which is the united states versus martinez good morning to you your morning police court judge marcus the federal rules of criminal procedure define a sentencing so that at the very minimum the defendant has to be present before the court the court must address the defendant personally the defender must be given an opportunity to allocute and the district court must make an oral pronouncement of sentencing here the district court denied m thirty five eighty two c two motion with a written order that did not meet the definition of the federal rules of criminal procedure for a sentencing and therefore the district court could not have imposed the limitations contained in rule thirty five  imposed on sentencing an appeal has acknowledged that this court in united states versus andersen did contain some language suggesting that those fourteen day fourteen day limitation in federal rule thirty five could be applied to the situation where a district court denies thirty five maybe to see two motion what is considered under merits that is a person is eligible but the dischord nevertheless denies the motion as we have argued that language in anderson is  addicted it was not the facts that were presented in the ender's in case it was not necessary for the for the decision in andersen whether or not why is law relied on this court's decision in philips and quite honestly this might just be academic but i don't believe that philips actually survives the dylan opinion focus was decided on but i think the the thrust of the question is even assuming argue window that the district court was wrong to say that it didn't have the power it didn't have jurisdiction to entertain the claim it went off on an alternate holding and it said if i have jurisdiction on the merits i would deny the claim because in the end provided a variety of reasons so even assuming argue window that i agree with you that the district court erroneous le said she didn't have the power she offered an alternative ground went to the merits and denied the application where was the error in that that's correct the dischord did do that in fact i think she to understand why that was an ingrown use ruling not only would it have to be erroneous but it would have to amount to an abuse of discretion or right yes or it would have to amount to an abuse of discretion and we would argue i think i pointed this out in one of our  twenty eight day letters that in fact it would probably result in manifest injustice mr karr by a was just a twenty year old first time offender when he was prez before the court convicted although violent crime is crime was not it was a non homicide crime and the supreme court has in a little bit different context i was talking about minors and graham versus florida but it did talk to the situation where you have a very young person convicted of a non homicide and given a sentence of life without the possibility of parole which is the sense that mr carr bio got which the supreme court has stated is is the second most serious sentence that could be imposed on a criminal defendant and in district the supreme court did go into detail and analysis again it was talking about a minor in the grand case it was somebody who was just a month shy of his eighteenth birthday who in fact had a prior conviction for  violent crime and this was the second conviction for a violent crime and even in that case the supreme court noted how well in that case actually it was categorically a violation of the eighth amendment we're not arguing that this is a categor violation of the eighth amendment but certainly it would demonstrate why the sentence lifetime imprisonment for a twenty year old first time offender convicted of a non homicide would constitute a manifest injustice in here the district court had an opportunity and it wasn't just again re entry in the same sentence it was somebody who had spent most of his adult life now in jail and had done everything to dembski yes the real question here is we might  the sentence but i'm having trouble seeing why it amounts to an abuse when you look at the underlying facts there are pretty bad i mean you've defects of the case or her you know the defendant in two co defendants abducted a woman her nine year old taken to or rented home where the mother was separated from the son tied to a lawn chair placed inside a closet the nine year old was tied to a chair and kept in the closet and the victims were held captive for four or five days separated in restrain from their mother for most of the time and among other things the defendant kept watch to ensure they stayed separated and did not attempt to escape during the captivity she was forced to write a letter to her husband explaining the abduction and seeking a seventy thousand dollar that the district court characterized the the crime as particularly he missed and violent maybe thirty years would have done instead of life but the trouble that i'm having is understanding why that gray area between a very very substantial sentence and a life sentence amounts to an abuse of discretion under these circumstances yes but the supreme court really summarized your honour's concerns in grand vs four to grant dealt with a very violent offense and somebody who had been convicted of a violent offense that there it talked about the fact that somebody who was young and receives a life sentence s noted that there had been no indication and upon your petition when you filed a rejected for jurisdictional reasons remorse was expressed i just wonder whether that fits into our analysis of the point that the presiding judge has been talking about which is the range of discretion here actually your honor and that that that finding by the district court was not  correct in fact in the way that this started was that mr carro bio filed a pro se motion to which then i filed a memorandum in support and then that initial process a motion that's docket entry three fifty one on page six he really does state he says the defendant knows that the biggest mistake in his life was be involved in this crime for which he is very remorseful and has taken full responsibility for so that there was a