morning the morning if it please the court mary beth young on behalf of the united states i'd like to reserve three minutes for roboto united states appeals one day sentence imposed on defendant musgrave following convictions by a jury for bank fraud wire fraud and conspiracy musgrave's offenses calls a loss of one point seven million dollars to a bank and the small business administration his guideline range was fifty seven to seventy one months the district court's downward variance to impose a one day sentence with credit for time served during a day of processing was substan on reasonable or the other government agreed to a level where the thirty three or something like that yes your honor the government's recommendation was thirty months which while below the guidelines is obviously  considerably greater and as as you know this court and the supreme court of indicated that the greater the variance from the guideline range the more substantial the justifications must be so we don't think that the justification  here were adequate to support the degree of variance that was given the district courts analysis contained four errors which i'll summarize and then elab first the court rule i'd on an analysis this court has specifically rejected and looking at the collateral consequences of the conviction and prosecution as themselves constituting significant punishment second the district court gave no consideration to the need for general determines third the court gave an adequate weight to several factors that tended to support a greater sentence including the seriousness of the offense and the guideline range and forth the court gave excessive weight to musgraves history and characteristics as reasons to vary downward as to the collateral consequences the district court emphasized that musgrave had quote already been punished extraordinarily because of the facts of his conviction and prosecution the court pointed to the legal fees he had incurred the likely loss of his c p a license and the quote four years of hell he had been through noting that those were significant punishment this reasoning was not compatible with this court's analysis and pep sign one both of those cases squarely reject reliance on negative collateral consequences as themselves reflecting the seriousness of  as this court explained in beslan one relying on those sorts of considerations quote supports shorter sentences in cases with defendants from privileged backgrounds say that happens mostly white collar situations you have a lawyer or c p a or some kind of professional very supper all these cuts quite right and that's exactly the concern that this court has expressed those are the defendants who a district court might perceive as likely to suffer the most in terms of financial or career or community status type collateral consequences so that considering that has a disparate effect and in fact the district court's  analysis here confirms that very problem most clearly in the courts looking at the fact that the defendant musgrave had incurred significant legal fees obviously i factor that only a defendant who could afford a retained attorney would have been put in the court also failed to give any consideration to the need for general deterren that the district court was considering deterrence it turned immediately and only to look at the need for specific deterrence of mr musgrave and self which the district court considered not to be a significant factor but it didn't analyze general turrets and that's despite the fact that this court has pointed out in purple and elsewhere that in the white collar area these crimes are particularly good candidates for general deterrence because they tend to be planned they tend to be more rational than perhaps some other crimes and this court has also held that a failure to consider general deterren substantively unreasonable and i direct the court to commit and christman on that point the lack of any attention to general deterrence was paired chronologically but it it in then yeah at the end of the day if this is your most who sort of comes across as the primary offender and yet everybody's obviously temporary your honour's certainly understanding a factor that was important to the district court and it's not inappropriate to consider the role of others in an offense in considering the seriousness of the offense conduct but at the end of the day the jury heard mr goble goldberg story they heard mr musgrave story and they convicted mr mr gray of wire fraud bank fraud and conspiracy there was a rule twenty nine be a little bit of a disconnect in terms of the kind started out and developed it everybody in the case seems to have understood that to a point and yet this is what was the most cr was charged with what he convicted and here we are is that i think that after by you why i don't think it's off a spin i think your honor we come back to the point that a consideration that may be proper states in any way agreed with the district court's characters a nation that mr goldberg was necessarily the more responsible party here the pre sentence report had suggested perhaps they we were equally culpable the united states would point out that it was mr musgrave who dealt directly with the bank mr brett musgrave who was responsible for submission of all the forms  jury determined were fraudulent so very much want to make sure the united states makes clear that the district courts of view of this case and mr musgrave's ro cooperation accepted responsibility for his conduct and in that way was distinguished quite significantly from mr musgrave in a way that the district court failed to adequately take into account that is disparities between instances in relation to the section thirty five to three factors more so than disparities between co defendants is that part of the thirty five fifty three factor is on national despair and and as this court has also recognized the guidelines themselves are intended to capture that national sentencing pattern and so that in disregarding or giving little weight to the guidelines the district court also leads itself into a situation where it's creating disparities not disparities nationally