after todd spencer won his first appeal but before re sentencing the district court directed the probation officer to apply to new enhancements that made the guideline range even higher than before the appeal although the judge found enhancements as a legal matter he still departed upward without notice or sufficient factual basis and imposed a sentence in the middle of that higher range the judge also departed upward in part because in the judge own words mr spencer successfully appealed the prior sentence the resulting sentence with those were his words but it's a little bit of context it could be viewed as you simply noting that it isn't it responses judge duncan first i think if the judge had said those words at the very outset of the sentencing then then there would be no indication that that there was any potential sort of here but he didn't say it at that point he said it immediately before imposing sentence and if i may i point two to four factual things that i think give the context first to the judge direct of the probation officer to apply to new enhancements that is not something that i have ever seen before it's not something that any of my colleagues have seen before second the fact that the application of that those new enhancements resulted in an even higher range had previously applied third the judge lamenting that the enhancements had not previously been applied even though he had earlier compliment of the probation officer for doing a thorough job in preparing the pre sentence report and  it you are absolutely correct my only point which i think this just makes even clearer is that the linkage is implicit rather than expletives if it were explicit you wouldn't have to  and i thought that it was actually a factual statement is that the linkage isn't explicit you can certainly suggest that from context don't over oh don't worry too much into what i'm saying i think more i'm saying simply a factual observation that but i certainly take your point about the context and perhaps even the inadvisability of saying it but don't but it was nothing more than pointing out that i think the linkage is to be read from context rather than from the actual words i'm not sure who or how much clearer th could be that we can say i'm doing he could have used your phrase i'm doing it because that's really my only point and i don't want you to spin too much of your time on it because i certainly understand the thrust of what you're  had a case where the judge said because you appealed i'm doing this so he could have been much clearer and more explicit but secondly i'm kind of i'm amazed that you seem to be making your argument miss pratt on the turn of the use of a word and the other example was used some how is your case really based on the bag that he complimented the probation officer for doing a thorough job of don't you don't have stronger arguments in this case than that judge said my the purpose of pointing out that fact is is that if these enhancements that the judge tried to apply the second time if there had been any basis for a no i don't understand why you did it let me ask this question of do you think the judge relied on facts that warnin the record it is very hard to know i  know it's not hard to know why and i don't know what the record here's you know what the record is added that as to the facts that are in the record i think he read far too much into them that's what i mean you know when he talks about how maybe how upset the woman was and what her thoughts were and all there do you think you have an argument that those are facts not in the record or you think that just we should see that as a reasonable inference from what little she did say or what little was in the record that's my question to you and if you don't if you don't make that argument then i will make you make it i was just asking y i would love to be able to suggest that i know this is a very small courthouse and information gets out i cannot point to anything concrete that for example the judge had contact with the victim i can't make that representation but you just never know i mean so on are on the basis of that i don't want to make you make an argument that you don't want to make our just asking that question is your is your you are based on the fact that he said he mentioned the appeal and he complimented the probation officer there show argument it's the whole it's the whole combination of ok what happened in this case those are two parts of it and when you put all of the facts that i've mentioned in my brief that i've mentioned in the last couple of minutes when you put all these facts together i think that the appeal at least the appearance of vindictive becomes inescapable and no one especially not mr spencer can have any confidence that new sense was not selected at least in part for punishing him for winning his first appeal and i know i just don't think this court can condone what went on here it really undermines the integrity of of the process let me ask this then if the district court felt that itself there's no reason that the there's nothing technically to restrict what he doesn't really but if he feels that the center correct for that and it seems to me that from reading is words that he was doing his best to show that he would have otherwise upwardly departed because of his concern that the guideline range didn't adequately reflect the seriousness of the if it even though he didn't use those words he was trying to get to a defensible rationale for the matter yes but then again it still has to be procedurally and so what takes this out of the general and out of the general rule i mean we can't have a rules as a general rule that you cannot re legally say on of its own right that's correct actual can and will consent and i'm not trying to suggest that the dutch cannot do it but the judge was very careful to characterize what he did as a departure me that it actually wasn't quite clear in fact up perhaps to the extent that there's a problem here it's the