for three sentencing everyone agreed the guidelines range was twenty seven to thirty three months but the district court imposed a sweeping upward variance to two hundred dollars a month and imposed a two one hundred and fifty dollars fine for the st time there are many reasons why this case should be remanded for recent i'm saying before a new district court judge but i'd like to focus on two reasons here st the vindictiveness of the court sentence and nd how the district court improperly conducted the sentencing disparities analysis i'm happy to answer any other questions about any of the other errors we've alleged so starting was vindictive noticed after being reversed three times the district court imposed a fine for the st time that  punishment it was manifested but the presumption could be overcome right and i think the issue for me is whether that presumption has been overcome in this particular record why do you say it is not that overcome the reason i say it's not been over we look at the three reasons the government has provided to justify the enhanced sentence they essentially with don't withstand scrutiny so i'll break those reasons apart the st reason is the victim impact statement that one of the women provided just prior to the  sentencing hearing and that was a reason the district court cited in its memorandum as a reason for the fine but under north carolina versus peers the rule is that the reason justifying the unhandsome it has to be identifiable conduct on the part of the defendant occurring after the time of the original sense but has there been this watch by subsequent supreme court cases where we're not really rigidly have been through it here to the principle your honor for more flexibility in the joints here i don't believe north carolina versus peers it's been overruled in part by alabama versus smith but my understanding is that part of the rule hasn't been eroded but even assuming that i think the bigger problem with miss calexico is victim impact statement was that it didn't communicate any new information to the judge and so she essentially was talking about the psychological impact of misters that awful focus contact had on her but the district court threw out all three sentencing hearings was of the belief information to the district court judge it wasn't a valid reason for justifying being here here are the two other reasons the government has provided i think neither of those reasons or reasons the court itself provided these are reasons the government is essentially pulling out of the record but neither of those reasons all withstand scrutiny either so the nd reason the government provides is that mr as the op ok admitted his family was involved in the prostitution business and so to the court all of a sudden the scope of the criminal activity was enhanced but the court knew from the very beginning of this case that it was a quote unquote family business and again of the thirty cent unsing the court points to the involvement of mr isn't well pokus brother his mother really taken by the testimony of the victim was in there something that happened after the original sentence so that factually the just the victim didn't testify at the sentencing hearing she submitted a victim impact statement mark but that the testified she appeared at trial your honor she didn't try she did not appear at any of the sentencing hearings so the rd reason the government has provided is again this idea of the interplay between restitution and fines but this falls apart too because if you look at the rd in the four sentencing hearings there is no meaningful difference between the restitution is and the fine so by the time of the rd sentencing hearing we knew from this court's decision and two that mandatory restitution was off the table the court had decline to impose discretionary restitution and the court knew mr from his sentencing memorandum let me ask you this question what if the additional monetary find was fifty dollars and the two hundred and fifty dollars would you be the same yes your honor but if it was ten dollars i think any any fine even one dollar or any fine because the prior fine with zero dollars argument would be the same be your one dollar thirty cents your honor i think it's important to look at this from the lens of an indigent pursuing their statutory right to appeal and so i think any increase in punishment would would have that deterrent effect i know that's your position but it's a practical matter it seems like an odd cup of tea to be but go ahead what was this issue raised at district court if not i mean we have to review this for a plain air right it was raised in the district court was not raised at the sentencing hearing but it was raised in a subsequent rule thirty five dollars motion which the government responded to on the merits and then the district court actually addressed the rule thirty dollars motion in its memory and i'm and so i believe that satisfies the purposes of preservation which is to in the air to the district court's attention and to allow the district court the opportunity to correct the error of the rule thirty five is really for technical  issues right that's correct your honor and i agree that it was an awkward vehicle to bring up this issue but i think the broader purposes of preservation here were satisfied because again the district court in its memorandum opinion which it created three months after the the rule thirty five motion addressed some of the arguments in the rule thirty five motion so the district court consider those arguments and it addressed it and under this court's case law believe that sufficient to satisfy preservation purposes your time is running and let's  court did not conduct the sentencing