in it's  excessive focus on the coconspirator here the district court also gave excessive weight to some of musgrave's personal characteristics vocational skills civic involvement in a way that this court has cautioned against simple and this line so for that reason to we feel that the one day sentence here was subsequently and reasonable and requires three sentencing thank you absolutely this court looks at all the factors but the supreme court is directly held it is not a general review it is abuse of discretion review in gaol five fifty two s thirty eight page forty one so busa discretion review which starts with deference to the district court it is these discretionary but we're talking about the use for example of an impermissible factor that's really a question of law that's right that's right that's not a piece of discretion review it's not like sentence under the district court's analysis not disagreeing with the court's point at all but this court first of all this court hasn't held that those factors are absolutely not to be considered and in fact they conflict hard for me to specifically though those decisions focus on reflecting the seriousness of the funds and determines for all the reasons that have been pointed out already but the sentencing guidelines explicitly say those factors should be considered at least in terms of considering whether the appropriate fine the supreme court's held that those factors and effect or even those that conflict with the sentencing guidelines can be considered and gallen kimbra and what judge black did here was consider them in the context of what would be just punishment and just punishment he said well we have to take into account one of the ways he's been punished otherwise and among the factors that the government points out is that he lost three hundred thousand dollars to mr goldberg that's certainly a factor that you can take into account that isn't they call it a collateral consequence of conviction it's not that's a factor that can be taken into account and the loss of a license for example that's an factor if you had said you can't consider that just to doesn't that really depend upon how you characterize the loss of the three hundred thousand i mean you could say you lost the money to most of goldberg but you could just as easily say you lost three hundred thousand dollars and pursuing a criminals  or more precisely a criminal conspiracy but that's right and that's where the deference to judge black's decision comes into play that's a that's a question he had to raise after sitting through the entire trial and after sitting through an extensive sentencing hearing and again that's go pointed that out explicitly the judge is in position to review all the evidence he heard all that he was able to make credibility determinations he concluded reasonably so it's supported in the record that goldberg was the circumstances were just totally well different i disagree i agree that they were different but i disagree that judge black ignored that he actually what he was looking at then was one defendant goldberg who  government had determine appropriate sentence reviewing all the appropriate factors that this is a big point and in this case this court's decision in united states versus pressley that you can take into account the codefendant sentence because it encompasses all of the factors except the individual history and circumstances of the different so the judge black was wayne between the two will goldberg did plead did cooperate and that's no question about it warrants a lesser sentence but musgrave was less culpable and so he's balancing in between these two and there's no question judge black's analysis that if goldberg hadn't pled he would receive a greater sentence than musgrave he was more culpable he was  the money involved he diverted five hundred thousand dollars for his own purposes rather than complete the transaction and it was his ninth plant that he had shipped off that didn't work and yet mr musgrave didn't clean so on balance he concluded they should receive about the same sentence that's not an abuse of discretion at all and in fact in pressley in this court's decision pressley the court concluded that a two hundred forty month variance from thirty years down to ten based those and yeah it's absolutely appropriate that goldberg would get a break for pleading and cooperating but he's bouncing between the two and that's not an abuse of discretion and that's that right there we could stop actually he didn't plead or cooperate but he lost the money in his conduct was less egregious in goal also the supreme court was reviewing the government's argument in that case addressing the government's argument that because co defendants to mr gall got to prison time go all you know not at all absolutely not of course but we're talking about it again abuse of discretion review and we're talking about individual factors in every case the supreme court's instructed again every individual must be taken into account as an individual both their nature and circumstances of their offense and their history and characteristics and again goes a good example the court said it doesn't promote respect for the law if we say it in fact it's on pa fifty four a sentence of imprisonment may not work to promote respect but derision of the law if it's meant so if it's seen soley as a means to dispense harsh punishment and here mr goldberg pled he absolutely deserve the break he got credit for time served three years to provide release and also that one point seven million dollars restitution though he made nothing off of this and he's paying that back now that's a significant sentence by itself for somebody who's nearing retirement age  unusual case and we saw that from the beginning but again everyone recognized it was on the usual case is what makes it on you look at it in the way that we certainly certainly and i think the starting point is again everyone agreed that this was an unusual case from the government's recommendation wide apart from what everybody agree what she was right and it's a pretty garden variety of mean it's pretty serious white collar fraud it's respectfully