and we move to the final case this morning united states v separate conditional discharge sentences for drug trafficking fencers at the time he committed the incident offenses drug trafficking offenses underlying this case and july of two thousand and fifteen a individual named corey from a pragmatic perspective as their proximity in time to one another suggest that henshaw really wasn't the kind of career drug offender  involving the first was in jackson county so forth and paragraph thirty three of the p s r in february of two thousand and ten so if he was arrested for that offense released on bond and then eight months later or a little over eight months later in october of two of two thousand and ten he was convicted in a separate county of a trafficking offense and while senses were imposed on the same same day they were certainly not close in time in terms of i think going towards what the court is asking i don't believe that that would be a proper characterization of those two offenses now you know he you claimed in the brief that he repeatedly minimize his involvement in the undermined cocaine transaction he did you ever tell the district court that he had minimized his involvement your honor the   simply a bone headed and stay that's how the district court characterized it that's true and to judge durkin's point yes it there's no secret the government could have done more apt at sentencing in this case however that doesn't mean that the sentence that was imposed becomes becomes reasonable just for that offense and primarily that's why the reason i think is a court would see in the brief that the government's not arguing that the district court based on the record in this case lacked the ability or discretion to vary at all it simply saying that the extent of the drastic various one hundred fifty one muster probation on the facts of this case is inappropriate and to the point that you know the court is raising about the characterization of the conduct underlying count one of the indictment on cocaine tracks a transaction that says nothing about the defendant's involvement came to by his own marijuana he had at that time owed at the time of his arrest mr pryor thirty thousand dollars for for thirty pounds of marijuana that he had distributed to others over the previous six months and of the search in his residence another fifty five thousand dollars forty two thousand dollars of at least of which he admitted were proceeds from his drug trafficking so it would not be a correct regardless of what one thinks or about how to characterize  transaction there can be no doubt that he was heavily involved in the distribution of marijuana and that factor really got no mention in the district court's determination to vary from the guidelines and challenging the procedural reason substitute reasonable sane or standard challenging he also challenging the procedural reasonableness of the sexy judge that touches on of on a confusing area of the law in the circuit the solicitor general believed that because the government was conceding that the court what a label you put on that the government's argument is and is contained in the brief is that the that the reasons they gave the court gave for imposing the sentence that it that it ultimately those were insufficient so whether one characterized whatever guideline are you still challenging the in a set about one hundred fifty one months not a probation it would be fifty seven months not a probation which is what the defense lawyer asked for fifty seven months you still believe it's it was unreasonable if we were dealing with a range of probation to fifty seven months that that was an unreasonable sentence or your honor at first i would say the government's always maintained that a hundred fifty one month sentence would be the appropriate sentence but i understand the court this court's prior president says that you know reasonable is gauged not at a point i don't think it automatically follows just because you disagree or sense in court disagrees with the fender guideline that it automatically goes to the non career vendor because mr entsch on this case is in a different position than someone who has criminal history points for other things not drug trafficking offenses and certainly one of the defendants who wore on two separate terms of conditional discharge for that very top of the fence so i don't think it automatically follows but i would i would allow that the government would have a much more difficult time in convincing the court that such a sentence and as the one that he recommended or somewhere in between that or offender would be unreasonable the the district court's pointed out empowered disagree on policy grounds with a guideline and in various still must do so recently and the government doesn't believe that one hundred fifty one month variance is reasonable this is the it's its gut that imposing probation in this case was not wrong we don't believe that for the all the other reasons cited in a brief especially are already in addition the district court's major concern cited in sensing this defendant was concern how many times to be of betty been placed on probation previously your honor as set forth in the p s r he had the two conditional discharge sensors for the for the drug trafficking offenses he not counting  wearing misdemeanor is soft conviction to the court's attention at sentencing or other arche why argue otherwise argue that he had some kind of violent criminal history  conviction assault which was revoked and since eighty seven days in jail he had another felony drug possession of cannabis for which he received two years incarceration which for all he had a number of driving on revokes that he received conditional discharge or probation for which most of the time he did not successfully complete and then we had the conditional discharge a sense of the reprieve spoke about so and where they did at the time of sentencing he been out on bond for nearly a year and the district court once entitled to take into account his excellent performance on bo determining if he would comply with the conditions of this poem patient right well i think there's a broad range of information that this record can take into account i don't think that the court wants to set up the standard that if something just because someone does what they're supposed to on bond that that negates the punishment that goes along with the types of offenses that he was convicted of in light of his prior record and really at bottom that's what is missing from this factors the punishment factor simply not adequately addressed my son's promotion of my questions answered thank you thank you thank you please the court sentence imposed pullovers reasonable a district court must take meaningful consideration of the factors listed at section thirty five fifty three a it need need not discuss each and every factor listed there and it may assign different way to different factors in a given case the parties disagreement with the weight that's given to a particular actor will not suffice to reverse and the party may not complain on appeal that the  take into account adequately a given factor when the argument was not made below that is precisely what the government asks you to do here today it tells you as it is a moment ago that the weight given to punishment was insufficient by the complain about a district court's failings and explaining or weighing particular factors when it made no argument in support of anything below except a guideline sentence because that's all it said i won't quote from the transcript but the government simply said we have nothing to indicate a below guideline such as appropriate to fund it appears to have been compliant on bond we asked for a loan when guidelines sent that stuff is the sum and substance of the argument below i think that you  factual challenges in the district court because the district courts drastic departure was so unexpected to both parties so a couple of things about that your honor and  the