is guilty of burglarizing it dwelling just as much as a person who unlawfully enters the home itself in the florida supreme court has made absolutely clear that there's no separate crime called burglary of the curtilage so the fact that the statu into visible means that all the parties below incorrectly assume that mr bean if went to us prior sort of burglary conviction would have resulted in a higher guideline range under the twenty fifteen edition of the guidelines that applied at the not the remaining three prongs a plane or if you are satisfied we think that they are for three reasons first because the air is not supposed to resemble the speed aftermath this second because the district court clearly anchored it sent and so that that speaks to the guess what happens when it goes wrong well your honor i don't think that's necessarily correct there are several cases in which a judge whether under harmless error review or plain or if you said i would give the same sentence with this court found that it couldn't be entirely confident that this court would give the same sentence or give the same extent of a variance if it's apprised of the appropriate benchmark that the appropriate guidelines range and that the defendant did receive a lower it's happened often in fact i can cite specifically to united states versus martinez america in a case and that was of course under rule fifty two way it was a harmless error case but the judge said i would give it three times in fact said i would give the same sentence or sentence within this range and then the case went back and mr martinez a male received i believe a twelve month lower sentence so this records do change their minds and they are affected by the guidelines and that's the premise of molin martinez and why do you think a certain should have been well your honor it's i don't think that it's appropriate for myself to judge what the sentencing factors are the united states supreme court in  gaul and prior to that and william said that it is specifically within the purview of the district court to weigh the sensing factors and determine whether or not where a sentence is appropriate in light of those factors and of course one of those factors is the guidelines range and what range would you do you contend was appropriate your honor the appropriate range in this case was fifteen to twenty one months based on a guidelines range or excuse me based on off and slow of ten from history category of four and to turn to the plainness prong if the court has any questions on that i think it's very clear that the air here is playing we know that the florida burglary statute is not generic because this court said so and it's two thousand and seven the government's consider that there was an error your honor the government has conceded error it hasn't necessarily conceded plainness i'm not sure if the government's going to maintain that position after you know there's been several cases based on allegations listed in the indictment and so the exact same thing applies here it is true that this court has twice before at least looked at the indictment in a florida burglary case to find generic burglary but of course based on the end of his ability of the statute which is clear and obvious after mathison in light of the florida supreme court's opinion in baker versus state which is get us cited in that two thousand and seven opinion it's very clear that the court can no longer look at the charging instruments in this case so we do have we do believe plainness is satisfied here turning to the prejudice prong judge comment it is true that the district court did say that it looked at the guidelines range of of and below the incorrect range and that it would give the same sentence or it would it would give the same sentence irrespective of that range but that does not overcome molina martinez because a million or team as a supreme court justice kennedy was very clear you said there are there might be a case where the idea that the use of incorrect guidelines range would be is effect substantial rights would be rebutted but in order for that to happen two things must happen the record has to make clear that the judge based the sentence on factors independent of the guidelines and the record must also show that the judge considered the correct range and here all the evidence in the record suggests that the guidelines did influence the senate the clearest evidence is the court's selection of the thirty month term within the iranian guidelines range in this court time and again has recognized that that is compelling evidence of the influence of the guidelines the statement itself also makes clear that the district court was basing its comparison against the range above the irani skyline drange and the range above and so those are in the range also products of the incorrect range so the is telling the court did not suggest that it chose thirty months for reasons that were unrelated to the guidelines like to give an incremental sentence for instance and it certainly issued any reliance on the prior arrest incident for unlawful killing and then finally of course the court never considered the actual range that would have applied that fifteen to twenty month range so all of this shows that the commission's advice through those guidelines was the relevant benchmark for the courts and it's a decision in this case so if there are no further questions on the third prong that brings us of course to the force to the discretionary prong good opinion it is a good opinion and i think the there is an idea in this court's jurors prudence that plane air should be rare in the supreme court's jurisprudence as well but i think what the court is missing in some of its cases is that plain air is rare because i think the sample size that the court is looking at isn't exactly the right sample size to look at it i would point the court to and this is the pen side is that the million martinez opinion page thirteen forty eight in that portion of the opinion justice kennedy talks about sentencing commission