statement this was a pro se filing but there was from the very beginning a statement where he acknowledges that that what he did was wrong he takes full responsibility for it and that he is in fact we more for but i think more than any statement that he could upright you know why do you suppose that point wasn't repeated be violent you know contesting the right well this was the initial motion they don't know if it was properly rejected because he was represented by counsel no your honor at that point this was the initial motion that he filed the thirty five eighty two  was a demonstration by his actions in the last fifteen and sixteen years that he has been in prison where he has tried to make the most out of his life and not only learning how to paint and doing all those things but using those  those skills that he has acquired to assist others and he's donated a lot of his paintings that have gone to help kids in children's hospital and have touched a lot of lives and a lot of people have in fact come forward to me even after the  appeal has started with letters to that effect and so i think his actions in addition to that one statement in this process a motion demonstrate for morse and i would think the court for the additional time thank you and you have morning your honor andrea hoffmann on behalf of the united states in this matter your honour's the district court's second order on the order on the second thirty five eighty two motion should be affirmed this court properly applied the jurisdictional test that had this court had established in the u s versus anderson case and has since reaffirmed in a series of cases albeit on published which have all followed the andersen decision that test is plain and simply if there is a merits based decision on a thirty five thirty five eighty two motion then the strictures of rule thirty five's fourteen day limit apply for any reconsideration secondary motion me ask you this question i thought critical statement in anderson was quote that the rationale of philips also extends to cases in which the district court denies defendants thirty five eighty two c two motion on the merits because the denial is still in essence a new sentence why wasn't that there perhaps it's persuasive dicta but that wasn't necessary to the ruling in the case was it that is to say procedurally anderson is not a merits determination right that is correct your honor so then why wouldn't the comment about the rationale of philip's extending to merits the terminations on thirty five eighty two c to be strictly obiter dictum perhaps we should follow it perhaps we shouldn't but we are not obliged to follow that prior precedent what am i misunderstanding there your honor i saw it is not strictly dicked as the court was just discussing because it is the sentence that sets the test that then is use now in the case of that nest it ends up being a procedural decision versus a merits decision  necessary to the outcome of the decision no right only in the sense or that it's setting the original test no you're correct you're correct in the  definition of over it could be your honor but to actually say i wish the test itself you know but does it add anything to the holding in the case not because anderson is a procedural case not a substantive merits determination how does it add anything to the strength of its holding in a procedural context for them to have opined that a determination on the merits is still in essence a new sentence arguably might be interesting for the next case but it didn't move the bar forward in this side in what it had to decide particularly that could be particularly true your honor because that case was decided solely on really on the law of the case doctor it was flushing out the test established in phillip's the subsequent cases agreeably they are all unpublished most recently being us versus hernandez as well as a footnote in means in u s versus means circuit but it struck me that philips is there and we're bound by but it's rather odd because what you have a has a set s situation in which after going to change you have a quote re sentencing that results in the rather vicious effect of the fourteen day jurisdictional rule but deprives the defendant of the benefits that are normally associated with the sentencing and yet when you take a situation where there's a guideline change and a person who's incarcerated comes up and says well i think i get a benefit from the guy i don't change what is wrong because the guidelines don't have him he is not subject to the  review in the district court and then appellate review here where is the person who really had a chance to get a new sentence suffers under the sort of the fourteen day rule when you're asking me to extend a rule th seems to me to be full of queries that it's motto because the in the sentencing changes rule you're not getting the points that were raised by your adversary there you're not present in court you know defendant was you know there is a lengthy nearly eight page order that the defendant had an opportunity to challenge we would have that same rule fourteen day strict rule your honor on a straight appeal if this hadn't come up in a context if what had happened it was in october of two thousand and fifteen the defendant had finally filed a notice of appeal we would still have that same fourteen day rule albeit in the notice of appeal got techs i didn't happen here we have a situation where perhaps the defend do hold the importance of finality of sentences is a critical component in sentencing procedures your honor in this court as many others have long held that finale versus the opportunity to have multiple repeated or or alternative opportunities to challenge a sentence give way to the importance of of anality but when you when you have a circumstance where a court declines to modify an otherwise final sentence it doesn't vacate the sentence surreptitiously it doesn't do anything other than deny the application and retains the original sentence how does that in essence amount to a new sentence well it is in a procedural posture in a procedural pos and i'm talking about why that ought to give and to be