this appeal raises starkly a question of whether our system of law can and will live up to its promise of objective and impartial justice for all including for those convicted on the basis of working backwards even if the court were to come down generally in your favor is the error so obvious that it gets you over the plain error burden that you have because there was no objection yes the plain ever rule as applied to the application from statutes criminal statutes in a given case does not depend rules of statutory construction so in case after case this court has held that novel or difficult arguments of stuff during some stuff and the supreme court the same as well that when the question of whether this statute properly construed applies to these circumstances and it is plain however when it is when the court of appeals reaches that decision after applying the rules of step was not the provision being focused on by congress this is a change made to a non immigration statute related to immigration in a long list of such statutes and the legislative history tells us changes that were made in one thousand nine hundred and fifty four simply didn't affect the context will change that the government urges no other words legislative history might not be relevant you could simply say even rand a seem to say it is not it is read only one way and it is to criminalize statements in the documents themselves in other words that's why the forty six shouldn't have been charged here because when you look at the amendments that were made to the statute from the nine twenty four version of the one hundred and fifty two amendments merely made clear that this is to focus on material statements not any office status so so if that's the key thing the legislative history is almost irrelevant i would assume to your argument because you would say you don't even need to it which i think is more consistent with the plain language because it produces you know funny only when you look at certain things like rico even the person who wrote rico for congress said we never intended there to be a civil rico never thought of it at said years fifteen years later yes there can be so you look at that we start with the words in the words seemed to say that if you make under oath a false statement with respect to something that might be in it that would be a material fact in a document you can be convicted of violating the statute to says you've made a false statement in connection with immigration matter and oath we normally think of as something where really two ways to get there two paths to get to a false statement with respect to a material fact is that application affidavit or other document there are written notes and then there are written statements under penalty of perjury after nine hundred and seventy four doesn't say question that question is have you ever killed anyone on account of religion ethnicity policy or politics and the other is have you ever put your to an immigration benefit becoming a life lawful permanent resident reflecting back on the application for asylum status many many years earlier is there any question absolutely and i've challenged on flying the principles of perjury law all that the government never proved despite all of the horrible things that were described at the trial never was a single one of the statements particular statements attributed to mr job pay and said to be false  two exactly what question is the point that i made over and over again exactly what is the question on question ten if you are cured by fraud subsumes according to the indictment refers have to refer to read particular some fact disclose what he did and those and and what the witnesses said and none of the what the witnesses said and you will look and look in the government's briefing you won't find this it shows that the particular answer to the particular killings witnesses describe killings every one of those killings is described as having had a reason or purpose not necessarily a justified or proper one and that reason or purpose for those killings described in the within the this question this question is a persecution and discrimination question and you have a motive had to be proved the way it would have to be proved in the civil rights to what was the motive for this killing it was a killing in attorney by a witness at this trial so that his answer about question will fall by evidence in a criminal case applying the rules we apply in criminal cases that's exactly the point  statute to go into effect in one thousand if you started you could not have every form of radically indeterminate overly discretionary sentencing guided by guidelines which is what congress is determined to do unless you could control the use of consecutive sentencing in multi count cases congress recognized that in the sense we can should recognize that they dealt with it through three ways one to judge people in making the consecutive after this is completely after doing the guideline calculation the judge must that and reconsider consider it says this is thirty five thousand five hundred and thirty eight factors but the statute has a guideline seconds and then in this case under these circumstances the judge could have given setting the convictions which i think would be wrong but we're talking about sentencing here we would be accepting the convictions the judge would i ose some upward departure or variance because it was lying about human rights abuses and so we know that in the subsequent amendment to the guideline that there was a  genocide these are these people with very graphic stories there's a what it does sort of them at least and this is like nothing he's ever seen before so in effect a certain guard wide range of d fifty to twenty genocide so you can't say this is making me think about genocide it's not genocide genocidal sui generous it is the worst the most heinous human rights violation of an international law crime and it depreciates the it's if there had been you know the human rights abuses if you found that he lied in applying to become a lot of them lawful permanent resident the united states about prior conduct in another country that was human rights abuse that would be an appropriate consideration in the sense condition decided back in a couple years later and said it could add as many as ten levels to the sentence but it would not produce a the closest thing to a life sentence that you could do which is what the