substantive reasonableness review i acknowledge it but we believe this case falls within the scope of that review because of two unusual features of the reset and sing below first the only reasons cited by the district court for imposing further incarceration upon ms platt didn't distinguish her from any other relevant defendant and second the district court for the reasons we explained in our papers gave an reasonably short shrift to all the mitigating factors that if anything called for a greater variance than it had previously imposed not half the v it decided to oppose upon resentencing so it's based on that individualized application of the thirty five fifty three a factor is below that we're arguing the thirty month sentence was substantive unreasonable so i should say that thirty months may not seem shockingly high as an absolute matter to a court of review it's accustomed to reviewing vastly longer sentences but our point here is that there were no individualized reasons justifying the sentence that the district court gave turning to the reasons that the court cited earlier that we would find a set of reasonable  y that's absolutely correct your honor but it is not really that you have to overcome of course your honor so let me turn to the reason is the district court cited for giving the sentence that it did below the guidelines range and the length that it imposed all of the guidelines range of the court referenced ms plats what it referred to as her high level of culpability and by that it seems to have meant both her willfulness in that she knew what she was doing was wrong and the presence of vulnerable victims but neither one of those distinguishes plat from any of the defendants in the case in fact that city i mean these were these were aggravating factors that it formed the guidelines in the district court found that they applied to her the reason your honor is that wilfulness isn't an aggravating factor it's on element of the it but he did find that you know there was nothing nothing that mitigated her involvement in this crime that's true your honor but we believe that that was an error for the following reasons the district court we offered to the district court three mitigating factors ms plats contrition which had changed since the previous sentencing she expressed contrition twice both orally and in writing to the district court the district court rejected that essentially saying that it should her letter showed more more attention to s analysis of ms plats demeanor but your honor the letter is in the record it is not in the appendix but it is document number three six eight six in the record below and it begins by aig not accepting responsibility ignalina the harm that ms platt caused to the victims and in fact her oral statement which appears at page one ninety four of the appendix only refers to her acceptance of responsibility and her remorse that what is that she did  addition your honor the court essentially minimized the fact that ms plats son died after she was released from jail on appeal on this prison after the previous appeal and in addition to the fact that her husband had died and her mother had died that left her with no financial prospects at all the courts react to this record the burden to address specifically each one of your arguments and so he's considered we have considered the remarks here today by you and your counsel remarks because the government does he have to go through and say ok now as to the letter about your son or you know it consider that as well what's the burden on the district court to respond to your argument i think that the district court filled its burden and we're not raising a procedural reasonableness argument we believe that the court did all the procedural things that it was required to do what we think was faulty was cutting the variance that the court imposed in half from the prior sentence even though the developed record required if anything more of a variance because of what had happened to ms plot in the interim or dicks like you said that it depart or very to a greater degree at the initial set because it was operating with a higher loss level and he thought that that him somehow unfairly aggravated the defendant's sentencing range once the the last figure was lowered the district court explained that it didn't feel a need to grant the same percentage departure i will say that we are you know the proportions thirty five percent thirty eight percent is not wildly different if i my time is up me if i can address that answer the question your honor as to those two points as to that point your honor the court misremembered what david did done in the prior sentencing so in that colloquy between me and the judge which appears on to a one of the appendix the court said that it had previously departed from the heartland because of a lesser lawsuit now but in fact if if you look at the what in fact the court did which is on page one sixty one sixty one and one sixty two of the appendix previously it had set ms plats own personal loss independently of anyone else's loss as the absolute minimum for her sentence and then said that he thought the jury found that she was responsible for more loss it then went on to a plot to say the reason that he was departing from the heartland was because of mr platts role and profit as part of a spectrum of offenses but that isn't the reason that reason is the same both in the prior sentencing and in this sensing her role in the offense didn't guidelines the first time six percent off the second and for no discernible reason that we can see judge reggie addressing your point about the factors judge thompson considered i agree with attorney darrow here the court miss recall that analysis in the first case it did a functional analysis and it concluded that this pyramid scheme was not operating as a typical one did because people rotated through the top and these individuals to the extent that they gained they gained in a like manner with other participants so from our view  on reasonable to give a certain discount on a functional analysis of a heartland departure of twenty six percent in one and six percent later there's no principle distinction between the last judge in the original on this factor on this record it's not how the court decided the case the first heartland analysis was purely functional in character and