thank you your honor good morning my name is joanna silver and i represent the appellant stephen moore variances are rare in two thousand and seventeen courts across the country impose an upward variance only two point one percent all cases this case does not merit inclusion in that two point one percent and it certainly does not merit a variance of the degree imposed by the district court the one hundred and forty four month sentence which was imposed on top of true years mr moran had already served in state court for the same conduct is based on conclusions by the district court that are not supported by the record and are in conflict with the court's guidelines ruling most important sentence fails to sufficiently account for the unusual and extenuating mitigating circumstances that led mr mern to commit this often ends the sentence constitutes an abuse of the court's discretion and it must be vacated i'd like to walk you through the district court's reasons for imposing its significant marriott's beginning with the st and most troubling reason which came when the court address the need to determine and protect the public the court erroneous lee concluded that when mr mern relapses he is a substantial threat to public safety and that he will always be at a risk of relapse but this factual conclusion is not borne out by the record and more important it reveals the degree to which the court discounted and maybe even didn't understand the importance of the mitigating evidence that was presented to he has approximately eighteen prior convictions your honor and the court and this is one of the areas in w years old and he had his st psychiatric hospitalization when he was thirteen so throughout his life up until the one other violent often to commit it which was a bank robbery when he was thirty six he had a criminal history that was as  acknowledged very similar to the criminal history of a lot of serious addicts pfaff's c d s possessions there's no evidence other than a short period of time when he was in the military that he wasn't using drugs so he went his entire life essentially until he was thirty six using drugs not being treated suffering from depression and so the fact that it wasn't until  we do count your honor but the dischord itself recognise two things one is that the fact that his his criminal history is compelled by created by his drug addiction is mitigating and if you look at the category in the guidelines account for mr mearns criminal history and the court itself recognise that we have timing rules in the guidelines for a reason and that is because the older a criminal offense is the less relevant it is to someone's risk  recidivism in danger to the public and that reason applies when you're conducting the analysis under thirty five thousand five hundred and thirty eight as well so there's no reason that that same analysis that the older offenses shouldn't be counted as heavily against you now shouldn't apply in the variance context and so we're not disputing the criminal history category that i had in this case what we're disputing is the on reasonable weight that the district court gave to the criminal history in imposing this extreme and that's not borne out by the record either your honor i'm as i said his only violent office was the one try our bank robbery and that bank robbery wasn't actually committed with a weapon it was a there was a fake on one of them that was the only violent offense in his history well any bank robberies do range and that is true and that's something that we acknowledge and we also acknowledge that the bank robbery in this case was on the more severe and and we don't dispute that at all your honor and that's something that's really important is that we are not saying that mr mern did not commit a serious offer and in this case we are not saying series of fences that really were not charged but he resisted police officers he threatened retreat in the is your biggest argument seems to be well this is part of the relapse that might go to the notion of punishing somebody but the court also biggest concern is to protect the public the understand that you have a few responses the st is that the sentence here the guidelines actually and the sentence that mr mern is serving in state court in pennsylvania to reflect all of the facts of the offense that your honor just recounted so often i was as well as the background shows that he just can't control himself and then he has become very aggressive and the public does need to be protected well your honor i actually respectfully disagree i think that the record that justification to reduce punish yes but that is not a reason to reduce time by which the public has to be protected by incapacitation which is one of the main general sense that we want to you know feel sorry for him and reduce the punishment that's actually only one piece of it but the other piece is that it actually does suggest that he is less of a danger to the community in the future poses less of a risk of recidivism and the district court concluded and that's where we take issue with the district courts conclusion and think it was wrong because if you look at the evidence that was presented this confluence of facts is not something that is ever going to happen again it's this is not a case where mr mern demonstrated that you know every time he loses his job he relapses or every time he has any sort of exposure to opioids he relapses that's not what happened here there was a significant series of events that is not likely to happen again and so it's simply not reasonable to conclude that every time he relapses or every time something goes wrong in this room or in life that he's going to relapse and be a risk of danger to the public in addition we presented a fairly extensive expert report by an expert who noted that mr mern had never received the trick or talk about balancing all these factors are not just you're arguing the the weight distribution the defendant disagrees with every district court afforded weight to all these different factors and three hundred and fifty three or so your honor the court did consider these