extended to the substantive posture if a court simply denies the application doesn't impose anything new it retains the original sentence why would i say that that's a new sentence well in this circumstance what the courts have said that as i understand how the court said it is that because the district court was required to make the deal and to step down saying and did in this case and determine that there is a different sentencing a reno that it could act in and it's chosen not to do that the amendment applied here retroactive y right it did so the court actually says the men metaplot you have a new guideline arrange and now make a decision as to your new senate exactly and in this to circumstance requires a defendant to be president syncing excludes thirty five eighty two city federal criminal procedure forty three says the crime of the defendant be present is not then it has this language so you can be prepared to answer it it is like thirty five eighty two c two like the start of the light thirty five a eighty two c to rule thirty five delineate a limited set of without regard to whether it's a denial or a grant or whatever here in that any event we would only extend philips to where they said the guy applied so it goes on to say rule forty three therefore says the proceedings authorized thirty five eighty two c n rule thirty five apart from other types of sentencing proceedings it's almost like it's telling us rule thirty five applies to and thirty  five cases and both jewels and the decision in phillips your honor addressed part of the concern the defense counsel is raising by making it clear that if there are new or he just said to one abrogates philips and i'm i'm just trying to so what does dylan tell us i believe is just the court just said and as we did in the subsequent cases in this jurisdiction that dylan has told us that when we are making substantive decisions on a thirty five eighty two category that that is a truncated as to use that phrase or i'll be a shortened sentencing proceeding one the defendants not required to be present when the which a hearing is not required to be held one in which a supplemental p s r is not required to be produced what and phillips tell us subsequent in around dylan is that what needs to be done is that the defendant has to be given an opportunity it can be soley in writing to address whatever issues have been raised by the new circumstances of the sentencing  concerns created by an amended sentencing guideline range and that's the concern of giving the defendant an opportunity to have a voice in the new circumstances was clipped plainly met in this case he filed his initial motion for reduction there's a memorandum in support all of that led to the government replied it responded and then there was a reply all of that says to the first thirty five eighty two then as the second proceeding there was a counselled initial motion a government response and a series of supplemental pleadings the defendant clearly had an opportunity to address any factors or circumstances that were arisen in the shortened in albeit very scenario focused re sentencing proceeding which is what is required under dylan jules and phillips the toughman let's use the balance of your time to go to the merits let's assume for the purposes of my question that the district court in fact had the power to entertain it all around to tell us why in your view what she did did not amount to an abuse of discretion could it yes you are it's also law the law of the click case would apply as well but i'll get to that secondarily if i get an the judge made doctrine as opposed to what we're talking about is simply having the jurisdiction to do it so if you want to take a minute and talk about law the case has feel for the case just as in u s versus means the defendant had a district court decision that denied his thirty five eighty two circumstances he chose not to appeal that circumstance in this case as well and then subsequently filed a second one the court means and the courtney anderson both courts have said that the law of the case control the decision by the district court in the first in original circumstance has privileged president precedential effect on the factual and legal issues that are risen for the second time in the second motion that's particularly true in this case because both motions are based on the amendment five ninety nine defendant is raising the same authoritative grounds for why he should be read his sentence should be reduced he raised the same factual presentation for that subject was the same factual present taishan albeit with a few more facts asserted in the second proceeding so the prior decision and the reasons and the rationale that the court gave there's been no change of circumstance intervening that would under the law of the case exceptions give any reason for a different result setting that aside though in speaking specifically to the abuse of discretion standard which is the ordinary standard for a thirty five eighty two proceeding this court that the standard starts by an analysis of the procedural subset of in this court clearly used the correct test they clearly discern determined that the defendant was eligible recalculated the guidelines correctly stated what all of that was and then meticulously walk through the thirty five fifty three factors as this court described in more detail than i will take your time for the facts of this case are atrocious and clearly have stayed with this judge from the date of the original sentencing to this to this time and so the seriousness of the often is on a enormous scale the court then focused upon the need to rehabilitation the court did now be at the court's not required to one under any circumstance did the court actually zero in on that issue it did in the first opinion the court said that the defendant showed very little remorse which they incorporated into the second opinion in the second opinion the court said specifically that they had considered the breadth of additional remorse and rehabilitative conduct that had been presented and that the court did not find it to be persuasive specifically it is in the