case united states versus clock by denying mr kwok notice of an opportunity to address sealed letters from victims of his co defendants crimes particularly the letter of christine gallop and before imposing a sentence of thirty seven years in prison and two years more than mr wong received in his sentence and two years more than the government argued would be an appropriate sentence and in order to avoid unwarranted disparities at sentencing ask you about this concession of plano as i read the record you cold and sent a copy of the sentencing proceeding before judge and he said as are a judge johnson's transcript he spent most of his time on the facts of the case before him describing in vivid detail the nature of the two murders that the friend committed and he said well and in that case just almost as in a saw in one short paragraph he said in the case the judge jury sentenced there was a very moving letter  a letter of forgiveness and in my case there is the opposite and that was it i have been called and judged theory's attention to the whole at sending him a copy of the transcript of the sentencing sentencing judge johnson a copy of the sentencing before judge jury which made repeated repeated references johnson described what was in the letter fairly accurately consistent with the way a judge there he described it and i'm trying to figure out what exactly is the plain error when you call this stuff to his attention your honor we certainly called judge johnson's attention to the sentence that was imposed on alex wang and we sent a transcript in order to evidence that alex one had been sentenced to thirty five years and in our letter to the plea necessary to send them a transcript to reference an active search theory that sentenced the codefendant thirty five years well our our letter and our purpose in sending that the p s r because of the timing of the two sentences included what did happen and alex was case you know when you wrote a long letter and i can't believe that you didn't call whole transcript to judge the use attention because you want to judge johnson's judge johnson did that constitute a plain error when he said well i have a different letter in my case respectfully your honor both parties the government and mr kwok drew attention to alex one sentence because a comparison of the two cases made it plain that imposing a sentence that was higher on roger kwok would be unreasonable it would create unwarranted disparities there were important distinctions between the two cases when when when you when the it was completely on intice a paid a bill that judge johnson would distinguish the key says in order to pose a higher sentence based on selectively reviewing one of the c of letters or a long sentencing to judge young age and because a comparison of the two cases objective lead leads to the conclusion that roger quark's behavior in prison was substantially better than that of alex w and there were differences in the circumstances of the offense admittedly each involved heinous crimes double murders both but they're very similar defendants to sixteen year olds part of the same chinese gang the facts of the murders were different in alex was case he volunteered to commit these murders he walked into the restaurant he executed the owner of the restaurant and then he shot indiscriminately at potential victims after he was arrested while in prison he conspired to kill the remaining eyewitness one of whom wrote in into his keys interestingly and agreed that he should live his life by contrast by contrast roger  was the new guy in the green dragons a murderer executed by the leader of that gang and the were told to let the new guy do it he did not volunteer for that crime and during his more than twenty six almost twenty seven years in prison he has zero zero incidents of violence alex won't by contrast he was involved in three stabbings into his twenties so we brought this case to the attention of the court to draw a distinction between what might that it's up to him it's up to as i understand the war the sentencing so disparity that the sentencing guidelines talk about a confessional disparity of what we've said that a judge is free to take into account mistake well i agree once a few years ago when i was sitting by designation i wrote an opinion saying that that this shouldn't happen that it's a mistake that three co defendants should be sentenced by the same judge and when they split up every judge has their own subjective view of what an appropriate sentence should be that was one of the reasons for the guidelines to two to eliminate that would agree that subject the he and he reached the same conclusion that judge reggie did which in which he said she wouldn't exercise her discretion for that i would leave the park because of the horrible nature of this the double murders and he if you read the george johnson's johnson's that he he he spent most of this time talking about the facts of the case and the letter that he got if he relied on anything  it was the letter that he got should he not relied on the letter that he got your honor of course judge johnson was was right to consider the victim impact statements here there was only one victim a cousin of one of the victims who wrote in and she asked for an injunction to keep roger kwok in prison a brother of one of the victims took no position but but in fairness it was it something like a quarter or remember the exact timeframe of this was a from our perspective the notion that whether or not a victim gives forgiveness whether you can find a victim whether that victim writes in and whether they suggest forgiveness whether they find it in their hearts to forgive the defendant is not a reasonable basis on which to impose a higher sentence in this case than was imposed in alex wanks case but it's a reasonable basis for judge peter to give a lesser sentence thank you it's a little insight i think you say your brief if i remember correctly that victim impact statements don't really have anything to do with the criminal activity and they could vary from case to case and some victims take one position and some victims take another but if that's the case if if there basis for the sentence and imposed i'm not saying that i'm just saying on the premise that i understand you know you're going no i don't think so your honor it is unquestionably right to look at victim impact statements to think about the nature and circumstance of the offense and the harm that was caused that's on undeniably right i read judge theory's transcript a little bit differently he was obviously moved by ms gallop and letter i think it is very difficult to argue that he imposed a lower sentence based on