well but the fact of matter is if you actually look at the cases in which this court has actually been a kid and sentences for being substantive on reasonable it middling mostly it's because the sentences were too low that's what the district the court of appeals has done when the court of appeals reviews a sentence it has to actually look at the factors and you know we could call it whatever we want but what the court is doing is is some amount of reweigh and if you look at some of the scase is and i actually unfortunately just yesterday submitted a letter with a few more cases the court this court always said you know for example the district court focused too much on this defendant's autism diagnosis in a child pornography case so placed too much emphasis too much weight on this one factor and not enough on the others and that's what has happened in all of the cases in which this court has actually vacated sentences that it is basically saying you we believe that the district were placed too much weight in this case we believe on the off chance conduct and not enough on the mitigating factors and it's not and again i want to go back to what your honor said judge niemeyer it's not simply that we believe that he should be cut a break because of the sad things that happened to him although we do believe that's part of it we actually believe that what happened to him here suggests that he is less of a risk to the public in the future than the district court concluded that he was in addition the other thing that a lot of the cases where this court has vacated sentences point out is it's not just that we have to you have to decide whether it was appropriate or reasonable to impose a variance but the really the inquiry comes in when you're looking at how significant that variance is because in most cases in which this court has vacated prior sentence the court has always agreed that some variance is appropriate and we basically conceded that in our briefing as well i mean this was a serious bank robbery there was some somewhat unusual factors going on here and so some variance might be appropriate but what all of the cases hold is that the larger the variance the more compelling the reasons for the for the variance need to be and in this case we don't believe that those reasons are compelling enough and when you look at the totality and again this is analysis that's what's howlett includes the mitigation and the aggravation so if we did not have the mitigation in this case and we just had the aggravating factors of this bank robbery and they were aggravating then perhaps a varian of this degree would have been reasonable but when you then also consider the mitigation it's very clear that it is not they  determining what the proper sentence was in this case that is something that this court cannot do and that the goal case in numerous precedents of this court under the abuse of discretion standard which accords a broad degree of discretion to the suits and judge in making sense and decisions this is not a case where the defendant alleges any procedural error the defendant acknowledges that the court considered both mitigating and aggravating factors in determining what the sentence was in this case and even conceded an upward variance was  reasonable left is that the defendant is displeased with the way that the balance was struck in this particular case and when it's essentially asking this court to replay all of the mitigating in aggravating factors submitted to the district judge that's again is something that the  can do but even on closer examination what's clear is that this up with various that was imposed in this case while significant was perfectly warranted and still well within the scope of variances this have been us this case is overflowing with extreme aggregate that clearly outweighed the mitigating factors such that an significant up at variance was appropriate that include the use of a fake bomb that appeared to be a credible pipe  the dangerous high speed light from the scene of the nd robbery a violent resistance of a rest by by arresting officers a violent resistance against them kicking and hitting the arresting officers with all his might well threatening to kill them a violent stealing of a correctional officers a gun if you didn't just attempt to steal the country actually rested the gun away from correction uh there was also violinist temp breaking the window and climbing out of a transport on top of that the finance extensive criminal history as the district court noted imagine a case where in the in again the variance that was imposed here while significant fell within the scope of variances previously opposed imposed by this court i want to turn st to the numerous aggravating factors present in this case and there was some wasn't the only reason because there was lots more to talk about this case including the unusually serious nature of the nd bank robber the use of the fake bomb which is for numerous reasons one of those reasons is that the typical robbery the way to that occurs whether it is it curbs armed or unarmed is typically a threat is made against an individual tell you by passing a bank know displaying a fake gun pretending to have a gun or using a real gun the threat is made against an individual tell when the robber leaves after collecting money the threat basically just goes away this case is a world apart from that here you had a defendant who placed the pipe on top of the counter where everybody in the bank lobby could see it in that was nothing short of a death threat against see evacuation from the bank which is visible on the surveillance video that was presented to the district court so you have not just the infliction of terror against multiple individuals but also the prolonging of that terror based on the defendant's conduct in addition to that the court noted the lasting traumatic impact that it had on the bank employees in this case who submitted victim impact statements and there were several presented to the district judge in this case on top of all that there was a significant waste of government resources there were