larger the real question is here is how the court has to use the sentencing guidelines that sentencing and and when when there should be a finding of prejudice when it incorrectly uses the guidelines which unquestionably happened here there's there's no question here that the court gave mr parks an above guidelines term of supervised release and there's also no question that he did this thinking that the term of supervised release that he did give was guidelines compliant when in fact it wasn't guidelines compliant and he didn't he was never aware that the lower actual guideline range applied let me ask you mr this you said it he did it knowing that it was an out of guidelines  sentence do you take that from his statement that regardless of whether the five year we supervised release of six years of course as it turns out the guideline provision for mr parks term supervised relief was exactly five years no more no less all the judge was authorized to give for supervised release some of the guidelines was five years no more no less but he gave him six years thinking that that was guidelines compliant juran as my question is what makes you wh he why do you think he thought that because he also said whether or not this is applicable i'm giving you six years that was in the that was in the pre sentence report which he adopted and you also explicitly said on the record that he thought the term of supervised release was five years to life rights so i think that there is two different things going on aren't it's it's that the statue he thought that the statute statutory provision was that he had to give at least five years and he could give up to life and and that was also the guidelines range but it turns out that the statutory range did not have a bottom of five years right the statutory range has a bottom of his that one year no no your honor the god the statutory range is five years to life and we're not disputing that so he could have legally given given him up to life and he could have legally come down all the way to five years it's just that the guideline range was five years for a class c felony like this usually the guideline range i think is one to three have to be at least that and here the statutory mandatory minimum for supervised release was five years so even though the guideline provision recommended a supervised release term of one to three years that five year four trunks and then means that under the guidelines the the guideline range is one even a range and point was five years no more no less that's what the guidelines called for the statute permitted five years to life and the judge mistakenly believed that the guidelines also call for five years to life and that's and thinking that he gave mr park six years thinking it was guidelines compliant but really the guidelines restricted him to five years and he didn't know that and that's really the problem here proceeded to sentencing thinking that the guideline range from supervised release from five to life when in fact it was only five years and i think that would have made a difference in fact i think i mean this is just a situation where the court uses an incorrect guideline range of not knowing is doing that and is not even aware of the correct guideline range and ends up giving an above guideline sentence and i think oh why could why couldn't we construe it to be his saying well whatever whatever the range is i'm going to vary from it and we he could have done that but we can't construe that because we don't know that he would have done that because he never considered the correct guideline range he was never made aware of it the supreme court has made clear that having the correct guideline range is in fact a fundamental building block of any sentence a court constructs even if the court ends up deciding to give an above guideline sentence he must still know the correct guideline sentence so that he can use that as a benchmark for gauging whatever variance he might apply so the court could have varied from the five year range if he had chosen to do that but to be even to be able to make that determination he needed to know what that range was and here he never knew what that range was he never even knew that it might exist and that's the problem a court has to have the correct guideline range before he can before it can vary from anything so here he never really was presented with a situation where he could vary from the guideline range for the simple fact he just never was made aware of what that guideline range was and i know how then how do we construe his saying the guard list of whether it's five years or not i'm giving six well because and when he said that he was talking about the defense counsel had asked him defense counsel had made the argument that even under the statute he could go lower than five years and this is talking about statute not the guidelines in the courtroom slots to that well counsel even if i accepted your argument that the statute permitted me to below five years i would still give your guy six years that's just because you know for these reasons that i think you deserve six years is not a guideline reasons and that's where that comes in and i don't think that but when he made that statement he was still laboring under the misimpression that he could give mr parks under the guidelines up to life even really well may not have made that assertion had he known that the guidelines only permitted him to give mr parks five years police so i think when he made that's that statement he made needs to be looked at in context he made it laboring under the mistaken impression that he could under the guidelines g mr parks up to life when in fact the guidelines only permitted him to give him five years if he had known that the guidelines only permitted him to give five years and he said ok well i know that but i'm deciding to vary from the guidelines then it's fine i wouldn't have any any argument here but my my primary position is he still needs to know what the correct guideline range is even if he gives what turns out to be  guideline sentence is it isn't your argument tantamount to saying that whenever the district court in correctly calculates the guidelines it's per se prejudicial and under strickland isn't that will essentially what you're arguing even though that's not what the supreme court has said well i think that is sort of