court's teaching in miller roper and montgomery and the second issue is whether or not the district court adequately explained it sends eighteen or seventeen years above the guidelines and fifteen years of the joint recommendation of the parties the first issue is the meteor of the two montgomery and miller they give us a substantive right to give us a direct teaching about how the district courts and really all judges throughout the country have to deal with youth when doling out punishment is categorically mitigating its sui generous and that the supreme court has never found or never held that one single fact is actually mitigating and that mitigation carries over to how the district court has to consider a sen that this district judge didn't do that i mean he he he knows how old ferguson was i mean obviously the crime was on leave probably bad but you don't seem to be arguing that there's some particular discount that goes with youth and i don't see where the judge failed to recognise that you know he was immature we don't think that there's a particular twenty percent off or whatever it would be but the district court didn't if you look at pages thirty four thirty five of the transcript that's where the court says look you're young and that we consider that we consider that among other factors including drug use including and isn't that correct if it is a factor and you say it's a factor on the mitigating end of the scale that it's not the only factor and he says that you know there's no automatic free pass for people who are below the age of twenty seven or twenty eight which is roughly where you know maybe the brain is finally mature that th right there is no free pass but understanding that it's categorically mitigating is different than saying look it's just part of the whole hodgepodge that we consider at sentencing what this report has done the said right here when it comes to understanding your character your character is not formed when you're a defense counsel note it shows how impetuous he was that it's a tuesday afternoon he's just walking around and then he decides to steal a car those are the teachings of the court have to say i understand this the supreme court has explained th is mitigating and i understand in light of these factors now whether or not other factors might drive the sentence north of the joint recommendation that's for the district court to do that isn't that what he says i mean he talks about he was seventeen is brain wasn't fully developed that then he at the sentence you're focusing on i don't think that we do not hold people responsible we certainly consider the youth at the time and we consider other factors what's wrong about that because it doesn't bleed into all he had just said we consider the youth as a mitigating factor at the time and but we also consider other factors that would be correct if that would be a corrective in the law and it would also have to  be part of the rest of his reasoning rate say i don't understand why you did this but i understand your youth and i understand that your going that this is kind of impetuous i understand that you're dangerous right now mr ferguson you scare me but you know what you're going to be a different person when you hit twenty five you know you can look this this court sara judge posner's dissenting mckinley versus butler and it's very clear he brings out the statistics this is something that we know is going to change in a person now had the court wrestled with those it wrestled with montgomery even had it brought out this is what the supreme court's telling us about the science of how it's close to sentence but then said i'm convinced and other factors i d's other factors really way to me but it has to be that the courts and really the public and this court understand exactly where the court was going but they're in this transcript it's not so much that the court embraced mckinley or montgomery it's saying i can't get i guess i can't give you a life sentence anymore because you're two months shy of your birth of your eighteenth birthday well that's not nobody has ever given mr ferguson the life sentence nobody has contemplated the sentence here is fifteen years nearly one third lower than the pretty extreme variance from the guideline explanation the district judge provided here was in essence to compare this to an attempted murder why is that not a reasonable way to explain  quantify the district judges frustration with the guidelines given the way the case was church but part of that big case was charged the only way it could be charged there wasn't a i don't tempted murder that would allowed for federal jurisdiction that would say ok well no but we expect district judges to focus on conduct not just the niceties of the charges a life sentence is authorized and we have affirmed life sentences on one twenty four c churches correct so what's wrong with the district judges use of murder guidelines they're treating this as if it were an attempted murder but there are two the first is he doesn't actually say that this is how i'm going to go he says this is you know th is kind of what's in my idea this is what's in my wheel house you know that think he says that by the time at the very end he says you know he's trying to do the kind of serious security inquiries and just saying you know do you have anything else to say about this is that  fifty four one of the things i brought up that neither counsel did was the use of the guidelines to look at the murder guideline the attempt i certainly don't want to foreclose you for making any argument if you think that's overstating or a misstatement of facts and you know the defense counsel says that's fine a anything