it please the court my name is robert richmond i represent ralph duke a sickly seventy three year old man who has been condemned to spend the rest of his life in prison in the federal system life sentences  circumstances comparable to this case are virtually nonexistent mr duke is a first offender no one was killed during the offense conduct there were not even allegations of violence the sentence was not dictated by a mandatory minimum or even a guideline range of life this case stands alone it is an outlier the supreme court has said that when a district court imposes an unusually harsh sentence an adequate statement of reasons is necessary to justify that sentence the district court here based its sentence on the seriousness of the  and the need to deter future criminal conduct it's our position that those reasons are inadequate first every criminal offense with an offense with a guideline range of thirty years to life a serious offense the district court here failed to explain why a fixed set of years in excess of thirty years mr duke had already served the equivalent of thirty three years now a yaks inadequate explanation and what's the court supposed to what's supposed to do other than then be satisfied in the in the court mind that the explanation combined with the total record is adequate for the appellate court to review the substantive reasonable ones your honor the only way that i as counsel in the district court could assassin what the district court had considered was what the court said and i when i made my objection in the district court i felt that i had made clear that i was objecting to the sentence on both substantive and procedural grounds the procedural grounds where the court failed to adequately consider i use the verb consider rather than explain it's my position your honor that consider carries within that an adequate explanation of what the court considered and i think that what you just had a different purpose to the explanation namely the explanation has to be adequate to permit defense counsel to articulate  the objections to reasonableness on appeal what case supports that as an independent necessity if you will because i understand the it's clear that ex if the explanation is inadequate to permit us to figure out the district court reasoning that that's that's the essence of the issue but but going beyond that and i'm not sure how do we review that your hon i it's my position that the reason for the contemporaneous objection is to put the court on notice i wasn't talking about preservation i was talking about the merits of the argue the issue i'm sorry your honor i misunderstood the whole question i you if you explain why why you think the objection was sufficient to cover this issue and i that's ok now but going beyond that you said the explanation didn't allow you to develop on appeal the failure to consider mitigating factors and that's not part of the explanation  understand it so if the explanation is for the appellant is is is a necessity for the appellate court but i'm not sure any court has said the explanation as to be adequate for a defense counsel on appeal because that that would be course that can be argued all the time your honor i think that what the case law says is that the adequate the adequacy of the explanation the reason for  explanation is twofold one to permit appellate review and to to promote a perception of the fairness of the process ok but how do we were view that what's our standard i know that sounds good and it's there but but what is that why how does that translate into an appellate standard but what do we do we just we just read it and we say well that  if i had been there and done the defendant i don't think that was that was fair well i agree with you your honor that it's an amorphous standard but i think that in this case where the district court simply says that the i understand the differentiation point there's no baseline requirement that the sentence be thirty three years is there now but there is a requirement that under thirty five fifty three a that the case  e sufficient but not greater than necessary to achieve the purposes of sentencing the district court here did not explain why a life sentence was the lowest possible sentence to do that in fact the one sentencing purpose that the district court mentioned was deterrence there was nothing in the record to support the conclusion that this sickly seventy three year old man is a recidivism risk in fact the reference to deterrence is simply part of the district court sentencing scrapped that he invokes regardless of the nature of the offense and regardless of the characteristics of the defendant that is not deterrence doesn't relate only the offender that would be the protection of the public factor deterrence can be general deterrence other drug dealers well i believe that the way he phrased it was to deter future criminal conduct i understood that to mean by th i don't think and i think similarly it was if it did turn soon general deterrence he but he said didn't doesn't preclude general deterrence it would be hard to argue that a thirty three year old a thirty three year sentence would not provide general deterrence i think most people if they understood that they would receive a thirty three year sentence would be deterred on that ration outcome thirty three would be permissible why wouldn't thirty be the maximum well i think well i mentioned thirty three because that's how much time he has all right no it's convenient for your facts but i'm pressing you on how we're supposed to make these cutoffs well given the statistical given the empirical evidence with respect to deterrence i agree that deterrence is not a particularly strong rationale for length the sentences it certainly is not a basis to differentiate between thirty three and life but your honor this case is particularly problematic because the district court imposed the exact same sentence with the exact same rationale as was imposed in one nine hundred ninety at a time that the guidelines were presumptively correct and going back to your question judge local and i think that the statement of reasons in this case is not adequate to assure the court that assure this court that the district court employed independent analysis of thirty five fifty three a factors looking at mr duke as he stood before the court in two thousand and eighteen and did not simply do what the government urged it to do which was to maintain consistency and invoke and impose the same sentence that was imposed thirty years previously for all of those reasons we your honor noted my name is lisa kirkpatrick i'm an assistant u s attorney here in the district of minnesota the defendant has done his best to paint this case as a unique one is one that's different than other cases where defendants received within range sentences and in many ways he's correct but not in the way that he's asking this court to view the case he's correct in that it is unique it's unique in the way that the district court was particularly well suited to weigh the thirty five fifty three factors it's it's not unique in a way where this court should afford less deference to the district court than it otherwise would did the district or rely on its belief that this that this particular defendant was one of the biggest drug dealers in the at the time that he was prosecuted i don't know that the district court expressly relied on that that is however part of the record eight circuits opinion back in one nine hundred ninety one talked about that it really went undisputed that this defendant was a very large drug dealer and in fact he was the biggest drug dealer that prosecuted and so was it in the record that he remained