what i'm arguing your honor and i do think it's what the supreme court said the supreme most often will be sufficient to show a reasonable probability of a different outcome i e prejudice and that's the basis that's the basis and i think that's where we are the court did say that there are only usual circumstances where that might not be the case and the government feels that this is one of those unusual circumstances those on the court then went on to elaborate what those unusual circumstances would be that would be those situations where you can where the court made it clear that he would have given the same sentence even if you even if you had used the correct guideline range and the government thinks this falls into one of those exceptions but it doesn't the the martinez court was where  core used an incorrect range and because the incorrect range coincidently overlap with the correct range ended up giving a guidelines compliant sentence even though he was using an incorrect range so i guess in that situation it it's possible to say that even if the court had known what the correct guideline range was he still might have given the same sentence because knowing the correct range wouldn't have given necessarily giving him any reason for giving a lesser sentence since he never departed from the correct range to begin with that's one situation where using an incorrect range would wouldn't necessarily be prejudiced but it was there notably no martez it wasn't the court the court room the my question is about who decides there's something sort of odd about us speculating on what the district was intended or was thinking or whether he was aware  that he was going outside the range in a way we often typically remember for the district judge to decide whether there was an ineffective whether there was ineffective assistance of counsel and here i take you're asking us to decide that and so i have some sympathy for that because the district judge has our swapping going to be more so when we're back in business but why should we decide this i think you can if it's a clear cut issue decide if it's ineffective it's my understanding of the law you know typically like it's a questionable issue when it gets remanded i don't think this is a questionable issue i mean th past but the attorney is the one the advocate for his client he needs to make you know he needs to check the guidelines and make sure that the court is aware of the correct guidelines and the attorney of your mate and on a statement he did make an honest and he did make a mistake and i don't think there's any i don't think there's any question that he made clearly he did make a mistake and i think clearly there is a reasonable probability that had he not made that mistake the outcome would have been different i mean here the judge gave mr parks a six year term a super wrote by his release when he believed that he could give him up to life so i think there's definitely a reasonable probability that he would have only given him come down one year from what he did you know if he a known that's all the guidelines had allowed him to do so i think there's a reasonable probability but for counsel's failure to point out the correct guideline range the judge would have come to five years and i think a sort of the i mean i don't you don't think we should take into consideration the fact that everybody missed this and it wasn't just that the judge was loaded and making a mistake by that defense counsel  judge till it pointed out the probation officer missed it the judge missed it and they all have an obligation to look at the guidelines and make sure they're being applied correctly that's true your honor i guess i mean but i think it can be couched in i mean i think the defense attorney and you know i'm speaking as a defense attorney i know we make mistakes but i think the defense attorney has an obligation to do that i mean he can't pass the buck just because the probation officer in the judge didn't do it and it doesn't relieve him of his obligations to to make sure that the guideline calculations are correct and i know that other people made a mistake too but that still squarely on his shoulders that's why we have a defense counsel there to make sure that those kind of mistakes get corrected and i know nobody else noticed that but it's i mean it's not like i'm some rocket scientist and i noticed that just by looking at the guidelines it's not that difficult thing to notice i can explain why other people didn't notice it but i mean it's right there in the guidelines it's it's pretty obvious as you well maybe maybe the  recently ok the court can be made aware of what we've got the correct guideline provision is and then if the court decides to get six years now that he's been properly informed so be it we have to live with it i'm just asking you to remand the case   i just wanted to step back and just focus focus on the fact that given that this claim is the sentencing error is before the court and ineffectiveness appellant does need to show a reasonable probability of a different outcome i agree with judge wilkins that a lot of this argument sounds as if appellant is pushing for per se the court to find a perch that per se when the  district court has guidelines calculation error it's always going to be prejudicial on that is not the standard under strickland or under plain error when a when the a case like this is before the court  arguing that at all about prejudice or not yes that's that's and we think that appellant cannot meet his burden of showing prejudice here given the remarks that the district court made just before we get into the weeds of the facts do you agree it sounded like use were saying that you agree that the prejudice prong of strickland is is a sensually the same as the plane  that the court there said that the burden remained squarely on the defendant to provide the court with a basis for suspecting that a reduction in his sentence is sufficiently likely to justify arena and and here  appellant can't meet that burden because of the remarks that the district court said when the district court in rejecting the argument that the statute the statutory term a supervise release could be as low as two years the courts the court said at a one hundred and thirty two dollars in appellants appendix that whether the five years is required or not i do think it's  do think