circuit and if i might i'm just going to take this for a walk down memory lane if i might back to nine hundred eighty nine the first day of the first time i was born and we had the privilege of being sworn in to a federal district court eastern district of the southern district the same day it also happened to be the same year that mistretta was decide the case the support of the supreme court turned away all the all the substantive challenges until booker to the united states i don't know about the judges but it took me a while to know the difference between an adjustment and a departure in fact i think it was judge jacob sitting in that very chair your honor who first said to me you know made an adjustment you mean a departure in the light went on i say wait now now i get it now now i'm getting and as your honour's recall there was some institutional hostility toward toward the guidelines in the strata but before long we all spoke the language of the god it's and when a client would come into the office first time nonviolent offender who was gainfully employed with a family and and his guideline range called for a jail sentence says as they almost all did certainly back by the middle ninety's our reaction is sorry guidelines of the guidelines and we nevertheless try go before a judge in the district court and we make the best arguments we could knowing that they probably do not fall outside the heartland and knowing that the client was unable or unwilling to cooperate the judges would say sorry guidelines of the guidelines eventually though booker was decided it was i think almost fourteen years ago today it was february two thousand and five if i recall correctly and again there was as your honour's may recall this institutional angsty if you will not hostility per se but thanks what was going to happen how is this radical change going to going to swallow up the district court what were judges going to as i'm sure remember there was this fear that congress was going to suddenly start to an act of mandatory minimums in a vast majority of the united states code taking completely away the two thousand and five just after booker imposed a sentence of probation and a year of house arrest in a case where the guidelines were twenty seven to thirty three months government appealed and we thought ok we got a winner here and it was two thousand and six i was in this courtroom and the winner we thought we had was met with what i'll call since we've been talking about baseball the high hard one inside right reversed and vacated and judged her say the sense of eighteen months instead taking into consideration only the fact that the client had been on house arrest three year that was where it ended there is no question had that case been decided today i don't even think the government would have appealed nor do i think this court would have vacated the sentence what i recall about it was the first words of the opinion and it's what makes me feel for this case that it is in the same category and it was this sentence this is an important case it was important because for whatever the reason at the time the circuits were trying to control the damage if you will at least that's was my view but why do you think in this case on the facts before the court deviated sufficiently that there are there are so many reasons they're hard they're hard to count the first is the judge just simply ignored the overwhelming mitigating thirty five fifty three a factors and simply i frankly just there was no record below other than my arguments similar to the ones i'm making here today indeed as one of the one of the points that i've made early and often the client was desperate to plead guilty there's never been any dispute about that government knew it they just wouldn't make him a plea offer unless the architect of the fraud alexander fish shango the person who benefited by most by also pled guilty if he was willing to plead guilty the government was new on it could have pled guilty and his old who he could have pled guilty to the indictment had he been actually guilty of every count in the indictment but since he wasn't despite what the jury said it was difficult for him to go before a court and lie and say that he was guilty for every offense for there are multiple counts in this indictment at least two of isn't but apparently the jury did that the jury did not put out so so the government doesn't have to agree to his desire to plead guilty to a few but not all no of course not that's that of no not at all as a matter of fact i commend mr tucker and his team for keeping mr fish and mr poston the love in the case in the case so that their case against the other defendants who went to trial was stronger that was the reasoning here that's perfectly ok it's an acceptable thing for an attorney for the government to do if i was in his position i would have done the same thing but the but the reason why it's a red herring is that means it's also a thirty five fifty three a factor that the court must take into consideration but one of judge johnson do when that issue came up at the end of a long sentencing proceeding it's a one five an hour appendix the court well for the record i will state that mr post to be lost through his counsel had wanted to plead guilty throughout the course of this litigation and nothing could be worked out i will put that on the record however i am dealing with a defendant who went to trial now there's only one unmistakable conclusion one could reach by