media please the court your honors the district court committed reversible plain error by imposing a sixteen level one hears me for a crime of violence under two hundred one point two based on mr sanchez aggravated crime for sixteen level enhanced men you know we have had several these other ones were some other sexual abuse of a minor can kick in it's not directly that technical one that has the ethical bill  issue is this is this the only this is the only way that the sixteen enhancement came about i think so your honor i mean it hasn't been brief so i would say it's been waived in the government's conceded so i would take that as a waiver i am forgive me i haven't thought through it because it wasn't an issue in the briefing but standing here today that's the only one i can think of because some of that some of the sexual abuse of a minor variants don't have the seventeen issue and so that's why i was just wondering if that's some of them might not but the statute under which she was convicted explicitly was indecency with a child under seventeen and under seventeen was the element that that was operative your honor so i would say standing here today there there would be no other enhanced me and the government has conceded so i would say if there were it's been waived at this point so it would have been an eight level unhandsome an otherwise correct your honor and the correct range would have been fifteen to twenty one months which would which was twenty one to twenty seven months but low to forty two month sentence and that does bring us to the third prong of clean air under molino martinez when the incorrect when an incorrect guideline range is use that's usually sufficient to show a reasonable probability of a different outcome haps and the error and the record in this case shows that the sentence was anchored to the guidelines the judge the court repeatedly said that it was not going to vary upward or downward from the sentencing guideline range when imposing sentence the judge thought about the top and lower end of the guideline range and said the top end might have been justified but the lower end near the low end was the proper sentence given that it was  thirteen twenty six under the residual clause of thirteen twenty six b to this court is held there under the residual clause as opposed to the use of force because it is an aggravated felony ok what's what's problematic  about flair here one thing that's plain that's problematic about it is that the district court looked at this possible range this lower range because people brought it to her attention  it's is a vis it's as if she already considered the slower range when she someone was telling her about the change in november and she compared to the twenty years when she told the defendant the question is were the guidelines the framework for the sentence or were they anchored was a sense anchored to the guidelines the judge considered not yet in existence nov twenty sixth guidelines as a departure or variance and the court says said she wasn't going to do that but then said i'm not going to verify your depart i think what the court will see in the same sentence or the sense a million the following the court says i'm not going to very or depart so the court was looking at that range as a departure and it's not really clear what the court was considering because defense counsel said fifteen to twenty one months but the probation officer said one to seven record to show the if the court would have departed upward to forty two months or thirty months or thirty four months or thirty five months or even thirty nine months or so under the third airplane under the third pramod plain error the operative than she actually imposed would be entirely improper propre it you were deported and came back in six months your conviction which was three years ago involved you assaulting a thirteen year old when you were a twenty eight year old grown man so yes we've got serious concerns about your reasons for coming back in this country your sexual predator the state does require you to register for the rest of your life so if you think forty two months inside you need to remember that you're actually facing up to twenty years in prison that's your reality if you don't like it if you think our laws are too strict i'll make it easy for you stop breaking them stay mexico that's the district court at which doesn't sound like she would be amenable to a lower sentence  sounds like a she's going to the guideline arrange her she said you could get the fifty one month sentence had it been let's just say it had been thirty to thirty seven months and she given thirty one months she might have said then well you know what i could give you the thirty seven month you could get the high end and the high end would be appropriate so we're not asking whether it was appropriate you know at the high end or the low end we're asking was the sense linked to the guidelines and clearly it is because she was looking at the high end and the low end and there's no way to know which it had been thirty thirty seven months that she wouldn't have said you know what i did the thirty one months but you're hemming and hawing i didn't give you thirty seven under miller the court court said i should've given you the high end of this guideline or the lowing of this guideline but is that range proper and was it linked to the erroneous guideline range and it clearly was that as we send it back i there was a big greater thirty six months but you explicitly said the pinion look given the disparity we're going to send it back but we're not saying what the district court should do and i think that's proper here just isn't martin martin judge well you know we know that the high end of the guideline range isn't all beyond that she wishes she can go but do we know that she's going to go to thirty two relevant your client is not in very you know he's not the sympathetic sort of person well he's he was on probation for hitting run when he committed this offense he had marijuana in his trunk and this court said that the the prior record did not outweigh the disparity and that's what we're saying here your honor i mean we can't tell and now he's married to the former girlfriend and he wants to go back to the house where a committed just thatchers france i mean she's not going she's going to send him back to so be it but we're not in a district court or here in a quarter review to see did the court follow the guideline of range and was a guideline range linked to the sentence to make it a good art making a good argument for has said that it considers how substantial the disparity here is under the fourth prong and here's a substantial disparity i would note also if the courts you know since were here on play i think the court should begin its analysis with the fact that this was a foreclosed issue at sentencing based on cava sara rodriguez which was in ambala opinion and so at sentencing it was foreclosed it's not like where there was a good objection that wasn't object to there was a there was no objection or a futile objection and that's why we're here on plane air stations will the supreme court is not considering  question given our last discussion your honor i should say i shouldn't be presumptuous i don't know if he's going to get out of jail now he may he may indeed get the same sentence i'm not sure what the district court will do when faced with a substantially lower guideline range she may give him thirty five months she may give him whatever thirty nine months and i don't know your honor but yes to answer your question i think it would be best should the court rule so that this issue isn't moved around disparity i think the court i'm not good at reading tea leaves your honor i think the disparity clearly the court can look at and i'd be shocked  court said