our fifth case for this morning is united states against ferguson mr stiller procedurally and substantively unreasonable that it might even constitute a violation of the eighth amendment the second of his two claims attacks the broader sentencing process as defective for the fact that the district court divorced the fashioning of any supervised release conditions from the imposition of the term of imprisonment did you go with an pardon me didn't you go along with that procedure you raise any objection to it it might be said that there was no  objection but i yes but i think it would be an overstatement to say that we went along with things can you think of any case in which the process of putting the number of years of supervised releas otherwise leaving it completely blank was an acceptable way to come up with a final appealable criminal judgment we've been going back and forth about supervised release and there's a school of thought thought that you shouldn't even start talking about it until somebody is about to be released from prison and so on but the assumption behind certainly our thompson capice etc line of cases has been that a supervised rel terms and conditions need to be pronounced along with the rest of the sentence because be there is some interrelationship between the term of years and the stringency of the supervised release on i was very surprised to see this procedure your honor i've been a federal defender for twenty one years now and i'm in uncharted territory so in other words you haven't seen it before either no but just yesterday and i think either this morning or today we will be filing a twenty eight j letter with regard to yesterday's opinion in united states versus orlando they are the district court was sentencing an offense for which the term of supervised release had to be imposed by statute mandatory yes the district court imposed a term of imprisonment and put off for some later day both the imposition of the term itself and the imposition of any conditions to include the statutory mand statutorily mandatory conditions it might be dicked but orlando certainly said that the end result of that sentencing process was a defective sentence so going back to your honor's question which i think touched on appellate jurisdiction right we came out of judge randoms courtroom in december with a defective sentence from which we took the appeal and that's what brings us here today yeah it's trouble right and i know you've talked a lot about the juvenile stuff but there's also i suppose the argument you're making under god all that if you're going to go above the guidelines by thirty two years you need to explain why yes judge i think we're unapologetic in staking out the following position we believe that the fifty year sentence may have violated the eighth amendment we believe that the f the reasoning in the rationale of the eighth amendment cases under thirty five fifty three a rendered the sentence procedurally and sucked as subject of leean reasonable but we additionally believe quite frankly your honour's that even if mr ferguson had committed this very same terrible crime at age thirty two the district courts explanation for how he got from guidelines of seventeen or eighteen years to a sentence of fifty years was inadequate under gall it so so the government's brief begins with a point that i think is hard to disagree with which is that the fact that mr gross that mr ferguson isn't you know in prison on a first degree murder conviction is luck as far as i can tell given the way he shot this poor woman so isn't that kind of an obvious reason to give somebody a really long sentence judge that the government's factual point has validity actually points to a problem with the sentence under to be three point one which is the guideline of clickable to carjackings if the driver of the vehicle had tragically been killed to be three point one provides for a cross reference to the murder guideline if that murder guideline had applied the offense level less acceptance of responsibility plus mr ferguson's category two criminal history plus ten consecutive years for the nine twenty the supreme court has certainly been saying things about this but if he's going to be out at the age of sixty eight i don't know why that makes this a de facto life sentence seems to me you're asking for an expansion into just really long sentences for people who are juveniles that might be a fair characterization but allow me to explain it it has to be long to an extent because what is long twenty years is long years is long thirty two years as long i think the state courts that have acted that we've cited and i understand law goes the other way as well the state courts that have acted in the aftermath of in particular miller and montgomery have sort of taken the approach that for a term of years s the eighth amendment comes into play when the expiration of the existing sentence would result in the presumably rehabilitated juvenile returning to the community with no valuable life of liberty left in which to demonstrate his rehabilitated character i suggest judge that when we talk about banishing a man justifiably at age seventeen a boy at age seventeen and keeping him in prison to a projected release date when he's sixty seven sixty eight time with grandchildren winters in warm weather you looking back on a fun career a fiftieth wedding anniversary if you've been gone since you were seventeen that doesn't exist and quite frankly you flirt with the shushing redemption theory at sixty you have a couple of questions about that one you were critical of the argument that a court in evaluating that defacto life sentence question should take into account the availability of good time credits correct since the whole premise of this line of cases is life without parole i don't understand why we wouldn't take into account  one that's permitted under the miller mongomery mine are trying to take those questions in their order of i do see the parallel that your honor is drawing between parole and good time i think the difference is that parole when it's available presents the possibility and even to some extent a conditional in title meant to a much more dramatic reduction good time were planned around the margins to the tune of twelve percent or something  sentence this long it's a long time well i think and it may be the difference between being above and below life expectancy i mean i don't know we're talking about math here and if you