our final case for this morning is united states against merriam in georgia please the court counsel honor your honor this case is about what the court is required to do under thirty five fifty three day i heard the court say it earlier this morning we all know that the guidelines are advisory at this point that's been beaten into our heads but thirty thirty five fifty three ace four still says there needs to be uniformity that's one of the factors that needs to be considered when sentencing criminal defendant i think this case highlights the problem we're having post that stuff i understand the court's point and that was in my argument to the district court as well i understand that point but we just had an amendment to the sensing guidelines time the judge it's an entirely able that's history characteristics of the defendants all sorts of things that are floating through my mind about thirty five fifty three k and this judge and it's thirty six months is i'm not trivializing it is a sentence it's three years you know less whatever good timing i assume he'll be removed again at the end of that period but i just don't see where it is that the judge can't take into account the fact that every time this guy gets very little kids just turns around and comes back it's not i don't want to say that it can't be taken into account but i think it needs to be justified but of the varian we're talking about a seventy percent increase but you know the lower the number the easier it is to play with the percentage increase you know if it had been a five month sentence and they changed to ten it would be a hundred percent increase but it's and this is an additional repeatedly and were committing other crimes and i know in one of those cases a cameraman which won the most recent reentry he hadn't committed any serious offenses that's not what we have here mr mendoza ballasts did have some arrests in the early ninety's that were for something other than a legal reactor but since the mid ninety's he had no arrests he didn't come to the attention of the cost because he was committing a burglary and the state just didn't prosecute that he was just little really in the wrong place at the wrong times a very long list of illegal reentry i guess i can argue with that i but it's just i don't know where we come in actually because yes it's an above guideline sentence it's not there are no statutory problems with the link that this sentence district judges we say over and over again do have substantial discretion in picking what they regard as an appropriate sentence and i think th there in lies the problem if we're only going to review abuse of discretion up to the statutory maximum then we're going to get these large despair see despair get more disparity that was the cost of booker and you're absolutely right about that and here i feel the defendant feels that this is the guidelines were recently amended to separate out these these different categories if you committed a felony before you were deported you get so many points and if this were the world before booker you would have a compelling argument but the strength of argument you're making this that x was taken into account in the guidelines was persuasively what got rejected in booker even before booker the judge could say well here was something that wasn't taken into a point of poker was the judge can vary even for something that was taken into account in the guidelines so how can your argument co exist with poker i think my argument no exist with plug or under thirty five fifty three a sub four where there needs to be uniformity there doesn't need to be uniformity as chief judge said that was the other point of booker yeah booker the justices were weren't sleepwalking through booker they realize that making the guidelines last finding meant more variance that's that's just the trade off you're your argument is an argument suited to the world before that's twelve years gone i understand they are honor but one of the aims of thirty five fifty three is to have some uniformity and if the guidelines so the guidelines are advisory and we all know that but i don't think that they don't count for anything and that's the government's argument is the judge in this case has discretion to sends anybody on a legal reality what the supreme court has held the judge must start by calculating the guidelines correct and then the judge is entitled to implement a penal philosophy at odds with the guns that's the holding of kimber oh i mean there there it is maybe good or maybe bad but i still feel that the judge has to justify the variance somehow i mean when your argument is that in the post booker world it's now the appellate courts that somehow have to smooth out whatever undue disparities and sentences are and that the supreme court has tolerated a lot me i v and uphill battle i'll just say that i think i understand what you're saying and my overarching argument is your honor is if we keep going down this road that we have post booker we're going to be right where we were before thirty five fifty three and we may we will may be right about that yes you're right and ok there were four dissenting justices in book case where there is defense counsel admits he wants the district judge to explain the reasons for his sentence and the district judge did he went and detail about it about as the court's noted the twelve deportation it chose to impose the sentence imposed reasonable people may disagree but the decision is basically in the hands of the district judge and as long as they articulate the reasons in a rational sort of reason that decision should be upheld as far as he other concerns defense counsel raised such as failure to follow skyline for a one point three discordant stated you no longer have to follow that construct in making the sort of ninth circuit and second circuit in the fifth circuit in the eleventh circuit and other places around the country to i don't have that information or it wasn't put out at the just i'm curious this it strikes me that a rational district court judge might think it's an additional punishment was needed for such a person we certainly have the idea of increasing amount of punishments for personal turns and that certainly would be followed in this case as you had the last three convictions and sentences were steppingstones up in the last month before this conviction was nineteen now we're up to thirty five clearly there's messages trying to be sent to him please don't come back you're not welcome united states because of your prayer which is there's nothing further your honor we would know if this is a reasonable sentence the judge actually stated that he had actually sat in the district in new mexico in district arizona and had seen many illegal reentry cases i was hoping the judge would say and when we see them on the fourth consecutive time or the fifth week we start incrementally raising that and now you're at twelve so this is my basis we didn't get any of that he said he sat there he didn't say whether or not that that is  yes ok and i would the only thing i would leave the court with is a legal reality is a crime that already contemplates that there have been previous primes and that was my argument under the guidelines that even they wanted to make successive ones they would have accounted for that thank you others all right thank you and you took this five point nine i believe and we thank you very much for your service to your client report thanks as well to the government we will take the case hundred virus men in the court will be in recess