may please the court no appeal heard on behalf of the plaintiff appellant the united states of america your honour's i've requested with a course permission two minutes for rebuttal now there's three specific reasons that jumped to the forefront for reasons first the sentencing court did not adequately consider the sentencing guideline range but rather employed a different methodology that focused specifically on how the defendant did on secondly the court assigned an unreasonable right weight to one sentencing factor in particular in fact a sliver of a sense in fact which is the history and characteristics focusing only on the eighteen months the mr bannister spent on pretrial release as opposed to the thirty years leading up to his arrest and third the court did not adequately explain how it's non custodial sentence a seventy seven month downward variance provided for general  each of these three reasons and other reasons identified in our briefs relate to a broader issue which is a failure to appropriately weigh the sensing factors and ultimately that is the abuse of discretion here is the question the critical and judgment as an assistant u s attorney is better than that of the judicial officer who's been a judge for many years who has seen all kinds of situations and you know what's in a while not frequently but it's why as judicial judgement to take a chance on somebody and i you know i don't think anybody would consider made to be a pushover sentence or put it in some poet at some point you just have to rely on your best judgment and that's exactly what kim car did i mean it's hard to find legal error in this since that thing we talked about the guidelines the way you dial the factors he did what he was supposed to do he just didn't get to the same sentencing judge in this case did acknowledge the guideline range and that's after stating what he intended to do this court has consistently recognized the guidelines are supposed to be the starting point here  sentencing judge did not treat the guidelines as a starting point in fact the record is pretty explicit that judge carver made it clear that the guidelines were instead of being the starting point or more so a fallback consideration if a defendant did not do well in pretrial release a tad hyper technical because he may not have mentioned the guidelines first but he got the pre sentencing report he thought what the guidelines eight specifically where the court stated that its practice was to release a defendant and then give them an opportunity to succeed in pretrial release and then if the defendant fails at that point the court considers the sentencing guidelines this is in conflict with the six circuits position on how the guidelines are supposed to function specifically outlined to my knowledge are not a factor one considers under the bail the sentence can be he considers how someone does on pretrial release and that his methodology is to release someone see how they do and if they mess up essentially then he considers the guidelines this creates two specific issues one relates to a failure to adequately w guidelines the other goes to said unwanted sensing disparities which is considered a situation in which due to the stricter isabel reform act someone is unable to be out on bond that person is not able to benefit from this methodology the judge car disparity where this defendant has benefited from eighteen months on pretrial release other similarly situated defendants do not benefit you know i mean in i've been a federal judicial officer since nineteen eighty is something that the court has to take into account what's made clear here though is that there was an extraordinarily amount of weight placed on not just one sensing factor but one portion of that sens factor looking at the defendant's history and character for eighteen months as opposed to his entire history in character which is described in exhaustive detail in the report it describes a series of consistent convictions from age eighteen forty five which involve drug trafficking thefts multiple domestic violence convictions assault and other violent crimes the owners this is something where the court focused entirely on this eighteen months to the apparent disregard of the rest of mr bannister history would also note that a critical issue here is the need for the sentence imposed to provide general deterrence this factor requires consideration general deterrence for similar offenses by society at large and in fact this court has consistently recognized journal of the time and as one of the primary factors in sentencing considerations this five day sentence gave inadequate weight to this factor and in fact innocence and transcript judge carr appear to acknowledge some uncertainty about whether or not this was  accomplished specifically at page id three thirty eight the court stated whether public deterrence is served or not i don't know i hope it is but i must say i cannot say one way or the other if that's the case then in appears that that goal of sentencing is identified in thirty feet thirty five fifty three subsection eight two does not appear to be accomplished by the sentence imposed we really think that if he had gotten the   that that's our problem the prisons are full of these people who who are apparently completely undeterred by these long sentences in prison by they  are they keep breaking the law they keep going to prison this is a forty seven year old man and apparently drugged karr saw something in this that he thought might be a recognition that he wanted to in what was a long life of crime and actually not die in prison and he gave him a shot and it's perfectly clear on the record that it was a successful  outcome and if i understand that this case