hundred month sentence more than six times the high end of the guidelines range in doing so the district court erred in three ways it failed to justify the extent of this variance it ignored the well documented sentencing disparities this created that were documented below and it was greater than necessary to satisfy the thirty five fifty three a factors so for these reasons we believe that this court should vacate the sentence and re man to a different judge you records said that it looked at all the papers that's all it said if that i'm not even sure the district court said that the district court never once address or sentencing memoranda and i think that's one of our primary concerns here and one of our primary procedural errors and we think that that also led to a substantive error and your honor i would actually point to this court's decision and trujillo and enter hero there was a similar sentencing disparity argument made and there the district court i'm sorry th defendant's attorney pointed to two cases the talked about ten defendants and in that case similarly the district court didn't address that sentencing memorandum at all and what this court said is that this total a mission goes against explicit policy considerations in rita where the supreme court explained that the sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties arguments and has a reason basis for exercising his own legal decision making authority here we actually had a lot more cases we cited thirteen cases and a total of thirty eight defendants and yet the district court did exactly what it did in trujillo it didn't mention it at all so we think your honor at a minimum trujillo mandates vacating the sentence and reversing on procedural error we also think that the district court failed to justify the extent of this variance we know your honor that it's difficult to say to district court judges well you have to give more explanation and more explanation and i want to stress that we're not asking this court to come up with a hard and fast rule for all cases about what level of explanation needs to be given all we're saying is that when there is a fourteen year upward variance which in my research appears unprecedented there needs to be a better explanation than there was in this case the last argument that i'll just touch on briefly your honor is that we believe that this is substantive substantively unreasonable now again district courts have a lot of discretion to give that sentence that they believe is appropriate the problem here is that this is one of those exceptional cases where it's just so far out of the reach of the norm i mean i have never seen a fourteen year upward variance i couldn't find any in my research i think this is one of those cases that sort of shocks the conscience and requires this court to take a really hard look at it and if you take a really hard look at it there's two reasons that it substantively and reasonable the first one is that essentially it didn't involve any of the really egregious factors that we look at such as it didn't involve minors in the united states it did involve any sort of involuntary servitude or bondage there's no evidence you say you deserve all minors in the united states and i understand exactly why you said that because by the time the women are in the united states they're older that's right there's the judge for been to consider the origins of this i don't know what to several months before she turned eighteen so and so my question is as to send the conviction i get it i mean that's one of the reasons for the early remapped right but as to sentencing is the judge in tiredly had a look at the entire course of conduct some of which took place outside the united states your honor we would say that this court is barred from looking at it because the thirty five fifty three a factors are broad they allow you to consider the history and characteristics but i would point out that there were this  it was plane error because what happened is you can't accept a guidelines range so i draw a distinction in my briefing saying essentially look if you have a situation where the p s r says all right the statutory guidelines range for this is zero to three years then essentially that sets out the range that's different i'm sorry that's just that sets up the statutory range that's different than the recommended guidelines range here under hundred one point one c the guidelines recommended range is zero supervised release because he's going to be deported so the district court in our opinion can acknowledge that the p s r said this is the statutory range but it can't adopt that as a recommended guidelines range because that's not what the recommended guidelines range is the recommended guidelines range is zero supervised release but so that it was going to be waived if he was deported is that right and i suppose if he wasn't if he's not deported then it wouldn't be waived so you would have the three years of as release condition yeah so i doesn't that make sense i don't think there was any question here that was he was going to be deported and so i'm not sure there's any there's any possible chance that that would happen and that's why we believe it's not relevant i think that's probably the best answer i have your question on and if the court you go back to the explanation of why you believe that this is substantive unreasonable i believe you started about talking about the agree just factors sure it didn't involve those three seriously agree just factors it didn't involve minors it didn't involve involuntary servitude or serious physical injury that would require hospitalization the other thing we would say your honor is that i think in terms of figuring out what is substantively reasonable a good guide is the enhancements and in this previous decision from this court this court actually said that  don't apply but let's say that the district court said all right even though they don't technically apply on their face i think there was some egregious behavior the level of upward variance still shouldn't go past what the enhancement would've applied so for instance even even if it's apples and oranges they'd this record was talking about the organization behind the grooming it's hard i guess i'm having a hard time following the fact one set of factors like that would clearly enhance if they were a pleco bond there or not and different factors that seemed to capture the district court's concern level a level of concern as he  point and i seem different things i think your honour's is right there they are so sometimes apples and oranges but for instance i'll give an example the district court relied a lot on the physical violence against the women well if this if the district court if an aggravated sexual abuse enhanced had applied that would have only resulted in a hand spent that would have put a guidelines range at sixty three to seventy eight months so not only did this court say that that enhancement doesn't apply but the district court went ahead and gave a sentence about three times higher than that so in other words i'm just saying that in terms of the level the extent of the upward variance i think it's it's questionable whenever a district court goes above one or more of the enhancements that were not even found to apply that's my point and i don't have much time but i'll say that for about a year we'll hear from the government