guidelines wholly failing to consider the five mandatory factors that must be considered in determining the propriety and extent of a downward departure person's case of substantial assistance in this particular case no question about it the government file a motion for downward departure based on substantial assistance and at that point the court is required to consider the five factors listed in section five k one point one of the sentencing  under this court's case law in united states versus herself those it is mandatory that the district court consider those in fact the quote is although judges have the latitude under five k one point one record in this particular case reflects that that absolutely was not done by the district court if you read the entire sentencing transcript the court just simply did not consider the five factors in fact in fact  i don't think it even reflects that she considered the motion for downward parcher but certainly not that she considered the five factors this in itself is a misapplication of the guidelines and that's a proper point on appeal a drug case in a in a fraud case and it says nothing about what the cooperation was but so she says make some comments about well that the assistance doesn't seem that strong to me and then she also says it's a serious crime  so you're saying that that second part she couldn't factor at all into her five k decision the seriousness of the crime absolutely no i don't say that all i've reviewed the government's briefs that you can consider those  your question your honor and specifically answering i don't think she ever makes that specific uses that language that i just used in the argument but she objects to the court not considering and listening to the to the arguments of counsel and here's how it goes and i also would point out in answering this in pointing these places out in the record judge cost a said that she said that she didn't think there was enough cooperation i'm not sure she ever says that which of course is one of the five factors and i've reviewed this record several times she says it first comes up she goes through all of the thirty five fifty three factors that she's considering the fact that there's a mandatory sentence i mean mandatory minimum sentence the court like more information about that her responses i don't think substantial assistance is appropriate that's the closest thing i can find to what judge costa mentioned i'm referring to when she says i'm going to deny the government's request for substantial assistance i don't think i see it in this case i know you were cooperative from the beginning and perhaps interest gets interrupted then she says i don't think it's dangerous distance is appropriate and when she says i don't think i see it in this case of potential it's just as in the she mean i don't see that there was really assistance here i think i think we're going to have to guess at what that means because she just says i don't think i see it in this case dench turns around what else would it mean if it it could mean what she just finished saying for five six seven pages where she's saying that well this is a serious crime and there's manchuria minimum and then she just says i'm going to deny the governess requests for substantial assistance says comment that you said the defense attorney  for to provide more information about that and she says i don't think substantial assistance appropriate i haven't heard from either side mentioning it i would be glad to take information about it but right now i will deny the motion later on the court goes for the next four pages and imposes the sixty month sentence supervised release restitution even advise and defended his right to appeal and then she brings it up again you talked a minute ago about hearing about substantial assistance my position on that right now is that we've had a full hearing i have heard from the government heard from you heard from a client needs one have the substantial assistant looked at it and i'm aware of it the nature at least of the government request i think  they want to continue to argue that doesn't tell the court that you didn't do the proper procedural mechanism at the sentencing all at that point she hasn't there hasn't been any on the record any consideration of any thirty other than thirty five eighty three so i think that the defense attorney is saying and she says it four times i object to us not being heard and want to be with her and different been saying you didn't do your job to consider the factors so i'm wondering if it is playing error review how can you win because there's no question that the error was clear the five factors are listed in section five k want to what the court supposed to do this is an important subject under the guidelines and under congress statutes i mean that the court emphasizes that there's a sixteen months there a five year minimum statutory minimum several times but i would advisory range there was substantial assistance i mean a downward departure ground based on substantial assistance which the court denied which i believe the record shows she did not consider the problem factors and i think that's clear because it is it's it's right there by the court but i think when you're talking substantial assistance it's critical that she give adequate consideration to that because it actually triggers the court's authority to go below the mandatory minimum if you look at thirty five eighty three it's so important to congress that they say upon the motion alone that that authority is triggered to go below that sixty she makes three or four statements in that record that indicate that she's really honor i'm that is different and i'm not sure it's clear from the record whether she knew she had the authority or whether because