working this is what was done to two answers one even though on the statement of reasons the judge well the and the line between a departure and a variance is somewhat hazy but we want you on notice from the first proceeding and and there after that whether or not the enhancements were going to be applied the george was concerned with the effect on me and the victim here and the effect on the victim notice after the remain that this was the issue you were going to have to address and what i'm concerned about is that we are going to be mired in of this in a semantic distinction between departures invariance is when the substance of the judge's concern was made known to all invol at the first sentencing judge will confess and yes the judge had some concern for the victim but the judge was also very specific that why he was giving the high end of that range was to give mr spencer an opportunity for treatment so there were multiple concerns at the first hearing in its re sentencing paper that the government certainly gave no indication that the victim was of any more concern than in the original hearing and it's not until we get into the reset and seeing hearing that the judge puts much more emphasis i think on the  victim and he and the first even more emphasis than he did the first time so and no do you had did you make any argument then or do you have any argument now that the effect on the victim was  afraid i think that that is a far it was more than that she was locked in a room and she was told not to go out of the room and she was locked in a room with white powder which was easily confused with anthrax she thought she had been poisoned and perhaps that incident that she's going to remember oh without question for the rest of her life all those factors were in play were they not i think up to the point where you say that this is something she's going to remember for the rest of her life that's where i think that there is not sufficient to facts support that is getting too far astray from being simply disconcerted and get at is that as a factual matter it is a far cry from saying somebody is simply disconcerted and afraid to saying that this is something without evidence from the victim herself that this is going to affect  on reasonable i'm saying that there's an insufficient factual basis for the leap of opinion or at least the inference that the judge ma courts a great deal of flexibility and what they do because the circumstances surrounding the threats vary so dramatically  and so it doesn't have a class of departure framework but most throughout i would suppose don't carry substance like threat itself but it's not accompanied by poison and so if you include along with the throughout something that makes the throw out same all the more credible because it's a our departure or variants on as i say the line between the two is hazy under the best of circumstances but here it seems even i i see i'm past my time so if i could just try to make two or three very quick points before i sit down first the threats guideline does specific lee contemplate application of the traditional departure  provision and sign it is it is the commission acknowledges it's written to cover a lot of conduct and specifically recognizes that departures are a way to deal with that second you are correct that there are very few cases involving such as this but when you look at the sentences imposed in those cases the sentence here is comparatively much greater than in those cases where there was arguably much worse conduct so if i could reserve the remainder but please the core i think it's important not to lose sight of what i think it's the big picture of this case which is this is a threat case where not all threats involve the threat of death and not all threats of death even involve a powder that the recipient of the threat would get it believing that actually delivered the object of the threat upon receipt and i think that the district court sentencing both in the first case first sentencing in the second sentencing take into account that global view and the district court was fully entitled to do so the sentence here was imposed was was a reasonable one that was thoughtfully determined by an experienced district judge question for you do you think our you know this case over all these issues is playing their review or not well i would take them individually the there is the district judge not applying a victim status unhandsome and the disruption of the court house operations i mean there really isn't an objection to those but they're also i mean i guess you could say there is an objection but the district judge said at the beginning of the sentencing that's it join appendix page one seventeen and then at the end one thirty four both times i'm not applying those provisions and so to say that they were applied is defiance of what the judge know not just thinking more in these terms when it looks like perhaps the judge is talking about facts that aren't in the record you know you got all you i take it you can argue that's a reasonable inference but as to the judge to the judge starts talking about facts that the other side the defendant thinks are not in the record does that require an objection or not so i would agree and i think that you know then you can agree giving you and i'm asking you right now i think i think that plain error is certainly a way you can look at it but i would go beyond playing err i don't think this is just a forfeiture waiver type or a forfeiture in the traditional sense of plain error i would go back to the first sentence in the first sentence saying remember that the way that unfolded was the sentencing was not initially going to occur on the day of the first sentencing it was the judge was taking into account the defendant request to have his counsel replaced and then it turned and from there it went to the judge accepted the plea and from there the judge said well i'll go forward with the sentencing if everyone wants and everyone agreed to that