it's required but regardless of whether it would be required or not i would come out it six years anyway and appellant hasn't addressed the fact that the court didn't just say i'd come out at six years the court gave very compelling reasons for why six years was appropriate he commented on the fact that the fact that the defendant had been acting as a pimp for five years every single day there were three victims in this case he was glorifying his lifestyle his criminal conduct was his lifestyle and his career the court consider the comments that and the defendant's conduct as well while he was working as a pimp the kinds of things he said over the internet on instagram his advertising of these women and said that it didn't appear to the court that the defendant thought that there was really anything wrong with what he was doing and even at the a logically prior point the district judge typically that if the judge it's within his authority to depart from the guidelines yes fully within his authority but but the district also has an obligation to show awareness of departure and to explain a departure is not correct that's correct and here in the district court didn't do that right that's right and in fact the district court noted on the record that neither party nor the pre sentence report included any grounds but parting from the political guidelines ready i just want to make sure we're we're here that this would be a variance rather than a departure and i don't i'm not trying to split hairs i make sure i'm so so go ahead yes nobody had had made that argument but this case is not before the court it was a ruse to preserve the claim of guidelines error then we would be in a different situation perhaps here or i think that the standard of review is important and it drives the courts inquiry i think here given everything the court had to say about why it felt that six years in particular was appropriate that appellate cannot show a reasonable probability of a different set and i think this record makes clear that if this court were to send this case back that it would be futile because the court would simply say for the reasons i've articulated a great length at the sentencing hearing i acknowledge that the a quibble advisory term of supervised release is five years and i'm going to vary to six well so tell me why you think it makes a difference the variance versus the departure well i my understanding is the departure are specific departures you know  listed in the sentencing guidelines so i just wanted to you know i'm not you know this isn't a five i'm it's been quite a while since i've had a departure case i can't not off the the particular numbers of the provisions but variances are certainly looser you know we're not trying to fit a spare square peg in a square hole that's identified by the guidelines it's certainly it's simply that the district has discretion to vary from the recommended term of supervised release so here are two things that struck me because i st when i was reading i found your your argument quite persuasive that you know the district judge says look i want sex and you know when he's being pushed and it was as you would knowledge is a different argument was the defense argument for going and he says you know i i i'm not going there but he also explicitly talked about it in terms of the range and he says this is not the worst you know and he said it warrants in the low end of the guidelines he talked about the defendant's criminal history of modest and he and he rejected what the government was then pressing as quote already reflected in the guidelines range so the notion that he would have had he understood the guideline to be five years nonetheless imposed six says to me that that really raises a substantial question and the other thing that i've thought you know in terms of of this judge he gave the two years imprisonment and even in the face of saying you know frankly the guideline here is a modest hi john but he stuck to it so you have i think a reason to believe that this is a judge at least in this case who is really taking the guideline and lodestar character of the guideline seriously doesn't say i'm going upward for this reason and he could i mean and do that but  were the guideline range i would think this person's conduct is more syria that's the record does not support that and see that's interesting judge killer because i have a different slant and that affirms what you said earlier that is we shouldn't speculate on what the trial judge did or didn't do it seems to me that he thought well i'll give him a taste of prison the two years but what i'm really worried about is when he gets back out on the street and starts again on what he just described himself as a cut above the average camp i think a pimp has the pimp period and i think that's what but again you think one thing i think another for what the district judge did but that's i think the risk i to address just what you had to say with respect to the court's remarks as i read the court's remarks with respect to i think the court had different things to say with respect to the term of incarceration and the term a surprise release i read the court's remarks with respect to choosing i think the guideline range was eighteen to twenty four months and the court chose twenty two and the court said that it was choosing twenty two because he didn't think that the court that the defendant deserved the top and certainly also didn't deserve the bottom of the guideline range and explained that that the appellant's criminal pimp there was no evidence that he was beating up these women you said and so i think that what the court was saying there was this could have been worse and so i'm not going to give him the top of the range with respect to incarceration but it's also quite clear that it's going to be a problem when he's released i've got concerns about deterring him and so i think it's important to to pull apart those remarks because i think the remarks that your honor was referring to were really with respect to and the court thought appellant was warranted in this case as opposed to the very different question of how much to prove a supervision is going to be required to make sure that his conduct at the toured and the public is protected so i think those were two different discussions and i don't think that the mitigating factors that the