she also did was denied a substantial assistance and there's no nothing in the record to show that she considered proper factors and consider the fact that that gave her the authority once that motion was filed to go below the mandatory minimum and she the record does show that she goes back three times at least to the fact that the mandatory minimum prescribed by congress is six months so i think that shows the substantial rights of the defendant was affected negatively by this affair and i think it shows and manifest injustice that should be corrected as far as the plane or analysis goes i do think again i i don't believe that this plainer i think we've got four objections he didn't say you didn't consider the fact he didn't say it but she four times she said it and she asked the judge what's your concern and what do and what do we need to address here and that's important because this is a five means when she says i don't think i see it in this case i knew you were cooperate from the beginning if someone if the defense lawyer had objected and said your honor you need to really worry about you at this in terms of assistant she could have said either you're right we do that now or that's what i already did that's what i meant when i said that three minutes ago i mean that that's why we're in this state of maybe not knowing exactly what she said because the objection was it right but it sounds to me if if you think that statement did refer to a systems if we conclude back then you think she was handling this properly if she did evaluated based on the extent of the assistance at all because they are still five factors and i didn't i didn't simply go through each one and i've never seen a judge go through each of those five factors in evaluat it's generally about the importance of the assistance and not to those five factors are getting it right how much how much did this help what kind of risk did you put yourself in how truly for you it's about the quality and the amount and the timeliness of the assistance and the danger  is put into by providing assistance those are the five factors of course all think that one statement gets there at all i think just i don't see it here but you can if you go through each five i mean the general the soaker sentencing factors like eight of them you don't go through every one in every single case and i don't think you know certainly have to go three to five but you should do something in the record that indicates that considered and i don't think that that statement at all especially in light of the fact that the defense attorney keeps coming back and saying you know we government needs to elaborate on their motion and tell the court what this is assistance was specifically and and address those five factors and i would say that's part of the problem too is the difference of you know the government if i if i pay one for but they didn't the threshold decision of whether or not to depart at all whether or not to granted departure yesterday and then the second decision is the extent of the depart is that right different and so obviously if that if if if the first decision is it will be doubt with departure it's over but they still have to consider those five factors in determining whether there will be a downward part are so so there were two analysis that have to take place is that your understanding of you can satisfy it because your brief doesn't talk about how prong floor is satisfied at all maybe i missed that but i don't see it in your brief and we have several cases now in the past year the says if you don't talk about the prongs it's it's almost impossible to satisfy plane air so on your rebuttal if you still say that you could win under plane error i would expect i would ask you dress that over if you can or if you can see that you can't win under planar i'd like you to do please the court brian stelter some hope of the united states i think the issues have been narrowed during the argument such that there's no longer any dispute that a district court may properly consider factors such as the seriousness of the crime impact on the victims when deciding to make the threshold decision of whether or not to depart based on a substantial assistance motion so my understanding is that is that is not an issue anymore i'm happy to answer questions or or talk about that if the court w like i think it's quite clear in the case law that the district courts can consider these other non assistance related factors in determining whether or not to depart but since it appears the only issue now though is whether these five factor have to be sort of considered in hernandez case which is cited in our brief that a district court can implicitly deny a motion for a departure it can do it in a summary fashion just saying it's denied that there is no case law that says that you have to go through this sort of mechanical analysis before denying a motion that's straight out of the hernandez case talking about implicit denial that's ok second the actual text of the guideline five k one point one does not support the notion says the second sentence says the appropriate reduction again this is assuming that there's been a decision to depart the appropriate reduction shall be determined by the court for reasons stated that may include but are not limited to and then a list of five factors so to the to the extent there is a requirement under the guidelines that the district court go through these five factors specifically that requirement is to give reasons for the mount the amount of the departure it is not a requirement to give a reason whether or not to depart at all so i think there's just no support in the law for this notion that it would somehow be error much less clear error plainer to not go through these