judge black determine this was not a garden variety case it was mr musgrave rather than coming up you know ahead of time with a three year scheme musgrave in particular and again i don't believe focus on a few other things oh absolutely no i mean in comparison with all the factors absolutely but again he explicitly considered mr musgrave his characteristics in the offense in comparison to the chart presented by the government which was these eight to ten other what they said were similar cases in the southern district of ohio and he explicitly considered it in relation to those offenses and he said well i'm looking at these i know from the cases i've seen that mr musgrave is far less culpable and has far less of the history and characteristics that would warrant a severe sentence than for example eric d twenty five month sentence who the government presented to him the government says this was actually error but it wasn't here this is what he's supposed to do this is what all instructs him to do actually again which is he is in a better position because he sees so many sentences to be to look at explicitly what they put to him and say no this isn't this isn't like those cases this is a gentleman who got wrapped up in something started by mr goldberg and cut some corners it's a severe sentence i mean it's a severe fraud no question about it it's a severe crime but this isn't somebody that planned ahead that was coming up with a huge scheme ahead of time and played it out and then got caught at the end this was somebody who got wrapped up in something that somebody else was organizing an event again when we look back to presley this court's decision pressley he's explicitly permitted to take those into account mr goldberg sentence because it encompasses all of the factors and he weighed those and said not an abuse of discretion here he windows and so they should be i'm sorry he weighed those and said they should receive approximately the same sentence goldberg was more culpable employed musgrave less culpable but he did go to trial he prevailed the trial and much of what the government accused him of doing the got the jury rejected what mr goldberg testified against musgrave as far as submitting these false and voices that the government says he did he didn't said i did go great i actually said i did create these false invoices but musgrave told me too but he was acquitted on that counts count fourteen so judge black after sitting through this entire trial consistent with the jury's verdict where they found yes he's guilty and no question about it i'm not arguing anything else here yes he's guilty but not of everything the government says he did saw that goldberg was more culpable considered goldberg's receiving a reasonable sentence with an appropriate reward for his cooperation and plea but musgrave significantly less culpable wayne all the factors concluded he should receive about the same sentence and so he did and of discretion review considering gall considering pressley that's not an abuse of discretion that's simply given due deference to the district court on his evaluation of the factors and his conclusion that they warrant to disagree with variance in this case just gall says to do a page fifty six of that opinion but what's the best case you have where we have a notion a case where for all of this magnitude it's better proved by the court certainly united states or is this prospering out of the first circuit was an eighty seven to one hundred eight month guideline range where the government recommended a within guidelines sentence was over five million dollar fraud and the court they're considering many of the same factors concluded no time in prison was warranted but i'd also point t it did do so install in a child pornography case and that would be the closest case that this court has so far decided but the you know the universe of cases and all the courts of appeals have said that you know white collar fr few points i'll see how many i get i want to point out with regard to the seriousness of this offense it's important to keep in mind that these are class b felonies which by statute would not have qualified for a probationary sentence under eighteen u s c thirty five sixty one now even if the one day here takes us out of looking at a technical violation of that it remains an important signal of how this judge is assessment of the seriousness of this offense compared to congress and this is exactly the comparison this court looked at in the davis case the fact that this couldn't qualify for probation by statute next it bears noting that below the defendant had suggested himself home detention as an option in arguing for a downward variance and inexplicably the district court didn't even take that suggestion if the court were concerned with some of the factors he mentioned about his personal characteristics such as his medical situation or his business it's illogical that that would not at least have been taken further demonstrating an abuse of discretion and an unreadable mess in coming however there was a and preoccupation with this one situation the united states had submitted national statistics district statistics a list of eight specific cases council says of the district court looked at that the district court looked at two if you look at the sentencing transcript he mentioned two cases that had been in front of him and even as to those didn't really explain why they were not comparable  among them were thirty three month mortgage fraud case since at thirty three months a sixty month sentence in a mortgage fraud case a twenty five month sentence in a mortgage fraud case again looking at goldberg may have been permissible looking at and to the exclusion of other information let's not counsel mention something about the fact that musgrave was acquitted as to particular counts or parts of the scheme the briefs counsel's brief has suggested that the acquit on false statement counts some how carries over to take the similar related conduct out of consideration in the fraud or conspiracy counts as we note in the brief that does not make sense there is no reason that conduct was not still on the table as to those