on the calendar is united states versus the last that has been submitted on the briefs and will move to the third case on the counter which is going to i know i'm going to mangle this name but it's i think it's united states versus pow pow pow variance at sensing to avoid disparity with a defendant who had much higher guidelines offense level and seconded the dischord error by denying the motion to dismiss based on double jeopardy i'd like to address the sentencing issue first if i may the district court sentenced mr pop out to thirty six months despite a guidelines range of ten to sixteen ten to sixteen months the sole rationale for that upward variance was to avoid disparity with a codefendant who was sentenced to thirty six months that was an abuse of discretion here because the codefendant was not found guilty of similar conduct as defined by the  tend to sixteen months and the thirty five fifty three eighty six avoidance of disparity factors simply wasn't intended to do address disparities that result from the application of the guidelines which define similar conduct and i think that supreme court made this clear in in the gall case said avoidance of enron disparities was clearly considered by the sentencing commission indeed in that case the supreme court upheld that the different sentence that the codefendant received despite the fact their participation the crime was roughly comparable didn't create a disparity because the codefendant had a higher guideline sense so you've been arguing that the only reason for the sentence was to match the coconspirator sentence but the judge actually study r twenty that this sentence was necessary to make the sentence proportional and reasonable why isn't that an indication that really what's going on here district court wanted to have a sentence that matched pretty extensive involvement in a pretty big drug conspiracy with all these flights carrying drugs back and forth to hawaii i mean maybe the judge just thought this is what was necessary to be a reasonable sentence for the conduct well i mean the judge did not specifically refer to any other factors indeed the only other facts in the record that he noted were all favorable to mr  power he said i have a defender basically no record in front of me strong families for seven children out there i think fairly red the disparity i mean certainly drove the decision here by the by the district court and i think that was an abuse of discretion and we have an eye here not only of different guidelines calculation but we have the fed it was actually convicted under a different statutory provision because here mr powe convicted under eighty four one b one c where there's no requirement of any proof of quantity of the controlled substance there's no minimum mandatory on the other hand the codefendant pled guilty to eighty four b one seed which does require a defined amount and has a minimum mandatory of on years yes but i guess it just strikes me as you're being you're technically right on everything you said but i view the judge as sa look i'm trying to be realistic about this and i sat through i guess what two trials for this judge your client and then a guilty plea for the other person and they basically did the exact same thing in this conspiracy yes for one of them he willing to admit a specific quantity of drugs which triggered the mandatory minimum or whatever but i think this court on bank has rejected that reasoning as a basis for an upward variance and in this way and it really takes two steps statute the defendant said hey you know this is disparity with these other defendants but but he was subject an enhancement they weren't the court said that's not a proper comparison that's not a  basis in which distinguish and i don't think you're responding to my i said though i'm saying that this report had before it he knew exactly what your client did in this conspiracy right can't can't pinpoint to the gram the amount of drugs involved but in terms of the culpability of your client's conduct it was exactly comparable to the other defendant that's what the district was in a position to realize and that's what  addressed directly and was favorably cited by banuelos it said what the district court did was to start to look behind the plea agreement and access the actual culpability of the defendants and the courts and that's not appropriate and th departure to equalize the defendant sentence with that of his tow defendants because they had pled guilty to us had not pled guilty to essentially the same crime that's exactly true here knew what the district court in effect does is  nullify the effect of the jury's ruling and it's all ruling that the government did not meet the requirements of eight forty one b one a and in fact you can say well i'm going to treat him as if it did but  they pled guilty to that where it had had they had the trial the point is the person who was sentenced was at issue had pled guilty and found well a so it's different than the situation where the judge watched two trials about this guy's conduct and part of a bond while as the saying is that we don't want to impinge on prosecutors discretion when their plea bargaining but that's not a concern that's at issue here where there were trials or here or here were there were imposing on you know the police are going discretion here we're imposing on the decision of the jury and the district court judge would you know fully supported by his own view of the record where he said that the witnesses were not credible we had no evidence of an amount seized you know none of this was found and we have a congressional determination where they're very different statutory