and you take the next case united states versus how good morning in may it please the court my name is courtney mckeon and i represent the appellant defendant stephen howells the sentence of five hundred eighty years that the district court imposed on mr howells was procedurally unreasonable substantively unreasonable and violated the eighth amendment my argument today will focus on procedural and substantive and the district court repeatedly referred to its five hundred eighty year sentence as a guideline sentence however in calculating that sentence the district court disregarded the plain language of both of the subsections of sentencing guidelines five g one point two that were a political to mr house case guideline to the guideline sentence as life but the district court referred to the guideline sentences life it then recognized that no count of conviction carries a potential life sentence and then to the app part of the guideline which talks about imposing sentences consecutively to the point that's needed to reach the guideline sentence so i'm not sure i can understand your procedural challenge that the district court urge in calculating the total punishment as i said when i read the full sentencing transcript it appears clear that the district court understood that the guy on imprisonment range was  and then it's reference to the five hundred eighty cents five hundred eighty year sense as a guideline sentence was a shorthand referral to the fact that now it was going to impose consecutive sentences to satisfy the li look at what exactly the or the district court spoke and it becomes clear that the district court did miscalculate the total sentence what the district court said precisely was however since no county conviction carries a potential life sentence the guideline sentence becomes five hundred eighty years or six thousand nine hundred sixty months pursuant to united states guidelines section five g one point to be so it cites to guide i'd be that the guideline which is where the guideline instructs the court to determine the total punishment the district court referred to that subsection for the proposition is matter i mean it's a life sentence a defending cannot serve more than life there are three so what does this matter what the judge was doing was dealing with a case of horrific crimes ensured that no one of them would be minimized it would impose the maximum sentence for each but you client can't serve more than life it is for three reasons the first reason is that sentencing is not just about the imprisonment imposed on a defendant the purposes of sentencing and it's laid out right in thirty five fifty to the emotional consequences of his crimes to the victims which were terrible and that if those he's doing a life sentence whether he's doing it because the judge said life or because the judge said five hundred eighty months doesn't seem to me to carry a lot of psychic trauma a calculated something that was akin to the total punishment of life less than five hundred eighty years perhaps consecutive sentences on the first three counts which would have been a sense of ninety years or on the first fo to calculate a guideline sentence incorrectly the court here did that and if america be harmless like any other error it can be harmless and since you're conceding that he should serve a life sentence having it corrected to ninety years rather than five baby eels him no benefit that i can see but it does heal the benefit to the public of the message that this kind of sentence sent there's a vast difference between a sentence of five hundred eighty is the highest such as the northern district of new york has ever imposed in a child pornography production it is for how could not be production a he kidnapped a six year old or seven year old offenses held the child in a sound proof room and repeatedly raped her now you know the public does and videotaped it the public may very well want to know that the maximum sentences on the small to pull crimes w opinion there a man abused his stepdaughter for two years and produced videos of that that the court referred to as the most prolific series of child pornography viewed worldwide as the harmful effect of those crimes but here we have what is it six seven children who were subjected to this two of them kidnapped and they searched circumstances that aggravate even beyond the horrific circumstances of the case you've given us and the judge basically decided that every crime charged would carry its maximum penalty i don't know how you could think the public needs a different message sent than that one so stick with your book the public has a right to have the sentence given because this sentence is literally four hundred fifty years longer than the sentences imposed in similarly horrific cases but there are multiple counts you want these other free no your honor i'm not suggesting that there are multiple counts in other cases and also if we leave the reasonableness of a sentence to prosecutorial discretion here the prosecutor exercise the discretion to charge twenty one separate counts in s horrific cases the prosecutor charges things all under one count if we're deciding that charge the use of the individual children in a single count in the i re case  eleventh circuit the prosecutor there did charge that in one count that was fifty different children these room multiple different occasions what what was the charge in that case the charge in that case was the same as in this case was twenty two fifty one production of child p not talking at all right let me let me your argument i see that i'm almost out of time your honor i believe i've covered everything now i'd like to reserve two minutes for  please the court my name is steven clymer i represent united states of america and we can begin by pointing out two things first there was no procedural error in this case the district court judge described precisely the light and your adversaries just pointed out that if he had stopped at the first three counts of conviction and run them consecutively he would have reached like and therefore that continuing to impose calculated reached a term of life imprisonment there's no dispute that there is no count of conviction here that a statutory maximum higher than thirty years so the judge is faced with a situation we are no count of conviction could possibly achieve a term of life in prison in mcleod and in bomb of this court very clearly explain what's to happen in those circumstances first and this is under five g one point to be not to be the court is to impose quote the total punishment to the extent possible on each count of conviction here because the statutory maximum was thirty years the judge was bound or at least was advised by the guidelines under subsection b to impose a stack max thirty years on each count of conviction mcleod makes that very clear the next question the court had is one of my do about concurrent versus consecutive and what five g one point two d says is under those circumstances you're to impose consecutive sentences on each count of conviction and each more now is the stat max to the extent necessary to achieve quote the total punishment which is here a life sentence this court has addressed that issue in three cases it addressed it first of all mts the next time this court did it was in the hamilton case an unpublished decision and your honor i believe you were on that panel