the police court counsel i would i would like to use the oral argument to clarify how the wording of the sentencing statute supports the defendant's argument so here's how thirty five fifty three a works start with subsection four where the judge calculates the applicable guideline range then the judge determines the actual sentence by considering subsections one two three six and seven for restitution but subsection two which the parsimony principle applies to is by far the most important subsection because it contains the four longstanding principles of punishment deterrence incapacitation retribution and rehabilitation and the statute specifically requires that the court not impose a sentence that's greater than necessary to comply with those purposes but if the starting point the guideline pushes the guy going calculation the judge has made is too high with respect parsimony principle then the resulting sentence is also very very likely to be unacceptably great so if it's arguable that the guidelines range that the district court calculated is greater than necessary to effectuate the purposes a section to the defendant should be able to ask the court to lower the guideline range in order to come in compliance with the statutory purpose of the parsimony principle and the implementation of section two this so how does how do you reconcile that with the instructions in rita and gallen the guidelines themselves first get the guidelines is have to calculate the guidelines within the world of the gods and the district judge did that hear right yes judge and you agree with those calculations correct yes as you think in in the context of s four of the steps you know but that was a forty six to fifty seven yes that's right but two you mentioned read rita says at five fifty one and us three fifty one that the sentencing judge after calculating the guidelines quote may hear arguments by prosecution or defense that the guy going send should not apply because the guidelines sentence itself fails to properly reflect thirty five fifty three a considerations right and apart and the parsimony principle is one of those considerations and my argument is that because the parsimony principle is a part of it is a statute as a part of the statute that it essentially it has to be accommodated before you get to the general thirty five fifty three a argument asking for example for various we're not saying function as it is i understand your argument you think the parsimony principle entitles you to a lower guidelines calculation yet get even if even if it's inconsistent with what the guidelines say and there's there's no support for that in the the general thirty five fifty three sentencing factor that is applicable after the guidelines are correctly calculated it doesn't entitle you to a different and it's it says that not greater than necessary to comply with the purposes sept fourth and paragraph two of subsection which is the subsection the present that contains the four principles of of  punishment and so our contention is to give meaning to that statutory provision the defendant should be able to ask in the judge who then has to make a determination that the guideline weapon that came out of this of that paragraph or calculation is excessive under the parsimony principle and therefore should be lowered have analyzed various issues under the guidelines from pew that was decisive i would suggest and i that is a matter of decision making sickout psychology there's there's some weight to that it seems to me but just as a matter of how a district judge is supposed to do his or her job given the instructions from rita and gall which they get the guidelines right it seems to me that you're human would make federal sentencing even more complicated than it is now introducing a fourth step after the guidelines before one gets into it and maybe after departures but then before the rest of the thirty five fifty three  factors and that i just don't see much foundation for that yes actually judge i agree with that statement by the overman overstates it in in their brief when they say you could challenge each each each provision in the course of calculation the guidelines that i'm not this is just after the whole god like is calculated there is a provision here in the statute which should have meaning and it is didn't have meaning in this case  judge gentleman gave a below guideline sentence based on a variety of factors well he my argument is he should i would the defendant was entitled to have him rule on whether or not  was excessive i put you know he did he said there really imposed a below guidelines uns well but if he if if he had agreed with us that he should have gone with the actual loss rather than the intended loss the the guideline would have been fourteen to eighteen months not forty seven two to fifty six and all i'm asking is that the judge be required to make a ruling as to whether the resulting guideline  subsection two not the whole the whole statute because that's what the how the parsimony principle reads and it's to give meaning to the parsimony principle which ice would submit has been largely neglected  citizen guidelines come in we want to court make more findings put more in writing here he said it's too high and i'm reducing it sixteen months to thirty months but that's starting from forty six different i understand your argument and that and even to i mean even if he were to reduce it by another month that would be significant to the defendant so and again what i'm arguing is that the wording of the sensing statute that the principle needs to be given some meaning so i would reserve the balance of  district court determined the advisory guideline arrange to be forty six to fifty seven lines in defendant acknowledge that it was correctly calculated with reference to application note three which required the court to impose a five hundred dollars per access device charge the court then entertain the defendant's parsimony argument that a below guideline sentence was sufficient but not greater than necessary to comply with the purposes set forth in the statute because of the disparity between the actual loss in what he called the attributed loss and in fact the district court entertain the argument heard the argument and then imposed a calculation is driven by the loss of that which is a theoretical loss amount is opposed to the actual loss amount here and i feel that does overstate the actual top ability to some degree to some degree given this record there was no procedurally here the court followed the post booker sentencing framework begin with the correct calculation the guideline consider all of the thirty five fifty three  factors and explicitly considered defendants law certainly the court credited the argument to some degree as he said in imposed a below guideline sentence the district court did what the defend in asked for additional confusion and work for district court judges this court has been very clear that in response to categorical challenges to the guidelines or any part of the guidelines the district court me pass over in silence the argument in need of the manager team on a case by case basis the recent illness of the application of any part of the guidelines the court's decisions have been in reference to the criminal offender calculation with respect to the crack cocaine versus powder cocaine guideline in with respect to some of the enhanced moods that follow in child pornography cases and again this court has been very clear makes clear that he entertained and rejected that challenge in other words he gave more than silence to the defendants as applied argument excuse me his categorical challenge if in fact that's what he means the district court said or asked do you have any precedent for your theory regarding the attack on application or three in the response from the defendant below as the only president we cite too is this sixth circuit case court below here said i appreciate the point you have me and i reject it i think it is much more of a thirty five fifty three a factor and then he proceeded to follow the statutory framework having determined the district or here carefully went through all of the factors he discussed the defendant's family that they were supportive inside the district court i regret you didn't take advantage of that one or think about your children before you committed this crime he talked about the offense describing it as a very calculated crime that occurred over a long period of time involved numerous victims into a private information people to make money for himself he talked about the defendant's history and background sane and i quote there are more negatives here than positive referring to the fact that defendant was on the sentence of state probation at the time of the risk for cicotte with these federal offense error it was respectfully asked the court to affirm the sentence below thank you court calculated which was based on the government's well intended was never proved violates the statute not just an opportunity for various but actually violates the parsimony clause of the sensing statute and the court responded literal language of the guidelines and the statute itself don't allow that argument so he made he ruled that that was an argument that could not be he didn't didn't rule against me that that's a valid argument but i don't agree with that he said you can't make that argument and i'm arguing that under the law to give meaning to the parsimony principle that should be a permissible argument think they counsel thanks to both