and during that sentencing the district judge said quote the individual receiving the threat is really in fear of their life i don't think there's any question and the defense counsel said yes sir that's that appendix page forty two so that's that's really a case not where the senate failed to object that's a case where the defendant agrees and it's a reasonable inference to from the statement of facts that there is this fear and you know very serious fear from the  clerk and so that's really a case where you have uncontested facts at the sentencing and to know we're having fly specking about a point that really was never and serious dispute that either of the sentencing is in this case about the woman victim in the courthouse was she was disconcerted and afraid and then when the judge talks about that he says the person who received the letter was devastated really devastated and that is something  that so often we forget go zone when you give something like this letter is something you one can't forget one can't forget it is like war you can't forget war you can't forget what people do when they face the ultimate which is death itself i don't think it goes too far to that say that iteration of why she said goes beyond what the testimony was and so i'm asking you about that his iteration of that is that something which he could almost certainly took into account in sentencing is that something that the other side has to get to when he takes her letter and expands upon it in a way that can harm their client i'm asking you that very specific question yes you do have to object and here not only was there no objection but that's pretty much said that the individual receiving the threat is really and fear of their life and that's a quote and the defense counsel responded yes sir so that's not only not objecting that's agreeing that those are the facts and no not necessarily not necessarily that just may be on a yes or understand what you're saying i don't want to  all seem to be reading very both sides reading very fine elements into the use of words but to my point and i'm a let you go on to something else but youth do you think that when the judge expanded on what h are remember all the testimony was about this woman was she was disconcerted and afraid he'd been elevated that to be devastated like a victim of war you never forget it the you think that iteration that increase of the description you think that would require since it looks like it could possibly be adding facts you think that would require an objection and without an objection in other words you are  facts that on in this record absent that being done you think we review his comments for plain arrow i would agree with that but i also think that you know it it's important not to lose sight of the tot of the evidence that is clearly admitted by the defendant you have a letter that is threatening death or injury you have the defendant admitting that the powder was intended to cause the reader to fear that it was poisoned and you have the victim who's locked in a room with the powder until it's tested and then the victim is afraid then admits that i just don't understand under what scenario it is no a few of you that he did and facts and if we're going to say well the i mean that's what they do during sentencing most of them explain their sentences and some of those explanatory comments may seem to be whether this sentence was substantively on reasonable i would agree with that and i would say i mean who wouldn't when you receive a letter that you believe contains poison and threatens death and you're was not a model of clarity i would not contest that in fact there seemed to be a lot there seem to be individual glitches the confusion about whether this is a departure that requires notice or whether it's a very it's the district court perhaps unfortunately saying that it was taking all relevant factors into consideration in the in including the fact excess successfully appealed the prior sentence it is not the cleanest sentencing effort that i have seen is there should we be concerned about that totality and perhaps giving a district court and property to clean up this record i would say that taken individually none of these was at the very end of the sentencing quote taking all of these factors into consideration and the fact that you have successfully appealed the prior sentence the question is what is the appropriate sentence here and i would depart i would up really depart and i think that in context the fairest reading of what the district judge did is he said throughout i'm declining to apply this rejected and handsome and and then he imposes a lower sentence and he also says i'm not a my lover not much lower but that's that's a reflection of that the guidelines are advisory and the judge said look the main factor i'm concerned about here is is one that is not directly taken into account in this guideline provision and then this guideline provision itself acknowledges look we know that in dealing with threats they're quite varied this happens to be a threat there is a threat of death and that is the threat that is accompanied by this powder that's unusual and i think the district judge wanted to and it was t appropriate for him to take into account that special set of circumstances that makes this a much worse scenario than many other threat cases but it's it's questionable whether this means he went that district judges can draw inferences and making fact findings and those are entitled with deference even when that's based on a paper record and here be drawing inferences from both the admissions and the facts from the company the guilty plea and from the lack of any kind of objection to the court's characterization of those facts at the sentencing hearing through the undisputed facts and the record or with respect to this  well so you have that it's undisputed that there's the letter threatens death or injury the defendant admits that the powder was intended to cause the reader to fear