arbitrary distinctions between people now it's true that the court then went on to hold a very narrow very narrow exception for employment law cases because of quote the unique considerations of political when the government acts as an employer as opposed to exception to criminal sentencing but setting chapman aside i guess i don't think it makes a lot of sense to import that exception into the criminal sentencing context sentencing obviously is very different than employment law the  employment there's no sort of similar concern in the sentencing context where while judges have lots of discretion and that's discretion is circumscribed by the constitution and by numerous rules as just a simple example s by a federal court so i think for all those reasons the chapmans supplies the general test and that's the test that i'd ask the court to apply to this case if you will let me let me follow up on that and i think i'm the one that's created the the issue here because i'm trying to figure out what sort of equal protection claim you've asserted on behalf of your clients it did not seem to me that you're asserting when all characterizes the garden  gender discrimination instead we're essentially asserting the you know that the basic test of the government cannot arbitrarily went to sing which is between people as applied in the sentencing context so argument is that there is no actual distinction between the three appellants you received ninety months in prison and i want to tell it i'm sorry the one defendant who received seventy months and that is the court had no meaningful basis to distinguish between them or didn't articulate one that the equal protection clause the due process clause was violated so to help me understand what happened here and i've i've read two or three times i've read the sentencing transcript in this case the judge sentenced all four of these defendants in the same proceeding which i found unusual is that common in the southern district of california i don't know if it's common it wasn't it's not common in my experience but i don't have a lot of defended the defendants consent to being sentenced together i mean we didn't object let's put that in object to it ok they each have their own separate counsel that's right and he's got all four of these defendants in front of them and in carefully reading the transcript i did not see where the judge at any length and analyzed the factors under eighteen united states code section thirty five fifty three  honor he basically described all of these defendants this essentially being the same in every respect where they were from what they were doing what their occupation was they were in the boat together  for and then he proceeds i mean defense counsel leak each make their pitch brief very brief hour from the defendants and then he proceeds to sentence them ninety ninety ninety months your client's seventy months to the fourth defendant did he provide any explanation on the record as to why he sentenced i didn't see it maybe it's there as to why he sentenced the fourth defendant to seventeen months as opposed to ninety i understand counsel made an argument right and he say anything on the the only thing i can see that was different with respect meaningfully different between a for the defense is that at one point with respect to the fourth defendant the gentleman received seventy months the judge added in for the reason stated by the prosecutor or something to that to that effect and the reasons stated by the prosecutor assigned or stand it was sort of an argument that we had some sort of enhanced acceptance of responsibility yes the side deal that provided for the agreement that the government would recommend six months i mean that the government would recommend seven months instead of eleven months the defendants in exchange for which the defendants would recommend six months is supposed to mandatory communicated it was e mail to the four defendants that there's no i guess good that you know it's not in the record it was never included in the record that the judge only knew about that side you know just by counsel talking about an excellent what happened was it was obvious to me the judge knew about the side i just wondered how casey only knew about it wife so what it sounds to me like here is that you have you've sort of package this is a constitutional claim but really what we have here is sentencing disparity and you're good you can talk me down from my what we have you are sentenced disparity but you've got an appeal waiver which means if you can if you don't have sort of constitutional claim i think you've got an appeal waiver problem so now we've got these constitutional claim equal protection and due process claim right yes and i think there might be other way and other non constitutional problems with what the court did here but we are limited to constitutional arguments on appeal and that's why we invoked the arbitrariness test that we did all right ok so can you do you have any case that you can point to where a court has found co defendants who are similarly situated different was a violation of their constitutional rights i can't in frankly every case i found that the fact patterns are sort of absurd where there's very obvious distinctions between the defendant so i think the government just twenty  to know which is more favorable to your client that's right even though you waive the sentencing disparity just trying to understand how we're getting to know review when you waived when you in the plea agreement said you would not you had appeal waiver so he wouldn't raise these other type of claims that would normally be abuse of discretion presumes other types of claimants whatever that might be would have a much easier substantive standard i mean our subset of standard is is not an basis then that's that's not that's a meaningful difference essentially courts of use the word rational basis that use or arbitrary i think it all gets the idea of was there a meaningful distinction our ticket by the judge between our islands and so my main question for you i then why isn't the one somebody asking for six years i mean seems like there is a distinction here one the one ended up asking as a result of this idea which i do not understand now i'll ask your colleague crossed the that but but he did end up asking for six years or pretty asked for five years and so isn't that a distinction is it irrational the i think the problem is that the the distinction that the court articulated sort of by adopting the prosecutor and said that this ideal meant that this fourth codefendant just really accepted responsibility for misconduct fundamentally it's just factually not true that you know regardless of whether maybe it could be true in some other case we know it's not true in this case because defense counsel explained to the judge on the record at length why he accepted the side deal and i would nothing to do with acceptance so the reason the court articulated just isn't true and i can't think court to give the lower sentence in this particular case because the fourth defendant took the deal i had i think no and i think you would have to be able to articulate why the deal somehow is relevant to the sentencing some other case that might make sense i don't know but i think at the very least in the context of this case what happened here it doesn't months sentence was less than the guidelines range might have permitted correct that's correct so if we were to vacate remand for reese and say here i assume that this record couldn't give you guys more than ninety based on the guidelines as a punishment for europe you all four defendants the court calculated the gun ranges the same for all four defendants so none of them had any criminal history no strictly based on drug quantity based on drug quantity and i think the reason morning there please the court krishnamurthy of the united states there existed a rational basis to impose a lower sentence from the fourth defendant in this