when we have a visiting judge often we only have that visitor for two days we're really lucky this week because we have our friend judge or a brain oh from pennsylvania who's sitting with us again he sat with us several times in the past and it's great to have him back home and to be here not just for a couple of days but for the full week of said earlier this week  really depend on the help that we get from the senior judges they shoulder twenty percent at least twenty percent of the workload of the federal judiciary and they don't have to do that they can they can just spend time with very much appreciate the sacrifice he's made to be here with us this week so thanks for being with us we have three cases to hear this morning we're familiar with your cases we've read your braves the authority in your briefs in at least portions of the record so in the limited time available to you please feel free to get straight to the heart of your argument don't treat the red light as aspirational when it shines it's it's time to wrap it up but if you're answering a question from the court feel free to finish your answer and if if you're going to have some rebuttal time you won't lose whatever you reserved if you're just answering a question of the court so we'll start this morning with united states versus kirby mr smith good morning may please the court fundamentally at my microphone i'm sorry fundamentally this is an issue of the proper construction of sentencing guidelines section five g dollar d that section reads quote if the sentence imposed on the court on the count carrying the highest statutory maximum is less than the total punishment and the sentence imposed on one or more of the other counts shall run consecutively specifically at that then goes on to to provide but only to the extent necessary to produce a combined sentence equal to the total punishment in all other respects sentences on all counts shall run concurrently except to the extent otherwise provided by law required by law and the guidelines provided for a life recommendation that's correct your honor and so what's longer than life well your honor i would submit that one thousand four hundred and forty months is the law then life well it might be as a matter of  what we know about human life expectancy but a life term is of indefinite duration your honor life a life term is of indefinite duration but life under the guidelines from our perspective requires a numerical value because if you do not assign it a numerical value can't i mean  upon the sentencing commission's sourcebook right yes your honor but the source books not part of the guidelines right now the story is the source book is required by statute so that the guidelines commission commission can report to congress about how the guidelines work right how they're being applied it's just a statistical report it is it is a stitch well not to quibble i think it's more than a statistic really short i think it's a report with commentary and recommendations but yes essentially it's to test whether there are reports that have commentary in recommendations the source book it is just a statistical report yes sure but but but it it could be produced and published by the commission even when the commission doesn't have a core on so right now for example the united states senate seat commission only approve it before it could be published but i think where i'm digging too far into the weeds on that is well it's pretty important that we figure out what the what the report is because it seems to me it's just a statistical report it's not the sort of thing that the commission approved from a to vote in a public meeting and then sends to congress for that like an amendment to the god itself i agree with the court your honor it does not have the force of law and it is not the equivalent of the guidelines and then right i offered the four hundred and seventy month benchmark used in that statistical analysis because the government's argument and the understanding of the trial court plainly misconstrued five g one dollar d which is a guideline section in this case the sentence could be that could be imposed on the count carrying the highest penalty was thirty years but the guidelines recommend or the guideline score was life in order for five g one dollar d to make sense the part that says but only to the extent necessary to produce a combined sentence equal to the total punishment if you can't produce a senate equal to life while you're out of the problem is the guideline section requires the court to do that did the closest thing you can but at the end the way to do that is to produce consecutive sentences at the statutory max up to the total punishment that is equal to that's what the that's what the language is but there's no way to to produce a senate's that equal to one of indefinite duration and that is my argument your honor that is a structural defect in the guidelines that it's not a defect in the guidelines it's just it seemed to me that what the district court did was exactly what the guidelines contemplated from my perspective you're on to the district court and the government is arguing that essentially combined sentence and total are combined i'm sorry that combined sentence and total punishment are the same thing but combined sense and they have the same definition but combined sentence and total punishment clearly under the guidelines are not intended to have the same definition they're intended to be two separate things and i believe that's the error that was committed in the sentencing and we are in interpret ing five g one point two d and in fact several of the sister circle in her life expectancy of federal prisoners changed and for that reason the commission staff wanted to update the sourcebook and they came up with a different equivalent for a life sentence is it different from four hundred and seventy months to say it became three hundred and seventy months district courts would be obliged to use that based on your honor i am offering the four hundred and seventy month benchmark not because i think that's a mandatory benchmark that must be used by the district courts i am offering it as an alternative to the what and if you didn't use that what would what would the district court use or your honor that's the structural defect in the guidelines they require you to make calculations from or to a life sentence without telling you what a life sentence is i chose that to statistical report because it was generated by the set the sentencing guidelines commission the structural defect in the system is you're supposed to make calculations based on a life sentence or guidelines life sentence but the guidelines do not tell you what a life sentence is is the problem what the judge did or is a problem that he did what the