today but two of them of and submitted will officially submit those at this time the first is united states versus hard and the second is parker versus comcast cable communications for a few matters are now minute and we'll hear our first ok schedule for argument which is united states versus  good morning your honors and may please the court my name is todd borden and i represent the appellant lloyd gage i'm going to endeavor to save two minutes for a bottle and i'll keep an eye on the clock here at the district court committed a series of procedural sentencing errors departing substantially from the requirements laid out by the supreme court and call and this court in carty cumulatively these errors prejudice gauge and they warrant remained for procedurally proper sentencing hearing and i intend to discuss three specific areas today the first the district court's failure to calculate the political guidelines ranges a second the court's failure to explain why impose the statutory maximum twenty two month revocation sentence and then third the district court's consideration of improper sentencing factors particularly after that revocation sentencing so i'd like to turn first to the issue of the district courts failure to calculate the guidelines ranges both gall and carty make clear that at the beginning of any sentencing hearing the very first thing a district judge has to do is to correctly calculate the guidelines range and resolved any guidelines dispute this is of course because the guidelines the advisory continue to guide district courts discretion and they serve as a starting point initial benchmark now here the district court never stated the guidelines range as the new felon in possession count and the district court also failed to state the guidelines range as to the supervised release revocation now it's notable that it didn't do so despite the fact that trial counsel objected to both guidelines ranges and there was a material dispute such a total failure to calculate the guidelines range is reversible error as this court has twice held on a plain error posture no less in hammond's and walk  i believe those are the strongest cases in support of my position today particularly hammons and walk nine held that when you fail to calculate a guidelines range when that's coupled with other procedural sensing errors it can rise to the level of a sort wrong perhaps as to the i would agree particularly as to the new offense conduct for the felon in possession of count there are comments by the district court suggesting that it agreed with the government's analysis of the guidelines range i think it's a closer question certainly as to the a supervised release revocation and particularly as to that i would urge the court to look at the findings the district court made in support of that revocation kind of the disputed question here is whether or not it was a grade eight violation if it were the new criminal conduct were a drug offense or a grade b if it were merely for being a felon in possession of a firearm now all mr gage admitted to was to being a felon in possession of a firearm at the prior sentencing hearing that's all his counsel admitted to at this hearing and that's  point the court specifically two excerpts of record fifty six and fifty seven for this and then the district court said it took judicial notice of the fact he committed a new crime being a felon in possession of a firearm and then determined that that  first allegation for violating supervised recent release was true and i also know that the but was there any dispute at sentencing that he had the marijuana it wasn't that the whole point of the discussions on whether the four level well i would say i have two responses to that i do think there is a substantial rights violation specifically based off walking on and hammond which suggests that sort of a compounding of procedural errors when they're multiple they can rise to that flagrant level where it does affect substantial rights right well let's say that we and we haven't talked about the case i don't know which way we're going to go with this but let's say we conclude that with regard to the calculation of the sentencing guidelines  and then we conclude well given the marijuana in the car and the fact that that's not in dispute it's really a great a violation where we go from there i guess a judge when i want to push back on one piece and add one more piece of information which is that  the written judgment in this case which is that excerpts of record nine if it says specifically that the new criminal conduct is nine twenty two g b it there's an it so i think we have two pieces of information the judge is taking judicial notice and then the actual judgment both suggest that the only finding that was made as to the revocation matter was that it was for only the new criminal conduct and that was disputed and i think the court needed to make some sort of expressed finding as to that and when we look at the record there's a lot of indications that the only the only finding the court made at least that's the revocation was that it was a grade b violation that's right your honor and i think part of the issue is that there are two defendants have two sets of procedural protections one as to the sentencing guidelines there's also a set of procedural protections when it comes to admitting or denying a violation and he didn't under the rubric of walk nine am and again i think it's the multiple errors situation that happens here and i think particularly as the revocation sentence we really have a failure to explain why the district court went to the very very top of that sentence and i think there's a strong argument that it affected my client's substantial rights because when you look comparatively to the other sentence the district court imposed the sixteen month sentence and the court actually very downward there so it it i think raises some conduct i'd also like to speak briefly to the issue of the district courts considering improper sentencing factors when it comes to a supervised release violation sensing factors that district courts can consider are not the same as for a new criminal sentence specifically factors related to punishment and the need to promote respect for law are not allowed to be considered the problem we have here is the district court expressly said it it just wanted to do an overall sentence he didn't want to  errors which did affect mr gray was focusing on an overall sentance as being what the defendant would be concerned about and so the discussion was well from the defendant's perspective what he wants to know is how many months of my considering what the overall sentence would be from the defendant's perspective while i think the error goes also when the court was giving the explanation for the sentence and in particular the court emphasized the need for a lengthy sente to not just did he did just that he treated the guidelines at the starting point he recognized that the parties had an agreement on the base level of the acceptance of responsibility and the only issue that he really needed