view that mr sawyer was a danger to the community and that his horrendous childhood was an aggravating and not a mitigating factor as this court clearly stated summary mandate to the court below now in this i think it's a fair reading of this transcript that there were repeated disagreements by the district court judge with this court's mandate and saying that the court's still disagreed i will only put to rest if there is any doubt that the court below acted contrary to what this court said to do is after the judge imposed the twenty five year sentence the defense counsel respectfully stated to the court that the how how the court had characterized and stated the psychiatry story psychologist report was not accurate and the judge in judge said yes i accept everything it's but the this is not a guarantee and then the judge said this as justification for the twenty five year sentence it is the very horrific upbringing that mr sawyer has had that in large part leads me to the conclusion that he remains a danger to the community so issues of danger to the community and the upbringing yes your honor and i think what we what we are stepping into as an area judge tickets there is the requirement  requirement that it becomes law of the case and that if there is the mandate rule and if i may and out of this court's precedent in ben's is states the mandate rolling that's a quote compels compliance intitled to her views the question is whether she has complied with the terms of the mandate and there was a five year reduction from the point of your client what difference does it make whether the reduction is those months judge it is it was an additional basis that he was intitled to a reduction in his sentence in addition to a recent and saying where those other factors critical factors that were the primary driving factors in why he got such a long sentence would have been properly weighed as they were not weighed was one of the considerations folded into the  the reduction in recognition of his performance prison that he'd completed some kind of therapy no he why he  and and the judge was very clear that the the the judge was not was in the same stance as to he was a danger to the community and that  his childhood was an aggravating not mitigating factor in this court in the summary order said clearly the opposite of that when the judge gave the reduction of five years the judge said and i'm going to this is a summary but the key words i'm going to say are straight from what the judge said on it the judge said i still believe thirty years is the appropriate sentence and then the judge said however the court now we know it's never that's the word that you listen to when you represent well it well it is in terms of here i'm saying what i think the meaning here is is that that that the one basis than that the judge said however the court notes that he has had extraordinary post sentencing rehabilitative efforts while incarcerated now that's pepper versus united states he's in three we have military rehabilitation from what you know he didn't have been a perfect citizen but for this one thing is  he and the way it works in prison is that you cannot get sex offender treatment until toward me and of your term of imprisonment the court in a transcript reflects that he has not had that yet what he had done that what the court was talking about was that he had become valedictorian of his class and ged program he had completed a number of other programs perhaps it's also an allusion to how strongly that he was making efforts to follow a new path but it was not from the sex offender treatment and that was the critical thing when you're going to whether he was a danger to the community i would say though that by giving the five years it is actually contradictory then to a finding that he is some extreme danger to the community community when he gets out if you have this court said there was no specific evidence that in fact the evidence was contrary to that the give evidence was that he was a typical of someone with this type of crime they were human and just that equally supposed judge to agassi now and reduce the sentence by fifteen years and said that she would be ten years and said that you was doing that only because of the fact that he was valedictorian of his of his class would would that have been a failure to comply with our mandate with with the additional statements that have been made in this record i would say yes and the additional statements if we say for example that the  judge is saying here i'm right it's thirty years i disagree with the second circuit but i'm going to go down ten years for his post sentencing rehabilitation it's not  twenty five years and i've yet to read a transcript in which the trial judge says that the you know my there's an error in my sentence and this imperial wisdom of the second circuit has convinced me that i was wrong i disagree and then but i'm going to do what i'm been told that's not what this at all and i say repeatedly and i think what i've read i think confirms what i'm saying is and this  also indicated that he was entitled to a significant reduction based on these facts you pointed out that the five year reduction based on rehabilitative efforts is a contradiction of what the judge had said about his danger to the community doesn't that indicate that whatever the judge was say what the judge was doing was complying with the mandate sing the sentence even though as you say it makes no sense because what she said to justify it i agree with you doesn't really make much sense unless it is a way of complying with the mandate while saying i really don't agree with the second view of this i think it all effects the degree of reduction with us and so here we have then and even in the government in the government's presentation an argument is looking to the government recognizes that this court is saying there is be a lesser sentence so what is the least to try to argue to do and the judge and the government said judge give a and the word was a modest reduction five years the judge did not  as i said i'm just saying i believe it's a fair reading of this transcript that the judge did not say i i am going to treat his friend as child mitigating factor i am going to say that he's not a danger to the community and hence this is why i am giving the sentence i'm giving we would be in a different conversation right now and that would be whether it was a substantively reasonable  