good morning she how come we don't have our usual big crowd of spectators so something that they know that we don't it well can we have a number of cases that are on the br morning your honor stephanie will for time we thank you they have please the court the supreme court said in booker that the new approach would quote make the guideline system advisory while maintaining a strong connection between the sentence imposed and the offender's real conduct a connection important to the increased uniformity of sentencing that congress intended its guidelines system to achieve here the district court broke the connection between mr penn jezreel conduct and the sentence imposed when it varied upwards by two hundred and twenty two months from the top of mr pena's guidelines range a variance of nearly twenty years to  acknowledged that some upward variance might be appropriate and i do the same today but the variance that the court imposed two hundred and twenty two months is in extreme variance it was untethered from his offense conduct and it was no how do we how do we find the sweet spot where the words high variance but not substantively unreasonable your honor i think there as your you know your client was looking for an additional fifteen months you know obviously the court went way above that i mean that's that's obvious but where's the where do we draw the line in this case between fifty and two hundred and thirty cent how many extra months two hundred and twenty to twenty ok your honor i think there are three there are three sort of guideposts that the court can use to determine that the sentence is substantively unreasonable the st is the guidelines and sells the guidelines have a lot to say about how much different offense characteristics or criminal history characteristics should impact a sentence how much change there should be based on those facts the nd is a comparison with this court's other cases in the cases of other courts of appeals and the rd is the vast disparity between mr pena sentence and the sentence of his codefendant mr cond who served only thirty six months for conduct that was at least as egregious as the kind that mr pena was convicted of but served only a th of the time of course there were lots of reasons for his sentence being considerably lower because he cooperated your honor there was that significant reason for a sentence being considerably lower but the variance that mr condit received r in the record but the district court accepted the government's representation that mr condit guideline for actually one offense level above mr pena's and while cooperation of course is entitle to significant consideration the disparity between those two is extreme mr pena some of the conduct that the district court relied upon to enhance mr pena sentence was actually m gun entering the house at mr lacy which was exactly there were children in the home right when they were mr and mrs lacy and their children places pregnant does it really matter whether he's brandishing the gun at mr lacy and his and mr khan is brandishing the gun and mrs lacy i mean it's the setting that's concerning to the district court yes your honor that's that's certainly correct however i do think there is a significant difference between their conduct miss lac testified that after initially pointing his gun at mr lacy in time knocking on the door and entering the home that mr mr pena then put his gun in his pocket and that she was not so afraid of him  she testified that she actually followed him from room to room and followed him out of the house when he left whereas mr pena i mean mr conway actually pointed his gun both at miss lacy who was pregnant and that her young daughter that is while mr pena was in another room so he wasn't even present when that conduct occurred obviously that is that is a co defendants conduct in the situation overall is concerning but when comparing the sentence of mr connelly received and the sentence that mr pena received it's clear that mr assessing the substantive reasonable mess of sentences it is unusual admittedly for a defendant to win a challenge on substantive reasonable miss but that doesn't make it a toothless review the  all know that people are human and district courts error and care casually those errors are substantive they are it is clear that the district court put a lot of effort into writing it's its opinion think there are several that are that are useful and i would start with the one that the district court relied on most heavily which is united states versus gas of conviction and one hundred and twenty four see the severity of the penalty provisions of nine hundred and twenty four c r both because there is a mandatory sentence and because that sentence must be consecutive to what is necessarily in almost every case robbery or a credit union robbery and and therefore the conduct at issue was very different from the heartland of or from the from where the guideline range would have put the heartland because normally you commit a bank robbery you have the bank by two hundred and twenty two months and the only thing that had changed was that mr pena's conduct in the bureau of prisons obviously concerns the court now that conduct was properly considered there were a few weapons violations where he was he was accused of having weapons in the bureau of prisons he was never accused of using a weapon on anyone else and there was one allegation of a fight and i think i think insubordination but your honor that conduct does not touch mr pena's offense level it does not touch his the actual crimes for which he's being sentence if it moves him anywhere in the sentencing table it moves him along the in the th circuit there isn't there is there is not a a th circuit case in which the upward variance was reversed that is analogous to this case but i would point the court to the th circuit's decision in united states v tucker and i think that is actually the case most and now it gets to what we're dealing with here in the united states be tucker the district court imposed the sentence on ms tucker who was convicted of a fraud count for because the district court concluded that she was going to continue committing this type of crime that she was a habitual embezzler and fraudster and