here we have a situation where the district court in imposing an above guidelines sixteen months ends on mr batts feast at the court committed several procedural errors including improperly lying on the mere fact of  gun on them the going to get them in a lot of trouble isn't that that may not be the greatest argument or the greatest point but it's certainly a far cry from saying you were doing something wrong and i think you're a bad person therefore and the fact that you've been arrested then you're going to be going to prison for a long time that's believed that that could happen right that's that can happen and it would be incredibly unjust that someone who was ronald fully profiled and arrested should be viewed marc harshly at sensing in someone who's not did but it it's a far cry from saying i'm assuming that you did something that there's no evidence that you did well your honor to the extent that the court is talking about issues of deterrence and  ideal he should have learned from that i think it's incredibly inappropriate in sentencing to say that someone who has not done something wrong with regard to this prior incident that that i'm going to hold that against you i'm going to say you didn't learn you weren't deterred the when she st of the judge st mentions an upper variance she knows the fact that this is a prior arrest and when discussing again sort of prior to the end of this and this issue of why the arrest is relevant is notion that that interaction should have told you how you're supposed to act in society this notion that you didn't learn your lesson from that and so certainly the judge does not in in pronouncing her sentence specifically say i'm relying on this arrest but the process of having you were in the process that you've been essentially charged with mileage no parole but you haven't necessarily had it for a vote yet so you're in that process so in your old revocations that is in your view d mean happened now got arrested for the fire i think in context it's actually the the truth stronger reading given that she's talking about this at the same time that she's missed mentioning the to this this parole revocation did the misstatement about him being on parole revocation but again i think it adds to this idea that the judge really is looking at that november twenty thousand arrest as being something even if the court is not saying that he was dealing drugs there is that implication that something is going on there and you should have you know you should know better because you were wrongfully arrested yet but things are saying that for all revocation status at least in the context of the business of the arrest you read that as saying that the drug believed that he had that his role was in the process of being over that arrest correct  right when she when the court is mentioning the fact of the what happened in this case and the fact of the that the prior arrest and i think that that as i said i think that does combined suggest that the court actually is considering  that something have something that something for which mr bout t should be held accountable did happen at the nov st and that combined with the fact here that you have that the court upheld posing a since it's double of what probation suggested well over what the government suggested and making these procedural errors in not giving extensive justification or justification enough to to explain why the court is going about guidelines essentially the the focus of the court s comment sending opposing this are are geared towards the seriousness of the offense of the of the calmest near things they're in in here in almost every night for me too gee the court talks about how guns are dangerous you shouldn't have a gun on the street this is a very serious judge's comment was that this defendant ought to have learned something from his whole prior history that involved these very serious convictions from his convictions with long prison sentences for very serious crimes out of the norms there are telling us that are three points on the guy i'm lines that you know the pens on the circumstances he was involved on people read people you know armed robbery apartment in manhattan time people are putting a gun to someone that what the judge said was this is a very serious crime you're a pretty danger of birth and your argument is that each of those things is already taken into account by the guide of the exactly what the offense is worse than the typical person for whom that guideline sentence applies is that a fair statement the argument that abstract or ok and that's what and so i guess the deck of questions going through but isn't it obvious when there's a major deviation from the guy kind lines there really is opposed to being more specific explanation you don't really have this confusion of or not confusion but the fact that these are factors of being considered that makes it that much more appropriate for it to be reconsidered because we have not an extensive explanation or of what is justifying a separate variance and we have the problem with the court referring relying on improper  factors as well and that made me turn and see usually with arguments that there should have been a better explanation is that these are almost always deserved and they're on preserve for good reason because what the fence lawyer says to a judge judge you know i don't think you gave enough reasons for why you think my client is a really bad person you deserve the really one sentence because you know what's going to happen you're going to then get an explanation of exactly what's wrong with your client that leads to th that it makes it in context with the procedural errors it makes it that more much more problematic and with regard to what you're on a raise that is about the preservation on the inadequacy of the explanation i think for that reason in chases in the lewis case recency and so that it's clear what the court based decision on now is not correct that in this case the the serious offenses from long ago were not reflected in the criminal history because that because of how how ancient they were more than fifteen years before well who isn't there kate said which the the really serious aspects of the defendant's criminal history did not contribute criminal history points well the most serious offense the one for offense is reflected in that and i misspoke as to which one but there but his criminal history points would have been higher if they weren't chopped off by the but by the retroactivity by the limit on retroactivity for three offenses that were not counted in his three felony offenses which were not counted as criminal history from the age of sixteen and seventy six under the age of nineteen that's that's that's correct one was a border one was having a loaded firear united states on this appeal and i also represent the government below barely one year after serving twenty five years for several violent armed robberies and burglaries mr batty's was arrested for illegally possessing a loaded semiautomatic firearm after an independent review of the facts and relevance and think factors judge poe impose an above guy light sentence that was greater than what probation or the government recommend but in doing so she did not air as the record indicates judge code articulated both orally and in writing specific and permissible reasons for the sentence she in post and given the straightforward and conceptually simple arguments before the court in this case even if her reasons were relatively brief they were legally permissible and identified her primary concerns of  danger to the public and mr batty sentence was not shockingly high shockingly low or otherwise i'm supportable as a matter of law the bounds of mr batches claims boil down to his belief that judge could simply did not say enough to justify his higher sent this court has never required what mr back to his demands here which is