sentence that would be after compliance with this court's mandate estimate it wasn't in compliance so that we have here a modest reduction on a different basis but he never got consideration and fair weighing of those other two elements the other the weighing of those elements when it went against him when they should have gone for him his contention then would be that reduction would have been much more please the court stephen clymer for the united states some accompanied today by michael good area who's an assistant united states attorney who assisted on the brief period we asked the court to affirm here i'd like to begin by clearing up what i think were some inaccurate representations about this court summary order and what the district court did in its summary of this court never sad to the lower court you cannot consider dangerousness as a factor the remained did not take any of the three five five three day factors off the table it suggested to the district court that it had to weigh the factors somewhat differently than it had and it instructed the court that a thirty  i i would quibble with that characterization your honor but what she did do was comply with the remainder mandate and that is all that's required to consider the fact is that we are sent to consider and made this decision based on a factor that came up afterwards his post imprisonment rehabilitation that was a part of the order in all which i don't think is wrong to consider but she did consider the issues we asked her to consider i you agree partially and disagree partially on her she clearly did include and properly did consider post incarceration rehabilitate i have no agenda no disagreement there i believe that her that the court however fully considered the upbringing and i don't think it's accurate to say and i don't i don't didn't hear judge jacobs to be saying that that the district court relied soley on post sentencing rehabilitation as the basis for the five  reduction i think the court considered that along with all the other factors in the case and here's another place where i quibble i think a bet with my colleague here the district court did not ignore the fact that is horrific upbringing was a mitigating circumstance the court credited mr sawyer fifty five years of reduction from the guideline sentence on that basis what the court recognized however and i believe this is correct and i believe that's consistent with this court's authority as well as scientific evidence that is upbringing also contributes to his dangerousness that's tragic that's undeserved but that's undeniably is that contrary to our earlier decision i don't believe so your honor i don't think this court ever said you cannot consider mr sawyer his upbringing in this way or that way i think it be improper for this court to do so i think all the court said in its original order and properly set is the court has to properly give way to various factors the court gave greater way to the mitigating factors the second time around than it had the first time around i believe that's consistent with this court's remand but i don't think that this court said to the district court judge you have to ignore reality you have to ignore the fact that because of mr sawyer is upbringing he doesn't understand the boundary between adults and children in sexual matters he doesn't understand that sex with children is not an entitlement he doesn't understand that his conduct in these matters is inappropriate those are things his own psychiatry said about him unequivocally in that report i don't believe this court was telling the district court it had to ignore those things it wouldn't be appropriate in fact to be illegal for this court to say that because there's a federal statute that empowers district courts to consider any relevant factors for purposes very mindful of comes to this court and says the only sentence that was substantively reasonable in this case was the statutory mandatory minimum that is both inconsistent with the law and inconsistent with the facts only substantive reason was sentenced is the statutory mandatory minimum then we have distorted this doctrine beyond all recognition rate i don't think it's our place to say you must sentence this person to the statutory minimum but we're trying to find a way to instruct the district court to look at the factors as they are presented to us that saw what we and we think that the district court avoided doing it and i have to take your shoes that just because if you look at judge agastya sentencing she was duty bound to start at an eighty year sentence it's gone makes that crystal clear that the starting point is the guideline sentence and the guidelines sentence here was and although there were mitigating circumstances here judge there were aggravating circumstances so she had reduced it let's say the guidelines were other than they are and she had reduced the sentence by one hundred years would you think that that's a significant consideration for identifying leniency i think it would depend in part here on how the case was charged clearly the government has some control over what that number is going to be in these cases by adding on additional charges i understand that and we could make the guideline sentence a thousand years if you are months if you want but that didn't happen here this was a case that was charged conservatively there were two victims there was one production concrete factum and there were other victims on the receipt count the government charges this case at the minimum not the maximum now do i think reasonable minds can differ disagree about how the guidelines comes up with that eighty year figure but it does come up with that eighty year figure and that was not an artificially manufactured think reasonable minds could disagree that eighty years might be too long a sentence but no  disagree with that in this case judge each judge judge just you know recognize that that was too long a sense she recognized that from the outset my only point is she credited mr sawyer for the mitigating circumstances maybe you did all the judges this court would have credited him differently but that's not the test that applies here the test that applies here is a subset of leon a reasonable he said the situation is odd because it is though the second circuit had case and said in a in a in in that case you want to consider the terrible poverty in which the defendant was raised and the judge said