that there was nothing that the court could do other than incapacitate her that is very similar to the reasoning that the district court used here and the court the th circuit in in tucker reversed that variance not not necessarily because of the degree although it was a substantial degree i believe she went from she went from a sentencing range of of about twenty four to thirty months and was ultimately sentenced to twelve years but the reason for the reversal in that case was that the offense conduct w disconnected from the sentence and here we have the same district court drawing a very similar conclusion that mr pena is just going to keep trying to get his hands believe the district court's words were on the most dangerous weapon that he can but that does not give the district court leeway to impose a sentence it's untethered from the conduct at hand if the bureau of prisons conduct concerns the court as i was saying that moves mr pena essentially up in criminal history category it makes  the pattern of criminality more serious perhaps than the category four but at offense level twenty two dollars with a criminal history category of six his guidelines would have been eighty four dollars plus one hundred dollars or two hundred and dollars plus the five year mandatory minimum mandatory consecutive we're still less than half of the ultimate sentence that the district court imposed in this case and so i would ask your honour's to consider tucker  in terms of the clear line of how far the court is not entitled to go even under deferential abuse of discretion standard there are some other th circuit cases your honor that i do believe  will be helpful the district court for the government i believe called the court's attention to get swine that is an exceptional case in which a large variance was approved however i would know the variance in that case under even the extremely unusual circumstances there was only a variance to two hundred and forty months much smaller variance  activities in the district court had ever seen out of a single defendant's torture of animals and all kinds of of extreme facts your honor the court has another question that like to re let's hear from the united states the court counsel my name is maria song and i'm an assistant united states attorney in the district of new mexico tommy penya has a demonstrated history of possessing dangerous weapons and committing violent felonies continually putting the safety of those around him in danger this history began twenty years ago when penya was merely thirteen years old and has persisted through his time at the bureau of prisons where he was serving time for going on a dangerous crime spree in roswell new mexico which led to his convictions for carjacking nine hundred and twenty four c and being a felon in possession of firearms and ammunition the district court properly took all of this into account and did not abuse its discretion in imposing an upward variance to a thirty year sentence in a thoughtful forty three  life is what is that here in this case it would have been life because of the nine hundred and twenty four c conviction district courts are given wide discretion in imposing sentences and especially in this case judge johnson  he was the judge that actually sat through the trial back in two thousand and nine he heard from witnesses including mr cond he heard from the victims in this case he went through all of the defendant's criminal history and originally sentenced the defendant to forty years after johnson the case comes back pena's guideline range is significantly lower but at re sentencing the judge also heard additional evidence from  rist who works for the bureau of prisons he testified that sense penya has been in b o p custody he's committed eight additional infractions five of which involve him possessing dangerous weapons those are  t two of those knives are in the record there exhibits nine dollars ten cents the district court found especially troubling the length of the knives and the context with which they were possessed for one of those possessions there was testimony elicited that another inmate believed that tommy pena was going to stab him he had to be transferred to a different facility after he made that allegation a knife was found under tommy pena's bed so all of these reasons for rightfully so troubled the district court and supported the district court's conclusion that mr pena had no desire to change his criminal conduct and that he would continue to  months yes yes versus three hundred and sixty yes your honor and the district court thoroughly explained the reason why that's not an unwarranted disparity from st the district court pointed out that cond actually accepted responsibility for his conduct and testified against penya at his trial this was substantial condi testified that him and kenya had been friends since childhood you know from the record that pena's a dangerous individual he testified against him at the hearing and even during sentencing hearing his sentencing hearing is not in the record but the court alludes to it during kenya nd sentencing and the court stated that cond had actually been assaulted in jail because of his cooperation the united states was originally asking filed a five k was asking for forty eight months the judge gave him and an additional year off because of that assault so st the court stated that he had cooperated another reason for the disparity was their criminal history we don't have criminal history in the record but the district court did make a note of saying that he viewed their criminal history differently and went into great detail about penn yes criminal history they were both in category four excuse me were both in category fo that's correct he were added to the our record con the perhaps is pre sentence report cond so we'd have this information i'm certainly happy to supplement the record  court did did state that it wasn't putting the full weight of the variance on pena's post conviction conduct however he did give it significant weight and that was because  not only continued to possess dangerous fire dangerous weapons but he actually went to a special management unit for sixteen months this is called the s m u the purpose of that was to try to