the next case before us this morning is twenty dash sixty seven team united states versus johns and i see counsel is ready to proceed so miss otto reich why don't you go ahead is susan otto i'm with a federal public defender office and i'm representing damon diablo and jones were before the court today on an appeal from a sentence that was imposed by judge russell that since mr jones to fifteen additional months incarceration to rent consecutively to the thirty two years and of incarceration he's currently serving that sentence since he was in his twenty's he's in his forty's now the reason mr jones was before the court for sentencing was because while he was in transit from one united states penitentiary to another he was in a federal transfer center in oklahoma city while he was there he engaged in problematic sexual behavior that caused him to be charged with a state law crime in the state of oklahoma indecent exposure is a felony and it carries not only jail time as a possible sanction but also a requirement that you register as a sex offender from this point forward mr jennings has been suffering with this affliction with his behavior since approximately two thousand in six he acquired this behavior while he was in the custody of the united states it became a cute when he was in poland the united states going to injury in coleman are sensing memorandum discussed in detail mr jones childhood is difficult bringing and the fact that when he was a child he was subjected to sexual abuse at the hands of an adult didn't manifest itself well mr jones was at liberty he had no prior history of problematic sexual behavior before he went into the custody of the united states he made up for me i'm sorry there is absolutely no doubt that this behavior escalated from something that became have visual when he was at coleman and became an addiction so we just and so that's ok because you had a bad upbringing absolutely not your honor i'm not i didn't make that argument in front of judge russell and i'm not making that argument before this court what we're arguing is that the court in sentencing mr jones to a consecutive sentence as simply elongated the man of time he will be in custody that may be a legitimate purpose under some circumstances but if it has delayed the one opportunity that he might have to receive treatment now we're in a very peculiar position here in this case because since this is in the same alighted crime there is no federal sentencing guideline for  there was nothing that was analogous so the court is trying to craft a sentence using the three thousand five hundred and fifty three sentencing factors i believe the united states has construed our argument as a complaint that we didn't get a lower sentence what we're saying though is that the judge in devising assistance that requires him to remain in custody for an additional fifteen months in addition to what he's doing now doesn't adequately weigh the factors and substitute our judgment for that of the trial judge which of course we can't do tell me why that's not what you're asking i'm not asking you to re factors what i'm asking you to do is to determine whether the district court imposed a sentence that does not fairly reflect those factors you're allowed to do that under lopez the and this really takes me to the heart of why we're here what we have is a case that falls outside the usual line run of cases most of our cases have a federal sentencing guideline it's one of the equally weighted statutory factors that the court then assigns a particular factor to particular weight in deciding what is the most appropriate thing in a particular case when a court fails to fairly devise a sentence that reflects those factors and appellate court does have a role in this i understand that this is a very subtle argument that derives in part because of the sit in single headlines and because of what happened coast booker will do the most goo you won you wanted a concurrent fifteen months correct correct ok and that would mean he would not be punished at all for what he had done multi multi times over and over and over again and the guy is a slow learner apparently well if your are i will answer that stepwise going backwards it will certainly be suffering the punishment of this offense for many many years and the punishment for this a stance in addition to the sense of conviction will be the requirement that he register as a sex offender that will have a dramatic impact on him when he is released from custody is coming towards the end of his federal sentence and we asked for it they fifteen months to run concurrently so that he could be in that program which is something he's been asking for for years but has been denied in the bureau of prisons so that he can get the help that he needs that's what we were asking for he certainly understands that he has a problem he certainly understands that his problem has caused him greatest difficulties in the in in his institutional setting he understands that if he goes to another facility and engages in this behavior it is highly likely he will be charged again under that state law he's in kentucky now and could be charged if he does this again the united states bureau of prisons handled these matters up to this point by taking his good time credit away from him by putting him in a special housing unit by transferring him from one federal penitentiary to another it is not as if the government has been in the bureau when i say government i mean the bureau of prisons has been unaware of this at one point when he was in custody we raised this in our sentencing memorandum it asked for some help they gave him what they could give him at a facility that did not have a specialized sex offender treatment