me please the core my name is charles wilson i'm from the federal defender's office in hartford and i represent joshua a cough at his sentencing and now in this appeal this appeal raises a couple of issues somewhat disparate from each other quite frankly the first being that judge made a procedural error when he determined that mr a cough was a career offender the other issue being whether that incorrect finding is a harmless error something that the government has the burden to show as to the first issue we focused on the question of the divisibility of the connecticut drug statute that form the basis for mystery prior conviction he had two prior drug convictions one was a federal one that we do not dispute as to the career offender determination but the other one was a state one and in light of this court's recent decisions in harbin and also the district court persuasive decision that we have from judge now one of the problems was that he felt like he couldn't say that savage had been really affected by mathis he clearly was asking this court for guidance more than once i believe he said he's looking to the court of appeals to give us direction on that subject he focused his arguments about the series of verbs in the connecticut statute that's how he named them and while i will still rest on the argument that that series of verbs is also alternative means in light of harbin i have to say that perhaps my strongest or more obvious argument is about the controlled substance aspect of the statute that we have in connecticut that statute points us in the direction looking for other statutes and ultimately it leads us to a schedule tha in connecticut for some years has been perhaps the bane of the government's existence on this topic because it covers drugs that the federal schedule does not the government's point at least one of them is that the career offender definition in particular the controlled substance part of it talks about state offenses and they try to sweep that is broadly as they possibly can that approach would put the government adopting that approach would put this court in somewhat of an outlier position obviously it would be different than approaches with the arm for a criminal act obviously would be different than the approach with the aggravated felony or the immigration and nationality act now i recognize those are different statutes they do have somewhat different language but it also would be putting the court at odds with approaches as to the former version two l one point two which is  the section that deals with immigrants that return to the united states in you know illegally and then have to get deported there's a drug trafficking offense there that is essentially the same definition the controlled substance offense definition that's found the state statute you see if the drug schedule is different or the same and if it's broader that's a problem for applying something you don't know what the person did now that last part is the trick here and i'm saying perhaps we should move on to prejudice ok let's say did did invite guidance from this court but then he very carefully went through the different scenarios and said even  assuming i'm wrong i would impose the same sentence anyway and so where where where is the person's so as to that issue i think there's a couple of things we can look at first is the point your honor just made which is the sense that he's looking for guidance and that guidance if it comes out the way that i'm seeking it to obviously create a much different starting point it creates a range a guideline range of thirty seven to forty six months that we're talking about the crack guideline ranges if we were talking about in terms of power that would be twenty one to twenty seven months as i think any practitioner it's clearly the law the law requires that you start with the guideline range and so it's of course important to have a correct calculation but one of the factors that he looked at was the a cop's prior sentence of sixty months did not serve to deter him from further criminal conduct and therefore something more than sixteen months would be appropriate and that was one of the reasons he came up with eighty eighty four months i mean that seems to be pretty strong evidence that he would have done this anyway  it's strong evidence that he would have gone up the question is how far would he have gone i think one it's much easier to go down in sentencing as a district judge i think than it is to go up when i negotiate with the government and they're telling me my clients are career offender it's much easier for me to get them to talk about going down and then to have them adopt my position of it being you know some much lower range based on just the drugs that were issued in a person's criminal history that's a much different discussion so i think that separates this case from some other cases the court has considered i know very recently i think it a chance to do a twenty ha later but genoa is a case that looks at the harmlessness of sentencing and there you have it a disparate range that would result but the case gets sent back down because the court and i believe judge you on that the court he says look these facts that you're considering are still things you can consider in sentencing him but we can't say that this is harmless i think that's the problem we have and tell you that the sentencing discussion was much shorter and briefer and conclusory than than this one here were judge gave a very careful discussion an explanation of his reasoning did discuss his reason i'm not saying he just turned off the lights and left the room the idea of incremental punishment again though while that one may have been a reason to go up from the top of the range forty six would judge shay have gone to eighty four if that's really where he was starting he came down but again it's judge chin pointed out he also is observing that the prior sentence of sixty months didn't deter  for an additional period of time on the supervised release violation i came before twelve months are exactly what but it wasn't you know a nominal sentence so it's that bridge that gap that we're talking about we're not talking about it we have a trial judge here who  even if i were starting with thirty seven to forty six or twenty one to twenty seven i wouldn't do it i think eighty four is appropriate i mean so you're asking us in essence to ignore that and send it back to him and i'm not sure that what the point is and i'm not asking you to ignore it i think i'm asking you to recognize that you know what many courts have heard in the supreme court molina martine is the idea that the guide lines provide the lodestar for what the sentences and if we start off with the career offender sentence it's a much different now says i think it was just sort of my your in beccles perhaps that said made some observation about the number of cases where the don't we have such a record here i think given the circumstances the large spread you know if we're talking about a two level enhanced been for sophisticated means or something like that i don't think this argument would have any water  we're talking about a large spread we're talking about an incremental punishment still could have found some window of time between eighty four and something lower i think that's significant i think the fact that judge shea was looking for some guidance and maybe was going to start from a different position and he and he always calkins the guidelines in my cases