his criminal history category was to win the district court in judge imposes a senate that is above the guidelines the way on interpret the law there's really two broad categories that can be utilized to do that one is is what judge strange was describing is that the sit in that issue about six weeks ago the boucher decision what i would describe as the individual eyes facts specific fact brevik a specific analysis where you have to distinguish the case from the the mind run case the fault in the god lives and the other is what judge clay was describing approximately ten years ago in the herrera is a nigga case when the district court just rejects on a policy basis the guidelines and i think both of those arguably could come into play in this case or at least for consideration in our opinion the the the policy based rejection is not the basis for the district court judge decision in this case we think it is a individualized factor of a case specific decision but it's not sufficient to take it outside of them on road of cases in the reason why we say that is there is three separate occasions where the district judge explains why he is considering and justify the upward variance the st is there in the change of  accepts the change of plea he advises the parties orally that he is going to consider and upward barriers and during that he explains why he  whether i will vary upward or not but it is clear to me that based upon the pattern of returning to the country into this country illegally after having been previously removed with very short periods or a short period of custody the question is whether he war sense above that eight to fourteen months right so we know from there what he's looking at primarily is in this case that pattern of returning after being ordered removed released that's how he construe and what is the mind run case for the number for well we know there has to be at least one because it's an illegal reentry case so by statute there has to be at least two illegal entries one is the original illegal entry with the individual comes in as found here and then ordered removed and then they come back again because it had to re enter another and they're removed from the country again so we have at least lowest level that's the lowest level but case law is replete of cases where there's more than that one interest and it talks about when there's more than one injury included eps you might find this with an explanation of what is what is going on specifically in that case and how the district judges explain how the guidelines don't adequately consider what is going on with that individual and those guidelines for example why is the criminal history not sufficient because the guidelines and this is in balance or in your out of talks about how yard looked at and worn for the district judge had said the reason for the upward variance was just criminal history and your well no the guidelines specifically contemplate criminal history it's officially contemplated so that's not a sufficient basis for an upward variance as it's already been accounted for that's exactly right well in an illegal reentry case criminal history is the same one it's already accounted for in fact it's accounted for on both sides of the axis one least in this case you get the plus four hits but on the offense level plus they got two points from a criminal history category if you allow it but were various then for criminal history which would judge said as it's not double counting it's triple kidney st criminal history it's just in re the country before you started getting these convictions would have been the illegal as well which would add up to my reckoning to three illegal entries he has three illegal in of the initial illegal entry it just seems to be saying that he thinks that this fellow is encourage your boy and therefore he needs to increase or enhance because or an open deviation even because the guidelines are to contemplate the criminal history and that's criminal behavior entering the country illegally so because the guidelines are to specifically contemplate the criminal behavior and when you're looking at the guidelines the course a lot of consider not just convictions it's also a lot of consider other criminal conduct it's already considered in here if you allowed it because he's got the four  the other thing i think is important to point out is there's no doubt that the judge has very strong feelings about immigration and how that should be enforced but he does not use that as a justification for the sins of the strange i mean i would interpret the record to suggest i agree with you that it was a combination of both and can we say under the totality of the circumstances he had both both a policy based reason vidual circumstances reasons and why one of the combination of the two make it reasonable and i'm curious on your thoughts about whether you think under the under which i believe says you're allowed to depart for policy based reasons whether his policy based reasons in this case to be reviewed after reasonable to us and if so do you think it's reasonable y there's no doubt that there is discussion in the record about what can be construed as a policy bait policy based rationale for the problem is if he explains the basis for the upward variance on three separate occasions once during the change but here he never mentions anything about the policy based basis of there he does it again during the written notice for the upward variance nothing about policy based variance there he does it again during the sentencing hearing and all the way up until the senate's b pronounce there is virtually nothing in a ballot a policy based justification for the upward barriers there is one line in there that arguably could be construed before the senate is pronounced that could be arguably a policy based  basis for the upward variance and it's basically we're talking about the recurring pattern deserves a harsh or sentence but it's up until that point that's the only thing that i think arguably could be construed as a policy basis it's not until after the bostic procedure the bostic objection is followed that the district judge then explains what i think is probably clearly a policy based decision at that point so because of that it's our position that the that the basis in this case for the variance is not the policy based basis although those may be his true feelings it's not part of the record for the justification for the sentence which took the basis in the record is the individual last analysis and what he provided for that basis is sufficient for the upper basis because the driving factor appears to be the criminal concede that if we take into account you should lose and you're on the argument here is that there really wasn't a policy based argument do these theorems on that if we think you are if we disagree with you on that procedural question about whether he took these policy considerations into account to to substitute reasonable analysis so we still have to look at the same factors is this a substantive substantively reasonable since in this case and in doing that we still have to look at many of the same factors which is is a twenty four months in it for a gentleman that