this time here united states versus re medicating with marijuana but seeking help he accidentally went to the court house with a small amount of marijuana in his pocket when it was found he ran an officer chasing him fell mr reid made a series of bad decisions on the stairs i believe that's correct your honor but was not injured mr reed made a series of bad decisions is not in dispute but in above guidelines sentence which was higher than even the government was seeking was not reasonable first the court explained its above guideline sentence clearly the court said they were both guideline sentences necessary because of the seriousness of the offense that you committed the seriousness of the offense is the one sentencing factor that has limited or that he had framed it in part as an abuse of trust i don't i don't agree with that your honor in presenting the introduction about what generally the purposes of sentencing are the court correctly laid out the purposes of the supervised release sentencing however when the court turned to the facts of mr reed's case and started to analyze the appropriate sentence for mr reed the court never mentioned the breach of and then after  the specifics and see there was some colloquy were again the judge mentioned breach of trust after counsel objected to the court's clear statement that the above guideline sentence was because of the seriousness of the offen the court again correctly explained in canted the standard that should be used at a supervised release violation but when you look at the actual analysis of the sentencing the court does not mention breach of trust with respect to mr reed we've read the record and know exactly what the judge said here repeatedly about breach of trust but let me ask you why do you think that the seriousness of the violation is unrelated to the breach of trust i mean repeated violations of the law which is what your client was doing by being in possession of an ingesting marijuana is very different from you know going to new jersey without permission of your parole officer and so to the extent that the violence you see itself criminal conduct and to the extent that it is more or less serious criminal conduct i mean if someone committed a violent crime that would be different why it why isn't that that shows the degree to which there has been a breach of trust i don't agree with that your honor with respect to the marijuana mr reed had been using marijuana since he was thirteen years old using innocent make it anymore legal he had been given the benefit of a period of supervision and he was in repeated violation of it there were persistent marijuana abuse he was addicted to marijuana and that's true he also wasn't it wasn't really a simple session in the courthouse of a controlled substance but the court didn't frame that as a breach of trust the court framed that as a serial i would disagree with your reading of the court's court's statements but you're trying to suggest that it was all about the seriousness of the violation and i think judge sullivan understood that breach of trust was the critical factor but here he dealt with he was explaining that the breach was reflected in a serious serious violation why is that not right linguistically it's difficult if you equate breach of trust and say that's the same as seriousness a violation then this court's case one the you know i've been sort of fall apart followed what i've said he said these are violations that are serious and there are violations that go to the sort of breach of trust with the court and after a few more sentences he says the sentence is supposed to reflect that breach of trust is less about punishing the conduct itself because it could be criminally prosecuted for the conduct but he viewed this is a serious breach of trust and you're telling us there's error here and i'm i'm not sure i'm seeing it when i when i read the language of what the court said he said i'm really shocked really appalled at what you've done it was a big deal it was pretty terrible we have to focus on the seriousness of the offense he also token says and the seriousness of the underlying crime saying he was terrifying the gun possession charge well that's appropriate because basically what he's being sentenced for now is the underlying crime it's a conclusion that being given supervision was unwarranted and that he should have been given a longer sentence i don't believe us corrections was not a probation situation mr reed was sentenced on the original offense to more than probation recommended and within guidelines sentence he was not given a break at his original sentencing so this is not a situation where somebody gets probation instead of incarceration and then violates probation and the court of three sentencing based on the underlying offense mr reed served for thirty three months of imprisonment addition to three months of state incarceration which the court had taken into account in giving him thirty three months instead of thirty six months so in the court's view the original sentence was actually towards the high end of the guideline range would you remind you arguing also that it was improper for the district court to consider the seriousness of the offense here you know this court has made clear that it's ok to consider it to a limited extent so it's a limited degree to a greater degree than was yes your honor and defense counsel recognise that immediately an objective which i don't have vast experience but it's not that unusual that are there are preserved sentencing  errors because the judge to such clear language said the above guideline sentence less than eighteen months would not do justice to the seriousness of the offense that you have committed the court made it clear what it was relying on and that's significant a breach of trust was and this was a profound breach of trust this was one that involved not only repeated and rapid failures of drug tests and by that i mean almost immediately after the defendant was released and placed on supervis trust but he focused to an undue degree on the seriousness of the offense conduct and that that was improper because we've got the limited degree language what's your response to that so i think  unfairly parses judge solomon's language there what he did was repeatedly is he considered the serious an offense in the context of other factors that this