program it went horribly iraq i because what he wanted to talk about was his childhood sexual abuse and how that's the root of what's going on here yes your honor he is a very slow learner and if that isn't strong evidence of an addiction not just bad behavior i was i just don't know what is addiction by its definition is something that you do whatever it is overeating overdrinking or in his case being unable to control masturbating in front of women or exposing himself in front of women that has completely disrupted his life it's deprive him of good time credit it's meant that he's been beaten and has been subjected into multiple transfers within the system all because he can't stop doing this our request was please he's done it was a no sir and i'm not saying that he doesn't deserve to be punished and neither is he but what we were asking for was the court to focus on that part of the sentencing calculus that address the behavior in a most constructive and most direct way to protect the public in a future and to also assist him in his rehabilitation will the court  not correct the judge that he understood that he had a bad childhood and he was sorry about that and that was unfortunate he also said you know right from wrong and he said if i were the victim i would be offended right so i mean given the number of violations that this that this gentleman has had since he's been incarcerated i mean in some ways the judge sentence was pretty restrained well your honor i would i would disagree with that for this reason he wasn't before the court in oklahoma city being sentenced for his prison record he had been already sanction for those things by the bureau of prisons for all of his misconduct but you wouldn't believe that that is part of the of what the court looks at in trying to pick the correct infraction pretty much the minute he walked in the door clearly even seeing the fact that he had no idea what was going on or exactly the situation that he found himself in he went in prison as a very young man and has had a very very rough road in a rocky time what was before the court was how to address this problematic sexual behavior that resulted in a charge here in the western district of oklahoma under is simulated crime i would respectfully submit the syncing guidelines and the sentencing commission and i don't think congress when it enacted th max really had assimilated crimes in mind yes under oklahoma law he had to have a minimum of thirty days maximum of ten years the sentencing scheme in oklahoma is quite a bit different there's also parole he will not have the bit he would not have the benefit of the parole sentence it appears that the judge considered the fact that two hundred people had already previously been sentenced for the same type of the stance in the western district and used the dos something like a rough top and but the difference was the twenty four months and it was run concurrently mr mitchell's case and the one year and one day of course would have a good time credit was tacked onto the back of the other man sentence this one kind of stands alone because it's fifteen months and it's running consecutive well your viewing the procedural reasonableness of the saying well i don't think i am arguing procedural reasonable and because i understand the court's definition of that is a failure to consider all the relevant factors i think the judge considered the relevant factors i'm raising a s certainly allowed and are such as my own and look as my c s to take a look at this and determine if the sentence fairly reflects those factors there is still a role for the  in the application of the sentencing guidelines and the application of the sentencing factors in a situation like this where we don't have a way point of the guidelines we don't have something that we can look to and say this appears to be about what we think fairness looks like i think your role is more robust i think you're allowed to look at this entity and to balance placed in a place where he can get treated yes he will get that treatment towards the end of his sentence and that was clear that he had asked for he had asked to be sent facility that had that treatment and he was told that he didn't qualify because he had no history of problematic sexual behavior out on the world now he has has this problem and without the judge saying please you've got to do this just i look i checked the bureau of prisons records this morning for our oral argument he philip mccrary in kentucky is not at marion and he is not a devon's and those were the facilities identified as having the sex offender treatment he's not there yet stated the argument is that the primary sentencing back to mr jones the mind should have been on rehabilitation course as this court of the where the ability of the court to use rehabilitation in determining in the court focused on his history and background it focused on the need to protect the public at focus on the need to provide a deterrent well that's really a new in some ways doesn't getting him sexual sexual treatment counseling for his problem also impact on the safety of the public if he's released and deterren certainly specific deterrence yes sure and the district court did what it could in that situation by recommending to the bureau of prisons that he be provided the standard treatment while the district court can't outside of guidelines whether there are no guidelines in fact prior to book or in the assembly the crime context the court's review was for an abuse of discretion and nowhere is the court's discretion more broad than in the context of sentencing the court with some pre to consider prior i'm happy to answer any question the court may have but in light of mr jones history