multiple bomb squads that had to be called to the scene of this robbery in order to sesson determine the nature of the bomb threat that was made in this case and it took a significant period of time in a great deal of resources before you could be determine that the bomb was in the thick this case in this regard  very similar to the spencer case which was previously heard by this court which was a case involving a threatening letter but the threatening letter in this particular case was unusually serious somewhere for similar reasons that the bank robbery in this case was a huge series that letter had power sprinkled on it that was made to resemble anthrax so in that case the court determined the district court determined that that serious the threat made against the victim in that case was unusually serious it was a justification for deviating from the flight she saw the defendant weaving in and out of traffic at high speeds on a very busy thoroughfare in that he ran red lights he made an illegal turn and caused numerous collisions and threatened the lives of all the motorists on the road at the time the next day during his arrest again he fought with the arresting officer and threatened to kill him rd a few days later while hospital last he took the gun of a correctional officer in the end he made a violent attempt to escape from the transport  n all of this conduct only two levels were assessed under the guy who's now the court may and i'm not sure how familiar your honour's are with the sense in god lives but having some familiarity with the guidelines one could guess times in the but as you're on his no two levels are typically assessed for numerous types of offense characteristics and one could imagine a situation where two levels could have been assessed for each of these are big factors that i know of but they weren't only two levels of all that conduct that happened after the bank robbery only two levels were assessed for obstruction of justice associated with the scape attempt that occurred at the end the guidelines didn't reflect anything that occurred before that escape the government one of the district judge the standard overview been before this court had the district judge grants at all the government's requests for upward adjustment of the guidelines that would get the suggested range of the got lots to the ultimate sense of as opposed this case in other words the factual findings necessary to support to support departures but the facts submitted by the government provided in evidence in support of those the part choose could also justify as the government argued below variance under th that departures are strictly defined and variances are much broader in the the i mention the spencer case earlier and that's another english cases provides an illustration of this point as well what happened in that case procedurally was that at the departure under the guidelines on appellate review the cool peals determined that the party did not apply them to the facts that were found by the district judge so the case was reversed and remanded on remand and that the recent sing the court got right back to the four year sentence but this time on the reasonable it was perfectly reasonable and appropriate for the judge to make a very significant upward variance in based on the same facts to did not support a departure in that same principle applies to numerous other cases  by this court including the griffiths case where the district court of the declined to apply an upward departure and instead proceeded variance in that was a case similar to this one where the government asked for departure for under representation of criminal history nass to court to depart based on under representation criminal history the district court in that case rejected that departure but very upward based on the defendant's extensive criminal history the reasoning that the district judge offered there was that though the district judge couldn't assess the seriousness of the prior history same thing happened in this case because the district judge didn't have the facts necessary to determine how serious some of mr park convictions were though the court couldn't determine the seriousness of the  standard of reviews because based on my review of the defendant's brief they kind of read like since in the miranda syncing memoranda the you submit to a district judge in this court obviously is not sits in court so it appears that the defendant wants to score to basically sins court but apart from that de there are several other cases that this court is considered in the past where there were both aggravating and mitigating factor is present in they were argued on appeal as well in those cases significant variances were imposed it up with variance in this case even though the upward variance in this case is significant you have cases where seven times the guidelines were three times the guidelines were posed in these cases also included mitigating factors did the friend and on appeal would make the argument that the district judge did not properly balance the mitigation against the aggravation but this court always upheld under the differential abuse of discretion standard and i know that the defendant makes the argument the government's cases don't pull mitigating factors that simply isn't true or for the court to the rivera santana case cited in the government's brief now was a case where the district court buried up to the twenty year statutory maximum which was a ninet there were mitigating factors in that case too in the defendant i'm sure on appeal made the argument that the court didn't properly consider all way the mitigating factors but this court infer affirm nonetheless specifically that was an illegal reentry case after filmy conviction  in the mitigating factors that were presented like in this case that the finance poor health in also the defendant's age it was determined by the district court that those mitigating factors were grossly outweighed by the several aggravating factors in the case including like this one an extensive criminal history did include several unscored convictions that were