united states versus this is eighteen to one for four we'll hear from the bacharach and may please the court counsel assistant federal public defender for defendant appellant derek this appeal raises several questions about the substantive reasonable ness of a life sentence for a man convicted at trial of raping one woman on a single night but who has no other history of violence or predatory behavior although the guidelines recommended a life sentence the district court itself specifically found that thirty years or even less would be sufficient to fulfill the goals of sentencing the p the st sentencing right and your honor he found it at the nd sentencing to if you look at the transcript volume three at ninety seven dollars he says we certainly want to sentence that promotes respect for the law that provides just punishment that affords adequate deterrence but i think that any sort of sentence that we're talking about on the specific and general level is going to provide the us now with regard to those three senate seat objectives that's one of the  two so it's only certain number of the factors so what this court has said in explaining the person in principle i think martina's barragan and conlin is this court has said you consider all of the things you consider the guidelines st and foremost you also consider the fact of the case you consider the history and characteristics of the offender but those things are not part of the parsonage principle those are sort of the factual inputs for the district court the pursue many principle is what set out at the top fifty three which says a sufficient but no greater than necessary to fulfill the goals that are in the two and so it's only a two so if you look in that this is most of the person many principle it doesn't specifically talk about that quote does not talk about avoiding unwarranted sentencing disagree with that i'm sorry this one doesn't talk about making sure that we provide the adequate you know logical treatment  but the district court had found at the original sentencing hearing that he could do that at the term it's proviso released and he didn't make the contrary finding at the nd sentencing hearing where the district court was focused on at the nd sentencing hearing with very small change to the guidelines why to follow up on judge seymour's question why those with the district court said at the st in a swing what does what does it matter i did your honor i think the district court very much thought that it mattered that district court went through both hearing and then eighteen months later when it issued its order and went through all of its findings at the original sentencing hearing very specifically i think that that's one reason and one is that we have to look at this record as a whole and that is part of record the district court made findings at the original sentencing hearing he did a lot of comparison at the resentencing one of the things i think that's most important of the comparisons he made is that he said if the recent saying and this is from the  order issued supporting the judgment that the facts and factors that were driving the sentence were and i would like to quote the brutality of jim's crime and his lying he said those have not changed so even though the guy hadn't had for harm to the victim our court reversed that decision so something had changed he had to add two more points and he had to consider those facts in sentencing he did consider those facts in a different fashion if you are i'm not sure if you consider them in a different fashion obviously the guidelines changed and what this court said during the original appeal was we need to be looking at both the actions of mr jim and then also the impact on the victim and that's why this isn't double counting and yes you should add that is that the district court said ok i'll look at those but he had looked at those underlying facts you take them into very serious consideration of the original sentencing he and then the guideline to yes your honor but again the life sentence guideline from the re sentencing life was part of the original guideline range at the original sentencing hearing the government requested a life sentence at the original sentencing hearing gone up two points on the offense level and he only went up one cause he was the top that's correct your honor and when when a defendant shows that the court calculated the assists of the proper sentence hast to start at the correct guideline range the st sentence did not and the slate is wiped clean and we start again looking at the sentence when the recommended sentence was life and your honor we definitely re man and from this court this court does anytime there's an error calculating the guidelines because it is very important to start with the correctly calculated range one of the things that the district court did wrong here is the district court may as well not have calculated the guideline range at the beginning of the sentencing because the district was so hung up on the idea of i want to give the guideline care what the guidelines sentence was the court was very concerned with providing a sentence that was consistent with the recommended guideline sentence for uniformity for the whole purpose of the guidelines and your honor with the st part of your question i get that because he repeatedly says a guideline sentence a guideline sentence when he's performing the rest of the analysis under three  when he when he does that he's not saying this is a life sentence that the guideline is recommending this means this person will die in prison this is a decade or longer maybe more than the thirty year sentence i gave before and this person will die in prison even though i previously found that this was a person who really would not pose a danger to society if i let him out when he was in his fifty's he doesn't grapple with that and say how it is that suddenly that's not true anymore that suddenly the simple fact that the guidelines change means that this is a person who will now die in prison and that that is no greater than necessary to fulfill the goals of sentencing but in terms of uniformity your honor i think i address this in depth in my brief this really is an outlier sentence there are not a lot of rape cases that go to trial in federal courts obviously because it's not a lot of jurisdiction you know the cases that you rely on and you brief almost all of them are easily distinguishable is there any case that you cite where the recommend the guideline sentence was life in prison your honor i don't know the answer to that question i think  there's not a single one of them where when you calculated all of the sentence enhanced men points under the guidelines the person was facing a life sentence