five factors once he started your brief off with a jurisdiction there was a departure there was no challenge to the decision whether or not to depart the departure was more than the government thought was appropriate and that necessitated or that made the appeal malone as i understand that's a recent case where a similar situation there was a departure there was no dispute about the fact that there was a departure in the departure was proper but the defendants were then arguing that well this departure should have been greater and you essentially the district court should not have considered these other factors in  deciding the the extent of the departure so i think neither of those cases speak to the kids in our case here which is is their jurisdiction to decide an issue you know a claim of their relating to a denial of a departure not a grant of a departure and then there are some some further proceedings for example to sell and in that case quite clearly there is jurisdiction for that case because the government is specifically permitted to appeal a decision that departs from the gu to challenge a discretionary denial of a downward departure by district court and that booker says you have to stop at all the guidelines analysis you used to calculate each do and there's still this rule of departures and it creates a separate world where you can vary that's where there's this distinction between departures and variances and you can just then at the end date use those variances in the thirty five fifty three factors to come up with a reasonable sentence but you still do have to go through the whole guidelines structure in the first analysis right i agree with that unpublished decisions not analyzing the change in the world post book or on this i have a question about the plain language of thirty seven forty two eighty two which justifies exercising jurisdiction where the  it's incorrect he went to an incorrect application of the sentencing guidelines that language his claim is that there's an incorrect application of the guidelines because the that they didn't consider the factors on the plaintext the procedural challenge is independent of the generalized challenge to the decision not to depart downward so the procedural does challenge we do have jurisdiction over under the plaintext thirty seven forty two why is that not accurate that to some extent the in this area the jurisdictional issue that leads into the merits for example if it is well established that there is jurisdiction to review to determine essentially whether or not the district court recognized that it same time this court often looks at this type of appeal and says ok i understand that you the defendant are arguing that the district court in correctly applied the guidelines or violated the law by failing to exercise its discretion in the right way but the court then will look at the actual record and say that you know what we're looking at this and we don't see it and therefore the appeal is dismissed so in some sense the court is looking at the merits for example the united states versus buck case which is cited in our brief in that in that case the court said ok or the of the defendant said you know in this case the district or committed error by not understanding that it could depart in doing this sort of thing they said well we're looking at it that's not right therefore the appeal was dismissed so in some sense the court  looked at it but the proper disposition those still a dismissal just as we lead but it's bleeding the merits into the procedural inquiry if we're looking supply only at the procedural thing did the court use the right factors we have jurisdiction on that don't we i don't not know whether or not he was entitled to the departure that's a merits thing but whether or not we have whether the court looked at the correct guideline factors that's a procedural challenge of or which we would have jurisdiction i don't i don't know that i agree with that and the reason i say only what cases that the united states first america case which is cited in our brief  defendant made a very similar appeal that said you know he was looking at my downward departure and in that the district judge was looking at it he considered my criminal history he should've looked at that the court then went through and said ok we're going to look at each of the categories  a thirty seven forty two and if and it didn't fit into either of the categories and said well this type of alleged error that you're claiming we've looked at it it doesn't fit there for the correct disposition would be a dismissal in the end the demarc accordion recognize that i think it said our course has been uneven so sometimes they would affirm but they said in that case you know the correct thing to do is to look at it and say what doesn't fit into these because what you're claiming is not an error it is not of the right course it's been an even we should we should adjust course to make it even and consistent it because you can pick cases over here or you can pick cases over there it would seem that demarco itself is distinguishable because there was no independent legal challenge to the decision to refuse to depart there were is here there isn't an independent legal challenge to that to that but but even if we didn't just distinguish demarco shouldn't we should we harmonize our precedent in this area overgaard injures diction i think the president is fairly consistent actually because if you have it it's it is consistent that you see these cases where they say we don't have jurisdiction to consider this portion of your appeal where you're challenging a discretionary denial of a downward departure therefore we're not going to consider there is in some sense a little bit of the merits leading into it i