the discovery of a fanny pack that has nearly five magazines in one hundred and twenty eight dollars warrant very extremely high variance sentence in this case twenty four months gun and we capacity to have a large magazine so certainly there is more than enough room to to fill to understand that a guy like took into  in this case your honor court of proof read the plex reasoning she specifically concentrated on a series of violent events where murders occur reasons too lenient and makes that clear doesn't kimber give the district court to discretion to take the view that as a policy matter they're going start with a higher range because the guideline is too lenient given their understanding of the facts in the world and and since if kimbo does allow that what's the problem here is there still a problem and how do we put that together with a very very of course i think there is a problem kimbrel obviously states that a district court can disagree with no st time i've been there was no history of violence you can't justify that by making reference to murderers that have no that are totally disassociated to t parents question and this may be what you're saying but i want to at least clear up some confusion that i may have so i thought that that what underlies the what happened in kimbra was that the district judge on did an analysis in which the conclusion was that the district court judge in that case disagreed with the sentencing commission's policies underlying the particular guideline on the grounds that it was not supported by the empirical data as sore as a national proposition it's in do i misunderstand that case or perhaps i'm not remembering it correctly  of a series of murders occurring because of these types of firearms was large magazines that is what laird her to clued  variance was justified so it's not a kimbrel argument she she specified why and the reason she gave was one that has been rejected by this court in so if i could ask you in rivera the real didn't the court the court seem to note that the court on review on appellate review didn't find in the record any aggravating circumstances either aggravating circumstances in this look back at the record can't we find aggravating circuit circumstances in this record interfere areas and that should be quite mentioned while we look at the record we don't see anything it could have been aggravating well your honor i have a problem with the government has a practice putting words in a judge's mouth and making arguments that the record magazines and the bullets found in the funny plaque that sound in page nine of the senate shiri so this is not a case where you have general statements made by a and never never did judge ever in fact you could conclude is just the contrary that she did not make reference to that because that was already the high in a closed fanny pack justified the various centers taking it to account that she would see that by step identifying why she was in holding the very you the transcript of the proceeding suggests that the district court was not focused on the amount of ammunition or the number of magazines and she at one point says pacifically you know the guidelines treat these automatic weapons offenses too  the disparity was being but the out in so much respect to the disparity nationally what is your you as to whether the policy deviation that kimb can be allowed for a regional variation so in other words if they just a court was to do a serious inquiry and determined that the state of crime in puerto rico is such that the nee for deterrence from automatic weapons is so great that the national standard is reflected in the guidelines is simply too low to be applied in puerto rico is that  but again you can disagree with the policy but not for the wrong reason that's true i find a problem she may have had a right to say will hear from mr sosa now you reserve some time yet if you could mill your audio and video thank you machine gun violence and puerto rico i'm currently sceptically he was carrying a machine gun with a large amount of ammunition while riding in a car in broad daylight with another a man that was similarly armed now when explaining its concerns about the dangerousness of this kind of possession the district court mentioned specific incidents that had been occurring in puerto rico and during the previous six months and met most of them many of them had  similar elements as the ones present here these were individuals who were killed in favor of machine guns while they were writing their cars in broad daylight pulling over on the side of the road and shooting or drive by shooting and highly transited roads in puerto rico but there was this concern from the district court that there was a need for not only punishment but also deterrence as for the district court  i'm disagreeing with the guidelines that the government saying that this was not ok just as you just described here's what the district court says the key moment after she's gone through her recitation of the facts in which it least as i read the recitation that she describes in the preamble to the statement she does not refer to the magazines or is presence in any particular location but after describing that she then says i don't think that the guidelines have a way to reflect the seriousness of the possession of this type of weapon and the harm that is causing in puerto rico society and that statement does not sound to me like it's turning on anything more than the possession of this type of weapon which is an automatic weapon which may be perfectly fine and or kimbo but i find it hard to read into that statement and what came before it the rationale that you're a know what i'm saying to you is it was expressed specific i just read you the quote so if i was of the view that the only way to read the transcript here and you know maybe this is the wrong way to read it but if i were of the view that the way to be distressed that is to take exactly what she said we'd spanx no reference to the factors you're identified and then says the guidelines have to do not reflect the seriousness of the possession of this type of weapon and the harm that is causing to puerto rico focused on the specific way in which she was carrying at the amount of ammunition he had and where