reading that mr posed off was punished for going to trial and the court as a result ignored all of the thirty five fifty three a factors that were that were helpful to him if we can list them he wanted to plead guilty he a he was the time a sentence sixty three years old he had no criminal record he had no money left he was broke i was appointed in the lower court he he was hardly the manager organizer of the conspiracy at most he made sixty thousand dollars a year he got this job by answering a ad in a local newspaper he didn't know mr shango other than that he was simply somebody who was trying to support his family was he guilty of substantial offenses there's no question that but the point becomes when do the guidelines stop being the tail that wags the dog and i submit to you it's up for this court to say thank you richard two mi morning routers and may please the court my name is richard tucker i'm an assistant united states attorney in the eastern district of new york i was also in the trial team in this case i'm going to focus my remarks on counsel statements obviously if know far better than i the reduction that one receives for acceptance of responsibility is an appropriate reduction because it was one of the factors that the court considers in deciding the risk of recidivism whether just has been done whether the defendant has accounted for the things that he did not only did mr posable off not plead guilty in advance of trial which as your honor notes he certainly could have done even at the time of sentencing he was still saying  it a lot and just for the record this is that posable off appendix a one forty i made a lot of mistakes but trust me these mistakes were not intended or deliberate this wasn't intentional mistakes he says what i did here it's just my duty so respectfully mr posner left never accepted any sort of responsibility for his crimes he put the government to his burden that's his constitutional right there was ample basis in the record to support judge johnson's finding that a reduction for acceptance was not appropriate here mr judge johnson adopted the factual findings and recommendations in the pre sentence report and that was adequate to satisfy the requirements for to show this court the basis for how he reached the sentence here the only other point i want to make is that the characterization of mr posable off as some sort of minor player in this offense is completely untethered for  the record first off the judge assessed points for being a manager or leader an additional three points which was not at issue here but it was factually founded because mr posner be off was an employee at a r c electronics management to destroying evidence of their crimes when they began to record indicate why the government accepted lead from founder but not from the manager do we have the indictment your honor that's exactly right so i'm going to i'm going to wrap up here unless the court has questions but my point is simply this mr posner be off was not a bit player in this offense he was critical he was the day to day point guy the crimes the criminal enterprise that operated out of a r c would not have worked without him so what judge johnson did was he looked at his criminal conduct which i would submit is he was equally culpable if not to some extent more culpable than mr shank go and then he took into account the fact that mr schank accepted responsibility so the idea that this sentence shocks the conscience or takes us into a place where this court should be seriously considering reversing judge johnson sentence i respectfully submit we're nowhere near that and you're as i'm happy to answer the questions you might have but otherwise all the rest of my papers thank you understand that a review of the sentencing record i think carefully reveals that that judge johnson simply did not do the thirty five fifty three a factors were so unusual and completely unaddressed by judge johnson other than to say that mr posed to be loved wanted to plead guilty from the time he was delivered to the district and again affor no wait to that but here here's really with that what the rub here is that nobody is disputing i certainly never disputed it wasn't the one who wanted to go to trial nor was it my client but there was no dispute that mr  important member of this conspiracy nobody's downing it but alley but alexander fishing co pled guilty to the indictment he was the architect of the fraud he pled guilty on the eve of trial he even pled guilty to being an agent of a foreign government i e russia a charge that mr bush to be law did not even face and for that he gets one hundred twenty months while mr posen be lawful gets one thirty five s but you could at that same point pled guilty my client could not have pled guilty and truthfully stood before a judge and keep in mind your own as well and that's just the point that he had a right to fight that and the government had a right to prove him guilty on that but when somebody does have been for whatever reason it's had been decided that the guidelines diminution for acceptance of responsibility does not apply to be sure and the fact that the court gave or did not give him acceptance points is irrelevant frankly to me but it's the thirty five fifty three a factors that the court failed to consider again the tail that wags the dog is not the guideline ranger acceptance the tail that wags the dog are the is the parsimony clause and can the court say that the that the lower court considered all