case law and under the facts as set out in the p s r so just briefly the error was in the us into level enhancement based on a prior conviction the prior conviction conduct took place before the st order of deportation but the conviction after the st order of deportation so it simply fell outside of the ambit of that clickable guideline the question that the government has disputed is whether that affected this defendant substantial rights and just as a beginning point whether under this court's prior law or  martinez itself the degree of the disparity in this case shows that the error affected substantial rights the erroneous range that the district court actually used was thirty to thirty seven months to correct range was actually ten to sixteen months so instead of a seven month up departure the district court was actually imposing something more like a twenty eight month upward departure without being aware of that but we know of course that just a degree is not sufficient and under molina martina's if the district court made clear that the judge based the sentence on factors independent of the guidelines and that he thought thought the sentence was appropriate irrespective of that guideline range then the error would not affect substantial rights in this case of course that exception didn't occur the guideline based departure under for a one dollar he cited the two factors that for a one three in its texts sites which is the likelihood of recidivism and the severity of the prior author and making the criminal history category his statement that i think you need more than forty one months because that didn't work before some courts to that effect i think that's the statement that shows that the judge considered a number of factors and it's best to review that type of district court there had done both an upward variance and departure justification and the court looked to the number of three thousand five hundred and fifty three for a factors that were cited and still said that the district court had to consider the degree of variance even when it was doing eight and upward variance based on a number of different factors that that dependence on the degree of hearing and showed that the guidelines are still the basis for the sentence and specifically when it when it comes to an up departure the court was very clear that an upward departure pursuant to the guidelines is undoubtedly based on the guidelines i think the clearest case to respond to your question is paris material because there the district court did discuss the defendant's criminal history and prior deportations and the government said given the degree of focus on those things it's clear that the court would not impose a different sentence but this court responded those statements plausibly indicate that the district court sentence may have been influenced by factors in addition to the guideline range but they do not indicate that the district court sentenced her as material based on factors soley independent of the guidelines so what's wrong with the middle ground of asking the district court what do you mean this ingestion that was made and then you responded in a letter as i recall that you didn't seem to like that idea so tell me about that issue so st of all this idea of a limited  guidelines error calculation situation and the th circuit made it very clear that their normal practice they presume that a guidelines or a needs to go back for a full remained why because of exactly the reasons that the supreme court had highlighted in molin martinez in pew and in other cases and that is this in trial any of the guidelines to actually pegging the sentence at a particular number of months that makes a fair amount of sense where it where that i mean i suppose i realize that this is not a one size fits all remedy and it seems to say that most i mean liberty is itself supports you in the idea that these guidelines based errors are going to satisfy the rd and th prongs of the plane or standard so i i understand the thrust of that that the thing that seems odd is that where you have a district court sentence that specifically says look i think i have to give you more than forty one months because obviously forty one months didn't deter you from the on the awful conduct and then go through the guidelines written seems to be that the heartland of what molina martina's is limited and was supposed to get at and i don't see how it would hurt your client just ask the district court what do you think about that i guess there are two things one in this case there were actually two sentencing hearings and in the st sentencing hearing that got continued the judge said in these types of cases meaning these types of cases where the two thousand and sixteen versus two thousand and fifteen guidelines for recidivist illegal re entrance had changed the range he usually went to thirty months he noted the forty one month sentence but then he said there are a number of themes that go into a number of factors that go into the sentence and he didn't prejudge it so he indicated that it wasn't just the forty one minutes it wasn't just the graduation it was a number of different factors and that's at pages one hundred and twenty eight and one hundred and twenty nine but in terms of the defendant's interests the key part with the guidelines are and this is what the th circuit focused in on in adams and williams is that the defendant at that point is facing a guideline range where regardless of what the basis of the departure was or the variance the whole scale has now been changed the whole basis of calibration for what an appropriate variance or what an appropriate departure would be has changed so in this case we have a judge thinking a seven month difference is