your honour's counsels good morning my name is mark byrd and i represent the appellate terry taylor in this morning's hearing mr taylor following a johnson remain and was recent tense last december and received a sen one hundred seventy six months in the federal bureau of prisons is amended guideline range however fell at seventy to eighty seven months and it's our position that this sentence of more than double of a high end of the recommended guideline advisory range constituted a violation of the person many provision of section thirty five fifty three a and was therefore unreasonable where it is needed being released in december that says schedule time barring any bad conduct that would cost him good time credit he is scheduled for release in the summer he's currently being house in a community reentry program in janesville wisconsin that he's been in since roughly april your honour's i position me that the district court relied on essentially two areas and trying to justify the extent of the upward departure in this case the court's prior case law dressing this issue essentially boils down to what the court has described as a searching inquiry to determine if there are sufficiently compelling justifications to support the magnitude of the upward departure which again in this case was more than double the recommended high end and it was also contrary to the recommendation of the united states probation department the defendant of course as well as the assistant united states attorneys assigned to the case all of whom recommended a sentence of the sensually  served and release yes last december the first justification that the district court offered to support this is the defendant's prior criminal record in criminal history in this case the defendant had a manifest a total of forty three criminal history points excluding certain offenses that had actually aged out based on the fact that they occurred in the early one nine hundred eighty s but  three criminal history i'm sorry who is very busy you might say he was judging me and we certainly can't run from that however if you compare that to the fact that this defendant head virtually almost twelve years in the bureau of prisons with virtually flawless conduct in violation of her i'm sorry you like the jury well he certainly thrived there judge in terms of what we're looking for in reformation and rehabilitation and that is the ability to follow the rules and the norms in this case if you examined the material from the bureau of prisons the progress report it shows that he was in no less than five different facilities these facilities are often times  very authoritative you're dealing with inmates some of whom want you to fail some of whom try to push your buttons and to come through those twelve years in five different institutions with a virtually flawless record of conduct except for two minor how the bureau of prisons has trained him for lack of a better term he's been in there for over twelve years now he had never been to the federal bureau of prisons prior to that and while there may certainly be more opportunities to avail yourself of and he did a criminal history and deciding how it weighs against the twelve years of good conduct you have to also take note of the fact that twenty nine of those forty three criminal history points were for traffic and misdemeanor offenses he was a real bad boy back in the day which tends to go along with the aging out type of idea that was articulated and you know has been really to the extent you can sympathize with a man with forty three criminal history points i believe mr taylor's a perfect can't judge aside from those for us twenty nine criminal history points for misdemeanors and traffic's  we have four of those criminal history point simply being status points for having committed offenses while under criminal justice sentences and within two years of being released from a prior institution but there's a market trend if you look at his criminal history he starts out in his case a young man with a violent offenses like aggravated battery armed robbery then he progress is to the opera holism in the duis and then the driving after revocations because he has no license and gets away from the violent offenses that he committed as a young man then you've got almost twelve years of of good conduct he's earned every day of good time credit that was available to him under the system the district jackson dawson inhale a hand and it's my position that each of those cases tends to beg the question because it tries to divert your honour's from doing that searching inquiry to determine whether there is a compelling justification commensurate with the degree of departure and simply look at well did the judge dot his eyes and cross the species and relate everything back to thirty five fifty three and are you asking for every man or a judge or even asking us simply to vacate his sat we're asking for his mandell simply delay the time that he's sitting serving time right now what about that condition of supervised release that is question and that he mustn't violate any in the orders upon supervised release and i believe that was a condition yes but i you challenge and known that as a condition judge i mean i think that he should be required to conform this conduct to the law and i think that empirically looking at his spent of twelve years  of prisons he is now rehabilitated to the point where he is likely to comply with that district court felt otherwise based on past history but looking at what he has done most recently we blanket the that supervised sentence well certainly to violate an articulated court order would certainly suggest that you don't have the ability of reforming in rehabilitating your conduct to the rules that you're expected to follow whether they be societal rules or court rules so what do you do send him back for another hundred months or something because he didn't a base some trivial order well it would be a question of degree i mean certainly orders constant that if there are violated constitute situations where the court doesn't take immediate retributive action and put the individual for example failing a drug test in light of a societal rule that you don't use drugs and court rule that you don't house positive lot of times the court will take a chance on it to find it and order him to complete treatment the second justification is mr taylor civil filings that were done out in colorado where he is essential ie suing people for conduct dating back to one thousand nine hundred sudden the district court held that that was a sufficiently compelling justification to justify the degree of departure and it's our position that it's simply not for one thing the judge believes that it's indicative of an intent