case whether it's called the acceptance or responsibility or recognition of reality or something else there's a reason th never good to do side deals i understand your honor so that the police agreement established the undisputed guidelines range of one sixty eight to two ten months established the prosecution would recommend a sentence no greater than the low end of the guidelines the first is that we believe that that range was more appropriate than the statutory minimum in this case these defendants were arrested with five hundred kilograms of cocaine and so while there may be a range of appropriate senses we didn't believe that the sixty month minimum was one of them but apparently a there's something regarding the conditions and they were kept in those twenty seven days after they were captured that caused you to make this deal in the first place i just don't understand why you added a side deal but you did so here we are and i'm just trying to figure out it seems like what's represented in the record and i say in the record is what the district court said i agree with the government and the government at that moment at the sentencing apparently said oh there's a super acceptance here that we need to acknowledge whether super acceptance in the wrist in the guidelines you know qualifies for super acceptance of this is just kind of an additional sort of hey we're going to say he use he had super accepted but i'm just trying to figure out because it was also referred to that maybe mr garcia was less culpable and i just question here is do you truly you mr garcia's less call culpable are more deserving of a sentence of seven years rather than eleven years as the prosecutor recently recommended to the court for all four defendants there is no information about the relative culpability of the defendants we don't have any information about the offense other than that they were all arrested on the boat this recommendation was solely tied to the sensing recommendation in this case as part of that additional deal it seems that if the prosecutor offered eleven years for all defendants the prosecutor thought all of the defense were truly the same and in fact the prosecutor said they're all in the same boat and so i'm just trying for how does mr forth a recommendation that they think is realistic in light of the district court judge they have i understand that the court may disagree with the extent of that difference in this case but that is a make that that doesn't make these three defendants sentences unconstitutional and i'd like to start by addressing the three cases that were in the court's most recent order there was chapman raised by ron and then and quizzed so ruiz kyra and chad in both basically hold that a penalty that can be based on arbitrary factor may be unconstitutional we don't think that these equal protection claim that they were not treated differently they were treated differently on the basis that or that they disagree with but what stablish is is that in highly discretionary sensing proceedings like this one there is there is  chance that defendants will be treated you know that cases in point of context but in analogous context there is a chance that defendants will be treated differently on the basis of subjective discretionary determinations and that is normally policed under the abus discretion standard when that happens it's not a constitutional issue and of course the defendants here have waived any abuse of discretion argument they might have if i can and let me just ask you if you think the rationale of the sentencing factors is served by the sentences in this case i do you tell me how i mean this was a significant amount of drugs and so the guidelines range you know promote general deterrence specific deterrence were incredibly high in this concessions in that case this was a similar concession in that regard that's a rational basis for a district court sitter were all of the defendants given a two level decrease from the adjusted offense level for acceptance of responsibility they're going through that will decrease i believe so two levels for acceptance of responsibility and of third level for timely notification of plea total three correct i think i believe that's true did did the judge articulate on the record the judge other than saying i agree with the prosecutor in addressing the factors fall within eighteen united states code section thirty five fifty three a did he draw any distinction on the record between the three defendants that are appealing and the defendant that got the seventy months since the court did not the only the only rationale given was after having considered the recommendation the prosecut and that sentence was actually two months i mean i don't want to it's a small difference when he sentenced that defendant to two months less than what the defendant requested  side deal correct seventy months rather than seventy two correct so the district court went under the range proposed by the parties in this case which is relatively uncommon and so are you saying we just need a rational basis or what's and happy addressing the question of if we were going to vary it as a constitutional what's what's how do we look at it i think and question is the best authority on point i don't think that really is current chutney can be applied in this situation just because there's no air with the defendant's own senses you're saying because there is discretion involved here that precludes the constitutional claim correct that now is the equal protection right exactly i see that i'm over my time on this the court has any other questions you no questions yes thank you no question s i'll give you a minute i think you were over your time so i know i was way over my time how can i just have one great point really we're not raising an unwarranted disparity argument we could have if we hadn't we have that r but we're raising a different argument with a different test and we have to meet this different test with much higher substantive standard than simply are going unwarranted disparity and so for the reasons of explain if we can meet that higher burden i don't think our human appeal can sum up be transformed  some different claim because you could have raised that different claim is it an abuse of discretion rational basis test it's only a rational basis test you know i don't want to fight against abuse of discretion here it's i think the  say that this is done overview but at the end of the day i think it doesn't matter the standard or review that the sort of fundamental point under any standard review is that the court the reason the court gave to distinguish our appellant the the pounce on appeal is not true  supporting the record so i don't think it matters what standard you apply to that well we have we play a rational basis i mean it's that's pretty low bar it seems like it is a low bar but i think we clear here because the one reason the court gave to distinguish is is factually false so i think that's the reason and let me sort of unpack that it's a little bit the reason the court gave is that mr garcia the fourth codefendant just really accepted responsibility which is why he was asking for six years opposed to five but we know from what his attorney told the court that's just not true so the reason the court gave to distinguish the the defendants is just not supporting the record period under any standard counsel can we decide this case in your favor without seeming to give some go without discussing one way or the other the validity of this procedure with the side of agreement yes absolutely i do you know i don't think that the side agreement is relevant context for this case but i don't think ultimately that the court's holding we need to hinge on whether these sort of side agreements are appropriate or not thank you well thank you and here are both from the novel issue presented in this case yeah appreciate the presentations here today  and so the case of united states of america versus