one of the the that he remained the biggest drug dealer in the district or was it more appropriate for the court to consider sort of there's been a lot of drug cases in the last thirty years particularly out of some of the bigger cities and as i was i was curious as to whether that was still a true statement that mr duke was the biggest if not one of the big biggest drug dealers it does remain true hearing yes your honor the a u s a who handled that hearing discussed in his over thirty years of prosecuting it was largest drug dealer he'd ever seen he referenced some of the case agents that were at the recent sing hearing and in their combined seventy years of law enforcement they had never prosecuted a bigger drug dealer so that was carved out as the the biggest i guess now we have a lot of other factors at least over the last twenty five thirty years and looking at guns and violence was there anything about his case then that had those additional features that would have distinguished it absolutely your honor in addition to being the biggest drug dealer in the district in minnesota he maintained an armed fortress that's described again in the one thousand nine hundred one this court's opinion he had a number of guns and not just ordinary guns particularly dangerous guns he hadn't loaded in his bedroom he had a pistol with the silencer that he shot off in the presence of his colombian drug source he had a colombian drug source this is the eighty's and he had a direct connection and connection to the colombian drug cartels and the court's opinion bears out in one thousand nine hundred one he was dealing upwards of one hundred kilograms of cocaine a month over a five year period and he was also in the district court specifically noted his employment and corruption of young people in in the in the execution of the strug trafficking organization has right hand man was his son who is only nineteen years old at the time and the defense the district court here again the reason this court affords deference to the district court is because the district court is uniquely situated to weigh these facts in this case the district course particularly well situated presided over the month long trial staggering magnitude of the criminal activity in this case that wasn't hyperbolic that was just a reflection of the facts the fact that the district court was familiar with the facts of this case from the seriousness of the offense substantial number of letters submitted by the defendant supporters he said that he considered them he commended the defendant for his significant efforts at rehabilitation and prison he obviously was aware of the medical issues because he recommended the f m c rochester but that didn't change the fact that on balance the district court found that he couldn't impose a sentence compliant with thirty five fifty three a day without imposing a sentence of life and that offended did not preserve his objection to that explanation and here's why this court has defined procedural errors to include a number of things one is a bad guideline calculation for example another is basing a doesn't mean it's off the table your honor might my point is simply that when this court has defined what a procedural error is it has distinguished between failure to consider the thirty five fifty three eight factors and failure to your decision i want more explanation yes you're enough to say you failed the factors correct because those are separate procedural errors and they go to different purposes and judge logan is to your question when  richmond was was arguing they serve different purposes a failure to adequately consider the thirty five fifty three factors goes to the heart of the merits of the sentence itself a failure to adequately explain the thirty five fifty three factors is simply an error because this court cannot review the sentence and the district court is that the only standard it seems to me that's where the supreme court has left  whether the only thing for appellate review is whether the explanation leaves us satisfied that we can meaningfully review the sentence or is there something in this fairness notion that creates an independent procedur issue for culebra view and if so how do we do that and i believe the fake or i don't know that that anybody really addressed that and i don't know what the government's position on it is your honor is in the cain decision this court stated that the difference between scope of the of the the the procedural obligation that the the district court has i mean the notion well it's it's more fair if you explained everybody at the sentencing hearing family and so forth just just why just why the sentence is there but is that an independent issue for appeal so the fact that the supreme court wants wants is to be fair and how do you measure him measure that if it's anything we have dealt repeatedly with the question of whether an explanation was sufficient to permit us to review and sometimes we've said no but is that is that the end of the inquiry opposing counsel says you know there's a there's a and then more fas fairness issue here that's that's an independent appellate procedural error issue because the government agree and how do we do it and i don't believe the defendant has a right to any particular explanation i think the explanation is for this court to review what is what are we looking for as to be adequate to be adequate this court needs to assure itself that the district court considered the relevant factors in this court can assure itself that the district court did that because it outlined the factors that considered this was in a boilerplate explanation sure the beginning let me ask you this why do you think if the explanation is adequate for appellate review it is by definition also adequate to ensure fairness absolutely i will that would be a position that is a position it it's adequate for review it's adequate for the defendant the defendant this court's precedent case law holds that the defense is not entitled to any particular findings by the district court at sentencing and that that bears on as well the adequa explanation any right the defendant would have but just close by saying that because this defendant did not preserve this objection this court has held time and time again that it's nearly impossible to meet the plain error standard and you can't hear ensure fairness of the proceedings why aren't the two synonymous i don't take issue with that your honor however i would say that a statement of reasons that i have considered all of the thirty five fifty three a factors and then even recite them is not adequate and does not allow appellate review because it doesn't allow this court to a sas what the reason for the sentence was an adequate statement of reasons your honor is a statement that allows this court and the public to be able to say why the district court imposed the sentence it did and why it rejected the mitigating factors non frivolous mitigating factors raised by the defense and judge upright in dissenting in the united states versus spencer looked at this exact same statement of reasons by judge doty the exact same thing about i've considered the factor and deterrent quote the exact quote the exact script and judged right in dissent sad that that was not an adequate statement because it did not allow this court to do anything other than to take the court at its word how is this court to determine whether the district court has done the appropriate weighing of the factors if he doesn't explicate what the weighing of the factors is and it's our position that that is the problem with the statement of reasons in this case thank you here i think you counsel has been very well