chief judge gregory may please the court i am here on behalf of the appellant my name is sonya allen we are asking this court to vacate and remain and read the river cation sentence that was imposed for the reason that it is plainly and procedurally unreasonable mr gibbs at his revocation hearing ed made it to the two violations after admitting to the violations mr gibbs asked mr gibbs counsel presenting mitigating factors and non frivolous arguments to the court the district court asking for a sentence lower than the statutory maximum which was twenty four months which was also the guideline for mr gibbs when she requested the sentence she asked specifically for a twelve month sentence she asked for twelve months while the stat max was twenty four months and she presented number one that mr gibbs would it would suffer extreme family hardship if in fact he were sentenced to twenty four months she went into the fact that his children were very young and that their mother was deceased she also went into the fact that he was able to earn a good living he had the ability to build a house from the ground up defense council stated that he could frame a house that he could paint a house that he could do landscaping and that he had in fact worked in that field even she even presented to the court to employers and she presented evidence that mr gibbs had the ability and could in fact earn a good living she talked about the hardship be created with his the defendant's mother moving said you know what it's fairly extensive and we are on a revocation as you know but it goes down and lists one two three four nine factors that led to its conclusion and included he had scant employment record and little in the way of marketable job skills and then when the request was made to consider the family condition of circumstance he took a pause for thought about it and he says i'm not going to make any change now it sounds to me like everything was before the court and the court didn't say the nine factors outweigh mercy to the family but that's basically was it included he says i'm not going to make a change and you know that argument you want to go back and have them say the nine factors outweigh the the hardship to the family your honor that you asked it is not the request i mean we know exactly where the court was based on what he said and so the real question is what do you want  has a duty to explain since no question but the question is what would you have him on remand say more about the justification or sentence it's within a guideline range he has broad discretion it's pre reasonable and he explained of the job skills and that other stuff with respect to the family hardship he thought about it explicitly was brought to his attention right after he gave those reasons and he paused and then he says i'm not going to make a change in light of that now you want him to say what i want the court to say and we believe mr gibbs will want the court to say i have heard your plea i understand you are concerned about your children i believe that that is a reason that we should go lower you have done other things that also not to go lower because it considered it explicitly there's no question about so the question is now let's assume the court is going to reject that really what should say further in rejecting the courts to say i have heard your argument it is a non frivolous argument however i reject your argument because because it's only deny the other factors the mind factors the court listed that may be what the judge would have said but we don't know because the judge did not give an explanation at all silence is not an explanation and that was all the did in response to her request of reconsidering that i'm not after the silence while he was thinking about it he then said i'm not going to make a change so it's clear he considered that and it's clear he gave the reasons for the sentence and it was within relates to the family hardship argument not one word defense counsel went on to talk about mr gibbs his ability to earn a living work that address that it was the court did address it however he addressed it in a completely contrary way to what was presented the evidence presented in the proceeding was that he had for lack of better term above average or almost extraordinary skills the average builder  it was presented that he could do more than just hammer a nail he could actually frame a home he could paint a home he could landscape a home those things were not contradicted by any evidence presented by the government when the court imposed its sentence it was in direct contrast completely contrary to the only evidence presented which would indicate that the judge did not consider the information that was presented the evidence that was presented and as further indication that the sentence is plainly and procedurally unreasonable us counsel spoke of not only the family hardship in his ability to earn money she also talked about the fact that he had already served fourteen months in the north carolina department of corrections she asked the court to consider a twelve month sentence and she went on to explain that twelve months and the bureau of prisons is in fact twelve full months that he would do every bit of that time again the judge was silent about that non frivolous argument no x the omani you know this is not in a vacuum the courts pointed out in march of two thousand and thirteen drug possession paraphernalia in january two thousand and fifty felony conspiracy to traffic in the opium harem and maintain a vehicle oh dwelling place for controlled substances in september two thousand and fifty conspiracy to sell heroin in february two thousand and thirteen and the first tested positive for marijuana the defendant has a history of gang affiliation and prior convictions for and then he listed about ten convictions and this is all on supervised release  out of the district court had an obligation when the district court gives the defendant an opportunity to speak and to to present the things that are individual to that particular defendant and this court has said in the past in the slappy case and i'm sorry in the blue case that that is the defendant's only opportunity to present mitigating factors almost everything else is already decided the guidelines the criminal history the criminal history points what charges will be dismissed what is the point in giving a defendant an opportunity to ask for a lower sentence and to provide argument if the court is not going to consider it if the court considers it then the court is supposed to consider it and should make a record that would allow this court meaningful review of the reasons that he chose the sentence he chose this court did not do that the the non frivolous arguments were not addressed with the exception of the court saying just the opposite of all of the evidence that was presented regarding mr gibbs as employment history the fact that the that the judge recounted mr gibson's criminal history does not relieve the court of the obligation of explaining why he rejected the non frivolous arguments of the defendant for that reason we contend that the sentence was if this court has any questions for the questions i'll be happy to answer them it please the court don pender for the united states very excited to be here