rehabilitate him because he had already by the time he went to the s m u he had three thousand one hundred and four infractions those were impressions for possessing dangerous weapons he gets sent to the s m u which is supposed to be a rehabilitative program he's there for sixteen months he comes back from the s m u and he receives two additional ten dollars or infractions even after being sent to the s m u he's caught with knives again the knives that he's caught with are in the record one of them was six and a half inches long the other one was three and a half inches the district court specifically found that the length of those weapons was particularly troubling there was testimony at the evidence you're hearing that personnel have been injured before and while there was no evidence that pena actually did injure someone the district court eluded that you could certainly infer that he intended to based on the threat that was made to one of his other inmates and i would like to point out my opposing counsel brought up the tucker case from the th circuit i would point out that that decision was decided before the supreme court decision gall versus the united states and in gaol the supreme court may clear that sentencing review must not be based on a rigid mathematical formula that uses the percentage of the departure as the standard for determining the strength of the justifications in fact all of the cases that are cited by the appellant the tucker case from the th circuit the curry case from the fo circuit they make mannix case from the a circuit and united states v allen which is a th circuit case submitted by twenty eight dollars j letter from the appellant all of those cases were decided before call after gall came out there was much more direction as to the appropriate standard of review for sentencing hearings gall made clear that trial judges are in a superior position to find facts and judge their and fifty three a and as i stated previously that's especially the case here where you have a judge who sat through a trial was able to evaluate witnesses was able to listen to the testimony of the victims was intimately familiar with the facts and circumstances of the offense conduct and mr pena is history that is the same judge that sen unseen hearing in two thousand and eighteen the district judge did not base its entire variance on his post conviction conduct rather the judge also went into great detail about the circumstances of the underlying conviction that troubled the judges that it that it that troubled the judge that included the lacie carjacking that occurred miscall at least he was nine months pregnant at the time her minor children were there several days later penya is involved in a drive by shooting that count of conviction was a felon in possession count however the circumstances are particularly egre ous it's not just mr pena possessing a firearm it's him actually discharging it at people in a public street basically he held it over his head and discharged it in a grassy field in front of an apartment complex fast forward you have him continuing to possess firearms when he stole of a motor vehicle from fred luna the next day when police try to apprehend him he's in possession of two shotguns and over and approximately one hundred rounds of ammunition all of this trouble the judge the judge also went through a thorough explanation of penya past convictions and again reiterated the post conviction conduct that troubled him if your honour's have no additional questions i'm happy to return the rest of my time but i would ask you to affirm counsel i think you miss will post a rebuttal honor i'd like to just respond briefly to a few of those points st i would submit the ball does not stand for the proposition that anything up to the statutory maximum is substantively reasonable this court has repeatedly affirmed the folk before and after gall that the greater the variance from the applicable guidelines range the more compelling the reasons for the divergence must be this case does not present reasons compelling correct that allen was decided it was decided before gall but allen similar to tucker was decided on the premise that the the disconnect between the offense conduct and between the sentence imposed was too great and it is similarly too great in this case the disparity between mr cond in mr pena in this case is not warranted by cooperation the district court sort of makes a blanket statement that  they are not similarly situated because mr condit took responsibility and cooperated of course is the exceptions the responsibility was accounted for in the guidelines and his cooperation merited consideration but a ten fold disparity is simply too extreme they were both as your honor pointed out in criminal history category four similarly they were actually co defendants in one of their prior offenses so there their history up into that up until that point was extremely similar the post conviction conduct that that the government site is not enough to justify a variance degree and i think your honour's can see that in both united states cade and united states is going where both of those defendants are actually convicted of crimes subsequent to a recent subsequent to an original sentencing and then re sentenced and they both do you think the court put too much weight on the prison conduct i mean cond didn't have any entitled for conduct of possession of weapons in an extremely dangerous as a district court acknowledged v o p facility where still mr pena is not accused of using those weapons on anyone all of his record is i don't think the traditional definition of a drive by shooting obviously it does it does involve the use of a firearm but i would point your out of the guidelines in approximating or getting an idea of how much that conduct should change the guideline range there is the sentencing guidelines do provide a four level increase for a felon in possession charge when the gun is used in connection with  again is just out of proportion to the conduct disconnected from the actual conduct and therefore substantively unreasonable it's like your time is up thank you very much counsel we appreciate the arguments that was well stated and helpful thank you excuse in the case will be submitted