judge said and and if you do the judge we do have a discretionary system and if you do that you have to build a compelling and clear and accurate justification an explanation for  do argument is if this is an abuse of discretion absolutely and would have been the appropriate some think it would be an a would have been some kind of upward adjustment from the guidelines not exceeding the ten levels which were guided by the sentencing commission in the subsequent amendment or something very like that if the judge had a clear articulation but not take two counts the charge the same crime and max out attac s each one must be under a there's a direct parallel in my reply brief i actually put it in the form of a chart to show the direct parallelism of the counts but even if you don't find technically that there's a perfect black burger violation the way i showed in the reply brief to get back to the sentencing argument that's where i said they were the same offense and i mean it to all intents and purposes in terms of harm to the public and or anything else of public any legitimate purposes stand here and tell you that the clear language doesn't support our position where he wants to rely on is what he calls the history of the statute we don't get to the history of the statute when you have language that is clear is this but if we are talking about history the one thing i was amended at exactly the same time for the exactly the same purpose and that's the reason today when you or i or anyone stands up in court and raises their hand and swears an oath to make an oral statement that is subject to perjury under  one or all of the chill case and the th circuit says an oath can be oral and this refers not just to a document but also to an application and an application in image ration terminology is not necessarily only in  that is limited to a writing that has to be a decade also be something or we get yes i'm saying that as an aside it's possible it doesn't matter because we're not here before i think if we do anymore and now we have a clear statute which has t has is with an officer and an embassy or locally and we see that in this very case what happens in this case is they're following the procedure very carefully he makes the application for permanent residency in two thousand and one but then the interview him twice after that in two thousand and seven and in two thousand and eleven each time the officer puts him under oath and each time reads it to him again verbatim the exact same statements this is a process in which six and i know this court didn't judge th of this very carefully in azure of it's a long statute the covers all sorts of falsity and fraud in immigration it covers counterfeit documents false impersonation  here false statements it would be beyond odd if the statute only applied to the actual writing and not this very important or part of the process as well and if it wouldn't go right the examples you give her all documentary particular case in front of us now is not a difficult case because in two thousand and eleven he is making false statements with respect to material facts in a doc he is being asked about a document he's being asked is everything in here true under oath he says yes it's true that's what he was convicted of and so we don't have to i said it's an aside we don't have to reach further to say with an oral statement alone without any document from the person suffice here federal courts act do you consider the argument that the government that's an interesting question or this this statute that has been charged i can tell you the way this office charged in this case it hasn't been challenge it was an afterthought even in this case no one in the district court proceedings including the very experienced judge ever looked at this statute and said what are you doing here charging this statute i think the reason is that the language is clear but i just have to emphasize that the supreme court  in the marcus case in many other cases has said the lower courts must enforce the player rule as it's been interpreted by the supreme court you don't get to say i don't have to say well i see an error here so i'd really like to fix it it has to be relation to this record whatsoever there are two sets of these here the st is with respect to this question eight that was asked and that was did you ever engage in any killing on the basis of this to our american civil war this was not from what these victims testified this was not the blue in the grey meeting on the field of a tita these were atrocities committed against local tina who was murdered by the defended her only offense was living in the village and a pan am allegedly having a relationship with a member of the other tribe in the other militia tina is taking out the men hold her legs apart and mr job attash shoots her in the picture i've to basing her at the same time that he's burning her to say that these are combatants and war is an absolute insult and what happened is that at trial the defense never made this argument the defense never suggested the jury oh you've heard all these terrible things but these were combatants in a civil war the defense a trial was he's the wrong guy he didn't do this and they're all these vendettas being played out to falsely accuse them but no one stood in front of a jury and said to me well mr goldberg said to the three of you this morning which is you know there's no evidence at all i did go one regarding the different villages in which they the men just stormed  and murdered and otherwise abuse horribly abused women and children and anybody who did who they came across fundamentally of course this is an issue for the jury maybe he's going to give up and argue with me that y somehow was a combatant or these other people were combatants that's an issue for the jury with those killings motivated by these different perhaps other purposes and if they work then the jury has to answer did he knowingly lie about that the jury did reach its inclusion and there is overwhelming evidence in the record that supports the other part of the false statements involved this question ten which i asked did you ever procuring immigration benefit through a falsehood now he wants to talk about the specific questions that were asked about a harm or a crime where the defense on appeal has never addressed is the big wide which is the affirmative misrepresentation the mr jobs have made about what he did during the civil war