fission whereas the twenty eight months difference might not be but certainly from the defendant's perspective it's a different argument to make a whole different set of ranges in justifying that degree  ask you about that because one aspect of sentencing that's very crucial is everybody's there the prosecutor the defense attorney and the defendant has a chance to allocute has a chance to kind of nudges his or her attorney and say this or that as they're sitting there what would the physics of a limited remained in her molina martina's look like and how would that benefit or not benefit the defendant and th essentially saying what would you want to do in light of the error that we now have and your limited reman told the court in gomez if you wish to resign it's go ahead and do it and in fact in that case that's what the district court did it lowered the sentence from eight thousand four hundred and eighty months in the th circuit in adams the court there adopted what they called a limited remained but there there were it was really a reopening of the sentencing to deal with issues that hadn't been dealt with before other guidelines and handsome and some things of that nature but the th circuit said it was not going to prescribe the procedures that would be needed it would leave it to the district court to make the determination in a case like this this defendant has some key interests the factors were but again we've changed the entire scale with this guideline difference based on the change in the guidelines themselves nobody knew of that error so neither defendant nor his counsel knew how to make arguments that might not have seem plausible if all we're talking about is a seven month difference but when we're talking about a twenty eight months difference those same arguments that might not have seemed plausible before might now carry much greater weight with the district court when it knows how much more sentence it's going to imposing under that guideline regime but i admit i like yours but i don't get suppose we write that we order a limited remained and we sing it back to the district court with this question as in courier adams or whichever can't you just make n let's do the whole thing all over again and if the dish of court says no i i i really meant what i said i think i had to do more than forty one months because of the recidivism problem then you lose obviously but you had a chance to make some like you don't get a chance to tell the district court members in charge of all of this anyway exactly what you just told us that's right and that's what i mean when i say much right i understand how it would prejudice that the defendant st of all i think it would have to be clear that we would have that opportunity to make those arguments there have been cases not said in their brains of this jackson was a very recent case where a similar type of question was sent back to the district court in the district or simply issued an order and there wasn't a hearing and that wasn't essentially a  notice of an opportunity to make arguments although we made arguments subsequent to that in that case so that would need to be clear that we would have the right to make those arguments but i think the more fundamental problem is under three thousand five hundred and fifty three c and the defendant's right to be present this defendant was very active in his sentencing hearings for better or worse and i'm just wondering because it will ruin forty three says he gets to be present and then there's exceptions and the x the only exception that could arguably apply here is as i read it is forty three b three conference or hearing on a legal question the proceeding involves only a conference or hearing on a question of law that doesn't sound like the judge just sitting in his or her office writing an order that sounds like you and the prosecutor are they are talking maybe not with the defendant there because that's the exception but that you bit lease get to talk to the judge so if we were to do this limited re man should we make clear that you have that opportunity should we leave it to the district court as some of the other cases have don hat how should that be for what would the physics of that look like in our pain and if we i know you don't want to go that way and we may not but if we did you did than we would want to have the remained stipulate that the parties have the opportunity to present additional argument or evidence on the impact of the clear error on the ultimate guidelines sons and so we would live course ask the saying have a nice day and that's our opinion the judge can still give this exact same sentence your were of that government's aware that no question about that would need to analyze it under the correct guy lies and all that we could still very or depart upward and get to the same sense so how does this how does a limited remain with you and your client there any different from a pretty sentencing remain and that's that's what the end of the day because of what is going to go on at that hearing the defendant's presence really is key that the extension that you mention for example if what we were going to go back and do would be to discuss is there an error of law in the guideline range then i could see say no the defendant doesn't need to be present because we're just going to discuss is the law applied correctly to the guidelines but here the district court is by by necessity going to be exercising its discretion in a way that it didn't at the st at the  said this isn't a tool that is available to us to mitigate you know as they continue the court continues to winnow the the various prongs of the plain error standard this is the way that we we mitigate the burden on the district because