the court opposing counsel the district judge in this case impose an upward variance that was nearly double the guidelines range in the issue that brings us here today is how the different court got there and specifically the legal  subsequent criminal history as we've noted mr lee had no criminal history points before being shot in the head here crewed all of his criminal history points after being shot in the head and that matters that matters because court and the government would have you believe that mr lee has been this and has that has a long and extensive and uninterrupted criminal history since thirteen but that's not the case in fact we see a clear division before being shot in the head no criminal history points after being shot in the head all of his criminal history points and to this point because cases in this court moses and arnold that we've cited have made clear that an upward variance based on the need for psychiatric and mental health tre what is it your view that that the district court the sentencing court actually said we need to give your client a higher sentence because of his mental illness i think the relationship between mental illness and criminal history is clear and anyone that suggests that if somebody has a incredibly agree just record and the district court basis is on that agree just record that you could come back and say well he has an egregious record because of mental illness and so the enhancement is actually based on the mental illness that but that doesn't strike me as palatable if he's setting aside the mental illness relying on a consistent pattern of parole violations certainly i let me address that in a couple parts in the st part i would say that that here the relationship is clearer as a preliminary point the relationship is clear i think mr lee's trial counsel below did say on page ten of the sensing transcript he's identified he mr lee's identify the underlying issue his mental health and in response to that on page twenty one of the sentencing transcript the just report states well mental health an assessment are needed because in my view that's a key component in what mr lee needs to live a law abiding life that's a direct connection in even greater than that it gets back to the shot in the head your honor it specifically says on page thirty the district court says and it certainly wants this is right after talking about a shot in the head it certainly warrants and supports mental health assessment and treatment i think that's the st point the nd point i think to your question judge murphy you know arnold says this on and says mental health mental illness can't justify an upward departure and quote even if this is page four hundred and thirty seven even if that mental illness creates a potential danger for violent behavior and i think that the sentencing guidelines contemplate this and so suited to this federal law they contemplate this and believe that in instances like you mental health and and not in terms of the enhancement but but in terms of counseling or what not in the in the prison setting and when it when i was talking about the enhancement or actually good length of a sentence  less talking about the consistent pattern of parole violations the pattern of prison misconduct in mentioned like this one page in particular where it just said parole violation parole violation all the way down so i struggle to see how that it is wrong to rely on that simply because your view is that a lot of this criminality was caused by the mental well specifically on the parole violations i would say that in the twenty j briefing in this court we noted that but for those perks that he received criminal history points but for those parole and probation do you think that that that that explains at least one of the parole violations may have been taken into account by the guidelines but do you think all of them were taken into account because i think only one of them would trigger as long as it's within the relevant years would trigger trigger the criminal history and he has been for the prior crime but here it's kind of several of them i would say right what two responses the st is that the st probation violation does trigger three com it's your point as we've noted but the last violation also triggers points because he received two points here under for a one dollar because he probation at the time of the incident that so so certainly it's it's more than one but i think the greater point here the higher level point is that the guidelines contemplate this i think the guidelines it's important i think to to know the guys aren't some slapdash perfunctory effort they represent the reason judge that reason reasoned judgment of judges lawmakers practitioners and they're there to promote justice but also reduce sentencing disparities as part of promoting justice and i think that's not in line question whether your case is in the mind of cases and then was there you know whether you are within that and then how that relates to the substantive reasonable miss enhancements after  already incorporated into the guidelines recommended sentence the variance and upward variance is inconsistent with the need to avoid unwarranted sentencing disparities citing kimbrough and citing some of the other supreme court precedent that you just mentioned and i think that's important because we would say here that you know the district at the district court and opposing counsel would have you believe that somehow mr lee walked into his understated criminal history category that's simply not the case mr lee had a criminal history category of five that's the and beyond the mental illness issue which i think is a legal error the other legal error that the district court committed was to fail to credit undisputed facts with respect to the involuntary manslaughter adjudication as we've noted  because this sentence is outside of the guidelines range doesn't have a presumption of reasonableness and this court engages in search and review and when kate did engages in that review i think it's clear that the district court declined to recognize undisputed facts as to that involuntary manslaughter still at the record did recognize that the involuntary manslaughter didn't get your client any criminal history points right but still