you know i'm going to consideration the fact that his upbringing and in his upbringing he was treated worse than plant life which is not my finding that's the finding interesting you know i think there's a suggestion that that should be considered a isn't well judge i see and that's where i disagree with you i don't know how this court can say it wasn't when there was a fifty five year reduction from the place that the judge was duty bound to start from you may not like that point or agree with that point she has no role if she has no say in that that's where she had to start from so she has a range between eighty years and fifteen years she has an obligation to sentences defendant between those ranges she comes down fifty five and she goes up and i can't say i don't understand why that isn't crediting mr sawyer considerably for the mitigating circumstances that were present here and there clearly were aggravating circumstances you know judge is interesting because i looked at the sentencing commission statistics taking from judge poolers dissent and browner he looked at the averages and twenty sixteen under tucci one point two point one the guideline clickable here for a category one offender like mr sawyer the mean sentence was three hundred four months here the census three hundred months so what so where is asking you to do is find it a sense that slightly below the mean sentence for all offenders like him some of whom don't molest four and six year old children some of whom don't molest his own nieces some of whom don't also possess  judge and i laid out in the brief the various criteria for that and i submit that this case meets those criteria quite strongly i did mention in it as an alternative if this court were of the view and i recognize this is maybe pushing it is pushing the envelope that if this court were to view the facts of this case such that a substantive lee on reasonable sentence would be any sentence over fifteen years under the facts of this case that this court itself could impose a mention the word but would that run counter to box my well i and i would look at the cases that  brown yeah i think the court has the discretion in that unique situation it is a i think supposing if the mandatory minimum sentence were not there and you were to look at this case and say you know really anything over ten years would be the substantively unreasonable sentence but we're compelled to impose fifteen well we can do that do you have a serious argument that all the senses may be crazy but that this one happens to be close to the average of crazy well every cases is taken on its own that's why we look at and at that we consider averages and if you want to know when something is an extreme outlier wouldn't you expect that the number of months from the average well i would say first that to even look at what the sentence is presupposes that the process by which the sentence was determined is in accordance with this court's instruction and the factors properly weighed so that if we don't have that process correct we can't then say all right now will place the sentence with and see what it is within the average i'll also say that there's so much that's been said here and was said by the judge about i gave fifty years apart your first time in this is fifty five years are true well two reasons why that is i would submit an incorrect way of justifying a sentence first what are we departing from we're departing from the child pornography guidelines and their guidelines which are they're not based on her study there is great caution and care and this is the kind of case where i submit those guidelines i don't think they're even subject they're even yes technically you start but then you can say it's an improper starting point the other thing is and what was used was the word anchor we both have taught at cornell we both have a critical what is the anchor what is the starting point and if it is an improper starting point if there's a problem with the starting point then whatever you depart to where the variance from that starting point becomes an really an that you cannot justify a space sentence and you cannot use as a standard the percentage variation or a departure from the guideline so that's what we have here that can't be the way to analyze whether this is this was a good sentence by saying gee fifty five years old with a gun instead of thousand years and he said i did nine hundred years and it just it goes defies com conclusion that your client is an individual worked by his childhood who will probably always be a danger to the community because he does not distinguish between adults and the court eric procedurally this court in summary order relied on that psychologist report to say that it supported and it was evidence of why leniency should be impos so here the district court took the psychologist report took selected and i would say you know it was a biased selection from that psychologists report to say it justified an increase and so first of all i would say it's contrary to this court summary order it's also contrary to the psychologist report which was as this court recognized in it as it was intended and said by the psychologist meant to show that should be imposed the reason why the leniency should be imposed here is that yes he was a terrible victim himself yes he went through this horrible tragic how childhood and yes it created problems in him which were the producing cause of the conduct here but the psychologist went on to say i have and he's been honest with me i have put him through a battery of tests and he in my opinion is going to respond t treatment and that he will be less of a risk now that is if we cannot say we don't have crystal balls how whether someone down the road we're talking about a long time to on the road how how they can change what we have to take what's in front of us and use them as the best facts that we can to make good judgments and there was a fact that was positive for mr sawyer and was taken by the judge out of context only taking repeating things prior to treatment to say that justifies a higher sentence and this is what i mean by it being contradictory to give him credit for this extraordinary rehabilitation it was not treatment but they were indicators again additional specific evidence that this is someone who can respond positively to to education and help he was responding very positively so that it's again an indication that by the time