today to discuss this issue i've been before the court on a very similar issue before and did not go the way that i hoped it would go in that case but nonetheless i do feel that my focus has been to argue here that the sentence is plainly on a reasonable because of a procedural error and i would just start by saying that is not the full analysis it and that is a merging of two prongs the first prong is whether it's it's procedur the reasonable and then the second prong once you determine that if you determine that the answer is yes then the second problem it is is it plainly on a reasonable and what the defense has not done and what i contend the defense cannot do is explain how a sentence that is within not only within the guidelines because it's at twenty four mos but again as judge neymar said is presumptively reasonable and further while the defense focuses on the fact that it's a statutory matter i thought you  is reasonable or not absolutely ok let's just get in the right order well i wonder what what the argument is and what the record clearly shows is that the law requires that you look at and address non frivolous that i don't know how many people i know can build a house in the ground up that was undisputed he can actually build a house how could you conclude with that and disputed evidence that he what i'm talking that gives it meaningful review can we can say oh i can see how you come to that that you know because you know for example nobody's building a house in a city at all therefore you know if you can build a house for this purpose it doesn't help that's could be a reason start because i think i can live on everything you said but where would you like me to start start with the one that no marketable skills ok so the no marketable skills you mentioned in what you just said as to whether or not the skills remarkable you mention things like seeing in conversation answer the question or give presents you know legal arguments well the question well the answer to that question is in the full context of this case context meaning not only what's in the record but the interest into related conditions that cause this is a place when you look at the full context of this what you say but there are interrelated conditions that is a definition of context it's out of the dictionary but in fairness in this particular case this defendant had named a single job where he's built anything he hasn't he listed two jobs he said he worked at a chicken plant he said he's done landscaping for seven days in the brief misstates that is seven days per week ok that the district court was not told that was seven days per week the district court was told that was seven day one of the evidence coming to school to build a house there was an internet no evidence other than him saying it and that is precisely my point if i came to you and told you judge gregory i took a program some years ago and i can build you a five bedroom house right now for fifty thousand dollars if you'll just write me the check would you write me that i notice we're talking to gone no reasonable person would because you would you would want to know more you would want to know things like how many houses have you built mr pender do you have licensing have you ever even done the job before he hasn't done any of those things he presented no evidence that he's done any of those things he only name two jobs and he had an opportunity to come in and say well your honor you know i'd like you to reconsider i've been building houses for years he hadn't built anything except for a very long criminal record that's the only thing that's here you know sometimes the printer when someone is there before someone the sense of the term  long they're going to stay in prison some time they're the only witness to their life's journey some time it doesn't have corroboration it's a problem in a lonely one and some time they do stand with their balls s we're really talking about here is the fact that we don't like the way the court respond the court responded the court said they were little in the way of marketable skills and scant employment that is a response the only question is essentially whether that response was reasonable oh no i'm saying it was for those reasons he listed two jobs one that he worked for some unknown duration of time another one that he says he worked for seven days neither of which have anything to do with building anything and so from that perspective i think the court's response was reasonable now we can agree or disagree with it i may not personally like and think that that's not a marketable skill but that's not quite the point the point is with what the court was given it was reasonable for the court to respond as it did so we can't come in here and say even if we're just looking at what's on the record something was said in response to that we're talking about it as if nothing was said and i don't think that's a fair way of looking at it in terms of what the district court did what about his children rich per project issue in terms of hardsh family well out and that takes me a little bit into my legal point which is that i think with respect to we have to keep in mind in an original sentence you would be focusing on the severity of conduct in a revocation since you would be focusing on a breach of trust now if we accept and i think we all would accept that to mitigate means to make less the things that would be a mitigating or meritorious argument in the original sentence would not necessarily be a meritorious argument in revocation sentence where you're focused on the breach of trust so you mention his children you mention the hardship and the motional things that they had been through i would submit that that actually makes this breach of trust more agrees and i say that family situation in particular with the children but i think you've also got to consider you know we've got to put ourselves in the shoes of the district court here it appears a his children were actually there do we will he wanted burned into their brains as they're seeing their dad already going to prison they've seen that before but as they're seeing him already going to prison they now have it burned in their brain at this this this church i set behind the bench and told them how horrible a parent he is and so i think we had to take that into account as well there wasn't much that could be said to that and so that's why i've borne down the question to was that actually a mitigating argument and the question is no he should have been more responsible given that he had children he owed them better than this none the less he's out conspiring to traffic two hundred bags of heroin it's not as if this is and he says he has marketable skills explained to me how if you have marketable skills and which you could work a job you could make money legitimately then the question becomes why are you trafficking heroin in the first place within nine months of him getting out of prison he had broken the law and been placed on state probation these are things that the district court knew that is part of the context now if you boil context down to simply being the words on the page well then at that point we can replace judges with robots and just have them spout out words that respond to the words that i say ideally a judge should