a pretty significant conviction i know your point of view is that it was roughhousing but somebody who lost their life in your client was prosecuted for a reckless crime i mean i don't think it's something that's not taken into account by the guidelines i suppose  because it didn't generate a higher criminal history score and it could have been you know as a tragic mistake but it was still a mistake that led to a finding of recklessness certainly are and i think we're not trying to say that's not a significant adjudication but we are trying to say that there is significant mitigating circumstances here and the mitigating circumstances presented as you've noted are roughhousing that this was a product of roughhousing juveniles kids playing in the water it wasn't malevolent conduct it was malicious conduct and you're right the district court may have recognized that those were the undisputed assertions put forward by defense counsel but it went one further step and that step was improper it went one further step by casting those undisputed circumstances and saying that's the defense theory of the case i think the entire point of this court's precedent and davy and brandon and treadway is to say when these facts in the p s are undisputed then there's no reason for the twelve months opposing counsel didn't object to the p s r has an objective at sentencing and has even objected in briefing before this court yet nevertheless the district court the district court here committed legal error when he decided aside and say well that's the defense theory of the case either way this is the beginning of mr lee's criminal history and criminal record i think that that's that goes far afield from what what the court's precedents have to say the entire point of mr lee providing these mitigating circumstances and for this court to have these precedents and gave in brandon is that there is no other other way there is no either way the mitigating circumstances here show that these juvenile traditions are you know not the product of malevolent conduct not the product of sort of the criminal conduct that we want the sentencing guidelines to reach in and pose penalties upon and that considered in cont before being shot in the head no criminal history points after being shot in the head all of his criminal history points in the end that i think comes back to the core point at issue if you if you decide to sort of except the undisputed circumstances undisputed mitigating factors here you'll see that i think it i think you'll see that it up or departure is unwarranted i think mr lee does have a serious criminal history i think his sentencing guidelines reflect that criminal history and what the district court did here was to up or depart if despite that fact and upward depart for improper reasons as a result of that what do you i'm sorry just what do you make of the i guess it's just an equitable point but that the district court did seem to be acting conscientiously in su a spontaneous catching in that crime of violence here so i don't i don't know that we can say that the district court was kind of irrationally out to get your client when it was the district court that discovered this crime of violence error and if that error had gone into your guidelines it would have jumped from fifty seven to seventy one months i don't know it's just maybe a high level equity acquittal point that i thought i don't know if you want a priority certainly you are and i think that that's one of the reasons we decided to pursue a subset of reason on this challenge because you know i think order a procedural reason it's challenges whether the guidelines are correctly timely and i think they were in this instance that the nd point i group and i agree that the district judge did reach the correct result but for instance not to reach that result i think we would be subject to plane air review here and i think we would argue under a lot around and under the other cases in this time go right ahead thank you i think that the idea is certainly yes the district court made the right conclusion when it came to the guidelines range we're not disputing that what we are disputing is how did he get from the guidelines range to the final challenge in the government's not challenging but i think that after being shot in the head he really did suffer and i think it's reasonable to imagine that he really did suffer some mental health issues and i think it's borne out in his in his criminal record as a result  or my name is timothy for hey represent the united states in this case and i was also the prosecutor below so what we have here is a question of whether the district court has the discretion to sentence the defendant to sixteen months which was half the statutory maximum here for defendant that beginning at age twelve up to age thirty seven when the kalamazoo police pulled him over with that loaded stolen thirty thousand three hundred and fifty seven revolver the period of twenty five years which represents an unbroken chain of log breaking behavior because during that twenty five years if you look at the pre sentence report the defendant committed eleven crimes he had twelve parole violations he had twenty seven dollars prison misconduct violations and at the time he was arrested he had not one but two outstanding warrants things would not have already been taken into account by the guidelines as judge strong suggested you the mind run of cases or cases that should fall within the guidelines range and you have to show facts or circumstances for this particular defendant that would not be adequately taken into account with the guidelines range of thirty or so months sure as everybody here knows what the guidelines do is count convictions within a fifteen year period or there abouts depending on the at the length of sutton's and assigned points the things that aren't captured here by that kind of numerical assessment is st of all the unbroken nature of the criminal behavior that's a that's that jumps out to anybody that has a reasoning brain to say every time this man is allowed out he immediately commits a new crime or a new offense that puts him back in that doesn't fit into the numerical calculation of the guidelines look at they'd never count prison violations and here we've got