disparities analysis properly and that constitutes not only an independent procedural error but it also reflects a pious on the part of the district court judge why did this does a good do that was wrong very bad here was for the specific purpose six which is the need to avoid sentencing disparities that defendants are not considered similarly situated if they're not found guilty of the same offenses and that's the law of this circuit and what the district court did here was to primarily compare misters a lawful but it says found guilty of similar conduct but monroe interpret and that statute says two people are not similarly situated if they're not found guilty of the same offenses so by comparing mr two people for example the defendant and smith the defend of so so here's my problem read the district court judge is justification for his determination that they would not proper compared to us and this was his marching orders on remand now superficially i'm somewhat sympathetic to the situation that he lived a lot of five thousand and ninety one cases out there but he went through meticulously so many cases of my initial reaction before i read there was that well i'm a little troubled by that if in fact  the case back to him so factually mean how do you take issue with that but i think the reason your honor is that the case is that defense counsel proffer the district court actually jettisoned completely and those were the proper comparative cases because they involved nomenclature of the statute he really went to the underbelly that was my impression when i read sewell this i mean he really went over the top in i understand the case comes with a lot of hair but at the same time the case was sent back to the judge to do exactly what he did over but i'll give you two minutes for about ok all right that even just this two hundred and fifty dollars fine created a presumption of indictive in this when i did research i didn't find any other case where it addressed specifically vindictiveness where the custodial component in the sense that there was a f a presumption you acknowledge that while i'm assuming without conceding and what is the basis for your continued that it was overcome as we butted that there were three separate things st of all the victim impact statement which had never and the other was innocent you know and in the other one you know it's kind of remarkable that was the victim who all you know was crying at the end of the st sentence she still was under the sway of the defendant so it was it was something remarkable that by the  sentencing that she had the straight to come forward with that and your honor i don't know you mentioned earlier she did not testify at the last sensing hearing she was going to be there the day it was originally planned to go continued testified at the trial she testified to trouble her statement  was read verbatim at the th sentencing and as your honor pointed out the district court was very much moved by that now i know my opponent they rest very heavily on north carolina versus pierce i believe that case was for nine hundred and sixty five as your honor pointed out been eroded and maybe again we can't really nd guess a district court decision but you know you get a victim impact statement you get information about involvement at the family so maybe you're just a sentence but then two hundred and fifty frankl a large amount so in a way it does seem a little bit petty you know you have very serious making an impact statements and the responses tacking on a two hundred dollars fine again maybe alternately we can't really nd guess at this of course decision here but yeah that makes me feel a bit uneasy and suggest maybe it was a bit petty but i mean if anything it's petty the kind of thing that would amount to vindictiveness i mean i think when you look at this record you know the district court when it came time  find it was at the end of the three and a half hour hearing i think it was just force of habit this is old what about a fine and you know as we try to point out when there was restitution the statutes say restitution has to take priority over restitution has to imposed without regard to ability to pay whereas the guidelines you know fine should be imposed unless there's an inability to pay so i think the ultimate issue here i mean i don't see any necessary grounds for you vs possibly but the ultimate  process issue with all of these circumstances really suggests that the judge really should not have been sitting on this case a getting into the th or th appeal so we consider it is so cool that he find that was  here i mean you would think that he would do that but he did so doesn't that their plan the issue ultimately where the due process rights were violated here when he was biased a couple things here i think certainly doesn't rise to the level of bias the standard under in the not by itself but maybe is one factor books other factors but i would say you know st of all look at the circumstances in which it came out i mean the judge literally says you look like an able bodied man that doesn't sound to be anything inherently b last remailer was for one purpose and one purpose only it was to consider the unwarranted disparity are we limited to just that issue or can we consider the totality of what preceded here on the issue of bias well you know again i think i said i'm not afraid to say go ahead and consider it all your honor this judge lee pointed out i mean even if you review the st section it should be through plane air most even if it was just a petty two hundred and fifty dollars fine the question is circumstances bend over backwards to give the defense as much time as possible repeatedly seen instances in the record where he says you know