third appeal on this matter each appeal is from the sentencing decision by the district court judge in this matter judge manual real and this third time just as the first time and just as the second time judge real government does it meant that there is a much more detailed statement than what was done in either the first or the second sentencing like in particular the court will know that that paragraph one of the conclusions of law excerpt of record two twenty  eight the court knows that there are a unique combination of factors justifying departure and of course there's the thing of the dog maria's gratin public public federal public defender stationary  that inherently so i've never seen it in a criminal case you see it in civil cases though there are a lot of critical remarks and appellate decisions i've never seen it in a criminal case before myself is that common in some districts your honor i regret to say that i don't have the experience to know whether or not it is common is certainly from the attorneys who work before the courts during the sentencing as i believe that attorneys did find it  there's a listing a number of different cases and each court refers to the exact amount of the departures in those cases why isn't that an attempt to justify the extent or an explanation and here's honor i would the government estimates that these that the cases are cited in an effort by the judge to justify the basis not the extent and that the only place where the extent is justified is in paragraph five where the court where the judge very how to arrive to this decision to depart our veteran levels wise twenty one why not eleven or fifteen unquote and from the government's perspective very similar things happened here that even even if one were to assume that the that the discussion in the judge's thirty pinion is understanding the argument before the united states supreme court on booker and fanfan sure you're familiar with those cases that the first comment or question from the court came from justice  said to counsel assume that we are going to hold the federal sentencing guidelines to be unconstitutional based on both equally what does that do to your argument i ask you the same question and you're i mean it unfortunately the answer is it depends and it depends on the specific terms in which the supreme court acts obviously the supreme court is going to do something that one level lets us so yes they say that the guidelines are unconstitutional  in the sense that they mandate the guidelines being followed that they may be aspirational from this point forward but they're no longer mandatory or words that leave the government's position in this case we're talking about is feeling down from the maximum level which under a pure blakeley analysis that wouldn't cause a six and then issue counsel i have not seen a blakeley issue here because the judge didn't step up the sentence based on anything that might have been given to a jury but judge hawkins question makes me wonder if i missed an issue do you think is there any reason why we should wait for fanfan and booker you're  the government would defer to the panelists whether it wants to wait for or not it's the government's position that even if booker and fanfan do hold on constitutional guidelines and throw it all out and returned to indiscriminate  wanted from zero to the max your i believe one of the government's positions what was that it to the extent that there are problems that the guidelines that the entire system would probably need to be thrown out specifics that are going to show that is it conceivable result i when i read the judge's original decision and i thought his original decision was important because you never would hear anyone argue about it in his in his subsequent hearings and he never changed it one of the things that really impressed him was right now the girl lives in a gated community with her mother and it's nice and a nice house or a nice apartment and if she had you state them that she lived in a gated apartment in a secure place now as her grandmother and great aunt lived in the projects i was thinking about that and i was like and how does the secretary on thirty two thousand a year in a very high cost city los angeles live in a gated community except maybe on the third to a half a million dollars that she stole your honor there's no evidence in a record about her finances being in any way improper  now earning asked why would she earned it secretary it was thirty two thousand a year yes and we know what she stole it was somewhere between three hundred forty and four hundred fifty thousand years to us so we know something about her finances yes your fact i don't know how familiar the court is with los angeles but the fact that this gated community is very close to the projects in watts which is also in the record suggests that it's not the not the expensive lecturing us accommodations that the court may be thinking about when it thinks the bout gave them surviving communities with various amenities but to to go to the government's argument your honour's about the extent of the departure the standard of review here and courts have departed upward and downward by that amount and more sometimes based on just one of the factors here thirteen levels down in under just family circumstances ten levels down on family circumstances in johnson twelve to fifteen levels down it's a little hard to tell but looking at the guidelines table it looks that way in all the eleven levels down in green up even though one factor there was improper miscible nine or ten levels down in we would certainly be happy to fax it to the court if that's a concern of the court and i do believe in the it's a statute that says it has to be that way and every time i look at the judgment it's not there even though we keep telling the judge to put it there i think case for example the second one i mean i think we quoted that in the court just talked about post defense rehabilitation in fact also about partial ground that wasn't permissible at all an imposed eleven level departure which th unreasonable the extent of the departure has to be has to be of terms and as to the basis of the departure i think that's where the john noble standard might come in although we argue in our briefs that even there this standard of review should be abus discretion but i would like to address the court's concern that it must substitute its own view for the view of the district court even as to the basis of the departure because we would submit that that's not the case and that's not the case because it's the was he didn't even let the government talk he did actually honor when they requested an opportunity to be heard they got an opportunity to be heard but as to the extent of the allocution you're right she didn't want to say anything but he still had a sense of her  about something here he might my impression of this is this is the sort of thing that generates mandatory minimums from congress to sort of contempt for the sentencing guidelines contributed to the coup mission of the offense i can't see any disability at all it looks like getting her fiance shot was a terrible experience she didn't start offending after that there was two years in between when it looked like her life turned around and she started doing great she so i remember she went to school she got a degree she got this great job with the u s attorney's office all these positive developments and then it says and usual traumatic the facts and circumstances show unusual problematic circumstances for this mother and child and an unusual relationship between the two this mother has been the sole parent caring for the child at home and after school i can't see anything different for maybe half the kids that my kids grew up with who had single mothers at home well what's so special your honor let me address the diminished capacity mental condition issue first your hon government never attempted to cross examine dr counter although the district court did permit it to do so at this deck and at the first response in saying the district court i'm sorry the government never attempted to have we decide if we want that we just don't buy dr counters theory can't we know your honor with respect i don't think you can unless you are concluding that the district court was clearly erroneous in credi her psychological abuse in a case in which there's no controverted evidence no controverted evidence as to her qualifications or her methodology or her conclusions the government had an opportunity before the first sentencing to do what it needed to do to do what it's thought in the second sentencing i believe judge real asked the government attorney were you satisfied with what you had to present to the court when you came in here for the initial sentencing i think it's on excerpts page one twenty five and the government attorney said yes we were your honor now the government took that risk it didn't litigate it the way that it might have wished afterwords it had done so are you saying that we are bound to accept dr counters testimony yes your honor unless you're five all of which were cases in which there was an explanation but the court indicated this court indicate that those were insufficient and governments and that's that the explanation in this case is less false and in those you were either under protect