good afternoon good afternoon your honor i represent tae kwon morris on appeal from his ten year sentence imposed for his conviction after guilty plea of being a felon in possession of ammunition we can t appeal but this the imposition of the statutory maximum ten year sentence was on reasonable where mr morris entered an early guilty plea and his guideline range was fifty seven to seventy one months the imposition of in this case gave him no credit whatsoever for his guilty plea and early acceptance of responsibility he could not have done worse after trial a factor that was ignored by the district court the large variance was based on the single factor that mr morris had fired the gun in the street a factor that was fully accounted for by a four level increase in his offense level now this court recently it was a busy street  i'm not sure how busy it was he was there on the street with his wife and another woman i believe and there had been some kind of confrontation with some neighbors the video of the shooting does not depict who was who or what he was shooting at but he could well have been defending his wife from somebody else with a gun we don't know what he was shooting at that was never determined there were no witnesses or complainants or victims that came forward about this incident but it was some kind of confrontation which could have been factor that was relied on this case the one factor is reasonable and how the court has to evaluate whether it can bear the weight assigned it under the totality of the circumstances and judge cole did she have the  the video available to her as part of the report he did she did your honor she could make a judgment as to how dangerous this was she could and you know we're not we're not disputing that it was dangerous that you know picking up a gun and shoot i well it is part of the calculus but it's the standard it's not quite manifestly unjust i mean this court in jenkins stated more than i think three times that sentences at the statutory maximum should be reserved for the very worst which included not only five points for that prior conviction also three misdemeanors which were really minor offenses but also two points for committing this offense while he was still on supervised release so that was also accounted for in his criminal history score and the typical kind of case where someone gets the statutory maximum for felon in possession is a case where the guideline range is way over the ten years because the person has such a bad record of there are other factors that really increase the guideline range in fact that the government couldn't come up with a single case in this circuit and it's brief of this type they relied on a few cases from places like missouri in texas and even in those cases in those cases the defendant had much had done much worse head to head one cause death or head or they had terrible records that that were one violent crime after another in this case there were many factors supporting mr morris there was an unusually strong letter of support from his employer from his supervisor at target where he was an outstanding employee considered that she considered all those things but she didn't consider and she didn't mention it was the fact that by imposing this ten year maximum that she was depriving him of any credit whatsoever for his guilty plea and his if full acceptance of responsibility which was not just early acceptance but a really strong heartfelt statement of remorse where he didn't minimize his conduct in any way excepted absolute blame for everything he had done and he got absolutely nothing for that and that is a huge factor that's something that really should weigh in the defendant's favor so what we're contending is that he was not merely the worst of the worst which is really required for the maximum and that the court over relied on one factor and didn't consider other factors particularly his strong his acceptance of responsibility you good afternoon in may please the court my name is jason swaddled i'm an assistant united states attorney in the southern district of new york i represent the government on appeal and i represented the government before the district court on morse's sentence was both procedurally and substantively reasonable in sentencing morris judge coat had before her an individual who possessed ammunition in the course of the shooting which as the video showed was on a busy street with several people standing nearby he didn't want supervised release less than one year after being released from a sentence of seventy six months for crack distribution he had a history of violence that included assaults robberies and firearms possession judge coat balanced all of this against the steps that he had taken in the less than one year since he had been released from where you are you're adversaries are human is that all of the circumstances that you're citing the circumstances cited by judge code are taken already folded and taken into consideration in the various adjustments and hence means and and then for the question becomes did judge code explain any other reason any reason other than what's already taken into account for imposing the maximum sentence well i believe i believe she did your honor except for the fact that the street is busy i'm not sure i see any well your honor first of all  considering the dangerousness and considering the dangerousness of the offense judge who was intitled to exercise her discretion and her judgment in viewing the video which was submitted to the court in connection with sentencing and has been submitted to this court on appeal to determine the exact circumstances of the shooting was this a person who had simply fired a gun into the air was it a person who fired a gun into the ground or was it a person as evidenced in this case who came down the street made a deliberate decision to retrieve a firearm from a car while engaging in an argument from people who were off of the security camera stepped into the middle of the street next to other people so there was a woman who was sitting near the car there was the defendant's wife morse's wife who was sitting near the car and then there were other people standing right near by walking next to those people in the middle of the sidewalk taking the gun out deliberately aiming it down the street waving and then firing two shots ditching the gun in the car and running away so absolutely judge poe could look at that in terms of dangerousness and she could also just consider the commit violent acts as a as an enforcer for a violent drug trafficking crew she's judge coat said that the defendant was going to come out of prison again after a lengthy sentence which she had previously served and clearly had not  him and that he was going to have to make a choice again in his life whether at this time he was going to renounce violence renounce the streets renounce guns so she was clearly focused on the fact that the person that she had before her did have a violent history did have a history of doing the very same things that he had done here and now had returned to him in a very very dangerous way and so when considering the thirty five fifty three a factors judge cote found that the seriousness of the offense the danger to the community posed by morris not just in this offense but in general from his history as well as beneath his high risk of recidivism outweighed the other thirty five fifty three factors it was not an abuse of her discretion to do so and the cases cited by the government although not in this district to demonstrate that contrary to what to what morris is argue arguing which is that there should be some upper bar that there's really only one set of circumstances that warrant the worst reserved for the worst of the worst but the worst of the worst is not it's not a black line it's it's not as cut and dry as morris would suggest it is because in that case it would be too absurd results if somebody possessed a fire let's just assume somebody possessed a firearm  and it was in connection with them a murder and they weren't charged with anything else just the felon in possession of the firearm and they say they killed three people and the court said you know what that's the worst of the worst and given your criminal history you're going to get one hundred twenty months but now somebody comes along and they do the very same thing with four people and now when you're under this this was the only offense that the government could charge in this case but and the government's position of course was that the government took the position of a guideline sentence but again the standard is what could judge code do under the   clearly mr morris in this case was one of the worst of the worst given his criminal history his history of violence his recidivism less than one year after serving a very lengthy sentence for very serious conduct and so judge did not abuse her discretion in sentencing the defendant to one hundred twenty months and if the court has no further questions we rest on our submission and served most of his twenty's in prison for that's his violent history that's it he was twenty years old when he was arrested for that offense his other points in his criminal history three other points are all misdemeanors some so minor like smoking marijuana in the hallway of his building or jumping a turnstile that the probation office didn't didn't even think the turnstile jumping should be counted so he does not have a terrible terrible history of the kind that makes him the worst of the worst far from it  and we we contend that a defendant who has pled guilty and fully accepted responsibility