court referred to with respect to the term incarceration lead over and confuse the court's very clear remarks i think about what i thought the term of supervised release was warranted in this case and so that's why when the court says hey if even i go down to two or or even a five isn't required i still think six is the right number and for the six compelling reasons that it lists on the same page of the transcript which is a one hundred and thirty two dollars so i think under those circumstances this court cannot say that there's a reasonable probability that the district court would have imposed a lower sentence and i did i wanted to just push back on one argument appellant is making which the possibility of the correct guideline and this you know can this court find no prejudice which isn't the inquiry anyway but i would point out that if the court is a gal ging the correct guideline you wouldn't be reaching elsa's because you have a court that says well i recognise this might be the correct guideline and i would still reach the same result will then you'd have alternate sentences one of which is correct and no error in the st place  brief and i think i heard him argue here are only where the court has recognized the correct guideline can the court find the air harmless st of all when i hear on a that that's really the factual scenario he's setting forth is a situation where there really is no error in the st place this notion that if the district court acknowledged the correct guideline then there might not be prejudice well if the district court has acknowledged the correct guideline then there really would be no error and i don't know what about molina i'm sorry go ahead what about molina martinez where the district court used the wrong guidelines in even though it used the wrong guidelines in ended up giving a sentence that was was in the correct  the supreme court nonetheless found prejudice under strickland and sent it back here the district court used the wrong guideline in imposed a sentence that was outside of the correct guideline but you're saying that we shouldn't send it back because it was the statutory range and the district court recognized it that i guess a district court said death rejected  argument that it could go below what turned out to be the correct statutory range of five years but but isn't this at  least kind of as a reasonable probability of a different outcome as molina martinez i don't think so your honor and here's why in martini and molina martinez i'm just refer to it as molina because they keep switching the names around but it but in that case the district court rejected the government's argument that molly to be sentenced at the top of the guideline range and imposed a sentence at the very bottom of the guideline range and that gave rise to a reasonable inference that the district judge it's reasonably probable that the district judge intended to sentence a one million at the bottom of the guideline range whatever the proper guideline range show a reasonable probability of a different outcome based on the error alone that's all melinda stands for here are so molina didn't and didn't attempt a cabin situations in which the courts are confined that there is no reasonable probability of a dis different outcome and molina recognizes and all the courts stricklin him plainly are prejudiced inquiries recognize that the court looks to the totality of the circumstances so it's not just here given the standard of review it's not just the fact of the error but it's a reasonable probability that if this court sense were to send this case back to the district judge the district judge would impose a different sentence and the remarks that the judge made here make clear that there is no reasonable probability that it would have been mr judge also here gave what he thought was a  sentence near the bottom edge of the guidelines for supervised release right correct so why doesn't that  some reasonable probability that if he knew that the guidelines was actually five years that you know again we don't know anything to a certainty but why isn't there at least a reasonable probability that he would say well  five years seems at the because the court said that six was the number it wanted and that it would impose six even if it could have even if the bottom had been two so we've got to the court said even if i could go down to two accepting appellants argument i'd still impose six and so that's why we know that that additional information informs us that that the district judge thought that in order to deter this guy which was an incredibly concerning thing for the district judge given all the circumstances and facts of the offense conduct here and the lack of remorse in sentencing it felt that six years was what was going to be required was the appropriate term supervised release although it's happened and also the the district judge asked the prosecutor he said i i haven't seen a case in which the supervisor lease term was this long and what makes this a case in which such a lengthy period is warranted so the the district judge is also expressing some discomfort about what he sees as a pretty robust period and he he makes of peace with it but i know you're in an awkward position here because you're saying this is what the district judge meant but also resisting  judge i guess part of i understand what had to quite talk about the government's view you know it's important that the standards of review have meaning and that the prejudice inquiry isn't roted but i would say what the district court was pushing back on was the government's recommendation of a ten year period of supervised release was uncomfortable with that didn't impose that and but i would just point out also this is  appellant pled guilty to one count this violation although he had been engaged in this conduct daily for five maybe even ten years so the you know the district court is aware of that too which is why it was concerned about deterrence this is not a case where there was one transportation one time into the district and so that you know that that informs the district court's decision and that's that's why this defendant is very different from other defendants and and and again that the inquiry here isn't does the court have ultimate confidence about what the district court was thinking in the  inquiry is as a result probability of