that i've had with them i think that influence can't be overlooked i think there's a way to course i'm shooting for a full reset and say you know m i've talked with him it sounds like he's doing pretty well i'm going to take him at his word perhaps there's a way to to remain and it allows judge to address this issue you know if you started from thirty thank you may please the court my name is brian leming and i'm assistant united states attorney from the district of connecticut as i think the court correctly pointed out you know what part molino martinez authorized the district court to do exactly what it did the essence of this appeal is whether or not the defendant is a career offender but he wasn't sentenced as a career offender no one at the sentencing hearing not even the government advocated that he should be treated as such or that he should be sentenced within that range he was sentenced to eighty four months for all of the reasons the judge today articulated as the court as a district court pointed out he was sentenced that way because he just demonstrated through his past behavior that he was in cordial drug dealer that this was his third federal conviction that he had been sentenced to terms of imprisonment up to sixty months out of his previous federal case and as the court described he had demonstrated a determined failure to comply with the law the court found that since sixteen months wasn't reasonable or should say was insufficient he had not been rehabilitated he had not been deterred in his criminal activity and he continued to demonstrate that he was a danger to the community that something more than sixty months  was necessary the court contemplated and as noted by my adversary theorized that maybe it would be helpful by this court to give some more guidance as to whether or not mathis impacted in any meaningful way the savage decision but it did what we want the district judges to do is to consider all of the factors he considered both competing ranges including a one to one power range which was substantially lower than the crack powder range or the crack range considering all of those and all of the other sentencing factors he decided irrespective of whether or not he was a career offender at a sentence of eighty four months is reasonable and appropriate and if that is the core pointed out if he's really thinking at at the base is sixty months we're only talking two years now obviously a mystery cost life that's significant but in the context of what's reasonable it's certainly appropriate and certainly within the range or reasonable ness that a district judge would impose such a sentence adversary asked for an arraignment or suggestion that somehow that the district judge was tethered to the larger rain or the higher range but there's no evidence of that in fact the district judge made it clear that he would sentence him to the same sentence irrespective of that range he considered even the things that he thought were mr a cause fever in coming up with that sentence he just just didn't focus on the negative parts of his behavior but in consideration of all that the court did what we want our district judges to do which is give a well thought out explanation for the sentence imposed as far as the jail case as i think the court has pointed out the record there was nothing like the record here this is the record that we look for on review where we can know specifically what it was the district judge wanted or thought about considered weighed and then factored in before imposing sentence so irrespective of whether there was an error  status it was certainly harmless beyond a reasonable doubt and the government would ask that the court affirm the judgment certainly on that basis and certainly happy to address the substantive arguments but i do believe that a resolution in those cases may be appropriate sometime in the future on the right case but based upon this case i think ultimately the court would still have to adjust the harmlessness of any procedural error and based upon the record i think the records clear beyond a reasonable doubt it was harmless thank you thank you ramona as for the sixty month sentence that he got before i'm looking at the pre sentence report paragraph thirty two it's for two thousand and nine arrest for possession with intent to distribute five grams  in federal court and he received a sixty months sentence and in that case we're talking about sixteen point eight grams of crack cocaine which would not trigger a five  today so the idea of incremental punishment while certainly the very street for concept if i give you x now i'm going to give you x plus y now what that y is i think judge should have an opportunity to speak to the but if we're going to start off with a sixteen month sentence that reflects law that's been changed in preclude law that's been changed based on recognition that there probably was not racial as the judge chase point the judge say said that the sixty month sentence was not sufficient to accomplish the goal of protecting the public and deterring you so he was looking at the its relationship not to the crime of conviction but to the effect it had on the defendant and i'm not who went on then to commit other drug offense and i'm not going to i don't disagree with you on his reading of the record but we're talking about a sentence that's based on a law that people have you know that congress came to subsequent recognize  potentially racially discriminatory practices and you know issues of race you know all the fair sentencing act cases that i know i appealed and you know all those things and we and mr hickox previous appeal i think was one where he was told you know what you're not going to get the benefit because you committed the offense before the change in law even though you might have been sentence afterwards and then dorsey and hill and everything else came out so i think if we're going to rely on that sixteen month sentence we should look at the full cont in whether you know saying that we have to have that is the starting point necessarily if that just repeats some sort of problem that the fair sentencing act was intended to fix so i think that's an important consideration the  other factors the judge relies upon i think our challengeable talks about his criminal history his criminal history is accounted for he's in category five if he's not a career offender he talks about having committed the violation while in supervised release two points or including your criminal history if you commit a violation on supervised release plus he got a sentence for violating the terms of his supervise release i think the entire balance of factors the judge relies upon the disparity that we have here between the two sentencing ranges that we're talking about and frankly the fact that it's not a great burden on the system to send the case back all counsel in favor of doing it in one of the things i'd be worried about is creating some magic sentence for judges to say i've thought about the guidelines and no matter what the guidelines were this is the sentence i would have given anyways you know it's doesn't take long before robotic incantations start to replace rational you know fulsome thinking under the circumstances if judge judge she's a thoughtful judge i don't always agree with him but he's very thoughtful and if he has to think about in the context of this guy's not her offender he might get a different answer and because that could happen it's not harmless and nothing for