providing a lengthy or elaborate explanation of multiple aggravating and mitigating factors or explaining in open court why any particular unselected sentence was not appropriate this is somehow an average primer in the heartland as as the court pointed out that's not exactly true and it's not readily apparent from his record there were a number of serious events in mr batty's past that contributed to his criminal history as you pointed out judge laval some of those were not included because of the fifteen year bar but i would also point out that that fifteen year bar is shorter than the period that mr that he's had actually been in prison so he had been in prison longer then and that fifteen years which is why those other offenses were not shown it the judge said three times as you pointed out judge bianca that she was not considering the conduct underlying the november th arrest and her language was extremely clear  was actually guilty i have no idea what the underlying facts were and there was no conviction i want to assure you mr back to us i'm not finding you were dealing drugs that's not the issue it's all about the gun shows coke was extremely clear that she was not considering any underlying conduct because she did not know what it was and she was not considering the nov th arrests of every twenty thousand arrests for any improper purpose this court has clearly felt that judges may consider the fact arrest whether it's dismissed or whether no conviction results for the purpose of understanding the defendant's background that's precisely what she did as you pointed out judge lynch this poor may not find that to be the most convincing a persuasive argument but it was not permissible and this court gives great deference to the judge's considerations of those factors and those arguments i would also point out that several times my friend indicated that the record suggests that judge poe considered these factors in connection with her consideration of appropriate factors and the primary basis for that inference is a presumed current post in time in there mentioning in this record the entire transcript of the sentencing only fourteen pages and several of these comments were separated by references to other matters in the record the fact that some of these lines may occur on the same page do not indicate or support a record in inference the judge code was incorrect are and i think you know i don't think that it's entirely clear but the fact that it's not entirely clear i would also note too that just cited and included as part of the record the p s r which was fairly clear on its finding of any paro so it's it's hard to understand why she would believe he was on parole revocations status whatever that means when he was arrested in july but even if that's the case it was never returned to throughout the entire proceeding it was not one of the reasons defense that to the extent that there's a suggestion that somehow that stray comment itself could affect the defendant's rights the whole point of parole revocations status is that the defendant committed a crime wow on parole and that he was and that there could be consequences that resulted from that and their lives are now going to be there's never going to be paroled if they can see that and that's why it seems to me like a slip of the tongue because the the word revocation comes up later on that page in reference saying there were parole revocation proceedings pending lightly because i think the defendant was in federal custody at that point so they couldn't proceed but regardless the core of of i think the concern with parole or vacation or mentioning that it all could only be that the defendant committed this crime on parole and may have his own looked as a result and those facts are undisputed i'd just like to touch base quickly on on the jewish decision defense my friend has decided that several times i don't think that the reading of that is correct i do not think that jewish stands for the proposition that this court is overruling its prior presidents that the fact of an arrest may be considered by the court juha was in fact about potential assumptions that the district court had made about underlying conduct specifically whether there was one  multiple instances of sexually abusing a minor and that the court found that there wasn't enough independent substantiation of that in that case it wasn't about whether or not the court consider the fact of an arrest it was about whether it could actually assume without additional facts that there was a armbands of the evidence supporting the existence of multiple sexual abuse incidents and that's simply not the case here  to that written a statement of reasons the government public or a busted out from a court provided it as soon as it was requested by defense counsel and it's the experience of myself and others in my office that there was typically are not filed we've got a copy of that even though it's not public i think that they may your honor it's definitely provided to the probation department and to sentence a commission i do think it's available to the parties they clearly was here the government initially requested from the court the court has requested that the government make a formal request for it and it was immediately provided so i don't think that there's much of a problem of the parties having access to it i would also note that this court previously noted in its espinosa decision which we cite in our brief in footnote five this practice with respect to the statement of reasons in that the eastern district of new york and it seems to be a similar practice but based on my experience and the experience of others in my in our office it is not something that's publicly  i can't say that that it is not the case that sometimes parties have to request it so that's why i have not raised that particular issue just a couple of points st with regard to the jew a decision is very much doesn't make clear that  arrest cannot be considered when there is no substantiation of the conduct and so the idea that yes courts can consider prior arrest if there is if there are admissions by the party or if there are some facts in the record about that prior arrest it can be considered as background here there are no facts in this record about this prior arrest other than mr that he's statement that this was not only a lawful arrest he was caught up in this week and so yes arrest can be considered wh have information about them we have no information about this here and there's no decision where in that context the prior arrest has been held to be proper and i guess the other thing i would highlight about you is in that case they looked at the entire record and the fact was the judge at some point make comments suggesting he was improperly considering some of the priors that were the other offenses it were alleged the been there were times where the judge said no i'm only considering the one that you plead guilty to and i think the court looked at the whole record and said it's ambiguous we can't be certain that this wasn't improperly relied on i think we have the same thing here yes certainly the judge it does say that the decision has been based on the gun but there is never a point at which the that the earlier statements about what the significance of that are restless and again yes the court is making a very clear that the he's not finding that he was dealing drugs but to say and this part is explicit that prior interaction with law enforcement that wrongful interaction for which he did not you know he did nothing to warrant that the that should've taught him a lesson he's not been properly deterred from this behavior when there is no evidence of wrongful that in the record and given the uncertainty about the lie and on that particularly in the context of a case where she's going five guidelines and as lanfear say noted in a very short syncing transcript there is