when the defense counsel has trouble articulating the points they slow down i want you to make your record at the very beginning the hearing the judge says please please please if i forget anything let me know this does not you know i would submit that is not evidence of bias if anything that is showing that i'm going to listen to every argument that you have well it's a mixed bag he was courteous i read through it all carefully he did say sit down relax and i get that but you know that is there's a cumulative impact here i mean which is somewhat troublesome do you think if it's that close to call if this is a big big situation maybe the privatising to do in terms of dispensing justice is the art and be conservative about this and to have another judge take a look at this whole thing given the huge up with the party given everything that's preceded here over the th peals on the circumstances kids know you're all right don't because i believe that when you look that from the st sentencing from two hundred and ninety two months down to two hundred and sixteen months down to two hundred months i mean every time there's a new appeal it's like a new minefield  is you know sure you can maybe say that in any case but it's four of us me i empathize with him i have a vested interest as a district court judge i've been there before but when you let a forty four page opinion you know just it's a red flag that why is he so concerned and i don't think of it a forty four page opinion to justify sentence it just seems that there's a lot of hair here and i just wonder ultimately should be up on the side of saying look fairness here let the new judge give this a shake this is the judge  that sat yes that's where i think that's where we were at here you know i believe i mean this judge sat through the entire trial you know it's complied with every day and it that this court has issued it's just because every time the distance doesn't get will appeal so you know this case last orthodox a long time ago but maybe if you figured out how many hours you spent because of how much money the government spent for that two hundred and fifty dollars which indeed the government was prepared the prosecutors prepared to push back and the court declined to do that can the court minutes i read the transcript in particular in the part where he hits upon the two hundred and fifty dollars fine it's after he's determined that the guideline range for the fine would be the lowest and i think was seventy seven thousand five hundred dollars and he doesn't seem to recall what happened in the rd hearing where when fine came up for whatever reason is cited not to get very far into the issue and he said well what they do before but no fine ok will do is do that again but of course that was when the restitution elements were in play so this time he doesn't think about it it's like he approaches the question of fine in the st instance and looks and says well you're you look able bodied you must be working in prison judge likely has a pretty good idea of how much people make in prison it's not petty i mean this is like what ten months earning because you get something like two thousand and twenty five bucks a month something like that twenty six some of the order was without interest twenty five dollars quarterly so every every quarter one of your months is going to go to to pay this fine it's not it's not petty but it's more symbolic than anything else as against the seven thousand five hundred ok it's like he's approaching it fresh now that may explain why it's not then dick did better that something fairly he can do without regard to what he done before on the subject of fine  purpose of the rd remained was to address the unborn it's a sentencing disparity the fine comes in at the end of a three and a half hour hearing it's not anything that's bad enough for the defense to object to at the time you so he actually dealt with that issue is if this was the st time he was dealing with the foreign issue is what you're saying no here's what i thought about you do you agree that one hundred and fifty months would be an appropriate sentence here and finish with this case and get done  relying upon the fact that this new evidence about his conduct in mexico could be considered as uncharged conduct and therefore the judge had the power to consider that in the sentencing decision that he made and subject of violence and that's why the judge imposed that variance and that's exactly the discretion that booker empowered that had nothing to do with the sentence which is predicated upon his conduct of the united states so i take it that this is findings about that and that's what really triggered his high sentence and i reading it wrong i don't think that's incorrect your honor but i think the the problem here if you look at it cumulatively as you said the st thing i understand that a fine seems to  a he said it was force of habit but if it were force of habit for the district court to impose a fine why didn't that rescind the fine by the time of the memorandum do you talk about the fine i'm talking about something which i consider to be more substance the perhaps yes the fact that he co d testimony about his family turning away from prostitution the court held that against him and i think it's important to look at chief judge ford involves dissent in the last round she was concerned about remanding this case to judge benito last time around because she thought that some of his statements about the effect that his conduct had in the victims was unsupported by the testimony at trial and i think the judges statements at the forty three sentencing really show that her concerns of come to bear and for that reason the court the case should be remanded