think that some alone again my understanding i'm alone is the district court granted the departure and then the defendants appealed and said the departure should have been a larger departure because but you you the district court improperly essentially as i understand it it's really a sequencing issue that says once you granted the departure the correct thing to do according to malone is consider the full length of the departure and calculate it based on the depart on the assistance related concerns then come back and you can look at the rest of the concerns about the sort of the crime if you want to just of course so it's a sequencing issue where this might be why you're saying they bleed into each other some degree but if if you're right on the second issue that is if you're right that there's complete discretion on whether to depart in the first place and that those five factors on the plane reading in the guideline only apply once you decided to depart to the extent if you're right that complete discretion is a lot of our cases say on that initial decision to depart then what would we even be able to review if we did have jurisdiction you're right i think your honor there is there is essential in nothing to review because it is a completely discretionary decision now that doesn't mean you can't review for things like what did the judge recognize that she had discretion in this case i think it's absolutely clear there's not an argument in the briefs that judge paul didn't recognize the existence of discretion but you're right so you can look at that but then once you've looked at it and said well she acted within her discretion didn't you know she she knew she had it she acted within this person that's sort of the end of the end of the story and then it process is important i do in the process is important the process again the reason stated is when you determine the appropriate reduction once you've already decided to depart if you decide not to depart you never get to the second portion of the guideline in the second portion is where you say determine the appropriate reduction based on these reasons stated which are the fibers and so you have to do it even in the first part that that's not what the guideline requires and that's not what you decide whether you have to play the factors in making  decision well i disagree that those five factors are have to be somehow first of all that i'm not saying you have to go through him one by one like the opposing counsel said but you have to use those factors in making  decision i think that of all the that the district court has almost complete discretion when deciding whether or not to depart certainly among the universe of things to consider is the nature of these systems like those what happened what they're supposed to be thinking of when they're making their discretion or determination i agree with that along with of ok says a court just can't say this is so serious a crime not going to give you a five k end of story there is no case that says that i'm aware of i think a case of say almost complete departure now every time we entered into these sort of agreements when we say we'll move for them or departure we have to be very careful to tell the defendant you know this is no guarantee because the district judge has independent judgment almost complete discretion we can't guarantee you're going to get it in a lot of ways it would make the government's job a lot easier if we could say you know what we're going to move for downward departure and once we've done that the only thing the district court can consider is these five factors and all five factors are going to weigh you know heavily in favor of a departure because we're the ones writing the motion you know a good rule for you because then defendants would be even more at the whim of prosecutors which a lot of people say is the biggest problem in our justice system begin with the prosecutors have such control over sentencing that defendants you know they're afraid to go to trial there i mean it's  and it just would be even more so if the court didn't have that independent discretion to say i at the end of the day get to decide whether you get the five k what the sentence is going to be i i will say that it would represent i think it's fair to say it would represent a shift of the sentencing power in discretion from the district court to the prosecution and frankly right now you know we're here we're defending the district court's right to deny emotion that we filed and that we wanted difficult but not over the ultimate decision so therefore how do you write this if there's if there's ambiguity there i think the way you write this opinion is you say that you know in this case the defendant as a sensually allege that the district court violated some law or violated the guidelines by failing to consider five factors specifically which again and i can talk about the record but i think it's absolutely clear the district court did consider these factors and i'm happy to go  that but she talked about how she read the motion she was aware of the nature of the systems she talked about i know that there are substantial systems and i thought as i don't want to i don't want to but i just i don't want to concede that point there but even you can say he's alleging you know that th was a violation of law however the law does not require what he is claiming it requires the law does not require that these five factors be analyzed in this mechanical way when you make the threshold decision of whether or not to depart or i could say whatever it is he there is no jurisdiction for a defendant to challenge on appeal the discretionary denial of a downward departure and that and the only sort of merit sets into that is if you know that the district