there please the court chief judge greg regex he has church here i'm brian beck of the federal public defender's office of ammunition and i'm happy to day to rise to argue the case of james cox and to make four separate but i think related arguments to why mr cox's six hundred month sentence for sending five nasty letters was first in violation of dean because it was not parsimonious  second procedurally improper because it used the wrong guidelines and policy statements third procedurally improper because if it was based on insufficient explanation of sentence in fourth mr cox was assigned the wrong base offense level of eighteen under to be three point two instead of twelve under two a six point one the reason that's the wrong guideline five nasty letters three of them from from the red onion state penitentiary two of them from the county jail where the afternoon court holds clients did did concede at his guilty plea that he had made threats and they're certainly there are threatening statements made in the whatevers to be perfectly frank with with your hon i miss dickenson handled mr cox i initially began his case but then miss mister miss dickenson took over for me because mr cox enjoyed  working with her i believe more so than myself for some reason we didn't get along particularly well but at any rate it is better today since you're here oh i guess so i guess so i guess we're getting along better  but in any rate i don't know the reason i can only imagine the look on your co counsels face when your client got up and spoke the words that generated the sentence in this case and i think really that's the focus of the cases what he said in open court that led judge your band's kids to suggest that he had no choice no choice but to impose the maximum sentence allowable under the law and he went through it in great detail and explain why he did that in the context of this defend thirty five it really factors and so what i'm suggesting to you is why this any of this matter given his ex it matters because if you're going to properly sentence somebody under the law you should begin by understanding what the law teaches as to the cry as the crime of sending threatening letters you know certainly ideally but isn't this is as clear a case as we could ever get of harmless error even assuming there was a guidelines area looks like there was i mean this judge was perfectly clear about this i don't care what the guidelines i'm looking for the maximum sentence allowed by law and that's the one i'm giving you so what would be the point so that point it is on the guidelines  point he is then judge urbanski would read under to a six point one the thing i need to be concerned about not just whether mr cox is making threatening statements here today in open court says he's going to do t this that's outlined in in the letters he would look at the language of that guideline and say walk how likely is it that the that he will in fact carry out that he took his leave thought it was pretty likely right we know that from what he said that if this guy gets out of prison he's going to do it he told me that today but judge or banks he didn't have the benefit of the guidelines and the guidelines say when you look at how likely it is you should look at whether there was objective conduct either during the time of the offense or pre dating the offense conduct that pointed to that the defendant would carry out the offense and here there is that kind of objective conduct in fact the letters one reason to describe them as nasty but but at times not particularly threatening it because they say things which are just silly in the context mr cox obviously he's he's not a terrorist i don't know any good terrorist organization that would associate with him he's not he's satanist although he describes himself as such he's somebody who's trying to get attention most all of his criminal career has been devoted to trying to get possible from your account of what's going on here and a fifty year sentence seems really really long but i wasn't there right the sentencing judge had this guy in front of him stand up and sort of make his case for why he really would carry out these threats and so that seems like something where we would normally really have moved but to defer to the person who was in the room and was able to kind of judge this person in the moment in a way that i really can't from the paper so tell me why this isn't just sort of a classic case for deference to the sentencing judge because i think if the if judge your band ski had the correct lens of to a six point one a set of to be three point two and also dean which he didn't have at the time of the hearing that he would have come to a different conclusion he would have asked the question well is your objective in to i have objective facts that he's a chair or a store he can get  can or or he he can acquire the things that would do the damage well he's in a maximum security prison do i do i think that's all of the russian front of him not whether he will carry this out while he is in prison but i thought what the judge was concerned about is whether he would carry it out if he were not into prison well yes i think i think that was the judge's concern based on the  guidelines are far lower there's a statutory max for this offense for ten years usually you don't stack us statutory maxes you don't usually stack five of them because there are five nasty letters i would challenge the court to look at the history of sentencing under that under this new state under this statu is a fraction of what the one hundred one hundred twenty five month range that was incorrectly used it was a smaller fraction of that moreover it would have called the court's focus into the whitely hood that mr fox would would in fact carry out those threats once released and the likelihood it would told the court should be a viewed in terms of the objective you can do you need that you need the the mistake in this case to actually make that argument was that argument made at the hearing that this was simply absurd ridiculous  mr cox never would have followed through on these growth miss dickenson did kind of make it that argument in a sort of way what she said was she didn't think that these were  real true threats that she thought that they were mr cox looking for help all right so that goes to the nature of the offenses i guess of circumstances so the judge has that in front of him and then he's got the statements of the defendant saying oh yes indeed i meant every word and if i'm released i'm going to follow through with it well that's that's right that's the that's the record that judge your band ski had but i don't think judge urbanski was viewing the record through the correct legal lands and i think in this case that mattered a lot because i think