only has two convictions one is the prior illegal reentry and the other is oprah operating a motor vehicle while under the influence is a twenty four dollars much senator with his g could bed be the real problem here well i don't think well he attempted to explain it on three separate occasions and he has certainly put in the language of what he was justifying it with he says criminal history says history and circumstances he says the need for adequate deterrent so he's going through the analysis on the end then he even gets more case specific he talks about how he only got the one hundred and forty day one hundred and forty day sen previously how that wasn't sufficient so i think he went through the analysis i think he explained everything he intended to explain i just don't think it was sufficient to take it out of the modern run case thank you thank you and the competing considerations there are some of the three thousand five hundred and fifty three factors that may have supported the defendant's argument but there were significant factors at the court considered that warranted an upward variance here you agree or disagree with the notion that policy disputes with the guidelines came into play here and i do believe it came into play the way the district court reasoned his sentencing he really grounded it st in the facts and the pattern of the defendant returning into this country particularly with then he had that three week roughly period then he has a one thousand three hundred and twenty six dollars conviction and we know at most between his last removal and his a rast was a year and a half so these are pretty short periods of time where the defendant is continuing to come back after having  conviction after serving some prison sentence that's really what the court grounds the sentence and explains in the variance however he does also indicate that there is a strong need to afford adequate turns both specific deterrence to the defendant as well as general deterren for other individuals who continue to come into this country illegally in violation of the immigration laws so he indicates some of that before asking the question i believe it's on page id nine thousand four hundred and ninety five he's explaining how you know he feels very strongly about this and that when there's a pattern of ended we're continuing to violate our laws in coming back to the country and that's where it's important to give them a sentence not just a slap on the rest not just a time served sentence like that offending got for his and twenty six conviction he explains it's important that they know they're going to serve a period of years not just minds i'm struggling a little bit with the range here because we got twenty four months we see three hundred months two hundred months all the time and so twenty four months just doesn't sound like a lot of time but if you look at what's going on in the case the ronnie was actually eight to fourteen months so if you take the middle of their range that's one hundred and nineteen percent increase that's a considerable a mean it's double and i think the other thing that i wouldn't  like you to address is that that the court doesn't compare it to the the running except for technically what the court refers to in giving the sentence is the statutory maximum of ten years in the case and the guideline trying is just a small percentage of the statutory maximum why is it proper to use the statutory maximum penalty as the booking and in making a resolution of the guidelines range going or i think there are two ways to address that st it's important to know that in the guidelines when you enter the prior conviction was a kind of find the guy range both with the four level increase as well as with the criminal history points that he score and however it did not take into  account those really do not take into account some of the stats for a penalty so the court was looking at we're looking at eight to fourteen months he repeatedly says from the change of plea hearing to the notice that he provides to the to the actual sentencing hearing but he just does not think fourteen months is sufficient and when he's explaining why he's giving this variance he's explaining that he thinks that a term of years is appropriate here to afford adequate turns given the defendant's prior pattern and when he's explaining that he's saying i'm giving you twenty four months which is two years i could have given up to ten that's what the statute allows me to do in comparison to that statutory maximum we're looking at a very small percentage of the guidelines the guideline range was a very small percentage and it was a th of what the maximum was and additionally he was trying to explain i believe he was giving his opinion as to there's a lot more and that he a lot of room that he could have had and based on the facts of this case and based on the pattern he thought just in us not to use this very fact specific comparison between case to case because it does change so much but when we look at some of the cases that we highlighted in our brief there they were sentenced for twenty four months notably that was the  that case and the guidelines range was much lower it was two to eight months so there was a sick brains which is a much higher variance in here compared to both the percentage of the guideline rand and and what were the crimes in that case and yeah and the number of free entries so you know he had illegally entered the country four times and had three convictions for either driving under the influence or driving without a license and those had occurred after reentry right i do believe so you and then this nd one right so i'm looking at the comparison and no it's not exactly right i'm just struggling with this concept that the supreme court has said you need to look at these cases if they're my moron then they ought to be sentenced in the mind moron of the guidelines and if you don't do they at then we ought to be giving the closer so what would close a review big when you're giving me cases that have three or four crimes for reentries and there's an increase and here you have two reentries and one prior crime back that's a key fact that the district court noted that's a very short amount of time clearly he was not deterred from coming back into the united states and when he returns he also has documentation he's falsely impersonating a u s citizen i believe it was a birth certificate and an id so he not only is coming back to the country but he's coming back to the country with these counterfeit documents trying to indicate that he actually is a u s citizen so that's like an important distinction here that we don't always see in these other  ready for the majority of the time that he's really presently in the country in two thousand and sixteen we don't have the exact date as to when he returned but we do know he was arrested on a failure to appear warrant for child endangering so we know that at some point there was this warrant that was issued for him when he returned to the country and that was within a year and a half from his prior removal so we're looking at somebody who has this pattern of returning to the country some cases and just within weeks or within you