to re offend or harass or annoy based on kind of what happened in eighty seven but empirically that's not the case while the defendant was out of custody amassing those forty three criminal history points if that were true you would expect at least one of them to be directed toward one of the defendants in those cases yet that's not the case in addition to that in the ultimate idea of rehabilitation the reformation used to mean and i just want to finish this up and then i'll reserve the rest of the time is that the pen is mightier than the sore and that you resolve your differences in a court of law the right way as opposed to the illegal way this defendant picks up his pen seeks legal recourse through the court system however kooky his ideas might be about the liability and he's punished for that as a reason it's our position that that was improper and that this sentence violates persimmon the provision was there for a reasonable  sentencing him because he files frivolous lawsuits player entered the district court made very clear that he was not punishing the defendant for petitioning the courts he said that at least three times on the record what he was doing is looking to the substance of the defendant's allegations in some of those filings to see whether those allegations provided evidence of post sentencing rehabilitation and in this case  might file a frivolous which of course not criminal activity got it and that you're in the district court made clear that that's not what he was doing what do you think he made it clear at all why do you bring  brought it up because the defendant raised the argument of posts sentence rehabilitation of with his good conduct in prison and the district court said yes i'm giving you credit for all that for the courses you've taken for your good record on the other hand the allegations about all the frivolous lawsuits what does that have to do with sentencing he was looking at the allegations in those lawsuits for example the defendant continues to attack his underlying conviction continues to claim so much we continue to claim that  just criminal behavior to continue to attack you or undermine them but it does go towards whether the defendant has accepted responsibility as actions the district court believe that it did and i would also never seeing this before sentencing a person because he files frivolous lawsuits or says things you know like what's that about one of the points here i was at the statements in those allegations and where did you get th wasn't raised in the briefing so the parties haven't had a chance to fully brief are you going to defend that condition i have never seen a condition  think you're taking a very irresponsible position in this case here and i think it's important to note how limited the court's use of these findings are the allegations in those filings were that was not the main driver behind we have a defendant who can it was involved in very serious misconduct you know not only possessed a firearm but it was a sawed off shotgun and not only did he possess it but he pointed it out another person and there is evidence that he had fired it in and around his mother's home he also has a very extensive criminal history including at least seven prior felony convictions look all of that is true the question is do you know about this business  felonies the defendant had the fact that although his his criminal history showed a move away from violent conduct big big underlying conviction showed that he was returning to that violent conduct and that his criminal history with forty three criminal history points showed an absolute disregard for the law does that mean forty three prior convictions no it means i don't think in terms of points i think in terms of convictions i from the state court system here's what i used to see have he had i believe seven felonies a couple misdemeanors and then several traffic offenses and one of the issues ever raised was that many of these points were due to traffic offenses the district court noted that but also noted that some of these traffic offenses were actually very serious had amounted to felony convictions had also involved hit and runs but given that is a given the fact that these behave themselves for a long time prison does the church think he's going to go out on some violent spree when he's really cool with respect to the asian now argument that the district court did address that and and stated that the defendant here at forty five years old offense a few of them were they started in the one nine hundred eighty s continued through the one nine hundred ninety s and then some of the traffic offenses after he had repeated them several times then were turned into felony convictions closer to his actual conduct which is less serious so this what's the most recent felony before this offense aside from the traffic going back in the traffic and you had an aggravated battery i believe in  ninety one and he also had a prior conviction that's the most reduced it of the of the non traffic felon twenty five years ago he also had possessed a sawed off shotgun and had a state conviction for an offense on the state side for possession of a sawed off shotgun before so this is now the second time that he's done it again he's not just possessing that particularly dangerous weapon he's also pointing it at someone and hell we know that there was a nine one one call of shots fired at the defendant's house we know that there were spent casings found around the house other casings found in the defendant's pocket and we know that  defendant's relative stated that the defendant had pointed the gun at him the night before ok so it's a family feud of some sort who didn't shoot anybody there was no one no reports of anyone being shot  whether it's a family dispute or something else i don't think the evidence are just anybody out of anger or otherwise just shots were fired the night before he may have pointed the gun at a relative shots weren't fired at that point nobody filed a complaint that they had been shot at or it second point i would make is that on the issue of the civil filings you have to wonder looking at the sentence that judge reinhardt gave mr taylor how strongly he believed his own argument about recidivism because again he was in a one fifty one to one eighty eight range was only given one hundred seventy six months he could have been sentenced to twenty years by tuning time on count one ten on count two consecutive and he would have been off the streets not able to harass or annoy and yet the  points he was out and was in and out but out certainly enough to where he could have retaliated or harassed or annoyed those people he was angry about from one thousand nine hundred seventy nine and that simply is not the case