sixteen two zero one six six united states of america versus supervisor lease section thirty five thirty three excludes from consideration the seriousness of the offense the need to promote respect for the law and the need to provide just just just punishment in miller this court held that it was  for a district court to rely on those factors in revere and hudson this court held that it was plain error for a district court to rely on those factors as dominant factors here the district court committed plain error by relying on those  you judge our and judge grazer in the majority the court held that the third prong was indeed satisfied not get to the fourth on a minute but the court held that the third prong was satisfied in light of the repeated emphasis on anger management and because as the armband court held nothing in the record otherwise should that the sentence was fair or that integrity or public critic your reputation of the judicial proceedings were protected and this was in spite of two points about revere first quite frankly i find the opinion perplexing because the court found that relying on the seriousness of the murder was err but then the court went on to find that relying on the illegal reentry and the potential sentence didn't meet the fourth prong and so to me the reasoning of the opinion is you can't do this with regard to the murder but because the court did the same thing with regard to the illegal reentry it doesn't meet for the prom but even if even assuming that i didn't understand the opinion or honor the in this case there's only one crime that the the case and then you would have to say if she's a reason you're revere that because the court plainly erred it doesn't need to for the prong but there are lots of cases where we find to satisfied that we choose not to exercise our discretion and for and in fact i think some of our more recent cases in the size the the rareness them out how this should be used sparingly and needs to be really shocking for us to use this power  recent precedent emphasizes that quite a bit why would this be the type of shocking situation that would that the that members of the public would be appalled at the justice system and as some of our language says for us to not exercise our discretion here well first of all your honor going back to whatever size at the beginning the nature of the error dictates that the compound decision has gone to raise be standard is an applicable standard no i'm good i'm saying it's not i'm saying the escalante raise the standard is the right standard but second of all my reading a fifth circuit case law shows me that shock the conscience standard does not but didn't incorrectly i think transposed from the descent into the majority opinion that's absolutely correct your honor and then in saunas cited by the government we have an opinion by george smith that talks about shocks the that he doesn't know that it came from his own descent well if he doesn't know it then what's the explanation for not saying which is moving towards that understanding of the problem for what i mean that's that's one very possible understanding made but isn't that one of their all options i would think your honor the more i would adopt the explanation that someone forgot to read the blue book that would be my explanation for it not that the court has moved it's from a dissent so ok well regardless can i ask you this isn't this is not the type of plane error that no one realized  at the time and it's just something they didn't come up with at the hearing you know many times been the topic isn't even raised and then someone realizes it after the fact there's a problem it seems that mr davis specifically i would recommend the eleven months in it's and we understand we're not dealing with eleven month sentence here at the high end because there could have been another charge filed in this case and he would have been looking at a significantly higher s so that was argued specifically to the court exactly our no one said at that time this is not one of those hidden player that we deal with often no one it seems like it would pass for what we're very close to is the passing remarks when they were correct your honor the thirty five thirty three a remark is a passing remark yes your honor i think i quite agree what about in order to protect the be improper factors don't have to be the sole factors they just have to be the dominant factors and when you look at the hearing those two factors the seriousness of the offense and the need for just punishment where the predominant factors throughout the proceeding in fact the district court judge called the u s attorney out of the audience and asked him why hasn't this been prosecuted and then he asked what would the guidelines start telling judges you can't say anything about the prior offense you can't say anything about this or the other and can't you read the dominant reasoning from this so those and judge to deter criminal conduct which is a perfectly good reason your honor i read virtually well i would say most of the proceeding as being as pursuing the purpose of punishing of rendering a punishment based on the severely of the offense and the need for just punishment which are improper factors with regard to what a district court judge thinks vs what he speaks the district court and this corps are courts of record and so the only thing i think this court can go on were garbus of what the district court judge is thinking is the record in the case and that's what i'm basing my argument on your honor is the record in the case not what was behind the judge's words which the the rehearing opinion in review or i view as helpful almost a philosophical discussion about the fine line between the seriousness of the fence offense and the reason for the revocation and the court does lay out that it is a fine line but at the bottom what the court nevertheless as i read it and up with is if these factors are dominant factors then it's improper so yes i appreciate the discussion in the rehearing but i think the court still comes the same conclusion as in the original  your discussion of the case right now but my specific question is is it appropriate to use the seriousness of the offense in applying the others started five eighty three factors i'm not sure i understand you mean for example that your g the nature and circumstances of the offense the seriousness comes into the nature and circumstances and that is a proper factor yes it is but the judge was focused on the punishment for the offense but the seriousness of the offense yes which is an appropriate thing in the nature and circumstances i don't think my presenting and i just want to clarify wh you talk about because both of you understand which one you're talking i'm talking about the one that i'm talking about the thirteen twenty six violation that was the that was a condition of see this supervised release that's what i understand the seriousness of the offense the offense that the court took the illegal entry that the district court focused on the guidelines for the illegal reaction and so i would say i don't think that you can but will live a significant in that in a very we're talking about a murder for which there had been a conviction are we in the rear the murder i thought was the improper fact of we're focusing on the seriousness of the murder was the improper factor just as here focusing on the seriousness of the thirty twenty six is an improper factor but in answer your question your honor i i don't think that the court's opinions in escalante re is or the other that whole line of cases has any meaning if you can just take the improper factor and then say oh i folded it into a proper one so that's fine i think that does away with the holding of this line of cases because you're just allowing the use of an improper factor under the guise of a proper fact so my answer would be no you can't do that you know well it's that means if you objected to the improper factor then you would prevail but if you don't object to the improper factor and in otherwise the senate you know within the statutory limit and that was appropriate the court