is way off the bell curve but i think it would be unfortunate if we said to judge carr and said where everybody else could see it that you can't ever use your discretion in this way we're not saying that it's a question of way so it's not here when  it's hard to come up with a hypothetical situation but i think it deals with much more so with the adequate weighing of the different factors and the methodology that the court was using to reach its decision ok that's fine and if we decide that there wasn't a violation of that principle we can affirm can't we frankly your honor i'm not in a position to concede that ok your honor i would i would point out that this sentence itself indicates that there was a breakdown that certain things were not you know a more common sense in for this kind of situation would probably be prison time with the judge giving careful recognition to the defendant's performance while on pretrial release and making clear that he had been given certain credit of that for that but that discussed odile didn't impose was necessary to reflect the seriousness of the since it did take properly into account his prior record that would have been a more comments in it and you would have liked that senten better but i'm not sure that we can stagger that that any of the things you said about this since are true i mean i just can't it's it's we have certainly reversed some sentences that seem to sort of make a that is extraordinary someone and you disagree with that i do not disagree with that your honor and this is not about sentences that one party lives or one party doesn't like it's about the  the factors and just the finding that substantial variance with the appropriate justification would be appropriate weighing we don't think that the court would have arrived at this specific sentence which is to say if the court considered his twenty eight years of consistent criminal history contacts if the court consider the fact that this purported reformation occurred while mr bannister was facing the threat of sons for frankly possessing fifty six grams of cocaine across the street from school paid playground case i looked at the bare facts and thought oh there's got to be something wrong here and that's what you're feeling i think too because it is out of the ordinary but then when you see what the crowd judge did and how careful he was you know i began to come around to a middle view at least an open minded view of what should happen here so we don't it's not wrong of you to come in and argue this at all  and will will certainly consider your argument thank you morning morning may please the court pros and counsel my name is claire kuhn curtis and i represent mr bannister on behalf of the federal public defender i will keep my remarks appropriately brief today i'm certainly happy to answer any follow up questions that the court you represent this gentleman in the district court yes your honor along with my co counsel donna grill ms grill was present sentencing hearing i prepared the sentencing memorandum extraordinary circumstances do merit extraordinary  and variances and i think that this court is correct in their remarks the government that mr bannister is that extraordinary individual who is outside of alcohol that is we don't know what the reviews are not we don't know  with absolute zero we just know that the district judge thought he was worth taking a big big a hit exactly more to your honor's point at the end of the day this is a question of deference well i you know i have a sort of a different question and that is what i see that makes sense about mr hood's ideas for which and this is that this this wasn't judge car looking at mr bannister in front of him having certain information and deciding on the basis of that information that he was worth taking a chance on in fact if the judge knew anything about him at all you knew he had this incredible thirty five year criminal history and so one wonders i mean we now know that he was ready and eager to be rehabilitated and then he took to rehabilitation like like a duck to water but how in the world would a district court know at the point of prerelease that this was somebody who was worth taking a chance on and so you have to think that maybe that may be and is a say this is much is  judge carr and i have a very deep ration for him that he is deciding to do this sort of rogue release program and that he's releasing people on their own and leaving them out there for a while what could happen if you don't know that this is a person who's going to succeed what could happen if somebody could get killed he could commit other crimes and it would be horrible situation so what do you think the car is taking into consideration at pre release that convinces him to do this you must have seen this happen at least on hood is correct with their characterization of how judge carr operates i don't believe the judge cars or marks on the sentencing transcript were meant to suggest he has a pattern or a style or practice of releasing individuals and then see how they do it sort of  release was appropriate because of course is not what we're considering here but then look to how mr bannister actually did on pretrial release as one of the things he considered in determining whether or not the non custodial sentence the defense counsel asked for was appropriate and so what judge carr knew in addition to the underlying offense and his record was that mr bannister did exceptionally well in pretrial release and i'm happy to say he's still doing exceptionally well on pretrial release and so that was an appropriate consideration amongst the entire panel of considerations that judge is it enough to just mention that and how did he deal with his prayers