considerations here so yes the other defendant pled guilty and admitted you know the enhancement that does not apply to mr power here so to him to turn around and use an upward variance under the guidelines you know to effect the same result in effect a race the difference between those two very distinct for visions of the statues and acted by congress i think is an abuse of discretion here and i think one w  used thirty five fifty three eighty six language to compare co defendants and this court said yeah it wasn't really a six it should have been a one but we're going to put that a six argument under a one and we're going to affirm on that ground why is this case not the same in say turn the they looked at the district court record and they looked at the court's consideration of other factors including a number of things about the defendant's personal history its characteristics is negative factors including the abuse of a domestic partner i mean all of these things the court looked at very specifically you know as as the totality here i think here we have the court starting an ending with hey that's other defender got a thirty six month sentence you know i think they did about the same thing they should get the same sentence and i think that is not a proper basis for comparison under this court's precedents so  good morning please the court doug wilson on behalf united states the district court in this question in this case is whether the sentence imposed by the district court was substantively unreasonable and in this case the district court decided that a thirty six month sentence was not substantively unreasonable if it i don't think that's the argument that the defendant is making think the defendant is making a procedural argument and saying that the procedural error considering under a six something that shouldn't be in a six in fact the bottom line sense i disagree your honor i don't believe the defense is making any procedure argument at all i think the that this is not a case of procedure on reason oneness it's case of subset of unreasonable miss and i don't have the i can look at the defendant's brief again but if you if you would like but i believe this is a case of substance on reasonableness and not procedure on reason and that's the way we've been briefed in this court i think so if there's a if if if the claim is procedural unreasonable ness that i don't think there's there's any error anyway because the district court simply compared the this defendant to another defendant which is which this court has many times as possible let me hear your response to your opponent's argument which to me seems quite quite reasonable on its face which is to say look the other guy was willing to admit having traffic trafficked in quantities that trigger i think a ten year mandatory minimum right no you got safety valve that's why i say oh yeah it was but the quantity is what is what largely drives the sentence in these drug cases that's correct well familiar with that so the sentencing commission in its infinite wisdom has decided that that's the most important thing for assessing a defendant culpability in the offense right so that the found in the other case was willing to admit quantities that triggered a much higher offense level were us here the the jury nor the district court was willing or able to say that this defendant had trafficked in those quantities so why doesn't that make them completely different in terms of their relative culpability so first of all your honor i think there's a difference between willing and able the district courts it is not entitled to be unwilling to make a drug determination that the guidelines require to make a drug determination in this case the district court refused to do that and i believe that was now the government has an appeal error ok if you didn't and there's nothing too but the way that the judge i thought the tell me if i'm wrong i thought the judge said i agree with the jury that the evidence is too unreliable as to the quantities and that's why i can't peg a specific this level so we can have a much higher offense on the judge said i can't do that on this evidence so that's a finding that this offense for which this defendant was found guilty involved a lesser quantity than the other defendant now but the district court found that the defendant had had they're both couriers and therefore they should get the same sentence and the district court said that your twelve i believe you are nineteen is what i was looking at and it's also twelve you know nine hundred twelve so they're both couriers but so well they've gone one of them was a courier for a certain quantity of drugs and the other one was a courier fer well we don't know how a as i've already said it is a district court said at least fifteen trips to hawaii and during those trips he must have carried drugs and they and the court essentially said compound as a career  and therefore i should impose the same sentence on both of them does the government agree that that's not an inappropriate a six consideration yes your honor but it is where does it come in i think it comes in under as say turn said it comes  well it's the role in the offense it's i believe it's the history of characteristics of the defendant so the court may look at the disparities among the various defendants who are convicted of the same thing and despite counsel's effort to to say they were convicted of different things they both were convicted of a forty one a twenty one u s c a forty one which makes it a crime to distribute drugs excuse me so i think that it is not substantively unreasonable for the district court to to say both of