so this court's going to have to conclude whether a difference in amount of difference in in amount yields a difference in kind and i think that's a logical leap the court has to make and the judge thompson made without explicit out explanation and when we called him on it at sentencing his explanation was not convincing we also raised an issue in the different kind of a fraud because this that that it was not responsible for all of that directly there were other people kind of mushroom involving other people so that's what that's why he took it out of the heartland at the first sentence or right but there was no did they didn't maintain a stake as it were in the activities of others to the degree they benefited they benefited in like manner the fact that there were so many others and the loss amount was so much larger didn't make them more culpable because they behaved as other similarly situated people did and so i think it is i viewed the second sentencing we had the same functional attributes in terms of what was being sentenced to a different loss amount but if you filter out again to the defendant as it would seem to be what the judge was referring to and hold that to the side you still have the same function so why not the same result why not the same the guidelines on the first sentence calculated by reference to the total loss right yes ma'am ok so when the district court explained why it was not going to sentence with the fact guideline range it alluded to the other circumstances about loss that you're referencing right yes once the last figure was lower and yielded a lower guideline range the court's function wasn't to decide just one factor but the totality of factors provided in the statute and your burden here is to say to us that for your client a four year sentence for a fraud of this go is outside the permissible range for a sentence in this case and i'm not sure i understand how you think we would reach that if this was the first sentencing in this case i'd have a more difficult case but given the history and it is that it is the second sentencing in the first case the court after a four week trial considered the evidence before it and concluded that my client and miss platt had behaved in ways similar to others charging on charge participants and that their function in the room in the last amount was to receive a certain amount of the earth a similar amount as anyone else the last amount was very high there and there was an error in the studly calculation this court reminded for further sentences we stipulated to a far lesser amount which was direct again to the defendant at that point but the function her role in the in the conduct had not changed and our view is that because this was to consider the guidelines when it imposes its it thought that the last amount the first time around was was just somehow not reflective of the defendant's culpability but this time it was triggered by a loss amount potentially and i can even concede that it was but it doesn't change her function and if her function remained the same the outcome should have been the same in the same route the same discount as it were should have been applied i see every exceeded my time  please reach the try tax issue i mean last time around the court didn't reach it because it didn't have to but if this court is truly concerned with assuring respect for the law which is a primary purpose in  sentencing functions this is the perfect guidelines gribben a record independent of behavior as you see it here papers to suggest that the panel that came before us in this case was interested in that it was  just rewrote the summary order again this morning i didn't see anything was from the argument that you raised well yes and i don't know if it's improper i've never been asked this question but i'll never i'll go to my grave remembering the following line from judge parker addressed to my colleague who's not here today doug doug beautiful twenty two minutes into the fourteen minutes the government had been a lot allocated judge parker turner attorney more of you don't said tell me why mr pettus isn't right and that a trial tax was not imposed in this case i do encourage you to listen to that transcript good morning may please the court sarah carwin for the united states your honour's judge thompson's decision to impose a below guideline sentence of thirty months for the defendant plat and a below guideline sentence of forty eight months for the defendant bello for a lengthy wire in tax fraud with significant victim impact was both substantively and procedurally reasonable in light of all the statutory factors i'd like to highlight as the court did the district court did throughout th saying judge thompson reiterated how familiar he was with the case that he had that he did your honor yes that he indicated that he had gone back and reviewed his not only reviewed his notes from the first sentencing he had read read all the transcripts and all the sentencing memorandum he reiterated that he was familiar with the impact that this crime had on the victims and that's laid out in the p s ours both p s r as paragraph nineteen and then he carefully articulated what he saw were the important mitigating and aggravating factors in this case focusing on the effect that it had on the victims but he didn't have to do we do know is  don't think there's any evidence that he misremembered what he had done in the first sentencing he talked in the first sentence things about having a defendant who's being held responsible for this huge amount of money over one point seven million dollars in differentiating were only being held responsible in terms of the guideline calculation for how they had personally profited and so the judge explained when confronted with this it's at the joint appendix for twenty two that that had that concern had dropped out and as a result the defendants had substantially lower got mine ranges i'd also just in response to my colleagues argument that the judge didn't conduct an individualized assessment that they not just broke the law but they flouted the law he cited two recordings covert recordings and e mails where the defendants joked in the midst of the investigation about they'd like to go to jail and get free meals and a cot that  was admitted at trial and he also highlighted the fact and this is set forth in p s r paragraph one