statistics for twenty fourteenth there were seventy five thousand sentencing cases in twenty fourteen only six hundred twenty were remanded based on statutory and guidelines years so let's assume that three quarters of those were guidelines and that even three quarters of those were plainer cases that leave that would leave us in twenty fourteen with three hundred forty eight cases remanded and that's less than half of one percent that is point four percent of all of the cases that were sentenced in twenty fourteen that would have been remanded on plane air and that's being generous with the statistics so i do think that when you expand the to the universe of all the sentencing cases and not just the cases that appear in the report and then plane air is rare as it should be  even in the sentencing context and it when turning to this specific case this isn't just a guidelines air your honour's this is a constitutional air our constitution says that fundamental fairness requires that a criminal defendant be punished according to the law as it existed at the time of his offense at the time of mr bean a flight this offense of course the existing law was the twenty fifteen guidelines so because of the error here mr bean if went as was punished according to law that didn't exist at the time he committed this crime which the disparity is at nine months or what what is it here you are the disparity here is nine to fifteen lines i think it's it's to be fair fair so the district court i believe it would be a nine month disparity because the district court did choose the top of the guidelines range the top of the guidelines rings it's correct nine months below that so but we do think that nine months is significant and just to look at the higher level of generality because i know that your honour's spoken judge smith in the escalade here is dissent in other places that plane air review especially on the fourth prong is focused on the judicial proceedings as a whole not this particular judicial proceeding and i think that's right so sometimes i think that particular circumstances of the case are related to the defendant's individual case but if you look here we've got an ex post facto violation i fundamentally unfair our constitution sets to punish an individual more harshly based on laws that didn't exist at the time that he committed this crime and so at the highest level of generality we have a serious effect on the fairness of proceedings as well as the public reputation which several commentators commentators excuse me i'm ok take your time several commenters commentators have recognize that a constitutional air is one that the constitutional error occurred here went to her client get out of jail run our client gets out of jail right now the b o p website says in october of twenty ninety next year so he would receive a benefit from not from a and a ruling in his favor in this case and another point in favor of correction your honour's is that this is a constitutional error but it does occur in the context of the guidelines as we've been discussing and that makes it even more serious the purpose as everyone recognizes is that the purpose of the guidelines is to reduce disparities between like defendants in his justice prior recognize that the result was morello's argument the through the central function of the guidelines is to direct courts to the sentencing commission's expertise in the way that it gains that expertise is the numbers the empirical data that come from each sentencing and so whenever there is a sentence that was incorrectly calculated and then it remains there the statement of reasons it submitted to the can to the sentencing commission and that confounds the empirical evidence that the sentencing commission bases its expert advice on and so all that is to say that when there is a sense in guidelines error there is a serious effect on the structural integrity and this goes to the integrity pillar of planning of the sentencing process and i think that that reasoning is sound and who better than justice prior to know what the purpose of the guidelines were of adequate in your view withholding a decision in this case and waiting i guess it would be too too much and most of waiting a decision in that case is to see what i say about the fourth prong your honor i don't think that you need to in this case we do contend that under even this court's traditional test which looks at the degree of the error in the circumstances of the particular case i think that reversal is clear here based on that extra not necessarily clear but it's appropriate artemy based on the constitutional nature of this care and the effect it had on these particular proceedings this is a forty two percent increase when you look at this particular proceeding nine months out of a increase from twenty one to thirty is forty two percent so we have  extremely disproportionate impact on this particular sentence and i think that's very important in looking at the overall effect on the fairness and integrity of judicial proceedings in this particular proceeding in general and the last point your honour's is that that the government's main point counterpoint is simply that mr been afraid this has a criminal history and it's  some violent conduct and it's a misdemeanor battery conviction it's the burglary conviction that formed the basis of the controversy here the sentences in both of those cases where less than a year in fact the battery was first to probated sentence and then playing at the time i'm sorry this one was playing at the time of the sentencing proceeding there's no excuse we should have recognized that we should have raised it mathis had been out gomez garo had been out and it's pretty plain on the face of the statute so we  we're not contesting of one number two however this court has how many times had an error won't be plain and obvious if it requires an extension of precedence or if this court has not ruled on that particular issue or if there's a torturous hunting for truffles and that's pretty much what that would