government raised the unexpected nature of the outcome and in particular my assessment of the sentencing outcome that might be reasonable and its opening brief i didn't respond in writing because my thought process is to the sentence to recommend before the district court is not record evidence but if the court cares for an explanation i'd be happy to give that one because i do believe the sentence that was imposed was reasonable and there is a reason that i asked for fifty seven months rather than probation though i believe probation is an eminently reasonable sentence and that the court was perfectly within its rights to impose that sentence i don't believe that the government should be given any leeway for failing to make any argument below because it had a chance to point out the same arguments with respect to eight hundred fifty one month sentence or one hundred twenty one month sentence for an eighty seven month sentence or a fifty seven month sentence but it chose not to do so and in fact what it chose to do was offer a single sentence it made no effort and today asks you based on that failing to completely undo what the district court did when she went through all these factors in a meaningful way as the courts require giving way to fact that she thought was appropriate as she's entitled to do where did you discuss general deterrence ever in her estimation having of the beginning she said at the beginning that he had been living a life that had been devoted to marijuana dealing in the past well that was pointing out the obvious but she never i didn't at least i didn't see it and maybe it maybe i misread it but i didn't see an explanation on how the purposes of general deterren served by giving someone probation when they commit violations while on probation so i don't know that there's an explicit conversation about that but again the court has been clear in prior cases that the court does not need to discuss each and every factor in detail i think that the court found more important career offender guidelines and in particular focused really on rehabilitation not explicitly that there is no conversation where the judge says i am now focusing on rehabilitation but what you see the and you say what about punishment so punishment was apparently a goal that the court thought that was less important than other goals in this particular case and this court's own case law suggests that that is appropriate in that case the court can select a particular factor to give greater weight to if it chooses to and in this case apparently the court thought the punishment was not a factor that to serve the greatest amount of weight i think the court decided that because it looked at the nature of the prior offenses the rule on the offense that mr abused by their parents weren't abused but it doesn't make any difference what about violating it doing the same offense why you're on probation so i think to get the judge can take at the consideration but i think what she thought was more important and i think i think the court is a so you honor i think when the court to say i see a very little time left when the court focuses on mr henshaw it's history and says that everyone or many people who come in here have histories that are similar yes and no i'd venture to guess a likely none of us have a child with them similar to his not only was he you know but you'll be surprised how many people have come before this court with the same argument that appear before sen judge describing and properly the bad childhood they had well i've done this for a while so i've had clients with bad childhoods but they're not all quite like mr henshaw is either but i think what's important is not just the at the bad childhood but what he had done in that last year to turn that around so in that last year he had voluntarily undergone therapy and counseling in that last year he found employment for the first time in his life in the appendix that we submitted a nine to twelve or letters from the a junior forgive me letters from the employer letter from the counsellor all of whom talk about the type of person he is and what he has done with himself in that time going back to the sentence the government keeps saying one hundred fifty one months down the probation was not appropriate based on pure offender guidelines i think what the way to view the sentence is as follows with the career offender guideline he was at one fifty one to one eighty eight going up the career found a report that would drop to fifty seven to seventy one months fifty seven months which is the low end would not be unreasonable at that point the court is looking for a way to get from fifty seven months down to probation looking at his role in the fence which was unique to say the least but second one what about count two so there were no addressing  so again it would be interesting if the government had raised that issue but i can tell you why i think that was of lesser importance to the court this is of course my own estimation of what happened below under the guidelines the court likely one and two would group because they're both drug offenses nor to accomplish the grouping procedure the guidelines would use the merry want marijuana equivalency and transform  both into marijuana and aggregate that when you look at the cocaine the cocaine equivalency with marijuana is one gram of cocaine equals two hundred grams of marijuana the one kilogram of cocaine would equal two hundred kilograms of care of marijuana as a result if you possessed it with intent to distribute he did it while he's on probation on two separate probation is from different county that's correct and it was never addressed in the sentencing remarks by the judge so fair enough so it wasn't addressed in the way that the court indicates i completely agree with that  and that conversation is a conversation that would have been wise to have had below so if the government thought that there was arguments suggested that the for government thought this those arguments were important to make below it should have made those arguments below but it didn't so we're making them here today so this court can supplant its decision for the decision of the court below the government had an opportunity to make all of these arguments and if the court reverses and remains that three sentencing will go back and make those arguments stronger then than they are than they were they will be stronger at that point than they were originally mr henchoz here in the court today who's watching this mr henshaw not record evidence mr henchoz doing a wonderful job is doing a wonderful job do you do i really want to get this question in do we know from the record if mr pryor was new to selling cocaine is there any reason ever you don't have any time left but i'll give you a minute i'll give you a minute you're i was just going to follow up on on the judge wrote this question i believe in the p s art indicates that that the c s with a prior cocaine supplier to prior so that it was confusing he was he had he had sold cocaine previously to prior so there isn't an indication in the record that mr prior had been involved previously in the distribution of cocaine and there is no clear indication the southern district not to submit a sentencing memorandum to the sentencing judge no your honor that is that is not consistent with the policies that they usually follow i can't say that one gets admitted in every case i think it depends on on the type of case and i've never had a sentencing as a district judge wright not receive something from the u s attorney's office indicating the their expression of the thirty five fifty three factors in my particular sentence is justified and i believe the policy of the u s office for the southern district is to do that again i'm just i'm trying to be as honest as a can of the court i can't say that occurs in every case especially if there's a plea agreement in iraq and agreed recommendation as to the range but that would i believe is the policy of the u s attorney's