only case one five two four to five united states of america versus charles de him oral argument not to exceed fifteen minutes per side who is the salinas was supervising attorney case will be argued by law student emily golding good morning your honors please the court i'm melissa salinas and i have the honor of introducing our last didn't a third their last and we golding who will present the case under my supervision thank you thank you impose a sentence of seventy months imprisonment on mr graham i'd like to address the just records errors specifically in treating the sentencing guidelines as mandatory rather than advisory infalling to consider apartment thirty five fifty three a factor the sensing disparity factor a six and the combination of these errors demands of this court reverse and for remand for the sentencing i'd first like to address that issue of courts procedural air entering the sensing guidelines is mandatory show the judge well who's been doing this for longer than you've been a law i've thought that the guidelines were mandatory sure your honor so direct you to page eighty two seventy five into seventy six in the sense in transcript case and not asking for them in other cases the court is referencing that manipulation when it says in line five mph to some new six but in fact it drives the ultimate sentence because we all know what happens the government responds and says that's the court's choice under thirty five fifty three they're non binding guidelines your honor the court says no it's not the government tries to interject again and says i don't argue with the court and the court says well i respectfully disagree with you but the co is that the government hasn't requested a reduction in mr grant's case it does not have the discretion under section thirty five fifty three to take into consideration his cooperation and assistance that would usually be the subject of a five k that the government would request because requesting that kind of relief as it does usually in a five k result in a below guideline sentence the government recognize that and said you know your honor it's your choice you decide the ultimate sentence it's your choice and at thirty five fifty three they're non binding guidelines you have the discretion if your are unhappy with what's happened here if you think we've manipulated the guidelines you have the ability to grant a downward variance and the court said no it did not have that choice and that's the specific language that we point to in addition to further down the transcript the district court makes this comment that it says all you have to do is start looking at these court of appeals decisions coming down very strictly on the guidelines  without referencing to really two of the people who are sitting behind this bench as many district courts are but does that really show that he believes the guidelines are mandatory yes your honor it does his statement because the government said you have the discretion under thirty five fifty three and didn't say you know you get to choose whether you grant a five k or not it talks about the discretion of the government's business or the district court excuse specifically under section thirty five fifty three which is in the court's power to grant a downwards variance not a downward departure requested by the government downwards variance and because the government use that specific language in the court flat out rejected it the court is saying if you want me to consider if you think that i can consider cooperation and assistance and you haven't asked for a five k that would likely get us to below that line sentence and i cannot do that or you  it cannot treat the guidelines mandatory it cannot indicate that it is going to treat them as mandatory simply because it doesn't want to be reversed and i think i think we believe that that language is just very clear  although the just report does not say they're mandatory and the standard that this court applies the u s supreme court applies is the treatment of the guidelines is mandatory and i believe it's in united states or is highgate that this court said you know when you see the district court feel so clearly constrained by the guidelines re other than guided by them we can't find that that sensing hearing was procedurally reasonable and it wasn't i like if unless your honour's have additional questions about the mandatory guidelines i'd like to move to a second argument about the section thirty five fifty three eighty six sensing disparity factor this court judge clay united states first wallace sa you define it presents a non frivolous argument based on a sense of disparity with a codefendant the district court must on the record it can choose under its discretion not to take that into account but it cannot fail to even consider or recognize that argument at all and here that's exactly what happened to the defendant bruce the defendant raised in his sensing memorandum specifically for at least a page a page and have two pages and obviously the government thought that it car that at the very beginning of the government's discussion with the district court it said and i want to bring up the sentencing disparity factor that the defendant raised and it sends a memorandum so the government brought it up to the co defendant had raised in the memorandum and the core of this court in wallace said as i've already mentioned that if the defendant is that non frivolous argument there must be something on the record that it was a knowledge i understands that argument this court said you know when that happens especially when the government brings up what it believes is legitimate reasons why a sensing disparity would be ok between two co defendants that usually the district judge will go further and explain why he has rejected those arguments and wallace the district judge did not even make a cursory mention of the disparity in sentences between the two co defendants judge clay you also said that the itself said about the sense of disparity and there's just no evidence on the record that the court considered it the government in its brief says the district court implicitly rejected it however implicitly rejecting that argument doesn't meet the standard of wallace it doesn't rise to that occasion the court must specifically say why it's rejecting the argument this is a legitimate argument mr grant's codefendant received a forty five month sentence yes it was because he received a five k and a subsequent thirty five motion however the district court could have said that's the reason why i don't want to even think about this you haven't asked for a five k maybe something happens maybe you come back later on a rule thirty five motion for mr gone but i'm just not going to consider it  court however because it was engaging in this discussion about the manipulation of the guidelines about this court's decisions about the guidelines failed to even mention that factor and under wallace that's that's plain error so even if this court you know decides that the district court did not treat the guidelines as a tory this error on its own can warrant reversal i know that there is some confusion about whether this is you know a procedural or substantive argument if it substantive it receives all thought that it was able to take into consideration mr johnson cooperation and assistance with the government even though the government cannot across a five k and then it truly could consider the sensing disparity between mr gone and mr hope who excuse me the district court at the change of plea hearing said it's fifty fifty responsible with mr god who at the end of the sand son who is in transcript says that the this eight million