thank your honor it would not be enough to just just mention them and i think the record reflects that judge carded a much more searching inquiry here and i'd like to give the court a few examples if i may in terms of general deterrence there was a discussion beginning on page ninety three twenty nine were judged explains that the most common reason for him imposing sentences is general deterrence so that's something that guides there's a guiding principle of his sentencing strategy during the conversation about general deterrence the government pushed back saying that they didn't believe that a non custodial sentence would be sufficient to deter to act as general deterrence and in page idea three thirty nine judge carr says well i disagree with you i think that it would serve general terms  same same issue with disparity i think the government takes a somewhat nuanced view here it's not that not enough for a judge to disagree i mean that's the same thing as touching on the what what did he say that was convincing so then judge that sending mr bannister back to prison would actually have a more dilatoriness effect on the community than allowing him to remain where he was working in rehabilitation serving others and working because he would slip no because well yes because he would slip but the that would have a negative impact on public safety and it wouldn't serve general deterrent that actually allowing him to stay out was a much much better effective servant of general  that mr bin background of the incarcerated a good b plus the sort of reward for doing right would be a model for people to show them how to lead law batting last is that the idea i certainly i would agree with your honor that i think he's talking about general deterrence in terms of what other similarly situated individuals might take from mr bannister's example and then also he's talking about disparity in terms of whether  disparity exists is not the issue is whether that disparity is unwarranted right at this corner certainly articulated many times and so i think judge card knowledge is our this is an extraordinary variance but i think under these circumstances this is a warranted disparity counsel is it anecdotal but i know that my office was quite surprised that we received for charlie's for this person so i can say anecdotally that's not been my experience in the i'm still going back to what did what did he know what the judge karr know or see that made him decide to re this guy and then just let it go on it seems normally long it was going well i mean that's the that's not my point but just what was it that made him so  i ask myself that and i still think it's probably that judge carr seen enough of these cases to know that there are very few people that are over forty five who are still engaging in criminal activity and going to prison and it may be just the age of this fellow might have provoked hope that he was ready to quit i think you're right your honor i can't point to anything specific in the record to answer your question other than bannister's age and his extraordinary record which does evidence a long history of drug addiction and at some point the court has to say and i think judge carr tried to say here we need to try something different this is someone who's gone to prison over and over and it's made no difference  your honor i apologize i it's been a minute since i've reviewed the bond hearing records i don't have an answer for the court on that  that there was no discussion of general deterrence so there was a complete absence of any discussion of deterrence unlike this case where there's been a discussion and judge cars explaining his reasoning for why it supports deterrence the other difference is that in musgrave the court relies on an impermissible factor which is that  the defender was a white collar criminal and the judge decided that he had already been punished enough by the sort of ancillary effects of having a criminal case that he had lost his c p a license and have to spend a lot of money on legal fees it had been stuck in a legal case for a number of years that it reduced his standing in the community and this court has said over and over that it's not acceptable to treat white collar criminals differently as they have more at stake than other kinds of defendants and so that was part of the reason why musgrave was remanded and then if i line which is a child pornography case again we have a complete absence problem sunburst line there is no discussion of the guidelines and instead there was a minimal zation of the conduct by the defendant in that case because it was receipt of child pornography upon that production and this court determined that it was inappropriate to have no discussion of the guidelines and that there was also an imprint in appropriate minimisation of the conduct that wasn't supported by the factors we had a number sort of said you know it's not about you're in some of the we said you have to give respect to the congressional we're not the we're not the folks who decide here several of those cases pretty correctly as far as what's under the surface yes your honor a lot of these decisions rely on criticism of the child pornography either guidelines or the way the statutes are crafted which obviously is different than the situation we have here in a lot of ways mr bannister sentencing is very straightforward it's a pretty standard gun and drugs case certainly the federal courts see lots of those we have a defendant who had mentally has a long and very serious criminal record and this was just one of those rare occasions where the balancing of the severity of the conduct which judge karr acknowledges repeatedly on the record was just countervail by the extraordinary efforts