and you can't do that you can't pull out  case that doesn't have the same facts and say that it proves that this is not consistent and your honor i actually think that this is one of the reasons that following the guidelines is not a way to promote consistency when you have so few similar cases that are in the federal system well that suggests to me more reason to follow the guidelines you can't just look at a body of cases since figure out how people are normally sentenced for this type of crime and so you rely on the body that was assigned the role to figure out what the appropriate sentences in this situation and your are i think that again in most situations where there are as a large amount of input both that went in when the supreme court said that the guidelines in certain cases can be used as sort of a proxy for avoiding sentencing disparities is doing that in the context of a drug case that's a situation where as the supreme court noted there were thousands of cases that were used by the guidelines commission as inputs there's many many cases going through the system now and we want to avoid national disparate the problem that we have here is there are so few cases there are it's very hard to find them i don't unfortunately have exact statistics but it does look like maybe one or two of these cases are going to trial year it's very hard to promote uniformity in that situation when you follow the guidelines the guidelines are re ahead i have a question but i want you to finish the guidelines are really created for situations where there is a lot of data input and so it can really promote uniformity it's a philosophical argument with it and you put it very very we'll i think you're asking us to do is to say distinguish golf despite the broad language in golf the supreme for specifically said that the district were necessarily gay significant w consideration of it to the need to avoid unwarranted disparities by applying the political guideline range and you're asking us to say now with the supreme court didn't really mean what it said it at all because that particular guideline was this one there are very few cases that go to trial i don't i don't know that i saw any empirical proof of that but it's probably true but how can we say ok we're not going to apply golf because we think the supreme who are really just was not giving due recognition of the fact that there are some guidelines that are inherently based there are some that cases that freaked infrequently go to trial and so don't apply g even though that's the supreme court that's a whole and your honor i'm not asking for this to be the sole reason that this court invalidates that sentence i think that it provides considerable context to the court to to show the court that it's really a life sentence here is an outlier sentence to show that the guidelines yes there are not cases that i cited i don't believe where there was a life sentence and then a downward variance but they were also calculated differently than how this district court would have calculated that there are clear abductions where no abduction enhancement was added clear obstruction where no obstruction enhancement was added and so those are totally different cases what's our standard of review here this standard of review here your honour's abuse of discretion but again the abuse of discretion wasn't in doing what paul said was ok the abuse of discretion was in finding that a lower sentence was sufficient but then saying i'm going to follow the guidelines anyway but there were different factors he was weighing because he had to add those two points and was told they were considered separately from the underlying sentence plus he had all these reasons which are ignoring for raising his offense level including the fact that he perjured himself in court all of those things at  and the change between of and we reversed the st time when the district court reconsidered that was he was required to consider harm to the victim separately which he hadn't done earlier in your own  art he had not done it with regard to the guideline calculation but the court had very certainly considered the harm to the victim he had just heard about it was included in the underlying sentence so but then she specifically said your honor although i'm not adding  defense levels i am considering the impact of this on you this was a particularly brutal crime this had physical impact emotional impact it was i think he said it's not impacting the sentence he said that's right your honor i think that's  important it's not only that it wasn't enough to add an additional offense level in the court's mind the court didn't think that it was enough to go a day above the law to move the guideline range because he just didn't think that those facts particularly distinguished it from other rape case so i think that that is an important finding that that that's a finding that supports mr jim's argument that the district court here again was being very driven by the guidelines to the exclusion of his own findings about the persimmon principle and the purposes of sentencing a sentence with an guidelines is going to be presumptively reasonable and the only way that this court can find that a sentence is unreasonable is if it finds that the sentence was arbitrary capricious whimsical or manifesting and reasonable i would submit to you today that the correctly calculated guideline sentence was reasonable in this case as you just heard the defendant claims that there was no change between the st and nd sentence and let me tell you back to an appropriate sentence for this crime at that point your honor that's also taking into account of course acceptance of responsibility the time and costs associated with the government's having to take the case of trial and particularly the harm that it might do life in prison because he withdraw from his withdrew from his plea agreement and went to trial i mean doesn't it sound a little bit like a trial penalty rather harsh trial penalty would start with the fact that that was an eleven c one c agreement that it wasn't even clear that the court would have necessarily accepted so that was an agreement that the government provided based on the factors that i just knew that was not necessarily accepted by the court and all those factors have to do with the fact that he wasn't going to go to trial correct correct so the government after he decided to go to trial went from being happy with that sentence of one hundred and fifty six months to pushing for life in prison it was not a trial tax or i know that's what you're getting at this is a situation where we went to trial and then the defendant got on the stand and he lied he perjured himself and didn't show any remorse for what had happened