these these defendants are couriers and both of them should get thirty six months but let's i mean i guess yeah but let's say one courier had trafficked in twenty times the amount of drugs at the other one would you you would not and that sits in aereo say that they both should get the same sentence right because the sense of commissions to as told us that drug quantity should largely drive the ultimate sent the cat sensing commission there's no doubt about the sentencing commission has said that drug quantity should drive the ultimate the sentence but in this case the court was whether it was unwilling or unable to find a drug quantity it nevertheless found that that paul had made fifteen trips and to hawaii and and should receive a higher sentence than the ten to sixteen month range that the but why i guess i just don't understand that this is not like the sentencing commission hasn't given a lot of thought to this and it's sad that if you like in a case like this if all you can find are you know quantities that trigger a i can't remember what the numbers are but you know offense level that spits out ten to sixteen months because that's all you're able to reliably find on the record then why isn't that why should that be the presumptive it's not clear that that was all the district court could find the district court found that that it it took the jury's statement that it could not find a quantity it said that the witnesses were unreliable but it has to go beyond that it has to look at acquitted conduct has to look at relevant conduct and it did not refuse to do that it did it said refused or just said i but i'm all that and i still don't feel comfortable pegging it at x amount he said you are not he said that's a very bad practice for a judge to follow so i believe the district court is saying that it's unwilling to to to look at quantity because it just doesn't it won't go behind a jury's verdict in fact he said he could have started quantity right at the but bottom line is while we legally can i mean he's going on he's kind of talking to himself and saying i don't want to contradict the jury even though i actually could it seems like he thought he could have set a higher level and he just didn't i believe that's correct the court could have set the level higher and refused to do so and keep in mind this judge judge clark who's been on the bench for twenty years so he sentenced a lot of defendants and he knows that what the way got was almost the benchmark of what would be appropriate in this case doesn't this doesn't that particular statement by the district judge make this case unlike to say turn defendants in the same case were convicted of the same thing can be compared to the defendant at issue that that cannot be done under a six but it can be done under other provisions of thirty five fifty three so i don't think the court is locking itself in i think it's just comparing it's comparing to another courier and it is entitled to do that and he wasn't just comparing them he said that's almost the benchmark and that's he seems to be anchoring himself under a so the question is can the court look at other disparities or disparities amongst defendants convicted of the same offenses in the same case and i think that if this court was willing to do so and the fact that use the word benchmark i guess months was was correct and the question as i've said several times is is that a subset of leon reasonable signs thank you ok thank you let's give you two minutes for abo reliability of the witnesses who testified and later in the sensing traps you have an e r twenty he says i feel like a lame this is a court that you know found that there wasn't a sufficient basis for quantity dictates my sentencing guideline decision so i think that has to be our starting point here is his actual guidelines decision consistent with the jury's decision that's something that he could have your eleven and that's where the judge ultimately says look i know i'm spill supposed to come up with a number notwithstanding the fact that the jury didn't but also me the court says but on this evidence i can't come up with a number and he says i can't even come up with exactly what the drugs were whether was meth or cocaine because this is the evidence is just it's not reliable enough for me to peg it at a specific quantity but so i grant you that that is definitely different from the other defendant who had anything to discuss that much but on but the judge says before that but he's the guy made your client made rather however many trips fifteen twenty trips and so i mean he knows that there are some quantity involved and just by virtue of the amount of cash that was involved in some of these it has to be a pretty substantial quantity right the trips to hawaii are not illegal and the question is was he carrying drugs and how much and the statute sens he says this is what i've got to look at here this is a benchmark i think there has to be a rematch and sentencing because he's basing the government's conceded here that that was an improper basis for sentencing in this case so i think we need to remain on the jury must have found that he was carrying drugs on those flights to hawaii right isn't that a necessary part of finding him guilty at least on one occasion and you know there's no finding as to how many trips or how many trips involved carrying drugs i mean the jury said no we don't have sufficient evidence here and then the government made those same arguments to the jury right and the jury rejected them in the court rejected and they hadn't proven it what the what they court then did was centrally to wipe out the decision of the jury and its