it was located and i took seriously the statement here that the district court thought that the guidelines do not reflect the seriousness of the possession of the type of weapon in other words the rest now was based simply on a disagreement with the kite mind you of how serious automatic possession of automatic weapons are is can that be squared with rivera barri conflict between rivera various and this case given at least one possible way of reading the transcript of what the district court rationale was what is the government's view in light of worry of a district court to disagree with the guidelines on policy grounds about the seriousness of this offense in consequence of the general problem with crime involving automatic weapons in puerto rico and i believe kimbrel and and under kim perot and all the district courts have a great reference deference the nuances at a regional level similar to the case in quetta and from the nd circuit where the district court explained that the guidelines did not  adequately address the firearms firearm violence in new york at them at that time and that based on that alone the nd circuit affirmed that was that is a very similar case here and i would also point the district court's discretion when it decides to make such a deviation and then how is a court of appeals supposed to review that so my concern is if it if we allow the deviation so a district court says maybe that's a good sentencing guideline sentencing range nationally but given the crime problem puerto rico it's way too lenient should just a court have to identify what its new benchmark is because here what concerns me is the district court just then moves to the final sentencing number but it never identifies what it's treating as the range that it's going to use as a benchmark for this particular case with all the individualized consideration normally the way the guidelines work as you said it rains and you look at the individual case with reference the range here if you go to deviate from the guidelines are going to set a range but you never to collate what the range is there's no benchmark for the individuals consideration that seems to me to invite a lot of arbitrary then i don't believe the district court in this case or in other cases is using a another unknown guideline range as a starting point the starting point it is the guideline range as calculated in this case twenty four to thirty months and of course the termination was that based on the facts of this case that is simply not enough and it imposed an upward variance but that was based on community based factors so that would apply in every case presumably present when they are present a story on the yes yes so that means he's going to give forty eight months in every single really is you know how do we review this i would like i said district court starting point was this twenty four to thirty month guideline range it's deviation based on  based on its policy disagreement doesn't does not mean that it changed the bench the benchmark across the board there may be other cases where for instance a defendant as opposed to a may have mitigating circumstances that for that party for his particular sentencing judge may compel him to notwithstanding the fact that in may have been a forward every single defendant who has who's who stand with a machine gun will get an upward baron's this is very case specific like i said there are a number of factors that go into sentencing medicating aggravating and so on well i think it is it just machine machine guns as machine guns and she thinks the guidelines are too lenient it's it's machine guns in the context of the community circumstances is that's sort of a moving target it's always going to be in flux one way or the other in terms of the community standards but but i don't mean to digress aardman but under rivera barrios does it doesn't doesn't  court make it i thought rather clear that the problem there was that there was only a reference to the machine gun as machine gun and there was nothing else in the record that would even on appeal the quarter appeals couldn't look at the record to say well we see other aggravating circumstances that would warrant a deviation upward in that case where is this case different yes around their friends like like i was  of it was well i don't think we understand the differences but let me ask you this and some point does the judge have to make it clear that that's part of the calculus this court may do so based on his own review of the record ok i ask you on that score what do you make of this paragraph in the transcript from the sentencing judge leslie the court takes into consideration the elements of the offense mr curious u s participation in the same defendant admitted that in the daily business he may smoke three or want to cigarettes rather than simply being silent on the amount and rather than making a reference to the larger amount the district court specifically identifies the lower amount of thirty one dollars rounds which is around roughly comparable to rivera burials that seems pretty hard to say well nonetheless because there was a record of evidence of more rounds just a court must have been relying on the to meet the elements of the offense however when we review the court transcript the district court also said that it considered pre sentence investigation report it  i've analyzed all of the cases cited by the court there was a history of criminality on behalf of the been that warranted that is not the case here in fact you know the issue of machine guns has two faces this is the defendant that had never been arrested had no prior history of convictions he said i bought a gun for self protection is the issue the issue of the high incidence of criminality has a nd face that people don't live in places of high incidence of criminality have the fear of becoming a victim of crime and here the record reflects that there protection that takes this case that was never disputed let's have facts that appear in the pre sentence report that have never been disputed and so how is it possible full mold because you were fearful precisely of the problem of community violence anything else to destroy any other points no you know that would be good ok thank you very much thank you