so it wasn't a trial tax it was a penalty for getting on the stand and lying under oath so there was that as well as well as everything else that we just discussed in terms of the reasons that you would offer a plea that satin that is that low and then going to trial and everything that goes into a trial on behalf of the government but it was not a trial tax and again it's not even clear that the court would have excel it's the difference between would define what a trial taxes that's a good question and well it would be penalizing essentially a defendant for going to trial but here his correctly calculated guideline range was life in prison so the government didn't decide that that was going to be the well the government has a lot of influence over sends depending on how it's charged and obviously there cross appeal to us that added two points which is what raised him to the life sentence this ability that is true so i mean you can see why a defendant might feel like in fact he's being punished for going to trial here when the original agreement was one hundred and six months i can see why that would be the honor but i think there are legitimate and reasonable reasons that the that the sentence went up to went up to life in prison and outside of the government's control like i said i believe that the that the guidelines came out to be what they came out to be district court again may or may not have accepted the agreement as it was set forth by the government so it may have been that the district court decided and rejected that plea and would have had good to go back to the drawing  board going back to what we were just what i was before your question and the defendant is claiming that there was no change in the st and nd sentencing judge the more you pointed out that there actually was a change and here of course we went from a guideline range of three hundred and sixty months to life to life in prison and so that was one change additionally the court looked and i think this is really important the court looked a lot more closely at the severity of the injuries when it just asked whether or read through what he was trying to say and i think can be read that the judge was looking at the fact that he had two prior dwi use prior to the incident in this case and then did nothing to address his alcohol issues just say that this is a this factual issue this actual error that the defendant raises is a procedural issue and if they had an issue with it that should have been raised if there was a factual error at the district court level that being said  your honor it's it's a difficult it's ambiguous as far as the government is concerned the argument could be made that he was taking into account the fact that he hadn't addressed these alcohol issues prior to the rape that he was extremely intoxicated the night of the rape and that the court found not that it enhanced the sentence not that you can enhance a life sentence obviously but it didn't counsel for a variance either way and to move even further that was just one aspect of the entire sentencing scheme that the court looked at so even let's accept for a moment that there was a mistake that we go back to the fact that there were these extreme injuries that judge says we only appl points in the extreme case the case that outside the normal realm of what a curse someone when they're sexually assaulted and judged browning went through and i we we outlined on pages nine and ten of our brief exactly all of the things that happened here and what he thought where extreme circumstances warrant the two points and i don't know that i disagree with really anything that you just said can i tell you what sort of the  issue that i'm struggling with is you started your argument in a steroid correct in answer to just seymour's question that the standard is abuse of discretion but one of the reasons that i think our core i think every other court  recognizes the ability of the abuse of discretion standard is that we presume that the district court is not going to mitt illegal missed it in exercising his or her discretion and if the district court here did make a factual mistake with regard to the mistaken belief that mr jim had not taken steps to correct his alcoholism then giving a post hoc justification under the forgiving standard of the abuse of discretion standard of review ignoring the elephant in the room and that is that the district court exercised his discretion based on a factual mistake in which we did not if the judge had not made a factual mistake borrow go back to the position of the government that i don't necessarily think that a mistake was made yes i understand that you may think that it's a thin reading that it could be any big u s but its position of the government is that it is ambiguous and it can be read the way in which the government  mean isn't that mean wouldn't that suggest it's the ambiguity here it be odd when it for the sentencing court to say you didn't do anything to address your alcohol problem and not know that of course  sander stan after the rape you've been sober for five years mission that way in there somewhere well except for the fact that i believe that mr jim was in prison that entire time so he probably wasn't able to you probably wouldn't be surprised that we see a lot of cases where people in are in prison and they're not clean and sober that is probably it is also a true statement your honor however i'm just going to stand on the fact that i think that the district court statement can be read both  guidance from this court about how he should take into account the injuries that were significant in this case it was this was a brutal crime and despite the fact that mr jimmy had not of had any violent crimes in h past the brutality of this crime caused the sentencing guideline range to be life in prison and judge browning accurately and appropriately analyzed everything about mr jam and found that a guideline sen appropriate we would ask that you affirm the sentence in this case remain and on the one issue judge seymour that we have conceded and unless you have any of further questions i will be  seated thank you thank you mr jim as far as we know was sober for about six years before this crime happened as well he did alcohol treatment as required by the new mexico state courts the government did not argue procedural reasonableness in their brief and moreover in this court in barnes said that reliance on facts that would make a decision out of bounds is also a substantive reasonable issue relying on false facts would be a subset of reasonableness issue would be an abus discretion and undermine the presumption presumption that within guidelines sems was reasonable in this case thank you counsel this barrel be submitted