this time around has this letter that mr smith read which the court used to apply or to give some sort of credit not really to the guidelines but perceptions of responsibility the main issue the government has it that is in the letter he doesn't mention  victims the harm he did to them he doesn't mention his crimes he doesn't mention really any sort of concept of remorse and so the basic the big basic mistake in just that this and the way you know maybe that was in our police structure in the brief but the the government's problem here is it really stands out that the court mentions the guidelines section and the government section has terms and those terms clearly don't apply to mr smith and even if you set aside those terms and just go with the general concept under thirty but to do three of acceptance of responsibility remorse or any sort of synonym to that he on this appeal as the first time is procedural and reasonable ness and as i wrote three the court's first opinion the courts of the court used the term justified which goes more toward substantive results but i don't think the court fully and ful ely reached the substance of reasonableness question and had only to really rely on it in a detailed intricate way on procedural reasonableness and the explanation component which the government says again is liking and is because even though the district court said similar things this time none of those things many of them were not supported by the record and others the government finds other flaws with they were all either in some sense insubstantial like as with rehabilitation claim there's really no evidence as and because like pepper three years showing dramatic rehabilitation there's nothing like that here everything seems to be as it was before for mr smith that the courts lip service to deterrence seems to the government to be insubstantial in the sense that he received such a low sentence it's not clear to me how this would deter sort of behavior especially when he still has would say that that was a moat a strong word a big factor for bringing this back to the court's attention there were the court the district court where to detail about a couple of the cases but this court also went to detail about those cases and i'd also add that even though it hasn't been discussed much like yet mr smith argues that those cases didn't have mitigating factors like this one but of course they did it just wasn't part of the opinions big in that this court wrote because it wasn't a sentencing those were sensing opinions on the force there's and he received forty months in prison for one crime whereas mr smith received fourteen for two and a history of violence and other there are other mitigating factors in other cases as well  should be remain and did again as the government have a view on whether it should be returned again to the saying trial the government does not have a position on that that  the district court is capable of handling the case to the extent i mean if the courts he's otherwise that's fine with government too so he's not going to want to have it is third time that ma very well be the case we would like someone to have a third time i would state our position as pacific is that and whether this court wants it to go somewhere else that's that or not either way is fine better stop where you're here yes so let me ask you this why was a district court required to reconsider all five cases discussed at the first sentencing hearing rather than simply taking the time in consideration discuss the cases that relied on in to the government's position is not at all that he was required to address all five he he chose those cases the first time around in the government's view they point out and more into disparities disparities with the case as it stands now remained and this court had already deemed to a sufficient extent those cases insufficient to explain the sentence so he could have considered not and offered other reasons and that would have been fine if the government the government's point is that he needed to say something and it needed to be proffered need to be supported by the record and that his detailed analysis of those two cases didn't do anything to help with that and the three other cases the government maintains are don't help mr smith's case and don't help the court district's explanation at all but that doesn't mean they're crucial it would be hard for him to formulate an explanation  you and just to make sure that i've answered your question fully djoser over coming back full circle of course even though the government's primary argument is procedural and reasonable this to the extent that there is not a sufficient argument to succeed the second time around we maintain subsets of unreasonableness on the basis of this being a really really really low sentence compared to others nationwide  and that is i think the entirety of the government's main points almost the court has other questions the government will reserve judge followed the required sentencing procedure he correctly calculated guideline range he gave the parties the opportunity to identify the relevant thirty five fifty three a factors either in mitigation or in aggravation and he stated the factors that led the sentencing station particular the judge noted the mr smith accepted responsibility and i think the judge is clear that he was not saying that it was a guidelines matter in that regard but it was a thirty five fifty three a one factor and that's appropriately considered disposal what's your best evidence that he accepted responsibility when he failed to discuss the crimes of conviction the victims or even the fact that there were two separate incidents that occurred or to say that he was responsible and that mitt is guilty he didn't do any of those i don't think those things are required or because under normal p s r s that we receive a person they can stand on the offense and they can therefore get acceptance responsibility they don't have to go looking page about past tenses present offenses particular elements of this crime things of that nature they're not required but yes are made an assessment in this case the supplemental done them through the interaction of the probation officer with the defendant my client mr smith and determined that there was acceptance responsibility in a general sense he wasn't objected to by the government the district court was entitled to rely upon it and the district court did so how is it accepted in a general sense if there was no received the probation officer said that he took ownership i think that communicates exact same concept as acceptance of responsibility if you take ownership for your actions you acknowledge what you did and you accept that you did them that is  week program i think your honor what i think it was an eight week program i'm not sure of the duration of it but he had been released of course on the day that this court issued its decision in smith he'd been taking the courses and if he were to be then re incarcerated as judge found there to be no benefit of doing that it would have interrupted then his participation in the program why can't you have anger control counseling and prison if prison offers it and i'm not certain but it would certainly been a discontin the existing program that is participating in unlike so many programs sometimes if you don't complete everything a to z you're not entitled to completion of the program so you may have had stark had to start from scratch just didn't discuss them you didn't but i think it's implicit it's reasonable to know that we we see