get a fifteen percent discount or twelve percent depending on people's use i think things get challenging and i realize i'm burning up my time when we sort of start substituting an actuarial table for the good old fashioned sentencing table and look at this court's decision in mckinley versus butler where a term of years one hundred years the man was deemed to apply to that and of course we all understand that you know the mr mckinley wasn't going to live until one hundred sixteen years so it was a life by the numbers rather than life by letters but i think it's an interesting question if the sentence for mckinley had been seventy five years i'm asking you the question please help us you're doing fifty years as an eighth amendment violation forty i question whether the eighth amendment would apply as cruel and unusual to a forty year sentence why what's the difference the distinction being that opportunity for a meaningful life of liberty upon rehabilitation and life expectancy minus what five years ten years to come out it was the question forty year stretch my question was forty years these aren't lines for me to draw and i'm not sure who they are for to draw but fifty seven sixty seven are different you are asking us to draw them so i'm asking for help here i'll answer it one way or the other if we have to judge perhaps i might draw the line at the age of retirement at the age of social security entitlement those are is fairly weighty matter and frankly think that i do you think the court could consider in your mitigation or humans the difference between a thirteen year old and a seventeen year old i think not judge because the science suggests as interpreted by the supreme court that both the seventeen year old in the thirteen year old have underdeveloped brains within its discretion you could record could draw a line between somebody who's already judge i think that in caesar of vent the offense behavior plus whatever criminal history speaks to the idea that the child is dangerous so long as his mind is underdeveloped and that makes the thirteen year old in the seventeen year old sort of one in the same for purposes of the supreme court's analysis would you agree that there are some pretty good reasons here for an above guideline sentence and let me just suggest some of them to you the guidelines here are awfully arbitrary the six levels for example that were imposed for a permanent injury would also apply to a permanent crippling of a finger joint right as well as to rendering this woman blind in one eye in effect effectively putting her well i you know if you know better than i how serious your injuries were  and we've got no real account for the seriousness of the effect on her life  the the ten years on the nine twenty four cd is the guideline range no matter what you if he fires into the air to scare somebody it's a ten year guideline and it's a ten year guideline if he puts three bullets at point blank blank range into her head right so the way the guidelines goose doesn't capture it would suggest a lot of what was going on here judge i hope we were affirmative in our reply brief that it's not our perspective that ferguson had an expectation much less a right of a sentence of fifteen years or twenty years or he teen years i'm sensitive to everything that your honor has said but in terms of the gall rida explanation for the dramatic upward variance those six levels become kind of a measuring stick in other words the sentencing commission has said that permanent or a life threatening injury of any sort gets just six levels those six levels applied to grover ferguson's calculus amounts to a difference of three or four years so i think a proper explanation of how the victims more serious wounds or mental emotional suffering might factor into things is that ok if presumptively a severe or permanent or life threatening injury is cos the defendant three or four years moving that out for whatever aggravation accompanies this victim's injuries they slipped out of explanation you're looking for exactly all right thank you proctor before you delve into the merits i would like you to offer your thoughts on the way the district court bifurcated supervised release part of this judgment since i have been a lot of trouble with that certainly or on may please court this is a unique situation no let me but it won't be unique if this is ok because a lot of district judges would be delighted to put off supervised release for years if not months and this is not something that's done within say the fourteen days that rule thirty five gives you two correct judgments it's just sort of this random out there time so i'm very concerned about the precedent that this method of proceeding would create certainly your honor and to give context where we where you end up in this particular case the judge had handed down a fifty year custodial sentence and i don't know what it could have been one hundred years it could have been a life sentence you know again putting to one side explanation but it's the process of saying here is your term of years long shorter in between and i'm going to enter this is a judgment you know and well actually he also said it's going to be five years of supervised release puts the number of hears but he doesn't say a word about the conditions of supervised release and i'm sure you're you could probably recite them in your sleep you know that our decisions in thompson and capice and this whole line of cases where we're the only circuit the country that's doing this is a matter of fact but we've been trying to recognize that supervised release is an integral part of the sentence so how can this be a proper way of proceeding certainly are in this case here the district judge said when he handed down fi five years of supervised release i want the parties to think about what the conditions are so written don't enter the final judgment if the parties want to think and confer you can reconvene in a week or ten days or whatever tomorrow give them overnight  there's nothing wrong with having the parties sit there and confer the problem is enter in the judgment your honor yes and i believe that the the court wanted mr ferguson to have the opportunity challenge his custodial portion of the sentence i think that  can't override jurisdictional limitations on appellate jurisdiction maybe mr ferguson would have liked to have done a lot of things you know but we have to comply with with the conditions will be addressed that