that you couldn't and i think possibly the criminal record and i think those two things in this case given martinez rodriguez own call for a  the united states as we all know the plane air rule is designed to capture a very narrow set of errors and what's unique about this case is that we have so much evidence from the district court that really gives us a better shot of making this third prong analysis than a lot of cases that we get where the judge simply sentences a person without any analysis and we've got a good five pages in this record that lets us know exactly where this district court stood on all the issues that are before you today and i think this is a three prong case i don't think that we actually need to worry about as morale is because we have what we need in this case to make sure that third prong case saw so would you want us to wait for the supreme court or would you just say don't say shock the conscience and don't wait well we're never going to say those three words again i don't necessarily believe that that case will impact this if you look at the transcript from am the supreme court as they're talking about the fourth prong they're still saying very true to the standard in the law now and we all know what that is now obviously they're looking at the fifth circuit precedent that went a little bit further but that doesn't change the standard for the fourth prong that is still intact and i don't think there's anything from that transcript that leads you to believe there's going to be a big change i think they just want to course correct on the fifth circuit that we don't use that language again which i think we're all in agreement that we will not but this is a different record in that we have so much evidence to decide on the third prong and if you think about it we've got a lot of fourth case before trying cases out there they're confusing and sometimes hard to follow but we don't have a lot of third problem i think after molina martinez everyone thought you could make it and what's interesting about your defense counsel was saying i think his argument is that any time a district court i think  word links the sentence to the guideline range it's an automatic loss for the government and i simply don't think that's true the language of alina martinez says an incorrect range can be sufficient to show the reasonable probability and that's a great standard but if you go back and look at molina martina's and the recent case from this court american from last week that was corrected in both of those cases the court noted the district court did not make any findings no explanation about the basis for the sentence that's glaringly different in this case we've got five pages she's telling you which is going to do when it goes back down i could go through all the facts and everything that you went through but i think this judge is doing great job this is what we want judges to do we don't want them to just give a sentence and move to the next defendant we want them to analyze the facts she looked at both the underlying crime and the fact that he came back into this country six months later when he was not supposed to he purposely told those border patrol agents my intent was to go back to dallas to my house or my wife and his four children are all of those children are minors seventeen and under one of them is the victim of his sexual abuse crime this judge is the gatekeeper she doesn't want him going there and if you look at this record she goes through every single thirty five fifty three factors she says i need to protect the public from you i need to protect future crimes he's going back into our house as a predator with the complaint there that he has previously abused and she said specifically i need to send a message to you not to continue this behavior i'm trying to find the right punishment forty two months was her right punishment there is no chance she was going to go down she has put that on the record defense council mentioned that miller case about how the judge has to be so explicit i just don't believe that's the case of the circuit i think that we're we're we're not asking them to give those magic words i think she gave us five pages to infer her meaning which is i'm not considering anything lower in her exact words were i'm not inclined to follow that as she said judge joe brown she shocked that a sexual predator could be could be sentenced to such a low guideline and she explained her reasons that would show if this got sent back he'd be buried upward for all the reasons that are already on this record so i believe  long changes that's what happened in the two thousand and sixteen that they were looking at and we could go to the fourth contactors if you like and i think a lot of the same things that support the third also support the fourth kong interims of fairness taggerty public reputation when you're talking about a person who has an aggravated felony who's reentered the country and plans on going back to the place where that felony occurred and then the judge has definitely helped would be to get that sentence you make a really interesting argument about ruling on the third prong but what's your best forth from case forth prong i would say the disparity is kind of it's a lot here and i understand that and it's interesting you brought that up this weekend i was thinking about disparity and i believe it's a factor but i could breathe a wink wink case that's one hundred eighty days disparity and he could throw you the case for last week it was four months and so i do believe it's a factor i don't i agree completely with you and that one disparity case the wintery case that was one hundred eighty months was a child pornography case and i think you know that's what we want the judge to do is look at the actual crime the underlying criminal history of the defend it and make that point and you know that was a lot of the discussion any of the results were allies in the supreme court about flushing out those things about the public reputation what the public would think about this but also coming back to just the basics i think the public would be very upset did again the crimes that are involved and you can sort of the fact that he just came back into the country after just being so i mean really for the problem here is i don't get the defendant too much yes and in in this case it's not just that the judge knew he had committed the crime of illegal reentry again after being gone six months but every indication she had was that another crime  for the judge to recognize that and sentence him as something to keep him away when she said i need to keep you there to keep the public and children safe you know this is just what i'll say on the fourth prong i would i would be concerned if and she said it she said it and we can't be blind again i mean we can't be blind to the fact that she used the guideline range and said she would do this or that within the guidelines range that's the question and this judge then judge  course that is set on the tenth circuit the benchmark for the entire sentencing process rested on an obvious mistake in premise i mean that's what the quarter review is looking at was it did it rest on a mistake premise and if it did and if there's a possibility is just judge gorsuch or justice course she now said that a person might linger longer in prison then as he said what reasonable citizen wouldn't be diminished view of the due judicial process especially because the cost of correction is so small with regard to morrow as a result of us i would just urge the court to get ahead of the curve and adopt a presumption on the fourth prong think without being life as i was i would ask given that just let me put it a different way given the disparity in this case i would ask that the court remain so that the district court can