not adequately accounted for in a dark green the defendant's general criminality based on that criminal history and his dangerousness to the community which the finding that district judge variance eighty eight dollars not sorry eighteen months of the six month guidelines range that's three times the high end of the guidelines mitigating factors were presented there to including a lack of any evidence of criminal activity other than in the fact that the defendant had reentered for family purposes the district court found that the aggravating factors in that case including defend its membership of a street gang outweighed the mitigating factors in the variance was upheld on appeal mitigating and it happens that the upward variance in this case a smaller than the variance in those cases i wanted to respond to the fentons arguments of that it was factual error for the district court to determine that when this defendant relapses he's a danger to the community this is i may have missed something from the briefs but this is not something i remember reading in the briefs but while sitting at the table when i heard this argument i flipped to the joint appendix enough for further courts a page sixty two dollars of the join it what it says in the factual basis for that conviction is that during the investigation mr mern told police that he had a severe heroin addiction it would not otherwise have cropped so there you have an instance where in which this this defendant who  recognizably a drug addict relapsed or he was using drugs at the time and he offered that is the reason why he robbed the bank in the st case in defendant is now arguing that that's the reason why he committed the bank robbery in the violent resistance of arrest and skate grabbing the correctional officers gun he did all that because he relapsed so was not an actual error for the district court to conclude so to conclude that when this defendant relapses he's a serious danger to the community there robbery similar to what occurred in this case which happens to be another basis for an upward variance you have basically a defendant who served a ten year sentence in this park case when he gets out a few years later he does the exact same thing in not only does he do that but he does serious acts of violence in dangerousness after the nd bank robbery so a twelve year sentence was perfectly appropriate in this case in the interest of deterring this particular and because he was not deterred by the ten year sentence he received in the prior  d i think that the court can disregard that because there's no excuse for what it was felt so late there are numerous cases side in a twenty again letter most of them are years old all but one of them proceeded the briefing of this case there's only one new case cited in there and it's from may of this year in and out of circuit unpublished opinion i haven't had the chance to review those cases it may be that once i have a chance to review them the government sickleave the file server class and i can respond to it but unfortunately i've been hampered from responding to the twit at this time giving the thank you your honors i apologize for filing my letter just yesterday but as you know i can file a twenty j letter tomorrow if i wanted to and i still ask the court can consider the cases that i cite there and and it also doesn't matter of course when the cases were cited as long as they are relevant to the issues before the court which they are and like to start with a couple of the cases that the government cited suggesting that cases other cases have mitigation and i'm sure there is mitigation offered in every case show this case is within or without bounds in other cases the bottom line is we're going to look at whether this judge used his discretion in connection with  urged that there are plenty activity factors that weren't even discussed that are in the record and so what we have to evaluate is whether this amounts to something that's beyond the discretion every other forehands every one of those historical circumstances the then there may be circumstances where we say categorically when you go to times what the guidelines it's just beyond pale we're not going to prove  it i don't think we have that kind of case we assess every one of the cases based on what's presented right and that is absolutely correct your honor i think with the cases are more important for our certain principles such as that way back in the more linda case this this court said that reasonableness review is not a rubber stamp you actually do need to engage in some sort of if you want to call it reweigh and there you can call it but it's not and as i said at the very beginning courts are really only supposed to vary upward in a small number of cases and they only do two point one percent of all o that you know sentencing supposed to be rooted in the guidelines the guidelines form the framework they are what they are the moring point for the sentence and so the court is really supposed to carefully look at and explain which this court really didn't why the guidelines were insufficient or not so again the court explained the three thousand five hundred and fifty three factors but the court never actually went back to the guidelines except for one time when the court mentioned the time the criminal convictions the court did not mention the guidelines once in explaining a sentence and if you actually go through the guideline factors in this case virtually all with one exception of the bad conduct that was committed by mr mern is accounted for by just minutes so there were multiple bank robberies he got a multiple count adjustment there was a obstruction of justice got an obstruction of justice enhanced there was all of the really bad conduct in pennsylvania he got a two year state sentence for that that's coming on top of the twelve years he's serving for his state court sentence and he also received weapons adjustments three levels for the fake bomb and i just want to close by making sure that i mean the bomb in this case was a cardboard paper towel towel roll covered in duct tape and stuffed with your honor