but we'll give you a chance to respond please the court marker eighty four the united states you know there was no procedural error at sentencing in this case is this court is well aware district courts our basically at the height of their discretion in sentencing particularly under the advisory guy have a rule that you've got to respond to arguments when you have a sentence that is so far outside the guidelines the rule is that there has to be an explanation and we specifically pointed out that's the carty rule we put that in our brief i read i read every word spoken by the district judge at sentencing and i didn't see anything that responded argument laid out in great detail as to the disparity between this sounds and other sentences for comparable crimes i just didn't see any response to that argument and that's correct your honor it's not there and so what do we do with that when i think we have a rule that we got it just right and outside the guideline sentence of this magnitude they're supposed to be response and an explanation by the judge first of all i'm not aware that there's any part of that every single reason has to be set forth in fact the two he'll case upon which my opponent relies i read that yesterday that was the case it was a thirty five eighty two motion for reduction of sentence the district court there did not have a hearing decided it on the papers it wasn't just about i wanted syncing disparity that defendant gave at least eight different thirty five fifty three factors if you look through that opinion what the court said it was a total admission district court needs to give the reviewing court enough reason to believe that it's consider the arguments those cases those ten or thirty three says they were filed four days before the sentencing was supposed to have i think it's in the first three pages of our supplemental excerpts of record to just report specifically said i just got this paper i'm going to put the sentencing over for three weeks to consider it so this court knows that the court deftly considered it now not  prestigious quote if the defendant fails to object to the district court's failure to adequately state reasons however the sentence is reviewed for playing here if there was a how hard would have been this defenses council was no that has at least ten years of experience could very well have said your honor appreciate we've had twenty pages of heated discussion what about my chart what about my thirteenth and i read the sentencing transcript as i think we all did  dr is designed to protect the district judge from being sandbagged the district judge knew exactly what the argument was and you're asking that your version of plain or rule requires defense counsel to just push the tiger's tail i cases i mean some of them had to do with you know in order to have an one in order to sentencing disparity i think your honor your resume a case that is least known for those i mean there were plenty of cases cited in that short attempted recruitment of an f b i informant when there was no prostitution whatsoever just a statement of a thirty three defendant case where some defendants got thirty three months others got more per sentence per victim how does that give  the district court to say you know what boy this is really a weighty argument of unwarranted disparity i mean here we have a defendant with two victims this wasn't just one week of prostitution it wasn't three months one of them met the defendant when she was seventeen and he was eleven years older than her the other one met him when he was eighteen each of them prostituted for three or four years defendant used repeated acts of violence all of these things are what the district court focused on you can infer from this record particularly where there is no i mean for the defense to say this is the single most important argument they only mention it twice at sentencing and even then they just saying conclusory fashion i think there's unwarranted sentencing disparity with that we submit if a district court is to have the kind of discretion that thirty five fifty three affords it i think this record shows this is still plenty to fulfill that standard i mean in a given martin marshal c thirty six sixty one says there shall be no limitation placed on the information accords to consider at sentencing in this court this is what you earlier said as we were talking about plain error that the district judge at the record twenty two third long from the top court says so anything else and this was after the prosecutor had made his presentation in this morning to the defense counsel goes on talking about how she didn't think there was enough psychological damage to women so she definitely takes that opportunity to specifically answer arguments in the prosecution and there's zero mention about hey your honor i've got this really great argument out disparit usually where courts ok i go and i've seen i mean if somebody says your honor i have a procedural junction counsel what is it i had a chart of the are thirty seven to forty one you never said a word one about it well then oh yeah you reminded me of something so let me talk about i didn't think region you know the rule is it takes extraordinary or unusual circumstances this is not a case where the district chored with the district judge has expressed hostility towards the defendant the fact the record has at least two two examples of where the express this way fairly strongly worded disapproval of the conduct of the defendant now expressing hostility i'm not sure but i don't slide back and forth between that attitude toward the defendant and attitude toward apologize your honor even the defense admits that the defendant had reprehensible conduct but this is really at the defense wants to give the idea that this is the third time around of course they can keep appealing endlessly the first appeal was just on the first was just about conviction the second appeal was just about the guidelines this third appeal was just about thirty five fifty three and here's the irony if this judge is so intransigent in the so locked in its own views and not willing to listen this court why did the sentence go from two hundred ninety two months to two hundred sixty two months and now at two hundred months this isn't a judge that has shown himself to be completely you know outside the realm of learning about what apparently went wrong in here we are this is thirty five fifty three again this is supposed to be we're judged as it's is greatest discretion thank you but don't put a minute back on the clock  you i'll just address the remained to a different judge briefly because i think the court has essentially asked some of the other questions that i would have asked government counsel myself i think the reason that this needs to go to another judge is spelled out in gardenhire and in that case essentially there was a situation where the district court sentenced someone and then the district court said well even if i'm wrong on that on the guidelines i would give this person a different of the same sentence anyway and what this court said and gardenhi is we're going to take the district court at their word that they're not going to be able to look at this case with fresh eyes that they're entrenched in this position and essentially the district court did the same thing here it's effectively said i'm not going to go any lower than two hundred months and