he gave works at every stage along the way and his statement is not just that the been the main past amun is he was with the special security service sort of a secret service officer at the executive mansion  during the he years of the civil war completely false and we presented numerous witnesses to show that that was false including the leader of the special security service itself that's something that is hence just one address in any of their grease but then he went further and he's telling this method about the persecution being applied to him and so then he's asked did you commit any crime did you commit any harm in the context of all of this the meaning of that question is obvious and he lies about that t i say no i didn't leaving out you know any admission of this horrific list of atrocity but a lot of what you're saying seems to go to the the the the amount of the search in effect what was rationale given as to why the sentences should be made consecutive as opposed to concurrent length so as i read the brief this was and as your honor suggests this was purely an argument a procedural one reason was it's the st time this morning i'm hearing whether a sentence should be open whether we should get into play on when a district judge sentences consecutively as opposed to concurrently and before even that question is does the judge need to put a rationale in the record or can we infer one from the record here that would at least tell us why the judge was sentencing consecutively the court in this court has made very clear that comments but then going to thirty six page memorandum me stating in detail the reasons he found the sentence necessary with regard to consecutive sentencing he followed the procedure exactly correctly what he did was he departed slash varied by specific dubber of level what i'm saying what is the procedure that one should undertake in order to determine whether a sentence any sentence should be consecutive as opposed to concur i believe the answer is that to do that the way the judge did which is helpful i'm not sure this is absolutely required but it's certainly correct when it was done here identify the range which the court did it said i mean of depart upward by twenty six dollars levels that produced a range of two hundred and ninety two two thousand three hundred and sixty five months identify the final sentence with we either within or outside the range judge says my guideline sentence here my final sentence is three hundred and sixty months what the guidelines then come in and if you look at it i believe in section five  there it says once you've identified the guideline sentence impose the entire sentence on any count they can bear that sent and if it can't if for example you had as here statutory maxima less than thirty years then impose sentences on those counts to run consecutively to the extent necessary in order to impose the guideline sentence that's all laid out very clearly in the guidelines and so i really haven't understood the defense argument here as to why this was in any way around yes now you have if you were to ask does a judge have to do all the actors the judge have to do everything judge i'm in there in terms of identifying the range and then stacking the sentences this way i'm not sure that's necessary i think under the court's precedents that if the difficulty gives a sufficient that if  departure perhaps but as a variance under booker the court can simply give a sentence outside again my range here the court was faithful to the guidelines and then was faithful to the rules as to what you do in terms of consecutive sensing when you have a and i think very sage in the way explained it he said he wasn't punishing mr job or tear for the crimes they were committed in liberia he was punishing mr john to care for the abuse of the asylum system and this is a particular challenge for the united states we have an immigration system of course there's debate as to how open it should be but there's no question we continue to welcome immigrants but there's a specific class of immigrants that we do not welcome and those are the persecutors those are the human rights violators and what judge dimond is doing here is not just deterring mr job attack but very explicitly sang i wanted to turn everybody else which is an appropriate point of sentencing he wants to communicate to the abusers of the well that we are not refuge and if you think he can do that you did the unbelievable atrocities that mr job attained gazed in and then come here and find refuge here this sentence says no you can't know if that's not a reasonable but typically happens is that the person is sentenced to some period of time way less than thirty years and then they're moved from the country that's what's typical here it's you got a twenty six dollars level increase which get you to a range that could include three or sixty but then you have to tie it to the particular crime in the particular crime here crimes would be fifteen to twenty one months and what i'm trying to find find out is to get there you have to make the sentences consecutive you have to give them in effect the max the could be and then you make them consecutive and going forward what should we talk ords is the correct process the clerk was as i believe his word stated in booker and stated in gunter which is the district court has discretion to give a sentence outside the reasonable judge will impose it in your fourteen tremendous discretion as the supreme court has directed to the sentencing judge we cannot say the defense has not tried to say that no reasonable judge would impose this thirty year sentence seeking asylum in the united states end in ceiling these bunch straw cities and the message is to you know it's a nasty world out there and i'm fortunately i hope these things don't work herbut they might and they've the point is been made here is it if you are eight a war criminal like this you know a leader and a war criminal like this then you face the substantial punishment by abusing american immigration law and the messages not just to you in is not is to confine into ter you but it's also to the other people out there this is just sent and say want to want these are for squarely within the popper rules a sensor what i'm trying to good use beyond the facts of this case keith you three wor and twelve it says courtney don't state it's rationale explicitly that it's going make it occur making a sense consecutive but