that we credit the court when it says i considered mitigation in the court did that here and the material before the court him in order to get but as a panties but he had no reason no similar reason to do that with his ex girlfriend his very specific about how he had abused her and it was very reasonable for the court to look at that and say this man is very dangerous and if i think a couple of points there if the court is concerned or we collectively as a community or neighborhood are concerned about dangerousness in this case and offense you have that notion here the guidelines certainly accommodate for that you know even for say for example you added a five level pattern and handsome and if we found as a factual matter that the allegations are true and that the court review and i would note this to say there is some overlap between procedural and substantive analysis because again our complaint is the totality of nineteen years given all the surrounding circumstances is simply too much even though congress says hey the statutory max is twenty years under three thousand five hundred and fifty three a we are still obligated to impose a sense that is sufficient but not greater than necessary to mete out or satisfy the state of purposes of sentencing that might include punishment protection deterrence and rehabilitation if i can be informal in that regard nineteen years exceeds that it's too draconian it's too excessive it doesn't take into consideration those remaining factors here in this instance we have dr dancing there who's been practicing as long as i've there had been no prior instances of sexual activity with minors and we know that not to be the case because your client admitted in the chats that he had a prior activity and he admitted to his girlfriend that he had prior activity so i think the premise of the report seems to be wrong and to rely on that and to require the just report to rely on that based on the evidence but it had would seem to itself be unreasonable but i think the promise of of that character zation underlines the entirety of why we have that every serial process to bring together in terms of what we consider the appropriate sentence to questions again what is it that the client did wrong and then what are we going to do about it in this instance the concern whether it be by the district court or this court is what exactly do we have say for example the ex girlfriend is supporting her initial lee the mom the girlfriend is supporting mr cooney initially now all of a sudden a government agent says through hearsay oh by the way they are retracting their statements in support of how do we know exactly what took place in terms of is it might be one of the two thousand two hundred and fifty five and because there were no objections it's hard to say that the district court committed error in relying on i mean that's a problem but if i can narrow that down maybe we don't have an objection to asians hire we don't have a cross or any objection to the mother's victim impact statement because we know the court was going to allow for that we do have the entirety of mr cooney sentencing presentation we had a sentencing memorandum we have his letters  support we have dr dan zingers psychiatric evaluation and psycho sexual evaluation and to wholesale toss those aside in light of what the mother has to say about her daughter from eight years ago because you had your married tract infections or other notions or factors of issues here go mr cooney necessarily in fact most to have molested her eight years ago i just don't think we can make that type of face or jump in this instance overall i see my clock is going down when we look at the case at thirty thousand feet what does the district court did in this case was to wholesale displace the guidelines with the statutory maximum wholesale replace mr cooney sentencing presentation by saying that the mother's impact statement was dispositive he even writes it was in his statement of reasons the mother's compelling testimony i don't even know if that qualifies as testimony in this case but the adversarial process should be allowed to say in a three thousand five hundred and fifty three a when we look at all the surrounding circumstances nineteen years at least according to us is simply above and beyond what we need to do in this case it is far greater than necessary to meet the stated purposes of three thousand five hundred and fifty three a we would ask the court to vacate that sounded to me on the matter for a brand new sentencing