threshold question i had on that you didn't object or the defense didn't object to that a trial that's correct we have a number of cases this way in order to be playing in error where there is no objection in order to be playing error there has saying that they apply and these two specific factors it's impermissible double counting is there are about overlooked something you're on to respectfully i would disagree and i think actually the along this court is that you could have a eleventh circuit a supreme court case directly on point but if you had explicit language in the rule that would resolve the issue that would also suffice for plane air that's true but we don't have a specific rule that says you can apply t at the same time to the same facts your honor i would argue that under this this court's precedent that if you looked at the plain language of the two provisions and it would be plain on that or be explicit the explicit language of that would resolve the issue that these two should not apply together that it would in fact be double counting of the law of the circuit that that would suffice for plain error under the law the circuit and the defense counsel below did not object and so as to meet that third prong so really comes down to those first two prongs and i do believe that under the president of this good this court if you look at the expressed language of those two provisions that they actually do punish the exact same kind of harm and they go to conceptually the exact notions of sentencing and that they do fact constitute double counting if you look at those two provisions  part of the problem here was that as we would see it that that the fact that this twelve level has meant did this up to something nonsensical which would be a fifty four level there is no fifty four level that i think that district court yes your honor when you're looking at the specific facts of the offense itself this was not a case where we had the f b i intervening at the last second of somebody who was going to bomb like at the last second they had stopped the boston marathon bombers that's not the case here where you have a government sting operation you have government agents following this defendant for nearly three months you have a government agency repeatedly calling just this defendant  parading them on the phone don't ignore us or you go you serious about this are you really serious about this or you're going to manage you're going to back up they really took a long time and really kind of had to drag him to the point where he's in this car taking what he thinks as far as a sensing transcript of what happened and sensing transcript i don't think the dischord really looked at it there were some cases that were cited by the defense in their sensing memorandum and i don't think the district court made much credence to those when you look at i mean census average sentences even for similar crimes in those aren't even cases where there was a government sting operation there were actually people that are about to do something that got intercepted those sentences are far below the sense that suarez got here and you also have some personal characteristics of the defendant which were not fully taken into consideration by the court dealing with his is immaturity is borderline i q levels his gullibility all of that i think all of that are things that should've been taken into account by the district court and it's calculation that do merit a lower sense than a life sentence i haven't read the sentencing transcript could you tell me what sentence if any the defense requested was there a request for a specific sentence or not there was some talk you know i believe that there was a forty year that they talked about  variance down to forty year i think there was in this characterization maybe of mr and tons to a four year but the but the defense did ask for forty year sentence at some point has a specific sense  in this case the fact that you did have this government sting operation really is different in most cases in fact the only case that i could find it was similar was circuit case in which  say anything about government and factored in calculus i don't believe i don't believe the district court actually talked about that at all which i thought was a major factor in this case that really kind of set it apart from some of the other terrorist cases like you know the shoe bomber and the person who try to light up his underwear these were actual terrorists who were under way to commit something heinous it wasn't the government putting thirty to forty people surveilling this one defendant for three months really trying to get him to do something in fact didn't have thirty or forty people trying to get him do anything they just said thirty or forty people trying to make sure or somebody that he had in going war not going  number of people who are surveilling that doesn't know it was more of the fact that it was a government sting operation and that the government thirty to forty people weren't staying you just had two folks three folks talking to thirty to forty now the thirty to same issues that mr lopez raised mr lopez began by discussing the sentencing calculation and we explained i think in detail in our brief how that was conducted and why that is correct chief judge carn correctly states that under the applicable review here which is plain error of you the defense has the obligation to come up with binding authority that is precisely on point and the defense points only seven guidelines themselves but the sentencing guidelines themselves explicitly say as we explained in our brief that chapter to enhance events and chapter three adjustments shall be applied cumulatively even if they result from the same conduct  and this part the particular and no matter no matter what that seems like a little bit of an overstatement from the guidelines well i mean you mean you can never have double counting between chapters two and three well what the the ments even if they come from the same conduct well i mean the question is not whether they come from the same conduct putting aside the plain error issue which i know is a big one but if we're just talking about the double counting issue it's not whether they a rose from the same conduct is whether the enhanced men discipline is saying the same thing so that you have what everyone calls double counting right yes i think that you are correctly stating the the rule what i would the same conduct is a quote from the from the from the rule that i was quoting and it's a reference that even if it's the same conduct you do apply the separate as minutes and adjustments now i you are correct that in this case the enhancement of the adjustments are going to two separate things you