court did not recognize the existence of its own authority and that is not an issue here so i think he says it is but i think that that's a record issue i think the record is clear how can we say to the extent that he that that's an issue we do have jurisdiction to consider that but when i say that this court doesn't have jurisdiction i'm not meaning to say that this court can't look at it because the court doesn't look at it i think that the united states first but case for example or demarco or any of these cases the court looks and says well we're looking at the record in the us it doesn't look like the district court was under a mistaken belief that it didn't have the discretion therefore once we have analyzed this which i agree is a is a form of review you can analyze it but then the appropriate disposition then is really you know a dismissal rather than in  what was really going on in this case and this is just such a bare bones five k the five k usually says he helped us in this case it often so you know here's the case number it went to this other judge here in this courthouse the guy got three years ago he did this he there's not no specificity in this is i mean do you have any sense of what's really going on i mean it's fall under seal that so you're able to there's no issue of you know letting this out in the public i understand that  it is a matter of talking about it now on the board yeah this is i can't really say what the what the specifics were you know we the court ones would be happy to file something under seal but i agree that the information the district judge had was very bare bones and there was no at the hearing and again i think that the defendants were proceeding under a subset and because the defended was arguing for probation so they basically said sort of person or the assumption that we're going to get this departure and then give me probation it weakens that argument to spend a lot of time saying oh by the way i rendered substantial assistance therefore slightly in the forty to fifty month range right you're going for probation you don't want to sort of remind the district judge that well they've asked us to be in this forty to fifty month government the facts that supported that motion for a day or departure because and that was requested and i believe it's clear because of it's clear it's going to air this plane are clear it's got to affect a substantial rights of the cues or the fairness and integrity of the proceedings and think you know look at the ceiling the motion killing the record she didn't consider the five factors that the guidelines say you have to consider oh no she should have granted you would have got out from under the five year mandatory minimum so that will it oh that's a great deal of prejudice there right that's and that's where the prejudices and i think it's substantial and it is addressed in the reply brief i think and so i think we have addressed the what the substantial assistance was exactly and i think that which was in obviously in the motion to develop what that what that assistance was into answering questions for me have the relevant to those five factors or more factors outside of the five factors whatever they may be but she didn't weave the record reflects they weren't considered they were taken into consideration in the denial of the the motion for substantial assistance record reflects that she did consider make properly consider the motion for dale archer and this record shows didn't and there were four requests in one by the government or at least appointing up by the government that they hadn't been allowed to be heard on this and that's the substantial prejudice that she that the government in the defense didn't get the opportunity to communicate that information to the judge in it's a substantial presence to defend it because he stood a chance of getting a sentence below that sixteen months you know i think that the judge had the i had proper facts before her and considered them properly and that would have very likely get a job or not considering the factors did she didn't let them fully i think they're together and i think the reason that the record the reason i'm standing up is so strongly saying the record shows she didn't consider him cheating consider is the fact that every time they tried to get her to consider him she put them off done i don't want to hear anything else and even turns to the government and the government's attorney says you know i don't think we've addressed that yet and she didn't want either party addressed it and is it's an unusual council that that the actual motion is such a touchy issue and i mean you just that you get motion before the court and then you handle it the way that particular board wants to him but if i answer judge cost of earlier the judges that i practice in front of  for one in particular if i was a government but the witness and that's how he handles it maybe not the way we would want it done and you know when there's four other guys in orange suits sit in the jury box all this is happening you know so i  think the point of that is your honor though is that both parties the government the defense attorney both they follow the court's lead on and they probably he said were on her about that later right down the line which would lead me to  we're going to justice later that right now instead of that we did not there to buy a very ready answer those questions and then when we come back to it she says i'm up i'm done i've got two other hearings i'm in a hurry i'm not interested in hearing anything else and it just gets worse and problem to the attention this report and that's that's the purpose of a fifty one i'm sorry i turned red you know went on but that's the purpose of the rule fifty one that's the purpose of