whether it's a mine run case and then from there was there a significant upward variance if the answer to both those questions is yes then this chord takes a closer look a closer review at a sentence so what we have here is our pinion a significant significant upward variance of twelve months to seventy five percent now i know we're not doing mechanical numbers but essentially close to double in and  it's done in a way where the the predictive model of the guidelines is that if you let's say you steal about forty thousand dollars over forty thousand dollars from the social security administration and you lie to cover it up you should expect about a ten to sixteen month sentence you're not going to get probation if you do these things and that's what the guidelines came out to because what we have is a matter where this amount of money that was stolen was in the guidelines and the law to cover it up was in the guidelines because there were two points for obstruction and if in fact the factors that are given as the reason for an upper baryons are incorporated within the guidelines of the question here explain to me why they are not some factors here that are not incorporated in the guidelines i think that is the correct mind run analysis is that in the heartland but what the court was saying was that the gambling that has gone across a lifetime and the military record the honorable verses general discharge are all things that are not incorporated in those guidelines why would those be insufficient to to history of fraudulent conduct is it over on brow of perhaps what the courts getting at but i would argue st that those type of things need to be fact or if they cannot be based on speculation and there were not factual findings made related to those things i am still confused as i read this transcript whether the honorable vs disciple versus our under honorable conditions factored into the decision quite frankly upon reading it again last night it appeared to me that the court of the district court may have been referring to some bad checks that were written while he was in the military when the military came up at the end and to that end we're dealing now with twenty five years ago some bad checks that one charges the crime in reading the st initial impression that we're going back and looking at the record defiance instructions on time to member the list but there were several other things listed by the governing officer to why it wasn't just a general honorable discharge more than just a check which i agree this is a kid with his st checking account but defiance of borders not according with the disciplinary requirements within the military those are other items what what might happen we exclude those consider actions we don't know that we need to exclude them but we but there has to be a specific discussion of how those going to cause us to do a big variance and if we're twenty five years ago we know criminal history generally in the guidelines when you get better f or back off and drops off in and we're talking about in balance what the military ultimately he said was that his service was on just so yes in iraq was there not a suggestion that he had also told probation or somebody that he had been discharged honorably there was that was argued by the united states that there was a misrepresentation based on whether it was an honorable discharge ultimately the district court found that that was not going to be a factor in my reading of it that the difference between honorable and general under honorable conditions  was a confusing matter for all parties and it may not have been something when she initially came up with the acceptance of was it the acceptance of responsibility or the i can't buying run case or not right i mean i i'm thinking about she says this is a well meant to blow case or something there's a history i mean it all factors into that discussion where she says i mean you have this history of  ly dishonest conduct is that what they're living outside of cleveland when you're a cleveland firefighter i mean it just all factors in in what i'm saying is in reach that ultimately i believe the course now summarized everything that was brought up that could be could be the distance with the running a gambling house on the grounds that you were helping disabled children but not really helping disabled children that included in the guideline capitalization or is that one of the other factors that the court was a good thing to give when we're dealing with a requirement for a specific discussion conspicuously i don't believe that came up at all offense that did not relate to him directly op lying about charities because certainly if there were factual findings on lying about charities that would factor into a history of dishonesty but i don't believe that's here i also so in to running a gambling house a misdemeanor is included in the guideline calculation or is that one other factor that this court was going to be upset about i believe it is included in the guideline calculation under a criminal history but ultimately i believe his criminal history i don't believe it got to a two in terms of the living outside of cleveland i think this is another example of of speculation because i couldn't find where that came from that wasn't addressed in the briefing and i didn't find it in the p s i i so you know there was a sense of being blindsided by this allegation that you live outside of cleveland and therefore you have a an additional history of dishonesty what all to mentally if we look at in terms of the specific discussion of why there was a variance why the guidelines had to be manipulated it's tied fair fairly directly to the icing on the cake the obstruction in that argument is fair is fairly straightforward that i've made that the obstruction is certainly within the guidelines because of the two points so when you have something like that then you don't have sufficient reasons which is a procedural question for a variance but then you take the next step to substantive reasonableness