guidelines told him to do would that was that was wrong and sentences only up to the equivalent of the guidelines range which is life which is somewhat amorphous the but the guidelines have a flaw which led him to make that miscalculation in other words the court and the government argument both assumed that since we don't know what life is life is whatever the total sentence or i'm sorry the combined sentences seems to me is an attack on the guidelines not on what the judge did so we would have to throw out the guideline well you could say that the life guideline this section cannot be administered as written because there's no value to a life guideline i chose to argue let's look elsewhere in the sentencing commission's work to see if we can assign a rational value to a life sentence for guidelines purposes and that's what led me to the statistical report and the opinions in nelson in kincaid from the other circuits mr smith i think we understand your argument on that if your brain knows finished would you turn to your argument about the reasonableness of the sentence and let me ask you st do you agree that plain error reveal different from the one we've already been talking about well only as it addresses the issue of whether we've demonstrated plainer and the plainer i think is found in three places one is the plain language of the guidelines which we have already of for the purpose of plain error it's more than an indication that supreme court agrees with the finding in nelson which is that four hundred and seventy months was a cap and finally your honor eighteen u s c that was just being used right as a basis a baseline to calculate a reduction in a sentence for substantial assistance well it was it was used as the benchmark so that the court could make necessary guidelines adjustments that is correct your honor and again that's my point without having a benchmark how do you make those guidelines if it wasn't the question as presented here no it's not exactly the question that was presented here as far as the substantive error your honor the substance reasonable is to to get back to judge prior's question i think the substantive reasonable is depends on the ruling on procedural reasonable news because if in fact life is four hundred and seventy months or some other discrete number then the court departed upward without providing reasons as required and this court has repeatedly said departing upward without reasons is plainer good morning at may please the court i'm sarah sweeney i'm here on behalf of the united states beginning with procedural reasonable miss the what the court did here was exactly what was counseled by the guidelines and it was procedurally reasonable because  e two does not limit a life sentence to four hundred and seventy months or any other number and alternately regardless of of all of these arguments that this issue is judged under plain error and as there is no precedent of this court or the supreme court that would support kirby's argument the procedural reasonable to argue procedural reasonableness argument is due to be denied as to the substantive reasonableness argument that mr kirby raises the district court's well factors that he relied on he found that kirby was a predator that was hiding behind his position as a police sergeant and that he needed to serve one hundred and twenty years and again effectively a life sentence in prison to produce deterrence and to protect the community for all these reasons the sentence was not an abuse of discretion and this court should up hold it as substantively reasonable if your honour's have any questions i'm happy to answer them otherwise the united states will rest on its brief is there any issue that combining all of the sentences then produces a sentence which is not authorized by congress i don't believe so your honor i think that that would obviously this wasn't addressed in any of i think that i think that issue would be analyzed under the th amendment you know if it was a cruel and unusual punishment which obviously it isn't here because on each count the defendant was given no more than the statutory maximum that was available for that count and then those counts were run consecutive to each other so i don't think there's any sort of cruel and unusual punishment problem with that nor do i think there's an issue in terms of saying that congress didn't intend that someone serve a life sentence because maybe congress didn't intend that someone serve a life sentence on one count of production of child pornography but where there are multiple counts of production of child pornography particularly as here involving different victims  in different circumstances i don't think that we can say that congress didn't intend that someone might serve a life sentence in those circumstances thank you very much honors  bruno to address that question as well we did not raise that in our brief primarily because it's well settled in the th circuit that what the court did here was appropriate and admissible and didn't raise a constitutional question i agree with the with the premise of the question which is how can someone receive a life sentence when congress has chosen not to make the maximum for that offense life but i understand the arguments both ways and i could not in good faith raise that issue in my brief given the settled nature of the law on that question with regard to substantive substantive reasonable miss i don't the fact is that this case really did not depart from the heartland of these particular types of cases and that's a terrible thing to have to say but this court has dealt with these cases numerous times i have tried these cases and to the extent that there is a typical pattern of behavior there's nothing that is particularly egregious relative to this type of offense exhibited in this in this record it's just not there and that's a very difficult argument to make i recognize that it's painful to make because it's a horrible crime but the fact is that the sentencing statistics that i cited to the court found from the guidelines report life sentences in the federal system demonstrate that sentences of the length imposed by the district court in this particular case are almost never imposed in cases where as here the defendant had no prior record there was no use of violence there was no injury to the victim it was i'm sorry i lost my train of thought but but the point is in almost all of the cases in which this length of sentence imposed it was a case where there was a horrible prior record on the part of the offender or one of those other factors was was present not for a st offender of this nature so it to the extent that the case or that sentence was substantively and reasonable i think that enters into the analysis as well thank you mr smith we have thank you