he had made on pre show release and judge karr believed that this was someone who would not be best served the community would not be best served by sending him off for incarceration i do think it's also worth noting that the government concedes in briefing that mr bannister really did merit a significant variance just maybe not as much of a variance as he received which really supports this idea that what the government's doing here doing in this case is asking for this court to simply allow it to relive again we use the word reasonable i mean  maybe it's not three years probation it's ten years supervised release where somebody just the feeling of the reaction though whether it's reasonable changes when there's something fairly extreme about you're absolutely right your honor that the starting place is reasonable this ok and here is the starting place is reasonable ness and that's assessed under the totality of the circumstances and again this court to first the district court so unless the government can point to a legal air which i don't believe they've done then this is a reasonable sentence balance under the thirty five fifty three a factors an example would be this court's decision in davis from last year where we had a variance of one hundred percent upward and i believe it was in a child pornography case so the the volume or percentage of the variance doesn't necessarily undermine it's reasonable ness and certainly this court has said a sentence outside the guidelines is not per se and reasonable as long as the judge makes an appropriate balance of the factors looks to the guidelines and does all the things that he or she is required to do then that sentence is within the judge's discretion should be affirmed by this court in closing i would just know that there's been some discussion about whether judge carr purposely considered the guidelines and it's not uncommon for this judge and most court judges to forecast where they might be heading at the beginning of sentencing if they have strong feelings based on briefing in this case the defense did provide a very comprehensive sentencing memo asking for a non custodial sentence and so that was already in judge karr's mind the government having provided no sentencing memorandum at the time that sentencing began but judge carr although he explained the government ham leaning in that  direction immediately pivots to say all right let's talk about what the guidelines are and so that was the basis of the court's determination so fair for their questions thank you honor there's two related points that would like to respond to the first relates to general deterrence i believe there was a question about whether or not the court adequately explained how the since accomplished general to come deterrence and that was the reference was made to page i three thirty nine specifically at that point in the transcript the court pivots from general deterrence to promoting public safety and does not address general to the specific quote is can't this is after the boss to question the court's stated i think someone who is fully aware of all the circumstances would games but the law etc and pivots to protecting the community without addressing specifically specifically there's a reference to the fact that the court musgrave consider the collateral consequences of the conviction that's kind of what's happening here where the court was considering whether or not a custodial sentence would frustrate purported rehabilitation efforts and thought that perhaps going to prison would cause him to have some sort of relapse in that sense i think there's an argument to be made that the court similar to the court musgrave considered the collateral consequences of the sentence as opposed and itself finally there was a question about the eighteen months on pretrial release and i just want to address that there were some factors that contributed to that there was a question about whether or not mr bannister demonstrated in the rehabilitation before that he was in custody for five days before that there was a self reporting of a drug addiction issue which the united states in this case contested at that time your honor as i see my time's up if i could just finish the statement of the court's permission the united states contested that at that time and contested it at sentencing noting that each time mr bannister was were arrested on a drug case he had between three hundred dollars and a thousand dollars in his pocket and that was not an indication of drug addiction but rather drug trafficking goners this case is about whether or not the court provided substantial justification for this substantial  thank you mr hurd let me just say this and this is something that i've generally to i told you what i thought of general in terms when you're dealing with drug dealers in this kind of mid level  where general deterrent really works is with white collar criminals somebody prominent in the community who does something really bad people pay attention white collar crime for example people pay attention let me just suggest that you ruminate about that a little because i think when somebody plead guilty and go to prison for in this case it important in the white collar contacts as the six circuit is recognized but it's important in any context well i'll give you that that's fine it's just where it really shows that is where you're making an example of somebody in the entire community note the example so i would just point out that the inverse is true when someone gets a non custodial sentence for a very serious crime there is an inverse deterrent effect thank you obs we appreciate the argument both of you who have given this rather unusual case and we will consider it here fully