thousand that many of the victims were people who could not afford this five thousand dollars people took out cash advances on their credit cards they took out second mortgages on their homes they used child support payments based on the promises and representations that the defendants had made so he cited that collection of evidence as concerning and as aggravating w also recognizing for both defendants the presence of some mitigating factors and i think judge thompson noted that some of those mitigating factors were heartbreaking but also noted that he would expect to find the same in the circumstances of the victims that as people go through life they lose family members they fall upon hard times and he didn't find that those mitigated mitigating factors were so out of the ordinary as to warrant the enormous departure that the defendants had both requested in terms of the trial tax issue that attorney pattis left off with i would just know that there is no evidence in the record to support a conclusion that a trial tax was contemplated in and in fact the only evidence in the record is judge thompson saying that he would quote be taken aback if anyone two were to read or understand his comments to mean that he was imposing a trial tax that's at joint appendix four nineteen he set forth both with respect to both  the factors that he thought warrant to the sentences and he also explained with respect to the defendant who did not go to trial mr hopkins why he thought the sentence imposed on her was appropriate and how she was distinguished from the other defendants here where the the fraud in of itself was one to circumvent the tax laws that's the government's argument that there's a similarity here in terms of grouping them under three one point two d this question given the circuit split as to whether or not how the grouping analysis should play out i would note here that in the first sentencing a grouping challenge was not raised because it benefited the defendants to have the conduct group and i would note that the all the cases cited government's a brief page sixty in terms of the circuits that do group under excuse me that do not group under three d one point four in all those cases it was the defendant arguing for grouping because it resulted in a lower guidelines range and it was the government taking the opposite position here so by function of the guidelines it's not always that grouping as was done here is going to result in a higher guideline sentence there are often cases where it results in a lower it did in the in the second recent and saying yes it was a modest  guideline difference of fifty one to sixty three months is composed to forty six to fifty seven months had no grouping occurred thank thank you honor your honors the issue is not for ms platt that the judge didn't consider the evidence at trial and the issue is not that he didn't conduct an individual ised analysis in the issue is not  that the judge didn't the judge procedurally erred that's not what we're arguing the question here is whether the reasons that the judge mentioned warranted a fifty percent discount in the variance that he'd imposed before and i wanted to just with my remaining time highlight an issue that had not yet been highlighted in argument which is the issue of relative culpability your honors ms hopkins who played shortly before trial received probation there were two other participants in the scheme one of whom made sixty thousand dollars who also received probation and other participants with similar roles to ms platt and who received more money than she did weren't even charged think that the court is restricted to considering that it that what the reasons the judge gave for mr platts sentence the judge didn't say well b j hopkins didn't go to trial you did so many give you a little more time he didn't say that all he said was i think ms hopkins case is different and what we're trying to say here is that ms platt couldn't give the money back for example because she didn't have money so that's why it's incumbent on the judge to explain a little bit more particularly because this is a statutory sentencing factor unwarranted disparities among similarly situated situated defendants and coming of the judge to explain a bit more than he did and thank you on plea bargain in the united states supreme court tells us is now where the action is ninety seven percent of cases in the federal system are resolved that you are the market regulators this is an unregulated market and we say with respect to hutchings in stockwell the ninth circuit decision this court has an independent responsibility to police to police that process what's wrong in the standard manner in which plea bargaining takes place in connecticut at least in the federal system is that early pleaders are always sentenced after the defendant go to trial are sentenced and that simply should raise questions in this court's mind about what's going on in that market the value of a plea is determined by race it's in the brief yes  know we've raised it basis for finding this substantively on race no i raised it as an independent i raised it as an independent sixth amendment claim that there was a trial tax posed in violation of my client to go to trial she was sentenced more harshly than a woman who pled for no reason that's discernible on this record other than the fact that one pled and one didn't if mr hopkins guidelines that argument  well i'm sorry judge if i don't take that at face value that's why we in a title seven context we talk about disparate impact as independent have intent and stockwell says that the court should not use please as a carrot and stick to move a congested docket and should even avoid the appearance of doing so in this hopkins guidelines called for a sentence in the range of thirty seven to forty six months if she had been given her three point three points off for acceptance which is what the got the guidelines contemplate for a person who are really except she would still have gone to prison and not walked out on probation stiff earning her sentence until the end of the process raises questions about what a court's decision on an appropriate sentence nothing in the guidelines says early pleaders should be sentenced after the trial of those who insist on their sixth amendment right and our view is this court should take a jaundiced view that