that it was poison the u s marshals told the victim to lock herself in a room until the powder was tested which shows that everyone is taking this very seriously as as a that it was poison as it was intended to be taken and the victim was disconcerting afraid i mean to say that there was something missing from that recitation of the facts is really i think more like a florid prose requirement for for you know a statement of facts for a guilty plea i just don't see what's missing from it's the threat of death it was intended to be as such it was caused the people to fear it and they took steps in response why wouldn't they think that you know a real risk of death here although it would be inferred from the point of view of the first in doing the action i don't you are with your characterization of facts at all yet about how it was received right and he admits in the statement of facts and that's  fourteen and fifteen that he did have intend that this would be to do this more didn't intend to cause death but he intended to cause effect right and and the district judge is concerned which i think is entirely appropriate and in fact some some question i think it's been pointed out by senator saying we're sort of talking about what the judge did and didn't do and he make an error here they are but didn't the government help walk him into some of this confusion of problems by suggesting base fair to the judge the government conda hill while walk him into that situation no just think i can't dispute that but i would also emphasize for the court that as to the choice between departure variance that as i understand th only issue before us is whether there is a notice problem that flows from it and as to that notice problem there's no objection it's playing there and why do you think nobody's was you know just because there was a continuing concern about the effect of the victim throughout the exactly that that the the court's concerned has not changed throughout the other since has concerned me is the worth perhaps two fold here number one district judges do not being able to characterize facts in the record or draw inferences from undisputed facts in the record all make characterization and landing down too hard on a district court explanation because in carter we have we say you're supposed to explain you all right the district court explains and then we say no you haven't explained it correctly and you draw it out unwarranted inference that and so you know you get them going in coming and  advisory and there was notice here everybody knew what was on the table and what was on the mind of the district court but what do you think the dangers of o distinction between variance and departure makes much of a difference and there isn't there is no limit on the district judge reaching the conclusions that it did and  substantively the sentence here is quite reasonable one the court took into account a lot of factors like the defendant's mental health his criminal record and the inference is that the court drew from the admitted facts are perfectly reasonable ones and the sentence is one that should be affirmed in that there is a don't think there is sufficient value added by a third sentence in this case to to preserve an objection to the forty five month sentence that was imposed as to notice specifically and everything that composed it in the context of this case yes i think so it is specifically as to the notice the judge never said he was departing upward until immediately before him imposing sentence that is absolutely not permitted by rule thirty two age that requires advanced notice to give notice of a departure only at the time he's about to impose sentence makes any objection futile and we couldn't have objected if to a departure at that point and we know this is even a departure  specifically references chapter five and five point zero in the departures laid out in the subsequent provisions there so it's apps i think it's absolutely i think it is very possible that the judge did does it matter if we find that clearly the defendant was on notice of the possibility the judge was pretty consistent  focus couldn't be characterized as an ambush could it he were not surprised it could there could be no surprise with respect to what the court actually did  i was not there myself and i in i to see some degree no but i think to the extent i know given that the guideline range should change quite significantly that the original sentence was at the top of the range and that nothing else had changed there was no new information and it simply goes back to my question earlier about the judge attempting to find an alternative basis to support  is correct which is which it is free to do it is but it still has to be procedurally reasonable and in this case because there was insufficient it's a factual support for the degree of the inferences or the assumption account the seriousness of what was done here which was that this was not just a route but it was a threat accompanied by a substance that resembled anthrax which had been much in the news and which is a the ordinary and if there was going to be a basis for departure was it not clear to all in the courtroom that the basis would be the traumatic effect that it had opponents woman and that it was intended to have upon this woman that was clear the parameters of the sentencing proceeding were clear the source of on these was clear on the part of move on the part of the judge why he thought this was out of the ordinary serious and why it required the mood the judge to think that the guy lives really here were advisory and didn't really reflect the actual real world seriousness of the impact that the substance had upon his life again your honor i believe that there is insufficient factual support for the  sentence and we asked the court to vacate the sentence to remain in this case to a different judge who's not going to have you know who can now come to a close crackers with a guideline range of twenty one to twenty seven