if he was looking at well you know first of all he's made can make in these threats from from a maximum security prison he's not could do it there he's making the threats from from county jail he's not going to do it there if he gets say a ten year sentence just for example which would be a number of the guidelines anyway but if he got a ten year sentence the psychologist says that there is a mix prognosis meaning that he might recover he might not recover from psychological care that's least we're giving the system a chance to work in other words we're not predicting failure just because mr cox decided to spout off off at the time of his sentencing and granted spouting off if you're a time of sentencing it's not it's something i didn't significant to the district court and to this court but at the same time i don't think that that kind of spouting off should mean that this court should view the prediction that judge or ban ski made that he was definitely be a threat as necessarily be careful one when it wasn't one that was viewed through the correct legal ones as a factual question just  of all of the conduct at the same time a lot of the conduct was might be properly described as as if not suicidal bordering on suicide it was very self injuries he was doing things like slashing its wrist swallowing cell phones doing things which a person should know are very injurious to one's health and in fact i believe there's a significant history of that of those kind of self injuries which may respond to treatment how they meet i might not respond to treatment right away but ten years of treatment might produce something positive for mr cox and would give the system a chance to try to come to that solution rather than simply throwing up our hands and saying well he spouted off so he'll get the sentence that he spouted off about i don't think mr kok should be his is that outburst during his sentence should should provide the rule of decision here i think the law says something different in terms of how really suggestion that there's mental illness at play here and then there's also the suggestion that i think you're already referred to that this is attention seeking behavior on it's not a real threat it's he's trying to get attention and i thought there was also a suggestion that maybe an effort to manipulate  conditions of confinement that he grabbed me and said oh i guess i'm just trying to get a handle i think i think i think all three of those things might be true at the same time that he had a serious mental illness that he was trying to manipulate the conditions give him the statutory maximum it's still in the guidelines really that's important because we look at that because a lot of things happen if it's in the guidelines raised a different calculus as to how we view it so affected and that's why he does not need the third prong of the player review the record is clear that the district court would have imposed the same sentence here regardless of the guideline calculation which would mean you have some you say women government one twenty to reach a one twenty five but when he ultimately impose a sentence in this case the record is clear that the district court would have imposed the same sentence regardless of the kabobs calculation the senate it was imposed was in de was due to the defendant's criminal history the need to protect the public in law at the  unequivocal and repeated statements that he intended to kill people when he was released from prison and the guideline range had nothing to do with the district court's ultimate determination of the sentence imposed oh yeah league says that the incorrect guideline i would have guided the judge to make a fine you were at least have some understanding of the likelihood that the defendant would actually can follow follow through on these threats and that that is important because without that guideline the judge and you are response to that is that the sentence would have been the same even with the current guidelines guidance that the defendant suggests that the court may have have thought more carefully about whether or not the defendant could actually carry through feeds with these he attempted to do so with the bar so there are circumstances here that give the court great concern given the defendant's history in characteristics like this is why the question is the government knew all of this in the when it first asked for the hundred  twenty five including right that the defendant had told the f b i agent no i mean i will carry out these threats said to the f b i exactly what he says in his allocution and at that point the government thought one hundred twenty five months was sufficient i'd say seven to eight minutes i know but i'm not i'm right out and i not that he had said the gist of it i mean what matters is really to just i mean it these are not idle threats i will carry them out the government already knew all of that he had said that when he was interviewed by the i which is also a you know a time when you would think people would be pretty serious just like you know if you should so i'm not saying the new information that got you from one twenty five months to fifty years your honor i if if i had the benefit a promise it's not over he went on to say i'm not going to do probation judge i have always it's gone up from probation when i get out of prison federal prison i want to leave him at which are three weeks when i attempted to rob a bank and then he said quote i'm not insane i would rather be honest i still plan on doing these things when i get out i still plan on killing people when i get out my mind is set when i get out i'm going to do this i'm going to kill a bunch of people and not only did he reference th people that he'd written letters to which during his allocation he also stated that he had written over a hundred other letters while he was pending sentencing that had not even reached the courts but he also went on to say and president bush former president bush that  formally threaten to kill when i get out i'm going to kill him to i'm going to do everything i can to get to him as well so being there in person and hearing him reiterate these threats over and over and over for seven to eight minutes i would have asked for i agent absolutely and i did not have the the luxury of being present during his interview by the f b i in the o c investigators but certainly being there in person and hearing him allocute for such an extended period of time over and over repeat these threats again i would have asked for every day possible your honour's with regards to again our position on the guidelines mr cox has not shown that a different sentence would have been imposed with the cricket month right which in addition your honor in the before it in determining whether or not that