may incorporate by reference a discussion of the relevant considerations in the document such as the present report it may also make clear that er later on that the judge was very very concerned about the the the effect of the very significant testimony of these twelve or so witnesses  the what this court has often said is that there are no magic words sentencing is imposed orally the judge is not reading from a script you hear the judge then wrote a thirty six dollars page opinion afterwards but in general there are no magic work court has to be able to get it so now you're you're writing this opinion and a judge in a case that's outside the normal realm sentencing consecutively and not concurrently when most judges would sentence concurrently and how do we figure out whether that's what are the rules by which that judge should sentence consider can sentence consecutively not necessarily sure can and does the judge need to give a rationale for why he or she is doing so as a matter of law the court can sentence consecutively the statute never says you can't do it it says you have to consider whether you do what you do but when you do the quote should give a sufficient explanation the permits this court to understand why it did it even if it didn't use particular words such as here is exactly why i'm giving consecutive sentences there has to be a sufficient record from this court court can exercise meaningful with view of what is obviously a decision to impose circumstances and then the final thing i have to say here well it's not final if the court is my questions but the final thing that i want to say is that once again here we are on planar overview if we're talking about the procedural reasonableness of the explanation of consecutive sentencing this is squarely within florissant here this court's unbanked decision no objection was made it could have been gradually done to stand up and say can you please say more about the consecutive aspect of this that objection is not made until now and so under floors me here with this is plainer a view that means the defense has the burden to show a reasonable probability that the sentence would have been different if  create a deterrent value to others who may be similarly inclined as mr jabber to i don't think we can say again the nobodies and will judge would agree with judge diamond's view that he should get the maximum sentence for all the crimes he i'm reminded standing here of the key camorra case of this circuit many decades ago but it was one of the early departure decisions as dramatic a departure and the real end of it what the case involves simply possession of explosives which had a relatively low guideline range but then there was a massive departure to a similar sentence because that person was a terrorist who was transporting those explosives in order to go commit a terrorist act and this quite affirmed a dramatic similarly dramatic departure up to i believe is the thirty year sentence and he can walk i'm just going from memory here this is very similar you are dealing with the worst of the worst from the liberian civil war and the message that the judge says he wants to send is not only don't you're standing clerks can find it instantly but again it would seem that the the typical case would be you would send a person to experience time here remove the person to in this case liberia and if the government there wishes to prosecute for the crimes of person purportedly committed back in the one thousand nine hundred and ninety s it can do so well i'm not saying around never say that there are not multiple possible reasonable period of time applications tend to stay for a while and that's what happened here he apply for permanent residency in two thousand and one he was interviewed in two thousand and seven i don't know why they didn't have done it then the several levels were both he was interviewed to them  twenty and i believe it was just a lag in the immigration system which is no benefit to him other than the fact that he devastate here much longer without the government's awareness of this crime and then what happened after two thousand and eleven between two thousand and sixteen information came to the government's attention that started an investigation that was a arduous difficult investigation involving needing multiple trips to liberia to find these people to have these people come forward that took a good deal of time but it didn't start until well after reasons and for what it's worth is that there were it all everything i want to say that was wrong about the sentence could be subsumed under procedural and unreasonable this that that is an easier standard just to prove on appeal specially when you're up against plain error and i don't think in all honesty that you can say that no judge no reasonable judge could impose a thirty year sentence if you believe that someone had committed in footnote thirty three there is a catalogue of describes the facts of cases in which both cases appeals and i think they're all appellate cases of sentences imposed in human rights related immigration cases and how long the sentences were and i don't think there's one including in real genocide case or rwandan case over fifteen years so if you want to look at what other judges around the country think is reasonable a question sure what's playing under it when because i hear this from the government all the time to be plain under existing law the government only repeatedly says you have to find a case but that it this court has rejected that argument and at least two published cases i don't remember the names right now but i could get them with a very good offer five of them what is the law when you're talking about a statutory violation of the existing law is the statute it's not a nonsenses applications can be oral it's an application or other document application means a written document on the plain language of the statute and when you add to that and by the way it has to be material you're not extending it to a floral what this statute says properly understood yet another clause was stuck in the middle of all the enduring sentence to make it even worse and harder not for the purpose of but with the result that it became harder to read and from cases that were in writing after taking an oath in front of a judicial officer or a notary to those in which the person simply self of that is says ice i declare this is under penalty of perjury it did not