require to actually course that language came originally from justice scalia and i did was not properly attributed to him as it should have been in that opinion yes it was so i want to sort of liken that i mean mathis is a difficult case it we're fighting that battle with so many different statutes and so many different states it really does seem a bit like a truffle hot to ask a district visiting judge did have some alternate language he said i've looked at a range before i'm below and i'm going to go with the guideline range that comment was made in the context of the fact that the prosecutor had asked for an up or departure based on an under representation of this man's criminal story and the defense lawyer was asking for a downward departure of just sort of on i guess humanitarian grounds and so this court has said  quoting the supreme court in molina martina's where the record is silent as to what the district court might have done had it considered the correct guidelines for range the court's reliance on an incorrect going along suffice it to show effect on substantial rights so we really haven't we really haven't contested the third prong in this case now that brings me to the fourth prong it's still the law in this circuit in the supreme court that the has the burden on the fourth prong and he simply hasn't met it here he's saying my senates may have been a little bit too long and it's the senate he thought is nine months above the top range that would have applied to his case and it's pretty sure it's pretty obvious that this particular district judge was looking at top ranges he not only gave a top range stannis here he gave him a top range revocation that's to run consecutively to the senate so he thought it was a bad guy so in going through the different fourth prime factors that this court has considered i've just addressed the first in the dirt the the degree of the error the disparity in sentence it's nine months now the cases there was a lot of different cases with a lot of different outcomes there were some where they found the board prying that where there was just a couple of months disparity there are other cases when the fourth one was met where there was a much greater disparity i would say generally nine months is counted toward the low end on the disparity range number two recidivism this guy as a  only i mean he's he's a repeat illegal reentry offender and of course he had a pretty pretty substantial and violent criminal history back in florida  he not only came back to the united states he did it while he was stone supervisor release for his prior illegal reentry off at the next one is that he had no deterrent effect from his prior illegal reentry cents which is twenty eight months and that's something that the prosecutor pointed out we really need something in excess of twenty eight months because twenty months make no impression on him whatsoever six or next this sentence is reasonable it's within the statutory range and i don't think there's been any argument made really that it was substantively unreasonable it simply and finally although i don't think the judge has stated alternative russia now perhaps who rises to the level of satisfying the third prong it is it is a factor in the fourth pronged i think when you're talking about the the  you know whether it's your silly affects the fairness integrity or public reputation of to destroy proceedings i think the common man to look at this and go but the judge said he's going to get this and that's anyway so in light of all these say in two sentences that the florida supreme court has held that burglary of the curtilage is burglary of the dwelling it's held to specifically and that's all the court needs to do is follow what it says and that's what mathis tells us plainly on the on the front of the of the front of the opinion justice kagan said a court need only do what the state court says and it's important in this case i think that the baker case that we're talking about and it's pacifically reference that and it cited several opinions that have applied the florida burglary statute to taking a bicycle from the back of a home off of the curtilage and everything like that so the  or here is quite plain in light of the supreme court's clear admonition and clear statement of what the end of his ability test is there is no torture is passed the government mentioned the revocation sentence and i do think that's important in the sense that it on this record at least takes care of the recidivism concern that the court looks at under the plain of the fourth prong that this individual recidivism was taken into account by the district court in the district court decided that fourteen months consecutive was appropriate to account for that recidivism so it would be strange for the court of appeals later to uphold the sentence in a completely separate kate based on recidivism when the defendant has already had the district court specifically look at that recidivism and punish it accordingly and the last thing is that the government you know it specifically invoked the bad guy test that is not the supreme court's formulation of the fourth problem and the reason it's not is because the supreme court's formulation looks at the error it is whether the error affected substantial rights the integrity of the process or the judicial proceedings seriously affected and it is not the case that the test looks at whether or not the sentence was ultimately fair whether or not despite the error the sentence really onery man what could the district  if went as history in characteristics why his criminal history which the district court did not mention a theory original sentencing at all ends up justifying a nine month departure above nine months sentences explainable look at the substantive results of a sentence of course the supreme court has said in williams and galled that the appellate court should not be doing that so there's some tension there and the supreme court will decide that tension hopefully for everybody but we do think for the reasons that