footnote in that opinion your honor and it's on the last page of the opinion and the court said that having considered defendant's expression of remorse which relates to his history and characteristics and having weighed all of the remaining thirty five fifty three factors the court finds that the defendant sentence of life is sufficient but not greater than necessary to reflect the series of of categories i just described seriousness promoted respect except in the first hearing and the first order which was incorporated by reference the court specifically said that the defendant's remorse or excuse me not remorse his real rehabilitative conduct does not mitigate or  any way help or affect the extraordinary suffering that the victims received and so that it was not persuaded that these matters that's my words not the courts but that it's not persuaded by that rehabilitative conduct serving to rose unpublished i don't know what jewels you're talking about if you cited i can't find jewels your honor is cited at i need my glasses  assume for the purposes of my question that we were to say that andersen doesn't control its dicta on the merits and therefore the court had jurisdiction to entertain it a second time this huffman has offered a second reason it isn't jurisdictional it's more discretionary but suggests that we  apply the well accepted doctrine of law of the case this case was fully litigated on round one the issues were fully discussed on round one no appeal was taken from round one there was nothing that amounted to an intervening change in circumstance why shouldn't we apply if nothing else law of the case and not get exceptions and at least two of them only need one for it not to apply but at least two of them apply here one is that there was new evidence presented there was in fact a four letter of remorse presented by mr karr a bio in the second thirty five eighty t c two motion so that would be sufficient to defeat the application of the law of the case doctrine in addition there's another exception where the district court's order if left done unchanged would result in manifest injustice and that would again go to the sentence i think it really is close to almost an eighth amendment violation and graham florida to have been posed a life sentence without possibility of parole on this first time offender twenty year old non homicide so both of those would prevent this court from applying the love case doctrine in this situation to address judge whole situation a question regarding dylan i do believe you know after i read everything that dylan does ever get philips  this court would not need to get to that point it would just need to as just clevenger said this is a request to apply phillips to these facts and not only the definition of sensing under the federal rules but the decision itself would prevent this court from applying phillips to this case the dylan decision does have some strong language talking about thirty five eighty two c two and the language that your honor quoted the proceeding i was talking about in the rule thirty five is one of two proceedings that is that the district court does make a change within fourteen days of a sentence that has already imposed and stated orally in court or there's a motion by government substantial assistance which is another procedure under thirty five under rule thirty five so those two procedures thirty five and thirty five eighty two see to those are separate and apart from what is a regular sentence and we know that from rule forty three of the federal rules of criminal procedure dylan relied greatly on rule forty three of the rules of federal criminal procedure and really kind of held that there were two different things there was a regular sentencing somebody comes in court addresses that there is a sense imposed and then they are these other things that are called sensing corrections and a rule forty three in which the district court at the end it doesn't have to be present that doesn't have to be any of the regular trappings of a sentencing i do believe that this court can under the facts of this case read philips to still be within dylan by not applying philips to the facts of this case by not extending it to the facts of this case because there were no there was no hearing the defendant was not present at the district court didn't address the defendant the defendant didn't have an opportunity to allocute the district court did not make oral pronouncement of sentence so all those trappings that are required by what abrogate jewels and philips only to the extent that this court would apply those to this situation in which a district court had denied at thirty five eighty two c two motion finding that the defendant was eligible but never the less of reduction i mean you're asking us more than you really need to ask if you're asking us in essence to get rid of two precedents of this court on the grounds the breeze hot air on them and when you're easier or human it seems to me is just as a matter of policy we are not obligated to extend philips to this situation and there and from your perspective there are reasons why you would that's correct  that that is the argument that actuated in our brief how many dragons do we have to slay to get where you want to get at and that's why i stated earlier this court would not have to address the issue of whether dylan in fact abrogated philips it would just have to not apply elaborate statement reversed but when you were not were talking earlier you were confident that your client had made a sufficient statement of remorse initially right he had made that the one said and say why is the again under the law the case dr and it just has to be that different enough was there something presented that was different that was not presented initially and that letter was something that was in our view i thought it through as he said he had  court the district courts initial order almost was an invitation to present further evidence as to the remorse and she still felt that the evidence was lacking and that's what he presented this statement that was not present in the first one there's also the additional