erred is that the person substantial rots and our position is that this is that exceptional case this is not a case where the the court very slightly upward or just a small percentage upward the court here departed upward to the statutory maximum consecutive on each of these counts each of these documents this is that exceptional case where the defendant cannot show his substantial rights were affected he cannot demonstrate that a different sense would have been impos and he cannot show that the error affected the fairness or integrity of the judicial proceedings moving on your honor's to the procedural explanation that was given for the fifty year sentence again mr mr cox fails to show that there is an error in the sentencing he fails to show that the court failed to provide a procedurally proper statement of sentence when in fact the court did clearly explain all of that on the record as j as the joint a references on pages two hundred to two hundred four the court did conduct an extensive explanation of all that it was required to do as your honour's know the courts must consider the thirty five fifty three factors the court must adequately explain the sentence conduct an individual assessment and must also provide a complete detailed explanation particularly where there is a major departure is not fair to say that in this instance jurors are bensky focused almost exclusively on the need to protect the public from future crimes your honor we don't believe that he focused exclusively on that the record in fact shows that he went through all the factors in thirty five fifty three day he stated on the record that the defendant had an extensive criminal history he stated that the defendant had been engaged in criminal conduct his whole life he noted that the defendant had a high risk of receipt of his own based upon the fact that he refunded so quickly after the two thousand and three release from prison he then also noted in turn to the letters he noted that the defendant had written numerous letters not just the popping he was charged with but as the defendant admitted in the sense in hearing that day hundreds of letters that had not even reached the court or its intended recipients the court noted the very serious nature of the often ends the court noted that these actually trains are at the outset the court considered the psychological evaluations at the very beginning of this hearing it was actually a psychological competency hearing during that portion of the here in the court concluded that all the defendant may have had sentence to the chief's questions you never really balance that issue from the separate issue of whether or not he had some mental health issues which obviously that's this impacted the offens anderson your honor is concerned on that he did not specifically reference the psychological evaluations during the actual sentencing portion of of the hearing that's correct he did not because they were that's doubly concerning to me to the extent that the judge this is what i'm concerned the judge was he's got some mental issues and as far as i'm concerned that makes it all the more important that he be incapacitated for his and that seems to me if that's what the judge was thinking at seems problematic because that's what civil commitment is but before that you give someone the right sentence and at the end of that sentence they still are not sufficiently mentally unwell that they need to be not returned to the public then you go through the procedural protections of the civil commitment system and so the fact that he wasn't sort of that that we have no indication of what the judge thought about the mental illness strand of this case makes me nervous that i might have been a real mistake that he just sort of overlooked the whole civil commitment entire consideration of the other thirty five fifty three factors about his extensive criminal history that he had been engaged in criminal conduct as a law the fact that he retained it so quickly the number of letters that were involved in this case the threatening nature of those and he also said  he said quote the defendant's history and the authentic conduct established him as a danger to the community and part periods of incarceration have not proven to be any to turn it any deterrent to his continued dangerous conduct nor has he didn't demonstrated any remorse for his crimes only after that did the court after going through that entire consideration of thirty five fifty three factors to the court say and appropriately focus on the defendant's statements in court that day the court said at that point the defendant has indicated today implying in terms that if he's released from prison he will go out and kill people so only at the end of that at that discussion after considering everything else that the court even comment on the statements that have been made in court that day please the court on why i had to listen to that past exchange because it brings me back to love what i think should be a proper focus for this quirk the mitigating aspect of mental health conduct were cries for help and that as well as the fact that that there was an apple record at that point that i think just shortly time before sentencing the short time for sentencing you you determine that is first of all you have to think when you're a problem that's why i think that the lens of looking at a future civil commitment is helpful because then it brings the district court judge to the back to focus well ok if we give this man a proper guideline sentence maybe a high guideline sentence maybe a slightly above guideline sense if we give him something like that that w give him time for the b o p s who has a nix prognosis as to his case to work out his treatment and maybe the next prognosis will turn to the good he'll receive some beneficial mental health treatment and he'll walk away from the b o p after say one hundred twenty months and not pose a threat maybe he'll be good on supervised release because he we know he'll be on supervised release when he's released and then at that time the probation will get to follow up on his hearing this but with respect to the issue that the terrorists raise because i i believe although it was an extensive argument by your co counsel she did tell the court that were downward variance based on the fact that mr cox it suffered from mental illness for most of his life she said and she also help argument that she made separate from those comments so i do think though those were sufficient to call the court's attention to mental health and to make that mitigating factor one aspect minister wrong guidelines were used whose guideline calculation missler read the policy statements gave him an enhanced guidelines certains that man should get a reset in seeing before a judge who knows that