and there was one hundred fifty year sentence statutory maxims and each count all run consecutive the third time was very recently in the brown decision nathan brown decision there again statutory maximum sentence each count of conviction one hundred ten year seconds so the question becomes when this court or when a district court is faced with a situation were it can never achieve given from your adversary is that when you reached what would have been evidently been a life sentence the clause about running consecutive but only to the extent necessary to achieve the  sentence that the guidelines sends that the district court should have stopped i'm not i need you to address that argument because i think that's the that's the thrust of the procedural error i was about to get to the question is is a district court bound to stop or does a district court have discretion to stop our position very clearly as the district court for a number of different reasons has discretion not to impose a five hundred year sentence if it chooses not to in this case the district court could disagree with an enhancement of the guidelines the district court could decide that life sentence was too long the district court of decided then of these circumstances it wasn't bound to follow five g one point two we look for the party act because i think you'll agree that sentence if the the guideline sentence if it's something very severe but nevertheless determinative like four hundred fifty months as soon as the second second of sentences reached four fifty the district court would have had to stop it could not have gone to something that would have brought it to four fifty one there's a decision by this court your own is why why is the life sentence one that can be can result in infinite consecutive sen decided not to run all the sentences consecutive that said it's our position that if the district court believed it's appropriate and here the district court judge very clearly believed it was appropriate for the reasons that you've described during this argument that it was appropriate to run these all consecutively so our position is not that a court is bound to do so it clearly is not bound to do so but if there was ever a case where it was appropriate to do so your honor it was this case that is our position and for that i don't know when your honor there is there a higher sentence in the history of the second circuit i do not know the answer i don't think there is sin united states v yousef design to stand in the sense was two hundred forty years that's the highest the harm caused by this crime that whatever the maximum under the statute was that was a substantively based persons i don't think that would be improper to do but you don't have to reach a decision this that my problem is  of i'll say two things about that you're the first thing i'll say is i think it's some point there are heresy and there is i know there is there's a conservative deference given to a district court judge this is not something this district court judge did lightly here this is a case where the district court judge was intimately familiar with the facts as you can tell from the discussion of sentencing and this was a case your honor where i think it was an eminently reasonable for this district court judge to communicate i mean in some ways we are we are debating the severity of the sentence when in fact it's the same as the terrorist sense it's the same as some sentences for merck is that right it's just affected by a term of years that's that the defendant will never serve but that's correct your honor but the record the district court is also speaking to the community and expressing moral condemnation for this commander so if the court said well i'm going to sentence for these counts were he did these things to these children but not on these counts where he did these other things to these other children i think there's a cost to doing that and it seems to me if that's the choice is court has to make in the sunny much reasonable it's better to err on the side of giving the district court the discretion to make that decision than taking that away we have seen the district court was required to do that as i said there's a number of times the district court in this process can decide it's an advisory guideline system i'm going to i'm going to do this that i understand multiple counts of conviction in this case the production of child pornography is each count represents a videotape act of rape or abuse of one of the children  so each occasion has its count correct on the multiple counts of possession of child pornography what distinguishes the unit of measure under the possession statute your honor is the media that holds the child second point i want to make you want to write understand the difficult questions you need not reach them here plainly or standard does apply here the defendant never raised the arguments have been raised in the brief the they simply were not court in october error once error is shown in calculating the guideline sentence the set of the third and fourth elements of the plain error review are essentially presumed so even under that standard mr house has shown that the court committed procedural error if you look back at that sentence i think it's clear that the sentence would have been the same in any event and you've acknowledged that it would be a life sentence but that's not the same sentence it  may practically have the same effect but it's a deep and then we get into how whether or not the defendant has suffered any harm he cannot there is absolutely no way he acts or sentence more than his natural life and so to that extent how do you get to the third or fourth prong plainer i completely understand if we were in the for fifty four fifty one month even though that one month might not seem significant to someone who's not serving it but here where it's life i'm not sure i see where the third fourth progress satisfy i think an important thing to remember is that the district court here didn't get into an esoteric recitation of what is life how many months is life what equals life offenders has to be able to to say this is the essence whatever you guys are going to do to me i deserve this sentence here is so much higher than the sentence that other sex offenders receive that it puts him in danger that's the that there's really no difference between a life sentence and a sentence that's six times as long as life this will have the effect of the sort of argument that's capable of repetition that evading review and the district courts will continue to make the same procedural error over and over you know we're in a situation in this case where you didn't have to be a trial the children didn't have to testify because your client videotaped each rape each of sex abuse and so the government was able to conclusively established each occasion where one of these children was subjected to these acts are you suggesting the judge could not run consecutive sentences at least for those cow many years would we be up to that for each of the production counts there were seventeen counts so that count years and i met this terrible but to be seventeen times thirty  so you think he'd be in much better shape in the bureau of prisons telling other prisoners that he'd gotten thirty years for each of seventeen counts of production that he is getting the extra six counts of five counts for the