this court were to send the case back that there would be a different sentence imposed and i think for all of the reasons and the facts of this case and the remarks that the district court made including if even if i could go down to two i'd impose six appellant can't meet that burden here counsel suppose you know we were sympathetic to your argument but we were also sympathetic to the argument made by appellant that we can't have a scenario  where the district court can say kind of even if this and even if that i would still give you this sentence because ultimately then we're going to create a situation where the guidelines are meaningless in and in having you know we need to enforce the supreme court's admonition that the district court is also as always supposed to start with a correct guidelines calculation him then go from there in determining what the sentence can be and certainly they could vary a porter downward but then they have to explain that in that if if we simply affirm here the argument is that we are going to erode that kind of fundamental premise of sentencing why why shouldn't we be concerned about that and how could we write an opinion here that would do that i think that that would be a concern if this case were before the court and preserved error where the court was reviewing for harm but here the standard of review is that the appellant has to show a reasonable probability of a different outcome and so the court i don't think the court needs to address i don't think the court is a roading the import of the guidelines and the court doesn't need to address that and or accept that argument what that because of the standard of review the inquiry is a specific and focused one and it's whether had the district court known the correct term a supervised release is there reasonable probability that it would have imposed a different sentence and the record he clearly i think says that no it wouldn't have imposed a different sentence and that a remained would be futile because given all the court's remarks about the seriousness of this offense the time it went on the fact that this was to his lifestyle in his career all the court would say on remey end on this record is for the reasons that i stated the car sentencing hearing i now the guideline range and i'm bearing to six years  the under the facts of this case in the remarks the court made appellant can't meet his burden of showing a reasonable probability of a different outcome and that's really the court's analysis and that's the opinion of the court would would right i think the court would start with the you know the  starting point is what is the burden and can it be and has it been met here and i think the answer to that is no well it may be that we are we might creative different type of remain around and call it a circuits have done that that i don't know where whether the circuit has in the government's view i don't think we have well i don't know i think the government's you that would be a pointless free man but you know i think it's certainly guess two points i'd like to focus on one is you know the government council's form sufferance pointed out that the court said i like a six year sentence and here are my non guideline reasons for why i think the six year sentence is appropriate and they're arguing this shows he would not deviate from that had even known that there was up to five years as all the guidelines allowed but you know just because the court gave non guideline reasons for the sentence it imposed that doesn't mean it would have not taken seriously compelling guidelines related reasons for giving a lesser sentence i mean the court knew as well as any of us that adding the correct guideline range is the lodestar the starting point for any sentence so if he had known that five years was all the guidelines permitted that would have given him a compelling reason for giving a sentence less than six years reason every bit as compelling as the reasons he picked the non guideline reasons he picked for giving a six year sentence so it really is an open question as to what he would do it sentencing if the case were put back before him and he were then advised that a five year term of supervised release is all that the guidelines allow and i have to show a reasonable probability that the outcome would have been different but that's not i mean it i don't even have to show that the attorney's deficient performance more likely than not resulted in the negative outcome i've just got to show that it undermined confidence in the outcome and i don't see how it can be said with any confidence here that court and been informed that the guidelines only allow five years he would have come down off that six year sentence the six year term of supervised release and because of that we have to remain on the case to the to the district court telling  guidelines only allow five years and then let him factor that new information this new compelling reason into his calculus i guess the final point i'd like to make and it's sort of picking up on something judge wilkins it's that the government's position appears to be that this this court sort of insulated itself from review on the guidelines because it gave non guidelines related reasons for the sentence the above guideline sente almost always give non guideline related reasons for the sentences they imposed so in almost every single case the government can make this argument even those cases will be judged in every single case where the judge departs or unknowingly varies from the guidelines he's not even aware of the guidelines in every single one of those cases when a judge gives an annoyingly gives an above guideline sentence there will always be evidence that the judge had n guideline related reasons for the sentencing so we allow the government's argument to stand that even when a judge isn't unknowingly given above guidelines sentence that will be ok just as long as he gives not only guidelines related reasons fully informed thank you all right no questions for this just in light mr spence you were appointed by the court and you've done it really an outstanding job these guidelines are complicated at sika minuet and i know on my appraisal i'm going to say that i put you at the top of the list for representation in these cases certainly and miss half minutes it is always a pleasure to see you so thank you