know the in hand the the first enhancement goes to the attempt to injure the united states and or it a foreign adversary whereas the adjustment in this case goes to the act of terrorism and the these are two separate separate things not all acts of terrorism are necessarily done to number of cases in this circuit and elsewhere and there's a lot of there are any that are published anywhere in the country on whether or not these two can be applied at the same time or not well in that in our brief we cited a case from the southern district of new york and i think that on published case but it described this specific specific argument and refuted it i don't know that the other cases have specifically raise this issue because i'm not sure that defendants have raised it  and of course it wasn't raised in this case until the appellate level but so i hope that answers your question moving on to the substantive unreasonable in this case as the court is aware this is a beauty of discretion standard and that standard allows or a range of choice for the district court so long as that choice does not constitute clear judgment in the instant case judge martinez correctly calculated the guidelines range and then went through the sentencing factors and ultimately concluded that a variance from the guidelines range which is life was not warranted in doing so judge martinez considered all of the relevant factors he as there was some discussion earlier he found that this was a very serious crime he found that the defendant thought that he had a bomb that was going to do a lot of damage and that he went out he the defendant went out and bought nails to make this a deadly anti personnel device the judge martinez found at as i think is i'm sorry was in fact very much created disposed to commit this crime and it was that it was not the result of the government prodding and if if i could continue on that i think that the government's conduct in this case is entirely appropriate i think use of a sting is an appropriate law enforcement technique that can save lives and stop crime in the particular case misters this is not some thing where the government went out looking for someone who maybe they could convince this was mr suarez was online for at least a month looking to recruit people for isis talking about making a timer bomb talking about you know cow can i get money from isis for weapons he was or he was sending out large numbers of messages to other people one of those people went to the police and said you know someone is trying to recruit me to isis it would have been i think derelict for the f b i not to look into that and it would have to i can't at this point just go and ask him the f b i you know it's appropriate to send a cooperating witness and to talk to this person to find out what he's whether he's really interested in violence whether he's really it trying to do something for islamic state who else he might be associated with what other dangerous people might be out there if you if you look at the communications between mohammed who is the cooperate in witness and the defendant it is virtually in all cases the defendant who is pushing the ideas of i want bombs i want you know to make a recruiting video  for the islamic state mohammed is is going along allow you know to find out more trying to get also i should note mr suarez had three guns at this point two glocks and an a r fifteen the government is trying to get him to give those those up but he wouldn't do that he may make the video that mr suarez dictates and initially to mohammed what he wants to say in this in this isis video and then he goes and he dresses up for any an films it and he talks about islamic state he talks about brother should join me he talks about the god of baghdad he all of this is before any of the the one conversation i think that mr lopez talked about that only occurs after after all factor in all this is just wait and then i guess another question that i have for this offense for which he received a life sentence in the government point me to another case where someone's been earlier is and is it which i think is not at all a mitigating factor is separate from the question of what you call what i think you called the gullibility of the defendant or his personal characteristics that was something that was in a gating factor but in the  nature and circumstances well i agree that that with that and i think here the circumstance was that the defendant wanted to to do this bombing that when he was told that this is something that's going to shoot nails and they're going to read through people he's like worse than bullets he smiled he was clearly injured and i think that was that's the key for the that's a key part of the nature of the crime i do think the characteristics of the defendant were relevant they were raised that was probably the the number one argument that was made to judge martinez he was very he was very well aware of those arguments he put a lot of thought into it the record reflects that he did in fact consider to be mitigating factors but he he felt that there were other factors specifically the dangerousness of the defendant that overweight that outweighed that mitigating factor and made a variance from the guidelines range inappropriate and you know specifically you have an individual who even after all you know all the things we've talked about has never expressed any remorse or taken any responsibility he got on the stand and he told what judge martinez found to be complete untruths that martinez believed that he really wanted to kill people and that there was no reason to believe that he had changed so as for other cases now that the defense in their in the below the defense did raise at the end of their brief the issue of o ther other cases in the government responded in its brief below the defense didn't raise that issue in their brief on appeal they may have talked a little bit in in the eighth amendment about the disparity factor but i  think that this doesn't come anywhere close to the eighth amendment disparity factor so there's a long way of saying i don't know that i could there are numerous other cases of individuals getting life sentences for suarez was he was attempting to make explosives he was attempting to make them on his own and then he was attempting to get somebody else to supply them and so you know the government i think quite prudently got in there and said oh yeah we'll supply it don't be looking somewhere else you don't need to keep working on it i mean you talk when you talk to to the undercover he talked about how he had been trying to make explosives you hadn't quite gotten it but there was testimony at trial that he was maybe one in one common ingredient short of being able to make an