twenty seven they don't count parole violations here we've got twelve and the other kind of mind run issue we have here relates to the offense itself we're talking about an offense that makes it illegal to possess a stolen firearm that can happen in a broad range of behaviors i could be pulled over by the police and have a stolen firearm at home in my in my house if they found it that would make me  possessing a stolen firearm i could be crime with a loaded stolen firearm and that could also be that's at the other end of the spectrum here of course we've got mr levy being pulled over by the police who by the way aren't even looking for him other than the fact he's got two outstanding warrants for being a fugitive and not only do they find him they have to physically subdue him because he tries to break away and run they have to tackle him and only after a very able to put handcuffs on him and take pick him up off the ground they see the whole time that they were dealing with him he had this loaded stolen three hundred and fifty seven magnum so that i would submit puts it at the far and the dangerous and spectrum for the crime itself so there are a number of busy your apartment hensel argues that his parole violations are already baked into the guidelines r because for example his criminal sexual conduct charge was added to his criminal history points only because of his parole violations so why aren't those already considered well because he could have gotten that three points if he'd had one and he had seven just for that offense so he gets a free pass on six is the district court not allowed to consider that there were six i think the discretion that the supreme court in this court has granted because of a parole violation and the law chooses not to stack those bond numbers the law says if you have parole violations you're going to be popped up here but it doesn't say if you have this category you go but we think it's more serious if you have this category and even more if you have this the law does that all the time but it doesn't do you think here well what the guideline says is that if you have if you are on supervision or parole at the time you commit the sin offense two points this person was on multiple supervisions the guideline doesn't say you know if there are two just disregard the other ones it's silent way to with somebody that has multiple supervisions that he violating at the same time i'm so i would lean with that argument because it would mean any time you categorically have a leap in points or or capulets sions then you get to say well he was at the top of that category or at the bottom of that category in that it seems that that the points and the way it's used is already chosen by the makers of those rules and struggling with not feeling like it's double it's doubling down on it because now every time you're in a category you're going to say well he didn't just have guidelines you know back in the book or call days the supreme court said we're not going to have a mechanistic mandatory set of guidelines that you have to slavishly follow if you're a sensing judge you have generally the mind run of cases then the instructions to review in court is if if there's a big and handsome and they are outside the mine ron we have a disparity issue and that means we give it close of what the court did is that correct here's is what the guard rails there are as i understand them based on what this court or the supreme court has said one guard where rael  is it's not an abuse of discretion just because a three judge panel at the pellet stage would have sentenced the defendant differently gall says that the hof case that we cited in our brief and many other cases say that so  that's that's one thing that we know the other thing that this court has said about what discretion means and what it doesn't is that if you find yourself at the court of appeals level being asked to reweigh factors that were considered by the district for that should be a signal to you that you are beyond the scope of appellate review because the court of appeals so says  this court in the hof and you like cases and many others that's beyond the scope of appellate review so i think it's crucially important here that the sensing judge here was presented with and did consider both things that you're now being asked to look at again on appeal what happened when the defendant killed the other child at age twelve that was considered by the district court and the defense argument that i got shot in the head in two thousand and one so everything i did thereafter shouldn't count against me because the district court did respond to that i guess i guess the problem is that in looking and fifty three factors we have to look and see if what was the basis for the course decision agree we cannot substitute judgement of course you can't but if the basis is ultimately that we're looking at criminal history we know criminal history is already back into the guidelines so the question is whether this is upon closer review something that would take would make this it's outside inside the man ron and outside the appropriate explanation for the degree of enhancement that was given well my response to that would be my understanding of discretion means a district judge when presented with somebody that's a ridiculous example defendant who has committed one hundred crimes before he or she is before the sentencing judge and only you know five of them got points i don't think a district court has put the binders on and say i'm just not going to consider the ninety five that weren't that were assigned numbers by the guidelines i think would close to refuse he's gotten three points for these ninety five and i don't think that's adequate but we but this court looks back and what the judge say it was and ninety four of them were traffic violation you could say and then example if they're all minor you could step in and say that's why they're no points well maybe maybe because of the age of but just let's remember and i started this example as let's remember we have a ge twelve homicide involuntary manslaughter the defense they tried to airbrush it away by saying well that's rough housing but i hope you take a really close look at what the defense actually to the district court how this