good morning james mcguire from the federal public defender for the district of connecticut on behalf of bradley comfort the owners probably come referred was first introduced to heroin when he was ten years old his sister then twenty three gave him and his best friend heroin as a result of that mr comer suits friend overdosed and died in the bed next to him his sister was sentenced to seventeen years in prison a sentence she is now unsurprisingly developed post traumatic stress disorder which he continues to suffer from from age thirteen through his arrest in this case mr comfort was almost continuously under the influence of drugs suffering from an addiction complicated by post traumatic stress disorder that led him by age eighteen to again being dictated to heroin this addiction is something that had developed over his teenage years and it by the age of eighteen was something that as he indicated to the probation office ruled his life he could not wake up in the morning without heroin and if he did not have heroin he like many other radix was physically sick and so mr comfort like others who in his position a twenty year old who had not finished high school whose employment consisted principally of working for a pizza parlor and gaining some experience watching a contractor work could afford to purchase heroin to stave off his own as it's called dope sickness by providing heroin to others and he did that and he provided heroin to people he knew in retail quantities of the record does not establish any specific quantity the mr come furred sold nor does the record specifically establish the mr comfort sold heroin that resulted in death the sentence in this case a sentence of nearly six years imposed on a twenty year old who had never been to prison before who was suffering from post traumatic stress disorder and who sold heroin in retail quantities to support his own addiction is substantively unreasonable and want to make clear that although there is both a substantive and a reasonable objection here from our view the first and most fundamental flaw in this sentence is a substantive one and the substantive problem in this case is not simply that the sentence is high but it begins from the fact that the sentence is a guideline sentence founded on a guideline that has no foundation unlike nearly every case that appears before this court and for other federal courts regarding drug distribution this case was not sentenced under united states sentencing guidelines to the one point one but under two the one point two it provision in particular the provision under which he was sentenced that so obscure that there are really actually only a handful of mentions of this the record does contain evidence that he approachable guideline in this case there is no question that that guideline applies the question is whether that guideline supports the sentence imposed and what we understand that generally the court give significant deference to the united states sentencing guidelines because of the work in the imperial work done by the sentencing commission as this court and as the supreme court increasingly recognized there are exceptions there are guidelines that are not based on that empirical work in the child pornography guidelines or just in the door be case kimbo before the united states supreme court addresses the crack cocaine guidelines here we again have a guideline that is based entirely on a congressional mandate the guideline is a response to a statute that says the offense level in cases involving individuals under the age of eighteen will be either two levels above what it otherwise would be or it seems to me that the trial judge here gave consideration to a number of factors his prior fact he was on probation and the fact he was on his way to buy more the trial judge felt he locked room morse trial judge noted that the government could have charged a different crime you know the death of an individual which would have triggered a twenty year mandatory minimum in line of all of these circumstances why why is this  exceptional sentence beyond the range of what what is reasonable sure and why don't i address that the last point the suggestion that the government could have prosecuted a different crime frankly that is speculative court judge heard the arguments that you've presented and we presume that the district court knows its authority to vary from the guidelines and appreciates how the guidelines are calculated and so on i i don't see in the record but maybe have overlooked something anything that suggests the district court didn't take into account what you presented and didn't misunderstood his authority to vary from the guidelines is there any reason to think that  didn't fulfill his obligations in the so yes your honor first i will again reiterate although we understand that there is great difference typically paid to district courts we are coming before this court with this assertion that this is an unreasonable sentence that the judge weighed and made considerations that ultimately led to a sentence that is not reasonable with respect to the procedural question of the judge's knowledge of his a very weird says that the district judge here addressed essentially half of defendants arguments and indicated only in as applied consideration of defense of the issues of mr fitting within to the one point two ignoring the larger question of whether to any one point two is a reasonable and based starting point for its analysis and the problem here is the judge did ultimately say this is a guidelines sentence and as defendant outlines this is a guideline that establishes a sentence many times higher than would be the case for someone who sold a retail quantity of drugs to someone who was say eighteen years old or older many times higher than individuals who sell more than retail quantities in makes no distinction between someone selling one bag of heroin and three hundred ninety nine grams and so the starting point for the judge even assuming that he understood where that he had authority to very had no foundation and yet that is the foundation off mr comfort claims that the district court court failed to consider his policy based challenge and i think that nothing in the record substantiates that claim judge thompson believed he  was addressing the claims that mr comerford made in his sentencing memorandum at the sentencing he outlined it specifically referred to the memo and the arguments that mr comerford was making and that he could look at the individual circumstances that were before him and he would make a decision based on those individuals circumstances he was expected to do so and that he he did so there and so there's nothing in the record to resort to basically support a claim that there is a procedure on reasonable mous in terms of substantial are reasonable and has the sentence was within the range of permissible decisions and judge thompson stated clearly the reasons why he was giving mr comey for the sentence he spoke a few times about the need for deterrence the fact that he believed the concluded that a sentence at the high end of the guidelines he believed was appropriate based on the circumstances and the conduct in front of him and given judge thompson's forward view of the facts and the factors that he considered and the particularly deferential view for abuse of discretion we believe it is substantially reasonable sentence if there are no further or if there are any questions otherwise the cover will begin by noting that neither in their briefing nor here has the government offered any meaningful defense of the guideline that is the foundation of this case nor for that matter did the district court i'm not are stand your point there i mean you're saying that an enhancement for selling drugs to someone under eighteen is is not warranted as a policy matter what i would suggest your honor is that to be one point two contain something that looks a lot like other guidelines it says generally there will be a two level enhanced meant for an offense that involved someone under eighteen it is a marginal difference typically the guidelines rationale is that if you're selling drugs to a minor there should be consequences for that i suppose the selling to and i don't because of the vulnerability of of the person to whom you are selling the drugs and  doesn't seem unreasonable to me what i'd say there is the same thing could be said of child pornography that being involved in child pornography should have consequences but this court made clear in the door of a decision that isn't enough that the guidelines are what anchor cases and appoint the court what i think is a persuasive opinion by judge posner it's not in the papers it's united states v rushton seven thirty eight f thirty eight fifty four at age sixty one so twenty thirteen decision points to what is essentially a significant body of social science research that says the guideline that number that the u s sentencing guidelines and in jenkins both citing defendants brief as well as the decision returning to the district court a sentence based upon the fraud guidelines there is now a body of law showing th court can and should look past the simple fact that this is a guideline sentence where the guy are you challenging all the guidelines sentences as being inadequately empirically based i mean the door vague analysis was very specific to the multiple counting and the empirical basis for the child pornography guidelines but are you are you making a similar argument as to the specific guidelines or just generally saying that they are an is entirely the result of a congressional mandate and so in that respect is like the guidelines at issue and i actually think they're worse because there is nothing here a congressional dictate so i'm certainly not saying that all or most drug sentences are subject to this critique in fact as i pointed out it's extremely rare for a drug sentence to be based on this guideline so no this is