which now we're dealing with a work of compelling justification so the procedural problem is a lack of specificity a lack of careful discussion of not just the variance but the extent of the variance why do we have to not just do a few months the send a message but it an entire additional year and then the substantive is that we don't alternately have a compelling justification because the majority of this was within the guidelines in a mine run case you have to look closely whether we really have compelling reasons to manipulate guidelines and make them significantly more and also mentally then you know because of the way that when it's sidestepped to the point where we don't have anything in the end of the fact that we really do have a man who is who has served his country there were maybe some issues who has served as a public servant as a firefighter for twenty whatever it is at least she saw it she didn't say anything ok so then the i think the harder question is why is it enough to justify the number and i don't know why are we not just deferring to her i mean but what about the gambling that she was very concerned about the gambling that it and that it occurred after you know this whole son same process that started he was still doing it i mean she was very concerned about it and maybe it tied back to the to the misdemeanor conviction as well that there seemed to be a maybe a pattern i mean why is that not enough the gamli certainly was the elephant in the room throughout the entire sentencing hearing the the response again is related to the factor of the nature of what that got of what that variance has to be to make it compelling it has to be factor of it now generally speaking gambling is a mitigating factor in the way it was that argued in this case that gambling was a bit of a factor i understand that but now it's been turned into an aggravating factor in up high level of focus being given to it when in reality it was not a bond conditioned to not gamble the state of ohio has made it legal to do but during while he's on bond court answer to that was you were gambling with along to the american people you didn't have a right to go in to gamble with that money does that hold anyone i think the i think the facts of the explanation provided by the defense that this was a lifelong hobby that was not a i'm going to roll the dice or i'm going to come i'm going to sit here for hours and make ten dollars an hour by being so patient i do believe it doesn't matter here that we're talking about poker as opposed to a more you know where the house odds take from you in your over the long run of twenty five years have no expectation of winning money but that was all explained to the district court i mean there were arguments about this is not just the table game or whatever this is there in the briefing at least right how the rake works and how all this stuff works i mean she had all the information in front of her right into to that i would say that those were non frivolous explanations that were not ultimately considered during the sentencing that the that that was lost a pond a a frustration albeit perhaps somewhat justified of the concept of gambling i there wasn't a actual  another problem and that would go to procedural reasonableness of not addressing a non frivolous argument of family ties now whether a departure was required can be a debatable may have discretion on but in terms of ignoring it and not addressing it because certainly there could be a situation if you have a specific discussion of listen your family ties may because you do come down a little bit but there's other reasons i see for why we should go up and then we end up in the guidelines and those type of job was it presented to the judge my impression was that it was presented to the judge as a reason for a downward various it was a it wasn't presented to her as a reason to not do something else and i understand that may have been out there but i don't know that it was her words if it's presented to the judge and it's a discouraged factor right so you're presenting the her and saying we should get it down our word variance and she says no can do that we well i mean i believe and you're saying and i understand there's a more subtle argument that says well if you're considering giving a twelve month upward variance you should at least consider at a minimum our argument for why there was a downward variance and put it in that column two i think it's lissett in arguing see a significant family ties issue of a disabled son and i wife that can't work that you are asking for a lower sentence overall i think the departure language probably had a lot to do with trying to get into the right zone where probation was possible which wasn't going to happen in this case ultimately but i think that's what it tied to a departure but you know ultimately our argument is not that a it leaves the core counsel jason white for the united states the district court here says state procedurally in substantively reasonable sentence the district court provided sufficient basis for the variance and adequately addressed the dependence arguments the district court also relied on appropriate three thousand five hundred and fifty three dollars factors afforded appropriate weight to the factors she cited and the sentence was not arbitrary proportionality in what is required by the court when it's responding to a defendant's argument more complex arguments that the defendant presents requires the more in depth response from the court here the defendant's argument was mostly provided to the court by way of briefing and as your review as you look at the record there was a much argued by the defense counsel to the court during the sentencing hearing the matter was simple some of it was trying to bring yada butin the opportunity to do not exist or discussion the club addresses the defendant's argument while in one instance during a discussion as it relates to the calculation of the guideline range and you're right the court is very quick to say i'm