know less than two years of a prior removal and he also is engaging in this criminal conduct he has this outstanding warrant he's showing he's not listening to court orders peace not appearing for more and he hasn't been deterred by the search twenty six conviction he got a time serve sentence in the last time that clearly did not deter him from most within a year and a half coming back into the united states so all those key factors was what the court was focusing on in saying you know this is not your mind run case some of these cases that we looked at including the trista magical case which was cited both by in our brief as well as in opponents bereaved that when they were looking at for reentry was over eight years so here we have we know two within two years from when he  removed and when he is removed for the nd time and comes back and then we know that that was his rd time coming into the country we're not sure exactly when he came in the st time we're not sure exactly when he came in on the rd time but it's a very short period of time he's a young man i believe the p s r indicates he's thirty years old or something along those sorts so there's a very strong need here for a deterrence and that's what the court was focusing on and i think it establishes it differently from some of the monkeys that we might see where maybe they have a prior removal years ago and then they come back maybe no criminal history other than the immigration offenses so this one we do see him here committing crimes and we also see a very short period of time in between his removals despite the judge ordering him removed despite the one thousand three hundred and twenty six conviction he's still coming back and so those are really the things that the court was emphasizing when he was saying you know guideline sentence for two months is just not enough so he's considering here's what we would have this period within the guidelines range for a minor in case based on this pattern he's not a minor and he's fourteen months is just not enough and so that's why he buried up to the twenty four months and he went through an extensive discussion of the p s r the defendant's history and characteristics and the discussion of sentencing disparities or he he did not explicitly say that but in the when he's considering the guidelines range i think that was him implicitly saying he's looking at the guidelines range of we would which as your honor indicated is really where the mine run cases are we use that as kind of our benchmark for sentencing so even though he didn't explicitly say he was discussing disparities or looking at other sentences i think considering the guidelines range and then rejecting that is not being sufficient was his implicit way of comparing the disparities in sentencing and again he wasn't he didn't fail to consider relevant factors and he didn't respond away a pertinent factor so when we apply the appropriate deference to what the district court did his determination that twenty four months and ten months up from the high end of the guidelines range is sufficient but not greater than necessary that was an appropriate discretionary determination and as murphy indicated there are policy reasons as well that the judge provided i think he really based it st in the facts of the case but also did indicate some policy considerations and we see this think the court was saying the laws itself we're too lenient i think you're saying we need to up hold the law and oftentimes we do see these defendants getting time served sentences which usually a lot of our cases we now have a fast track system so they're in custody for just a few months and then they're removed as soon as the case is over so i think that's what he was getting at was some of the policy concerns was that you know the guidelines range or these times are sentences just really are not  just not enough and that it's important to make sure that we're up within the law and he indicates you know he feels very strongly about that we need to hold the line that we need to impose a sense of not just months but years and so i think you know he's considering the guidelines range and i think an addition to that he's also addressing the fact of the prior sentence where he received the time serve sentence which was really just a slap on the wrist so i think he was kind of conflating the two and he was explaining that but he was indicating that the case doesn't it look at the same sort of statement that this is the most disrespectful one person can do to a loss which is comparable to this case and commented that if congress or the sentencing commission had felt that was the case then they would have perscribe harsher sanctions so that that takes us back into the guidelines which use the choice of the legislature of the guidelines  very almost one hundred and twenty percent but i could have given you ten years well the guidelines range is selected for a reason and when he had the  that didn't move him up in the statutory maximum but that's the ceiling that the legislature said you just can't go beyond this and to bracket the head is the appropriate booking and to consider how honor was referring to i think when we look at the amount it was ten months in addition to the high end of the guidelines range that was reasonable given the explanation that the court provided both the factual the facts that he wanted my biggest concern is if the district court's justification for senate seen mr president yes here is this pattern of committing the same criminal congress by being removed really entering and that would justify an up or departure in the vast majority of federal criminal cases because we have free will and we have repeat offenders in the federal system virtually nobody coming to the federal system as a st time  hanson for the gods i don't believe it does i will tell you as a matter in the real world if somebody is here illegally as a general rule they are using a fake identification they have to do in order to be able to work somehow so almost every single case is going to have that so i don't see how that would distinguish it from the normal case that should fall within the guidelines it's almost always going to happen now with a person to a law enforcement official when they're being arrested whether the law enforcement discovers  that could be a separate issue but as a general rule if somebody is here illegally they are going to have some type of fake identification or be able to just ranch ask to talk to if there is any discussion about the sentencing god line and this statutory maximum and how different it was compared to other guidelines and other statutory maximums and the statutory scheme and how this guideline a range in compared to those that's another reason why we don't think this is a rejection of the guidelines themselves that that policy based argument just doesn't seem to fit well because he's not looking at it that way he just doesn't like it it is the best way to describe it it's not  a valid analytical analysis of the guidelines of saying it doesn't fit it's just i don't think you give them enough top under the guidelines for that reason we would ask your honor to honor to find it unreasonable and vacate the senate