be taken into account his life experiences he should be taken into account the things he knows he's be taken into account the things that the defense has not argued it's not the judge's job to read defense counsel's mind the law won't do for you what you won't do for yourself you said that and so i think we have to consider that fact as well this if it's if if it's not a mitigating argument there's not case law that says the court has to respond to it it seems that we have applied almost a presumption like approach to what makes an argument non frivolous if it doesn't mitigate breach of trust i don't know how you can say in a revocation setting that it's not frivolous is a medication as to what sentence to get as to well right but you have to consider why they're sentencing and that's my point sentencing the severity of the conduct versus sentencing the fact that you breached the court's trust those are two different reasonings for why you apply the sentence at this point the point the point of the mitigating aspect is this yes i have this record i've done these things but there are collect there's collateral damage involved that's the mitigation and i'd like you and judges do it every day in courts all over the country they look and s you've done but when i see the consequences to your family because of those i'm going to reduce the sentence and many times they don't but it's still a mitigating factor and it's non frivolous that's the point and you have to address those things but the president and this is what i'm getting to and this is win or lose agree with me or not agree with me i would love for you to agree with me but even if you don't i think there does need to be some discussion maybe an opinion however the court used to do that there needs to be some discussion of the fact and i think it needs to be a bit of an in depth discussion of the fact that you're looking at different things revocation sentence again that breach of trust versus the severity of conduct and what exactly would make an argument such that the court needs to respond to it because i think that as it stands if you just say it needs to be non frivolous if you just say it needs to have merit if you just say if you just say those things then with respect to the breach of trust these arguments don't fit and i think it's particularly his other two arguments is it's particularly true i mean if you look at his argument that he should have gotten somewhat of a credit for the state sends if you look at and it's actually found on page five fourteen of the guidelines and if you if you go through the since the commission talks about sort of it's  how it formulated and why it approaches revocation senses the way it does and if you go back and look at the very bottom of page five fourteen it actually says specifically specifically that the commission's intent is that the punishment for the breach of trust be imposed consecutive to whatever the sentence given for the actual by the actual court that had jurisdiction over the criminal conduct and so again that's those are things we need to consider this is not even this is not even something that the court should have considered in this context and i think further again if you if you speak to the cooperation i think frankly the theory sort of the same the reason that the commission said that was because it didn't want duplicative efforts between revocation setting that's not something that the court should apply credit for especially considering that again with respect to the breach of trust the court has trusted you and has imposed certain conditions upon you to transition out of this yet you still have intimate knowledge in this case of things like murders and robberies that the investigating officers don't even know that that shows us not only are you still in this lifestyle but you've got both feet still in this lifestyle you know things the police don't even know and so those arguments i think both of those you have to you have to say they are inappropriate here the district court with respect to what it did consider it didn't consider anything that was inappropriate it recognize that there were certain things certain places that it shouldn't go and it didn't go there for example it didn't focus on the fact that he trafficked two hundred bags and finally and i think this is something that in brought out in the briefing and frankly and i apologize i didn't bring it as much as i should have but as the fits focuses on this is the statutory maximum this is the statutory max and keep something in mind not only is that within the guidelines range but without that statutory maximum and you can go to seventy one point four and do the math yourself without that statutory maximum his range is actually higher it's thirty three to forty one months this is a great a violation he's got a criminal history category six he does better he comes out better because of that stat pender had been the judge clearly things would have gone differently but what we're focused on today is what the district court did in mr gibbs this case and that was not mr first i'd like to respond to the question of presumption of reasonableness a presumption of reasonableness does not apply to procedural reasonable miss and that is the focus of  our our error that we are asking the court to find with regard to the marketable skills mr pender had many questions regarding mr gibbs is remarkable skills well those were questions that the district court could have asked had he considered the non frivolous argument what we do know is that what was presented was not contradicted he did in fact attend a program called youth build and he was a skilled labor a similar situation happened and was before this court in an unpublished opinion u s versus towns and in that case the court and the terence case defense counsel presented that mr towns had not use d illegal drugs and yet when he was revoked in the court imposed the sentence the court said actually ordered that mr towns should undergo intensive drug treatment which is very similar to what we have here in this case where judge fox said the exact opposite of what was presented to him in court with regard to mr gibbs his ability to build a home from the ground up in that case this court you know you you spent a lot of emphasis on that i don't know if it's productive he said he attended a youth build program where that's what they learned yes he has never done it and he never went out to market himself and it basically said he could frame a house and he could do the landscaping he work seven days as a landscaper and and so the court concludes that those are not very impressive skills he's never built a house he's never framed a house he worked seven days at landscaping the conclusion the court raised was clearly reflective of what the record showed you are a do not believe the evidence reflects that he had never built a house or they he did not have any sale he was in home build where he that's what he learned it's like saying i went to school and i learned how to build a nuclear bomb i mean i haven't built one and i don't know how to build one really i read a be reasonable to assume that if someone is being taught how to build a home they are in fact using that time to do exactly that it looks like i am about out of time i would ask again