absolutely every one of these remains doubles the amount of work that the dish a court has to do on the case at least and so i understand what you're saying it just seems molina martinez has already crossed that bridge and said we this is totally lawful it can be done in the legal question is effectively does this affect the substantial rights of the defendant because would you post the same sentence right that's still a legal question for the district court right and at that point little more tina's did offer this as a methodology it didn't sanction it saying this is the way it should have been done and i'm saying that in this case when and if you can actually tell us the physics of what on the record meant that it no it did not mean yeah i referred to the th circuit but it didn't say that effect can't be there has to be there might be there the lawyer should be there physically or they should just write briefs me none of that was flushed down i think largely because the supreme court waits for things to get pushed out and then addresses them they don't like to try to just be ahead of the game in which is totally proper so i'm not sure the supreme court has told us what this limited remained looks like that's why i'm asking so many questions about it that's correct and that's why i cited to adams because that seemed to be the case with the seven circuit has really dealt with s attorney felt those weren't adequate you could then appeal on the nd go around and say we didn't get the proper procedure right exactly and in this type of case where there's been an exercise of discretion to increase the sentence that's a very different procedure than where the court for example has stayed within the guidelines and so simply sending a question back to the district court and asking a district court would you want to rescind it's now you know that this guideline has been changed that's very different because here the court has already exercised its discretion and of necessity it's going to have to do it in a different way was before the court didn't necessarily do that same analysis and certainly didn't do it and have to go out of office levels quite a bit not just one yes criminal that argument on the rd prong is the end of the sensing hearing which is kind of the moment that you as a judge are sitting there like ok now i'm making my announcement and that announcement is all tied to the guidelines i'm going to get out the guidelines page the chart and i'm going to say criminal history category three in good enough let's go up one but then leaving the office level where it is and then saying now that i've got this guideline i'm going to sentence within it it's hard to say the judge just didn't care what the guidelines were in this case it just blew off the guidelines it seems hard to do that when that pronouncement moment which is the moment that everybody sits up in their chair was all tied to the guidelines i understand the court's concern and respectfully may i put that into context for there were two sentencing said one in september one in october that the sentencing is setting in september precisely as you said earlier mr rodriguez opinion offered several comments which may or may not have helped his cause he stated the judge you know originally was looking at he was originally looking at the age of fourteen months and it went to two thousand seven hundred and thirty three and finally for some unknown counsel both noted that he had previously gotten the forty one months from judging the hosa and defense counsel himself mentioned and incremental sentencing clearly raising the possibility that judge corinne might be considering increasing the sentence be on the calculated guideline range of thirty to thirty seven months to resolve any doubt two pages later on page one hundred and twenty eight dollars judge crane said point blank i can vary up or down and then added the lowest you have a serious prior felony sex conviction involving a child the lowest sentence that i would consider any case like this is thirty months coincidently or advisory ranges thirty to thirty seven months but you got forty one months earlier from judge you know and i'm considering higher and considering a higher sentence i'll consider that and all the other factors at the next sentencing at the october setting to fourteen dollars up to forty one months judge crane flatly rejected that and then he said precisely as insentient as fernandez i believe a forty one month sentence the graduated said you previously got a forty one month sentence and because of your receipt of his m believe a graduated punishment is necessary you didn't stay out even a year you released in january reentered illegally in december you're back again  understates the seriousness of your prior conduct and it underestimates the likelihood that you'll repeat since this is your rd illegal reentry and since you've just completed a forty one month sentence and you're back again adjust the criminal history category to give me the new range and then pick something in the new range oh absolutely on a yes or no he could have done and it's hard when you're referencing the guidelines to say that the judge didn't consider the guidelines i mean well  if you just read the last two sit two pages and i understand the rest of it i certainly understand it very well could have gotten there even knowing what we know now but those last two pages are all guideline guidelines guideline and agreed with what you're saying i respectfully submit along the lines judge oldham suggested it wasn't so much that i'm going from one hundred and seventy three to seventy four it's that you're not leaving here with any number lower than forty two but could've said that and called it a variance i mean