not persuaded by your argument she says i've read the briefs i'm not persuaded by your argument but i'll give you an opportunity to make that argument later in your allocution an invitation that the defense attorney at the sentencing hearing does not except he doesn't revisit the issue later on in the argument the court was unpersuaded at that time and the issue was never revisit it in so the club is not required  but i would argue that this case here is much like the chords consideration of the defendant's argument in the wagner case where the court doesn't completely address the defendant's arguments cursory i suppose but this court had said that that that was sufficient in that manner case that the issue was simple here the issue is simple it's clear that the defendant has family ties but the court was not way i don't know the answer to that question i don't know if that was a consideration or going to be relevant here if she did say that or just kerry i think it i think it would be rather here i think that the difference was in the end that wasn't brought up  their party whether or not you know those concerns were adequately addressed by means of having the wife sentence because the court doesn't really talk about why she wasn't persuaded by the defendant's argument however she does give the opportunity to discuss it something that never happens in this particular case the clerk was particularly concerned about this defendant's history and the characteristics the nature of the offense and she speaks at length and discusses with best counsel this history of lies this history of defeat to see in the government's position is that she does this analysis both well as she's talking about the calculation of the guideline range also afterwards to a sufficient degree to cause under a deferential standard of review this particular sentence to be procedur reasonable when we're talking about a substantive reasonableness i would encourage this court to look at the totality of the circumstances in reviewing the district court sentence right god teaches us that we're looking at the forest and not the individual trees there are a number of trees in this case there's the defendant's gambling issue there's the defendant's military record there's the charity issue and then there's also and  i would direct this court to review those particular sections of the sentencing hearing where she's specifically talking about the variance she's particularly struck by this tampering of a witness charge and the obstruction of justice i would st like to point out that god teaches us that when we're looking at drawing the link between the justification and the size of the variance obviously this court knows that we can't be using a mathematical approach  t the law of the guideline range necessarily the amount of the variance is going to look more extreme we have a seventy five percent variance in this case what's important is that the the court was struck by this defendant's history and character sticks in the nature of his offense and for the cure that was enough to justify that twelve month period it was the icing on the cake the lies and  that this defendant exhibited put this case for the district judge outside of that heartland standard the court noted when it calculated the guideline range and at the end that the  range at the top end was a sixteen months she notes that that was insufficient when she considered the three thousand five hundred and fifty three dollars factors pacifically the history and characteristics of the defendant in the nature and circumstances of the offense  e indicated that she manipulated she needed to manipulate not the guidelines but she needed to manipulate the sentence sufficiently to address the defendant's conduct and one of the things a j problematic i mean she manipulates by essentially making the twelve months run consecutively instead of concurrently but it's essentially what she does attack it audience right that's right the twelve months for you mean how can she the guy abides by making something consecutive that's not supposed to be consecutive judge i don't think that she's of dating the guidelines and i think what you're which are which are addressing is this concept of double  counting where conduct is already represented within the guideline range and then also conduct is represented in the in the the variance the justification for the variance i would argue to this court that this court c has has has a preview held that that that is permissible when a district court is crediting conduct to a particular to a separate offense and here we're talking about a separate offense that tampering with  witness is a separate offense to then what the obstruction in handsome and under the guidelines was for the social security fraud and i would direct the court to the case of a dog or a variant cited  brief because there's a discussion there about that double counting and whether or not a court can consider the same conduct in two different ways when at sentencing here the court noted that even with that obstruction of justice a djustment in the when it calculated the guideline range the court noted that after all was said and done that sixteen month sentence was not sufficient it was not given the defendant's history when you're looking at the trees the forest as opposed to the trees that sixteen months wasn't good enough for the core and that's why the court justified and how the just court justified that twelve month variance on top of the maximum guideline range that you would the i'm sorry the two level obstruction of justice calculation when the court is considering the guidelines is directly related to that tampering of a witness when we move to the court's discussion about the variance we're talking about the icing on the cake and she specifically says that that that is the icing on the cake when the court is considering all of the other things related to this defendant all right so in the one hand when we're considering th calculation of the guidelines she's focusing in on