is amended problem through that is precisely i'm just i'm with this obviously was a case that got a lot of public attention it was a very emotional sentencing hearing i'm just wondering was there a just a perceived wondering if that might account for the pretty unusual procedure then the procedure caught me by surprise your honor i anticipated that we would address it at the sentencing hearing we didn't happen i think that the judge simply wanted us to file something in writing saying in light of this about the length is the lack of an explanation for going from an eighteen month sorry an eighteen year guideline sentence is my understanding but the guidelines would have put is the cap thirty two years out to a fifty year sentence and i'm not at all saying that it wouldn't have been possible to justify that means there are many things that could have been said but not only did the judge not do that the judge as he has occasionally done before you know was saying was talking about things that were not relevant and so it just didn't give us any window into his thought you know why wasn't forty years  instead of fifty you know why why this much above your honor i know that the transcript and the statement of reasons will will provide the i have read every word of it and you can see my highlighted firsthand in here in my the problem in my review of it your honor to the district court spent you know a good half an hour addressing this particular case going methodically through the thirty  fifty three that matched in any way well i mean you know we can disagree and then i guess about the relevance you can spend a half an hour but if you're talking about the use of child soldiers in vietnam and part of that half hour and if you're talking about you know the neighborhood that your girlfriend used to live in and part of that half hour and you're you're just saying over and over again you're evil vengeance is mine saith the lord you know we're all from a judeo christian background you're not explaining to me why fifty years why not say forty weina thirty why not sixty i mean he could have done a lot of things certainly aren't i'll try to address each one of those points with regard to the length of the s murder but for the night as mr stiller points out it's still a higher sentence than it would have been under the guidelines we don't even get him if he had for example said this looks so much like a murder to me that i'm just going to do these calculations on a what if basis and see where we would come oh i see we come out with you know forty seven years or something somebody rounded up to fifty years and i think that's just i think i would have felt as though there was some hint you know as to where he came from this but we're not supposed to sit there and guess and i'm not sure that the court is necessarily required to tie it specific sentence to the guidelines so long as it goes to the thirty in golf the further the deviation from the guideline range the more help you need to give us in terms of the the justification for that so that's the supreme court in  gaol it's not that you can't do it that you have to go through the process he doesn't at all go through that process you know i have to disagree around or believe that the judge rested his fire and it rested his sentence on the thirty five fifty three a factors which is what he is required to do but means that the same discussion of thirty five fifty three a would have supported thirty years forty years fifty years or sixty years we don't have any sense and that's a in the i guess i have to rely back on the nature of the circumstances in the district judge going through these to these this crime to the defendant's yes you're that actor it's actually very very difficult case to sentence for anybody you obviously put a lot of thought into relevant but i do i have to note a sad irony here about the way juveniles are treated in federal constitutional law that for first amendment purposes we treat a seventeen year old or a ten year old who wants to play a first person shooter video game with all of that graphic violence as an adult full rights unimpeded by parental or state controls but when that young man gets outside a video game grabs a real gun and shoots a real person then we treat him like a child  to briefly just comment on some of the your points regarding what the district judge mentioned during the during the sentencing hearing he did mention the child soldiers in vietnam as i argue my brief i believe that the court was focused on addressing the complexities of of trying to address a youth and how whether or not that becomes an excuse for certain conduct or not and then he did mention his of his old neighborhood but i believe that the judge was talking trying to reach the defendant telling telling i know this area and people should not be afraid to walk up to that crowd because you can be shot in the face he did mention today christian ethics but that was raised by the defendant in his in his sentencing remarks so that was a continuation of this building if we do get to an eighth amendment type issue because under graham the question is whether or not there is a meaningful opportunity for release and you know a life sentence without possibility of parole that's where they came down here good time credits he would get out according to the bureau of prisons around sixty one years old and this court has dealt with that a little bit previously in matters concerning whether or not there was a jury finding that jury had to direct a life sentence before a judge  you thank you your honor responsive to judge wood spots in particular about this explanation could have supported thirty forty fifty or sixty years i think more precision was necessary to comport with the parsimon in other words the judge's ultimate task was to fashion a sentence sufficient but no greater than necessary up as to judge renders frequent reference to you and it not being an excuse and that we don't cut the child soldier any slack we don't know from afar what was actually in judge rand his head or in his heart but i think the most reasonable reading of what he was getting at he was disagreeing with what the supreme court has said that children are different for purposes of sentencing because they have lesser moral culpability so ultimately i think judge rand has a view of youth was distinctly contrary from the supreme court's thank you all right thank you very much ok case under advisement in the court