we could have yes and and the courts well i just think when you're sitting there straight up during your pronouncement and you're climbing up the chart the more you're climbing up the chart you realize you're climbing up the chart a lot even if you have this consideration of recidivism and all of that that's a big climb versus this was a fairly small climate was one criminal history to the next not so it's a hill and not a would be some input from the parties although i'd obviously that would be something for the for the court to decide does the district just does judge crane simply sit down in chambers and decide well as this court has repeatedly s have a right to be there or need to be there or want to be one hundred dollars get past forty three dollars b three that says conference or hearing which sounds like at least the lawyers are there right and i circumstances or expressed that in those circumstances prong three becomes almost presumptively in favor of the defendant and here we are so here we are of those who were this circuit i says i'm so painfully will have and so are we and the reality is look you're an advocate and i know as a prosecutor you have special duties that are a little bit different from the typical advocate but you are an advocate where the judges though and one thing we all agree on without a doubt is we have to follow supreme court precedent and so we are laser focused on doing that particularly since we don't wish to be reversed again on the three slash four  dynamic so but as judge odom pointed out the supreme court's the one that said this thing about the limited recants i'm just trying to understand all the pictures that there's the argument that there was no  all there's the argument that it's unclear and then there's the argument that is clearly was a problem for here and the one in the middle is the one that has the limited remained concept it is not clear in your mind whether or not there was a  when you start physically putting the pieces together i don't know exactly how a limited view man would differ from recent and seeing other than the sack that all you really want raney crane to do is clarify is this forty two months tied to the guidelines or is the forty two months and the sentence that you imposed if there had never been guidelines so you're not a proponent of that in this case and that's fair let me ask you this what about prong for let's assume argue end that we were to conclude that those last two pages of the normally you meet the other three in a sense and guideline are you done what would make this different from that well again meaning no disrespect i would start with judge oldham's concurring opinion and call into question the integrity of the judicial system and judge kearney and said three separate times and the defense attorney said he got forty one months from the cartagena host and judge credits and yes he did and that wasn't enough and therefore i the honorable randy kearney clearly i'm going to end thinking about giving him something greater whether it's by resort to the next time he did say it consider other factors and he did one of the things that we haven't talked about is mr rodriguez pena saying he came back to see his kids and like discussion of the kids and so that if this isn't this is a different kind of office in terms of  is not like he's beat somebody up and then now he's attacked somebody again and that kind of thing so it's still a crime and i'm not tracking from that in any way i think it's a little bit different of a crime than some of the other  and so the judge would have been in total than would and should consider all of those factors and one of the factors here should and can and must consider is the guidelines and i had to certainly don't have the experience of my colleague to the totally sure it's extremely clear in two thousand and five invoker they were advisory and in two thousand and fourteen you must calculate them correctly i'm not exactly sure i'll advise yuri and must or reconcile but that's a whole different issue for another day and i would respectfully submit the judge crane did consider that rather his opinions need to come back to be children his repeated minimisation and his contest in the facts of his assault of his cousin the fact that he returned in less than a year after he was released and of course the fact that it was his rd illegal reentry and the fact that he's done forty one months served been released been deported and came back within a year all of which judge crane took it to consideration and decided that something beyond forty one months was absolutely minimums in this case the mandatory minimum was the total of forty years in the judge ultimately imposed a sentence of almost sixty years and said that once essentially the low end of the advisory guideline range for the drugs in excess of the mandatory minimum sentence in the court said into the supreme court said under the supreme court opinion you have discretion to alter the non mandatory minimum the mandatory minimum minatory minimum and you have to impose a sentence of at least four hundred and eighteen months but you don't have to necessarily exceed that if you feel that it is excessive in the district judge and said i'm imposing a sentence of i believe it's question is what is the position of the united states that if we find prong three and four met as between the remedies of the limited remain and then we martina suggests in a full recent in saying what is what is the position united states is between those two choices this court in those cases made it clear that when the court has focused on several factors in the sentencing that if the court is still tying the sentence to the guideline range that it is a guideline base and