that moving devastating letter about the impact of a heinous crime is very difficult to read judge theories reasoning as being one in which he reduce the sentence beyond what he otherwise would have done which is something that the government kind of suggests here it is clear to us from looking at the transcript and i'm focused on on one forty five in a one forty six that judge johnson to distinguish the two cases to justify a higher sentence here relied on the differences between the victim impact letter we respectfully submit that was not a reasonable basis on which to impose a higher sentence and there are very compelling reasons here to impose a lower one that weren't mentioned by judge johnson  think you look at the facts of the two cases including the period of time in prison long hat was involved in three stabbings while he was in prison  in l a if you looked at the two cases side by side i think i certainly a reasonable argument could be made that that kwame should not be getting a sentence worse or higher than a long sentence if you look frankly don't have a problem with the sentence for a double murder the question though is procedurally if the sentencing judge reviews a seal sentencing letter and that the fun the feminine doesn't get to see it i mean house how significant of a problem is that i mean the government concedes it's playing error so the only question is whether you know if it has a sufficient impact to raise real concerns and in and i do have concerns about sentencing minutes before judge dearie the scribe to gallop and what or what what wasn't in the gallatin letter that was otherwise relevant i would agree that a fair judge relied on a sealed letter which he never disclosed that would be another problem but here we have a count we reversed situation where i suspect the only reason judge johnson knew about the galloping letter was because they called attention to the to the  minutes of the sentencing before judge theory and he specifically alluded to it and judge johnson the scribed there and there was no objection i don't i don't i know you can make whatever concessions you want but i don't see this is as a kind of plane era and i don't think it was an accident that the supply man and an objection wasn't made because it was an accurate description of the relevant portions of the letter that i wasn't one of them about the sentence and then i got this letter they will express their views were necessarily consistent and i felt obligated to return to them after i got this letter in a way it doesn't that just describes in very difficult very graphic terms the enormity of your conduct and the suffering and yet she says i find no joy in another human being suffer and suffering i've been away  hatred towards alex along in this group my desire is not about seeking revenge or restitution it's about doing and getting the right result i will leave alex one to his god and me to mine and judge the reader and says i had to take a breath when i read that letter i mean why didn't he tell me more you're for the opposing side colas to his intention i thought because they knew what was going to happen and you heard about tina sham begging for her life and judge raji saying and then judge johnston saying as well that he couldn't get that image out of him and that was one  your honour's the government conceded below repeatedly that roger quark's prison record was less violent and was better than alex wang's the reference now to the fact that alex wang completed  a behavior modification program was only available to him because of continuing violence that included throwing hot water at a corrections officer in two thousand and eight roger quark's record was entirely nonviolent from from the time he was arrested in till now he had to shanks in one thousand nine hundred five more than twenty years ago in one thousand nine hundred nine there was zero evidence that he'd ever use them and there was substantial evidence in the record including from a correctional guard who knew him back when he had his heroin addiction and then later in time this was someone who was never violent he was violent one time during the commission of these murders until today the government never argued that roger quark's offense was more serious than alex was i'm surprised to hear it it is unquestionably true that both were heinous crimes but alex wang volunteered to commit his murder and he conspired to commit a further murder when he was in prison kwok committed these crimes their terrible crimes he committed them because he was the new guy in the gang and the leader of the gang said let the new guy do it the differences between the offense the differences in their prison records argued for a lower sentence for roger clark which is why it was the government that argued below that you couldn't go above thirty five years without creating an unwarranted disparity so it is surprising now to hear arguments for the time that you could possibly look at the records of the offense and conclude that roger kwok deserved more time there was a third defendant who was sentenced after the subpoena was finalized he was sentenced in front of judge or is r e he was involved in the murders with alex wang he received a sentence of thirty years it is engine civa ball if these three young men now adults now know my clients forty four years old would have been sentenced by the same judge that roger clark would have gotten the most time inconceivable and judge johnson made no effort to argue that based on a comparison of the records roger clark was more culpable from the standpoint of the offense or based on his record and indeed it's quite it comes right after he said that judge here in london on this order of forgiveness in this case there's i have a letter that's quite different and it's up also in orange juice i mean i don't i don't see this as plain or i don't know we don't think it's harmless and it certainly wasn't invited we invited no comparison of the victim impact statements in this case and indeed a full review of the one case reflects that there are four letters there and they ran the gamut from someone who said never let him out to the gallop and letter who because of her it what appears to be religious beliefs ultimately found it in her heart to forgive him and leave it to judge theory and to alex one's god to judge him and here in roger kwok ski's we had one cousin who didn't have those views twenty five years later we don't know what the other victims felt because we didn't find them they didn't submit anything we submit it was on reasonable to base a higher sentence on the issue of victim forgiveness and we urge the court to remand it for resentencing thank you