these things in erections and programs and in other cases too that's why individuals sometimes don't want to come to court for the sentencing because they're in the drug rehabilitation program that started a new judge wrote i'm sorry i think you're than with his background a file and he has a long history of violent behavior and i was trying to see where in the district court's analysis we would see any weight given the lengthy history the lengthy violent history or what reason there was to believe that an eight week class could read bill rehabilitate him i don't think that the district court was standing alone on that one factor and so it was one among many and as rehabilitation goes it would be similar as any other rehabilitative program that you take it's an ongoing process and if it's something that you struggle with like alcohol addiction or drug addiction just the completion of the program to begin it is an important thing and progress through it is also important and i think the district court was saying that it's something of a medical issue that you're fully rehabilitated upon completion of the program it's something that the district court took into consideration though as part of the overall sentencing requirements and the procedures that was required to undertake well you know there is no question th course mr smith's punishment was self inflicted natural you know the natural consequences of some really terrible terrible  your honor who's been punished in collateral way this with regard to that and the district court noted those things non significant about his loss of position not just on the force but also he resigned from the council for his village that he was part of his loss of reputation his conviction itself these are all serious that and so where does he really speak to the victims and and the crimes committed against them and the impact that having their lives in this the you saying my client your honor or with the court i think that the judge gave a brief explanation about what it took into consideration obviously knew the impact on those individuals from not just presenting a the judge says the court must look to a sentence that affords adequate to turn to criminal conduct i think it's also important to consider the need for the sentence in this case to be a deterrent other police officers is not a put he's not imposing sentence a little bit of supervised release we did we impose the same sentence and i think it's on page fifty at the sentencing i think it's on page fifty three sentencing transcript he said that for the obvious reasons he doesn't see a benefit of additional carse ration and so essentially i believe he says he's reimposing the same sentence and doesn't give the fourteen months that men reimposing the same sentence yes he but he's not the fourteen months he reassessed all the factors and those are the ones that there's no reimposition of this sense whatsoever the supervised release the forties not being sent back to prison it's very misleading to say  the need for the sets in this case to be a deterrent well nothing that he does and this reset and saying it's going to be a deterrent to other police officers the whole notion of general deterrence wasn't developed by either party in the case and i know there's academic literature that discredits the notion so i'm not certain of how does how it is what you're saying and the notion general  skepticism about the efficacy of long sentences i understand that but it isn't true that a prison sentence never has a deterrent effect on anyone other than the prisoner  consequences of criminal activity by other people and if those people are punished then some of these would be criminals will back off and it theoretically can happen theoretically it never happens no one has ever deterred by the punishment of somebody else you know i suspect that the does occasionally have come out and granted the future punishment has to that topic does exist here in the case because there's an ongoing then period supervised release all the conditions and so forth the judge weighed the factors the government wishes to really weigh the factory call them different but it's not an abuse of discretion and that's exactly what the focus has to be did the district court provide the necessary and right as a reason why did we reverse because i think that your honor was correct originally about the procedural errors i think those have been accounted for now there's not a basis to reverse on that and i see i'm out of time but it's perceptive reasonable nes there is no substitute we have a reasonable sentence the judge can impose a sentence that substantively and reasonable if he overstates fact relies on it disproportionately and so forth that's not been the government's argument in this case and the examples that they gave in the cases that they cited don't support its efforts to show substantive and reasonable in this either the government wishes to reweigh the sentencing factors but the district court appropriately weighed them it reached a different conclusion respectfully than this court did or the government did but that was to the proper exercise of its discretion not through an abuse of discretion that warrants a reversal in a remain and here i don't like what the judge said well it's difficult to put oneself in a police officer shoots in the heat of the moment it's true during stressful and chaotic risk situations he said true there's no excuse for punching jumping on that part of it is f but this is obvious sympathy for the police officers heat of the moment going crazy and then he says the end it appears mr smith they have some anger control issues as evidenced by his prior conviction for battery and child i don't see that i don't see the connection there that was something that happened and it was long ago the government turned a lot of stones to get employment records and things that we don't see in the normal case we don't see in any of the other cases that are used as compared to ours and frankly i don't know what would happen if the government had made the efforts in those other cases how those other cases would have turned out but this case was unusual in that regard the district court considered that however and decided that this on balance was an appropriate sentence and the government asked this court to substitute its judgment in place of the district courts and it's just not an appropriate thing to do under the abuse of discretion we get sentences that we don't like sometimes as defense attorneys happens often we can't show to satisfaction of this court that the judges abused his discretion when it selects a sentence that we don't like i think the government finds itself in the same position here today your honor may have called it differently i respect that but i don't think the judge warrants committed either procedural  substantive impose a substitute plea and reasonable sentence when he imposed the sentence that he did here ok well thank you delhi when the judge gave him credit for acceptance of responsibility that was an abuse of discretion and and also mr smith says the government turned over stones here and didn't in other cases of course the government did in those other is mr smith it's not the government's efforts to find things out about violent past and the one thing i'll say on deterrence without speaking to the academic literature this was a big news item in terre haute i mean  not chicago i mean not to denigrate it but it's not chicago and and also police excessive use of force is noticed as it should be and whether it's just terrible to police