dollars restitution amount mr god will be joining us every liable  with mr hope that was a legitimate argument there is a legitimate reason why mr got on with think that he could possibly use receive incentives and so for these reasons your honors unless you have additional questions the court i'm jennifer mcmanus and i represent the united states i have had the privilege of appearing before this court many times to defend judge bell's sentencing decisions and until now my task often has been to persuade this court in cases like blackie embarrassed to narrow that judge bell appropriately took into account the guidelines and in fact gave them appropriate weight so today it is with some irony that i stand poised before the court trying to persuade the court today that the district court judge bell did not give too much weight to the guidelines the court did not the judge about is aware that the guidelines are advisory this case not like united states for smart ten of which the fourth circuit case on which the defense chiefly relies because judge bell in this case to make repeated comments and did not make a finding to the effect of that the  guidelines are mandatory or the guidelines are not advisory the court in martin of edge that we cannot ignore the repeated findings of the district court to that effect there were no findings to that effect here what happened was there was a colloquy between the district court in government counsel about the handling of substantial assistance motions in the review of that was there have been a number of appeals that judge bell has had involving that issue this case does not involve that issue made were really in the context of that colloquy with government counsel and you can even if you look at page two seventy six of the sentencing transcript the court says  in mind five in fact it drives the ultimate sentence because we all know what happens it being this is santa assistance motion the government court's choice under three five three they're not binding guidelines your honor and that of course has no it's not he doesn't say no they're not he says no it's not and he's talking about feeling somewhat constrained i think in the context of this conversation  to grant a government motion for substantial assistance and in effect expressing a view that that takes away the court's discretion to set the the basis for the sentencing none of that really has anything to do with this sentencing  though because there was no substantial assistance motion in this case that the district court did give the appropriate amount of attention to that argument in that this is an argument the defense counsel didn't even raise during the course of the sentencing proceeding there was an argument advanced in the defense sentencing memorandum but it wasn't deemed significant enough to give weight of it or even mention it during the course of defense counsel's allocution so when government counsel raised the issue just to make sure that it was clear that the court had considered the argument that was made the district court responded not not giving it perhaps the textbook full treatment that would be ideal for sure but the district court in discussing the whole issue with government counsel did implicitly reject that argument by saying none of this matters to me in essence you know whether there's a substantial system motion in a co defendant's case doesn't matter to me i'm going to take a look at this defendant and sentence him individually based on the thirty five fifty three a factors and that's what the court did here the court spent a lot of time really otherwise conducting what probably is a model sentencing engaging in a coward to point out that that a codefendant had come in early and done something to be to be of some help and that this defendant had not did he not yes that colloquy occurred with government counsel and government counsel pointed out that this defendant had the same opportunity that mr half the codefendant had they had not availed himself of it and so that was before the court and what is before what is required of the district court is that it is at the record reflect that the district court considered the argument and that is clear evident from the record and what's significant to hear and the difference between this case and wallace and wallace the central theme during the sentencing hearing both from defense counsel and from government counsel was this codefendant disparity issue here again it wasn't raised by defense counsel at sentencing and there is a substantial difference in the sentenced here everybody kind of agrees that they're about equally culpable and in fact the guideline range in this is what government counsel was trying to point out the guideline range for both defendants was the same because the sentencing guidelines had changed due to the amendment to the last guideline mr guy has started at a lower point so even though he didn't get a five k reduction the guideline range was exactly the same for the two generally equally  rule thirty five the reduction in so his sentence was ultimately later reduced to forty five months but the reason for that was was again evident in the record before the court because he had to come back and testifying a grand jury against mr guy so the argument was addressed to the degree in which it was raised and the degree to which it deserved attention was there any objection at the time by defense counsel to the way that argument was the way the court dealt with that argument there was no objection there was no objection at the time or at the end when that when c given an opportunity to have a lot further objection so our contention is that that should be reviewed for plain error because it is a procedural argument in that district court should be given an opportunity to more fully address it if there's a concern that and saying the word mandatory is not a requirement either crime and is treating a sensing guidelines as mandatory and as this court found the united states first highgate the district court there to not say that the guidelines are mandatory it said that it felt constrained it said that it felt the sentence counsel in the court below you know there could be a variety of reasons why defense counsel chose to not bring up that argument could have thought that it discussed it thoroughly it didn't want to raise the court's time and i want to give mr gone a chance to speak to the district allocute to present mitigating factors that the court could consider under thirty five fifty three a and it did discuss it in the sense in ram memory and so didn't wave it's right to have the judge consider that it did  exactly what it should have in the sentencing memorandum before the sensing hearing was taking place so the judge could think about it and consider it and reject taking it into account on the record if he didn't want to and so i  as you pointed out to edge batchelder there's kind of some interesting language that happened the court is clearly expressing the idea that it is constrained by the guidelines especially when the government hasn't requested a five k hasn't receive the fair and reasonable hearing that he's entitled to where the judge recognizes his discretion and performs an adequate analysis under section thirty five fifty three a taking into account pertinent factors that the defendant has requested and even if the judge again on the sentencing chooses not to take into account the disparity that's ok as long as he puts on the record his reasons for rejecting it that passes muster for this court process and you have represented your client well in your honors and was that the case will be submitted in the court recall the next case