to decide in this hearing for both the supervise release and the underline offense was whether or not he possessed the firearm in connection with a controlled substance offense and he made very specific findings on that and i'd like to refer the court to that that's m p e r fifteen he found the evidence was sufficient to apply it he found that it was a commercial transaction that said e r twenty nine and that it was a marijuana transaction in which guns are involved and that he had the gun for self defense and a to his sentencing his sentencing them are at one hundred four is the calculation of the guidelines as say that ended up with it twenty two minus three for except it's a few responsibilities nineteen and here's the guideline calculations it's forty six fifty seven but there was a great deal of discussion with the bump the guidelines are this without the bump the guidelines are this so and that was true also in terms of the guidelines classification so the court from your perspective th think that even if this court i think the court not only made the requisite factual findings to support both the enhancement and the class and subsequent supervised release guidelines but i also think it dr to something that molina martinez sells says the court must do also in considering the guidelines it went on to consider consider the parties arguments it went on to consider their requests for downward departure or v considered also i think is significant in this case is the policy arguments we are in than usual situation here the judge briars on the sentencing commission and actually get discussed extensively the purpose and the palm heim this pacific guidelines that it was to address the situation presented to the court here that taking a gun to a drug transactions makes it significantly more dangerous he rejected their argument that it was for some reason the type of drug was involved he it was more in that way in the context of the hearing and the fact that he expected perhaps because of that and who knows really engaged with the defendant on their policy arguments and that's quite frankly what the majority that the defendant interpretation matter that this enhanced applies as a legal and guideline interpretation so i think it's telling in terms of the strength of the evidence to support the guideline that the the enhancement as well as the class that the defendant immediately pivoted to a policy argument or the the argument that if there was any confusion this hearing was engendered by defend its argument that if only the government in charge of this case differently symtab specifically says a court can't bases its surprise or the sentence solely on a new crime but it may look to the underlying contact as one of many acts contributing to the severity of the violation and the fact that it was a similar type of trigs transgression certainly was relevant but the court really went on to say he had three goals and this was consistent really throughout the entire hearing and there's no error in that in the court attempting to fashion a overall sentence that was fair as the court said to everyone and that he was focused on recidivism because as he may stated whatever message we've been trying to get across it's not being received the second part is that the public has a right to be protected and safety is important and this conduct is unsafe and so he spoke spoke not to just a need for deterrence under the thirty five fifty three a factors but a need for a specific deterrent and when you don't have somebody who's able to conform is his conduct on supervisor lease the only option is a high end sentence and then i think the court focused at the end of the hearing it or in it or thirty three he  wasn't focused on punishment but the need to protect the pub and public given his history and the characteristics and the type of the breach of trust here maybe the thing to do is not emphasize don't commit a crime while it's on supervised release but gee i better protect protect the public out there so the court specifically clearly made the finding that supervised release being out on supervisor release isn't working for you it's not protecting the public you're doing the same thing symtab that's ok the courts relied on many other factors in determining the and that the twenty two month sentence was appropriate just focusing for a second just on the twenty two month violation or at least violation one if you will four corners of the argument that we can rely upon to see that that was appropriate and was not just melded into the other sentence other words what specifically did the judge say what two months on supervised release and that's at your twenty one and although he said i'm not sure if it makes a difference how you cut it up he then went on to say you've been terrible on supervision mr gage should understand i give the overall sense is that he had had he not been on at that supervised release the sentence would have been less and that's what you are twenty three i want and then at twenty three or twenty four i want to talk in terms of the overall sentence but at the end of the day he has to understand he's being published this is punished for he's being sentenced for two different issues one is you screwed up on supervised release you're not amenable to it i need to protect the public the other is the that's correct your honor the end i don't think that we require courts to go back and repeat something they had said earlier and i think it's telling that in their suit sentencing memorandum the defendant does the same thing he's now complaining about the judge essentially carrying over that finding in terms of the publishing the supervised release violation but that's the same thing he did it believe it's one twelve of his sentencing memo where he said basically in opposing the class a great grade i'm just go incorporate my arguments as to be the enhancement so to now say the judge should have gone back and made a separate finding when they didn't specifically make that an issue a whole entirely separate finding is t e so i'd like to focus on the a revocation sentence which judge smith mentioned i think that is the part of the sentence where the procedural errors were the strongest and the most multiple we obviously have the lack of any announcement of the guidelines range and particularly as to the revocation sentence no one even mentioned ranges that you know as to the the new offense the government what ranges would apply a defense counsel mention what ranges there was no mention whatsoever of any of the ranges that would apply and we have a situation where the my client did get the statutory maximum sentence now that then ties into the need for a stronger explanation when you have the higher sentence sense even if even if it was a class a sentence towards the top of the guidelines range should have a stronger explanation of the problem we have here as well is that the district court was really taking an overall sentence approach it was not a disentangling the different factors that apply and i believe these three errors taken together affected my