did the defendant recruit others to lie for him to perpetrate his social security fraud then at the end when we're talking about the variance she's saying that this is just one another example of all of the lies and deceit that the defendant has exhibited throughout his lifetime so she's drawing that extra link so it's not the same thing being applied in two ways it's more of a specific tree is it relates to the calculating the guidelines but then the broader forus when she's considering upward varying from the sentence that the guidelines she's already determined to be insufficient when presented with the conduct and history of this particular case i'd like to discuss before i close a little bit about this the gambling issue right so big the defendant argues that the core placed too much emphasis on the gambling issue in one respect that the court and the government misunderstood the documents that the documents that you're head to do with the during the offense conduct for a period and then the court also looks at the gambling after the plea of guilty was entered now there was a lot of discussion in the record about whether or not the defendant lost money by gambling but ultimately the court says it doesn't matter whether you lost or won money and in fact she readily admits that she doesn't know whether or not he lost money based on the evidence presented by both sides however she says it doesn't matter the problem is that you  gambling that you had taken money from the united states and that you were gambling that money you were putting that money at risk that money that you knew from the time of the plea on word that you need to depict back to the united states and that's what the court took issue with the defense never raised at the sentencing hearing this concept or this argument that gambling is a mitigating issue however on the appeal to the appellant argues that the and fifty three dollars factors and that it was not in permissible and did not result in a unreasonable sentence for the court to consider that it was fair game and adequately and sufficiently inappropriately considered that as part of the many issues that was presented to the core in considering that particular defendant and that particular crime in making that ultimate determination as to whether or not as to what is an appropriate sentence here the united states the government was not advocating for a sixteen month sentence the government was advocating for a sentence i think it was no more than twenty seven months based on the government's recommend recommendation of the guidelines calculation that was various they were the government was asking for no it was just adding in the obstruction and everything that the government thought should be in the guidelines calculation that was the top of whatever that range was going to be let me be clear st the government did ask for a variance it also asked for a particular guideline calculation the the government specifically said if your honor you don't agree with our guideline calculation we would ask for a variance up to the maximum of what we were requesting as the guidelines calculation the sixteen months i don't know where that came from i think that was the court's mis yeah i think that was the court's misspeaking because in the briefing and then also if you review the record as far as the sentencing hearing the government never recommends more than i think it was twenty seven months if there are no further questions thank you peace the argument upon re manned is certainly going to be a request for a guideline since between ten to sixteen months probably about sixteen months if i had to guess and so yes i do but i do think that it would not end up being moot i think key could be sentenced to sixteen months and save himself a year based on this argument and that's a year with his disabled child is that is is why this issue is being repressed isn't is carefully and it should connect to stated goals to walk why is there need to be this variance why does the guidelines have to be manipulated and if there are other factors if if if deterrence is generally discussed or why why did he need an extra twelve months for deterrence that why did he need an extra twelve months for obstruction when it's already in the guidelines if he does have some limited about the gambling what about the gambling after the guilty plea knowing you're going to have to pay the money back why would you risk either your money or the government's money knowing i mean it's gambling it's it's still risky behavior you're going to have to pay the money back you agreed to do it and i think the the heart of that is the nature of the risk of what this particular man was doing playing poker is i certainly not suggest that when you play poker you have no risk i just submit that it's it's a less risk for someone who has done it for decades who but there is a court order in the court after sentencing  not that that's a key here is that he did not violate a court order the court made clear the bond conditions are in the record he was not told not to gamble after sentencing upon supervised release it is a condition of his supervisor at least that he has to include he so he didn't consistently make money gambling over the period of records he he submitted where their tax records studio always claim it is income that i don't have an answer to leave all this i know it's anecdotal but my friend's dad passed away recently of cancer and when i talk to him he i grew up with them he was a jackass you know playing poker every single day as he was dying and he said when i'm there i'm just the guidebook table  and it didn't matter if you were going to win or lose and and so i think that's what that that sentiment is what they were trying to present to the court on the gambling that it was not a reckless behavior and give him a condition thank you both for your arguments and your brief thing that will be taken under advisement and opinion will be rendered in due course all of our remaining cases today are not on the argument