explosive so i think making an explosive was something that he wanted to do and that he was determined to do this particular it came out this particular way because the government funneled this it this way to make is the highest guideline and if it comes to fifty four it goes to band of forty three and that's that right that's likely you're correct but if you did all the addition right where where were the numbers tally up to it was fifty four monis now on to forty three because that was the top that is correct she just got his double counted if you credit it is double counting argument it would have been forty two instead of forty three that's correct that's what i was getting at yes or if you eliminated one and that would be i believe three sixty but i thought the criminal history was automatically six and terrorism cases m r well it's automatically six if you have the enhancement which and to be clear we definitely believe that they had was properly applied but i proposition only the most egregious sentences vala to the eighth amendment but you don't argue for reasons i can understand that if the crime in harmaline didn't justify a first time offender who for a position with intent to sell cocaine a pound and a half got life without parole and supreme court said that's fine so and drugs is a terrible problem and therefore the penalty of life imprisonment without parole for a first offender is not disproportionate i would have thought you had would have argued that terrorism is a terrible problem and therefore a life without parole for first offender on this kind of terror terrorism crime is not disproportionate under the eighth amendment am i missing something is there something about oh no sir i think that's absolutely right i think that the crime in this case is significantly more serious than the one in our m n and i think we started a number of cases that's probably the best one because it is a supreme court case but a number of cases where courts have upheld life sentences under eighth amendment challenges in cases where there was no n just very quickly i'd like to talk about a question judge jordan had about other cases there are no cases aside from the unpublished southern district of new york case in which these two provisions have been applied the same and that might be why there is no me thinking you say how can someone be convicted of an offense that is and further and so forth to help a foreign terrorist organization and not be involved in a terrorism offense if you look at it that way the argument has some appeal but what if you flip them can you be convicted of a terrorism offense when you are not acting on behalf of a foreign terrorist organization as in like a domestic terrorist case any carer's case or just you're just a lone wolf you don't you're not you don't have allegiance to any other group you don't purport to have it you don't purport to help them or you just commit an act of terrorism on on your own in that sort of a case would could you apply both enhancement while you're on the way that the double counting case law is you look at the second enhancement and you say well is this going to punish the same kind of harm to has already been fully accounted for in this case he was convicted of attempting to use a weapon of mass destruction to aid a foreign terrorist organization so that's the basis now it's the that's the initial guideline or the statute of conviction that's  balance that gets your base forty two and now you look at the next one from chapter three the twelve level felony offense that was intended to promote a federal crime of terrorism and that's what you look at is this second one is that punishing the  exact same kind of arm that has already been fully accounted for so your your argument then has to well i think it has to be that because the first these are not merely any separate enhancement after a base offense level you get the big base offense level because of what's already in that guideline that's correct and so you have to start with that one that one has to be initial one and then the question then becomes whether having applied that one then you can apply the second one and there are government based on some of his rhetoric should have gone in let's test the scale see what this is all about they got their answer they when they started talking to him he said yeah let's do this let's do something on july fourth isn't that a great day yeah and then mention bomb several times before the government ever got involved and he wanted to make i believe he mentioned bonds you mention a lot of things that he parroted that i don't know but i think you committed any federal offense well so what i'm talking about the bomb and bomb making wasn't the and then argue that they came in and say you want to do something why don't you make a bomb you know already publicly advertised for example miking a bomb where the government got involved you know and he had hooked up with a specific individual code name wolf or something of the other in which he was talking about making a bomb tell me how to make a bomb didn't he had not been there he had not committed a federal offense before the i'm not talking about federal offense he's out there trying to commit a federal offense it's his idea to make a bomb he's trying to figure out how to make a bomb please tell me how to make a bomb the government didn't come in and said hey why don't you make a bomb they didn't plant that did this is not like they induced him to commit a federal crime he's out looking for help on how to commit a federal crime wanting to know how to do it the mechanics of it i don't have time if i could answer that briefly yes and i believe that the government is correct the government should have stepped in it to see what they  showed up in in there say they've got somebody who wants to make a bomb who's diligently searching about maybe in an amateurish way but trying to find some i'd tell him how to make a bomb right and i'll find somebody eventually they needed to see how serious he was a yes or he's trying to make a bomb therefore we need the there and assemble a case against him and prosecute him and get him off the streets where he can finally get the information and make  if i may just very briefly i know we have time he mr suarez told the agency let's do something on july fourth and then he stopped taking their phone calls and he started just ignoring them altogether not now being involved in it at all and the ages they were trailing and so what he was doing on fourth of july he was with his buddies on deval street getting drunk they should have seen at that point he is not serious yes they should have gone in to change drunk on the fourth of july he's not a serious threat he's not going to go through