some of them alina martinez we've met the rd prong the plainer review those cases are clear on that because in each of those cases and particularly centers are decent the district courts went through three thousand five hundred and fifty three a factors as well and this district court in this case made clear that he was focusing on it on a number of different factors i would contrast that with cases where the court has found that we've not met the rd prong that would be nino terry and in that case the district court just as you suggest a judge roll them did not mention a forty one three departure to structure what it was doing instead it cited the guidelines and then said distinct ways of doing it and the district court here just simply did it in that other way i guess my issue why i was saying was a double negative is i feel like molina martinez has created a presumption that the defendant has met prong three when there's a guideline error and it's almost up to the government to kind of rebut that they didn't quite put it that way but that's kind of what rob was going with us and just to clarify so because i realize that the language i use was kind of confusing so and in the th prone urbina flint as n p r s material both deal with a lot of what the district court cited which is criminal history and deportations both of those cases this court has said that those types of considerations are appropriate of course for the judge at the discussing with here anything else you want to tell us on the side i mean i'm not really i'm not trying to cut you off but just i want to be i don't want to repeat what you are just on the format of the limited remained in this type of case the defendant's presence is really key once again because the resetting of the guidelines has changed the whole method for calibrating the appropriateness of the departure and the degree of departure so his presence really is needed to to validate all of those interests that you yourself identified and clued in his constitutional right to be present at sentencing i can agree to a number of things to work out with the judge and the prosecutor present in terms of legal points but i as his attorney can't give up that constitutional right for him or the other statutory or rule based rights to be present at sentencing and we can look at other cases where this court has had to deal with on appeal the issue of whether the defendant had a right to be where is he being held in relation to where this court room is going to have to he's a bit farther than that but i really can tell you i'm sort of being me exactly here's what i don't understand about the constitutional right to be president sentencing he was present at sentencing it was when the judge said you get forty four months so it seems like all of those those rights were their constitutional statutory or rule based have been satisfied which is why molina martinez can say the courts of appeals can just ask the judge would you stick with forty dollars and if the judge says yes hypothetically then all of the various legal requirements associated with the least the right to be present have been satisfied i realize you have other arguments about why it would still be an abuse of discretion or whatever and these are not cases that are cited in a breeze but there's a recent case two thousand and sixteen a relief from this court clerk that dealt with the defendant's right to be present i can give you that cite if i might step away for a nd but and in clark this court went through when as a defendant required to be present at any sentencing and generally the rule from that is when the sentence is going to be reimposed or reconsidered in a different way that could be more onerous than the defendant has a right to be present with right just a correction of the judgment elimination of believe in that case it was the elimination of the one count that had no other impact on that defendant in the defendant didn't have a right to be present at this point it's been a good day i'm sorry but as we're sitting here today he's serving a forty four month sentence yes and so if the judge decides just to wait here then there's no not one single day added not one single condition of super regularly sad not want and certainly no burden at all that would presumably not trigger any of the things in clark or the constitution of the rules  the except for the fact that this recent sing the district court is imposing a new sentence based on an incorrect guidelines in which it's taking into account all of these other statutory requirements and so our argument on the next appeal would simply be that  the requirements of clerk the requirements for the from his presence at recency when the district court is exercising the discretion all over again that those haven't been met and so in this case simply to avoid the necessity of further appeals it's if what you're looking for is judicial efficiency it's more efficient simply to resign and send in in a complaint the government agreed with you on that i just appraise on the record to me i understand that maybe that can encompass the judge writing an opinion but maybe this is my state court routes on the record seems to me to be like right now is on the record but i suppose it's on the record when you write something and put it in the record so i don't i don't know what the supreme court meant by that and it doesn't seem like that was the focus of that case or of their discussion so i'm i'm not sure we know exactly what the supreme court would do with this physics question if it were a direct presented cert question and we know it'll probably come in the circuit thank you thank you thank you to both sides we appreciate it very interesting argument and the case is under submission