may not choose to exercise its discretion when there was no objection before the district court below guideline sentence we chose to exercise their discretion in that right and as a matter of law it's got to be based on something and so when i look at ascot they raise and i see the standards used for the third and fourth prong i see that they regard to the argument about it being the dominant factor i think the record in this case shows it was actually the very last factor and there are several cases from this court that discussed that in terms of the judge laying out thirty five fifty three factors the judge first and he named all the factors and then he said protection of the public and only when there was a general objection the judge can put more factors on the record to add the criminal history and then said the additional crime will go on prosecut so it was actually the very last factor number four when he was going through his justification for this sentence to the extent the court did their assuming argue in the court dear mr davis leave the cord into the air in terms of oh because he asked he made that factor i don't know that he did because he didn't ask for the two years he did point out the fact that he doesn't answer why you should give the eleven months he said that specific reason why he thought he did  in the high end well and judge i think when we look at these cong's we are told on the fourth problem that you can look at it independently from the second prong and so i don't know that there's anything that keeps a judge from considering that in the fourth prong as one of the reasons just like the judge  the seriousness the history it's also a violation and i think sometimes it is difficult for prosecutors to parse that out it may be an office but it also was a special condition under his times that he violated in addition to a second time this defendant pled true to two separate violations and the judge is looking at all of these things when he came to the two year sentence in terms of the fairness and trade bill agrees but the majority of the time has been talking about the the three of them that's correct your honor and but if you look at the nature of that circumstance actually again frequently in these cases you have two cases there's a companion case there's normally a revocation case in the companion new reentry and i think the judge was really just trying to make an administrative decision verifying is there another case somewhere journey to be aware of that and make a diligent decision i don't even think that went into the sentencing at that way and as you with punishment it really has to do with just the administrative procedure of why there's not a second case and also note the u s attorney did not weigh in on the sentencing at all he didn't say a word about it and it looks like he left the courtroom was only later when the assistant  that that had something to do with the judge's decision and i think if you look at this record the judge came to this two years on his own and neither party asked for that sentence i think he was exasperated by this person's lack of respect for the law all the things he kept doing continued criminal behavior sixty four taishan ninety eight convictions in harris county three of those are serious felonies he tracked the dates of deportation every time he comes in the country he's committing a crime twenty nine when you're talking about that timing and the truth is have a put in a new case that would have been two and a half to three years i don't know that that's necessarily improper under the fourth prong even if this court were fine it was in permissible under the second that the court was the court the court had that had been dealing with this particular defendant over time so the court knew of these circumstances there sometimes were it's the same judge sure they don't have to go into his much detail  situation or not i think that happens a lot your honor actually is that this situation oh it is the situation in fact a cigarette use the same judge she would previously sentence yes in fact the range on the original office was thirty to thirty seven months judge more lines sentence this defendant to the highest range of thirty seven months and then he goes on supervised release and within two years is back in the country committing two crimes and so sure we would like to have judges put everything and be helpful to us on the record and sometimes they just don't know it doesn't mean it is reversible this judge has been dealing with this defendant for quite a while in fact he gave the maximum sentence in this defendant committed more crimes and so when he did say on the record all of the thirty five fifty three factors that doesn't include deterrence of criminal conduct nature and circumstances and his criminal history so he didn't spell those out maybe not as much as we would like him to be sure did say these are the factors i consider in choosing this are so many inconsistent sees criminal histories and deception to this court and although it is true that under miller the judge cannot punish the defendant for their crimes miller also says you can punish defendant for violating the terms of supervised release and underlining that in ten or the court talks about the courts trust this judge then with this defendant the entire time and time after time he has abused the court struck us was the beyond the thirty days issues that just me to this case that the problem of why they weren't able to go into to actually bring the the charge for this case th or is that just this is a one off question i don't know offhand your honor honestly and i obviously it is not part of the record i don't feel it isn't part of the record that it was the case yes i'm sorry that part i meant in terms of how often it happens if i don't know that like i said earlier you do see it happen frequently as two cases and i think that's why the judge is asking these perfect questions to make sure that we have everything we need but the u s attorney did just say we feel like the provocation will be fine we don't feel the need to file the new case we didn't have our internal things in place so we're just going to proceed on the revocation and i think that's an ok decision for the united states to make as you know they can bring a case at any time and at this time they chose not to and i don't really think  management treatment in prison affected the fairness integrity or public reputation of the sentencing proceedings given congress express admission that imprisonment is not appropriate means for promoting correction  rehabilitation so that and let me just go into american state clearly here first this situation is a situation where congress has put off founds a certain factor and what escalante race shows us is that we're congress puts a factor off balance and the core uses it as a dominant factor it does affect the fourth prong despite the person's criminal record as i stated judge cohen in her dissent talks about his a piece of family members and his criminal record but this is a unique case and i discern from it's going to raise that that's why the opinion was written that way the other thing i think in this is just something that i've come to believe about this type of situation where congress puts a factor of background if you just look at the criminal record and say this is a bad person it amounts to saying people don't deserve the protection of the law and congress has told us then you can't use this factor and so they do so your honour's to  virtually a sentencing on a crime that was not prosecuted big using a factor that was put off bounds and second of all in light of his prior record and i'll let you be the judge your honor but from the prior records that usually come up to this court on thirteen twenty six with sexual assault murder and just you know a row of crimes this person's prior record is not that and so and i think it's quite less than that no doubt he does have a drug can he has to drug convictions involving less than one gram and i think he has a couple of thefts and a couple a misdemeanor but as the records in these cases go his record is