crime happened is mentioned two times before the district for once in the pre sentence investigation report where the defendant says i don't clearly remember what happened kid's always rough housed at that swimming hole and tragically somebody killed he didn't say this is what happened in this case in the sense in the defendant's sentencing memo the only thing that said about how this offense happened was how upset the defendant's mother was when the police called and said we think your son's responsible for how this crime occurred so the district court says ok either way whether it's rough housing under the defendant's theory because you never really said this is what happened take it take my word for it either way somebody died and we know that from the georgia involuntary manslaughter statute when you admit offense you say i engage in illegal conduct that resulted in the death of the other human being and the district court i think quite properly said i don't really care about that offense although it's serious anytime somebody dies and serious and hopefully we're not going to debate that it is serious the thing that this report was really focusing on is that started this on proclaimed twenty five year crime spree that defendant's been on and i think the district court  draw drew a very reasonable conclusion that if you're going to decide what's going to happen when this defendant gets out all you have to do is turn around and look at what he's done for the last twenty five years and you know he's going to go right back to violating the law and so i think what the district court quite properly set is the community is going to be in danger he should be taken out of commission out of circulation for sixty months because if he gets put back out on the street he's going to go right back to danger in the community the other issue that you're being asked to look at here was also addressed by the district court and i want to make a couple points before run out of time here anything earth shaking but it does remind us that if somebody does present mental health issues it doesn't necessarily mean it's mitigating it can also be aggravating because regardless of what happened you know if it's based on some kind of mental health problem if you're a danger to the community as a result of it it might even be an aggravating factor now here of course the district court said i'm just not going to excuse you for the offenses you committed after the head injury and i hope you also pay close attention to what the defendant said to the district court about that head injury being shot in the head he never said it explains why i committed all these offenses at page i do you want to for the only explanation or theory the defense had about the head injury relating to the offense was it maybe paranoid and anxious that's why i had the gun he didn't say that's why i committed all these offenses since two thousand and one so there's never been any linkage made even today between the head injury and the pattern of behavior after it and the district court i think quite properly said i'm not really buying your argument here because look at you did before your head injury you killed the kid you engage in armed robbery then you had depending on when in two thousand and one the head injury supposedly happened to driving offenses very serious body of work i submit before the head injury so just to wrap up here from where i stand the sixty month sentence was a very reasonable response to what the defendant did the defendant lost these arguments before the district court he's asking you to  to the decision made by the district court but i think that requires you to stand in as the sentencing court in the st instance and i think that goes too far the sentence that the defendant got is one that he deserves and more importantly the sense the defendant got is one the community was entitled to expect so i ask that you firm the sentence imposed here so unless you have any questions for me otherwise i done thank you very much like you  you're not this case fundamentally is about getting from point a to point b guidelines range of thirty to thirty seven months to an actual seconds of sixty months but while requires district courts in those instances to provide a sufficiently compelling justification to get from point a to point b particularly when the gap is wise is as wide as it is today with respect to the current defendant now i think with i want to respond to three particular points that my posing counsel raised we don't think that the district were provided sufficiently compelling reason and i think the district court and my opposing counsel both say the same thing they say well he's had a long uninterrupted  sort of history criminal history but that's that's just not the case that's that's not reflected in the record and even the district court acknowledge this after these tragic accidents that occurred when he was thirteen years old he was in fact trying to turn his life around this is something court picked up upon before being shot in the head he was taking community college classes he was running track and field he was getting a carpentry certification working a full time job those are the steps that we want to see in society but that ended when he was shot in the head and that's a criminal record that we see the nd and i think related point is that the my posing counsel would sort of have you believe that this is outside the mind one of cases and i think  something that the sentencing guidelines specifically contemplate for a one dollar case pacifically says when you violate parole or probation it's still a single sentence and quote the maximum three points should be assigned if you  it twice it's still that same single sentence and the maximum three points should be assigned and finally your honor opposing counsel has talked about how this is beyond the scope of your review it's not undergone under precedence sure we do defer to the district courts in some instances but we don't affirm when they've used their discretion and we certainly can conduct a more searching review when an upper variance is significant as it is here and i think under that searching review this court should reverse the district court sentence and remand for recent thing but no thank you