court has said is appropriate so for example he said specifically this sentence is about deterren this sentence is about promote protecting the public and he focused on the seriousness of the offense in that context and how this occurred in a courthouse and how at a courthouse a public space where children and the elderly appear there was a necessary rationale to ensure that the public was protected not only from people barreling through the courthouse on a chase but also so that people do not feel afraid that is precisely what this court said and united states williams was appropriate in fact in williams the court said it was impossible to consider factors like deterrence and promotion of public safety without looking at the series as offense this case is a paramedic example of that how can one consider how the public safety threat should be addressed without considering what the threat is so judge sullivan did exactly what this court commanded and i think what you see repeatedly in your honor mention how often he repeated breach of trust he also repeatedly stated that this was about deterrence he explicitly stated that and when questioned or when the objection occurred he again repeated that breach of trust was the primary factor but the public safety and the nature of the conduct went into a great examining exactly how egregious a breach it was and that's entirely appropriate that's exactly what the court said should happen a williams a written statement explaining the reasoning no your honor beyond  but i think very thoughtfully and detailed and in detail matter tied every aspect of the sentence back to a factor that's been determined to be permissible and that's in fact stands in stark contrast to the one case that the appellant principle replies on which is the cindy mckay's where there the court said look our problem here is we can't figure out how the district court arrived at such a substantial variance and in that case the sentence was thirty six months twenty six months over the top end of the guidelines range whereas here you have a four month variance from the top range of the guidelines for simply the grade b offense in addition to which you also had four other violations each of which had guidelines or as the five to eleven months here judge solomon in contrast specifically articulated his bases he did focus on it being a court house but his focus on it being a courthouse was tied explicitly told me to protect the public and  can't just parse it out and say it's impossible to consider or it's great you can't just parse it out and say look he should have just focus on the breach of trust without talking about what the conduct actually was the problem the problem the issue is  that you have a serious point to this we've used the language of in the degree i don't know what that means yes or us as that yes right i think you're right there is certainly in the guidelines and then also in case law interprets the guidelines a limited degree is languages can use for how you're supposed to factor serious events by itself and williams itself does not say that serious offense cannot be taken into as a factor but that's not what john sullivan did here he certainly quoted and discussed the seriousness of the offense but it every single opportunity he tied it back to factors that the statute thirty five eighty three explicitly required the court to consider what the appellate position is essentially the judge sullivan shouldn't have considered the factors of the statute told him to because there's no way is this court recognized williams to consider all of those factors without looking at what actually happened disclaims that argument so simply when you look at when you look at the factors that are supposed to drive the analysis for what constitutes a breach of trust among them are thirty five fifty three a one the nature and circumstances offense that's one of the statutorily articulated factors there's no way for judge sullivan to consider that factor without them addressing what actually happened and that's essentially what they are asking is do not consider w actually happened or consider it to a degree where practically does not matter and that is an impossible analysis to undertake particularly for a district court judge confronted with such a persistent problem so the court has any other in preparing for this i spent some time thinking about what a limited degree means and how it fits into this court's case and supreme court case law and i think one answer is that the goals of sentencing for a violation of supervised release are different than the your original sentencing because supervised release is supposed to be this period of transition and rehabilitation to the extent that somebody commits a new crime as tragedy points out that can be charged as a new crime in the government's discretion either the state or the federal government the supervised release violation isn't focused on that it's focused on what the violation means in terms of the conditions of release and the trust that the court has put in the no longer be criminal and that would be a priority that in the state it would become non criminals so of course it's still federally criminal but to the extent they were now considering the seriousness of the criminal conduct i think this is exactly  well i think it goes to the fact that it was persistent and it was in the courthouse now so your argument is that it should be different from considering the crime that can be dealt with by indictment and charge but you have to show us why the judge abused its discretion here yes your honor and i think the reason it's important that that the crime is dealt with by a different entity because of that the court's sitting in judgment on the supervisor of this violation isn't asked to engage in this weight of how bad the crime is that's really a question for somebody else this court here made clear that it focus was on the seriousness of the offense and if this court's case lies to mean something that it has to be considered only to a limited degree it can't be ok for the court to say i am focusing on the seriousness of offense as driving your guidelines the range that is called who are in the sentencing guidelines what is it permissible to consider how serious the offense is in deciding therefore how serious the breach of trust is yes right it is permissible