else to say about that because it was a very it wasn't clear that it had guidance it's not he wasn't a straight jacket but he says i'm guided by this level of punishment because of the underlying facts here and being guided by and then allowing for that to actually be the reasoning that this court reviews it's not enough for this for this court to just guess at what he might have been doing or say you know the indications that he's looking at this higher guideline and therefore a life sentence would be appropriate but it doesn't come down to where he's actually giving the sentence why fifteen years above the joint recommendation why did seven lower the guidelines range be for attempted against the person yet so it's a complicated question depending on what factors you want to have in there and just the guidelines alone i mean we're talking about two small paragraphs two small paragraphs that would have to be weighed against everything that the supr said miller montgomery's because you'd say yes this is an attempted murder but you know what your impetuousness i understand from that and even though the guidelines tell me this is an attempted murder i have to look at your character and your character is something that's not formed yet it's that but this was suspect accurately vicious crime it was vicious but it's and to district judges have said these guidelines are totally inadequate for dealing with this and in which case if they wanted to work within the guidelines then allow for it you're the first opinion from this court showed you know we could actually go up another four level six levels for that injury that it would be and that would bring us to the twenty year recommendation that the parties jointly came to that would actually be what would do it but no that's that doesn't that only applies to the courage of acting now to the discharge but that's the problem with the guidelines here and so you've got the district judge saying this is completely inadequate there wasn't his phrase but that's the substance of it this looks a lot like an attempted murder we have a lot of discretion they do have a lot of discretion but that discretion always has to be tailored with the supreme court has s it you can't take the guidelines and say you know what this is a normal twenty five year old kid twenty five years old instead the supreme court says those are the guidelines under thirty five fifty three a we're carving out when it comes to the youth factor impetuousness your your ability to be retrieved or redeemed those factors have to be considered so even if you were to say the guidelines are inadequate the guidelines have to account for exactly what the supreme court is taught and the court would have to balance a district judge here got into that heat he got into those specifics he said well i consider impetuousness i consider bad judgment but then the court also discussed well here we have a person who waited he waited w spencer unlocked her car then snuck up on her demanded the keys demanded the keys twice she gave him the keys and he shot her he shot her after he gave him the keys then he went around he drove around with his girlfriend and almost ran over sir trying to get out of her familiar with yet or ok well the puzzle to me mr proctor is the government's recommendation here especially after it became so evident through the first sentencing that the guidelines really didn't seem to fit the circumstances of this particular crime your honor my office came to a conclusion during the plea negotiations hearing that we're going to cap or recommendation at twenty years the government is honored plea its obligations under the agreement and that's district judges have disagreed with that so getting back to the district judge addressed impulsiveness and that aspect of ferguson's argument that judge obliged to give some discount for you there is a district judge just supposed to say what this judge did you know i recognize that you're young but as far as i'm concerned other things outweigh that or maybe this district judge did give him compared to the earlier fifty year sentence you know a fifteen year discount so that he'll be as i said somewhere between fifty and fifty five probably by the time he gets out when when all is said and done so you know some life left to live not very for montgomery cases fitting into this is that we don't have a life sentence here we don't have a life without parole what they do provide is i think in the cunningham type language they provide a  youth and the supreme court has talked about brain development and these other characteristics of the youth so you must consider that district judge that's that's why she's sincere it is a mitigation argument the district court hears all right i'm considering those things  considering the supreme court's comments regarding brain development and considering impetuousness and considering development of of persons personality and he went through it he discussed various factors that went into those  i mean we're saying below the age of eighteen i realize who is close to eighteen but under the against the backdrop of the actual brain development there's still some way to go even when someone hits the age of eighteen and it's you're positioned in sort of like you know are the other cases as long as you consider it that's all you have to do you can reject it and that the question is would rejecting youth this is mitigating factor be incompatible with the supreme court's cases if the district court had said i'm going to sentence you the same way as if you were you know seventeen or thirty five we might have a problem but that's not what happened here so i think that's possible that and i hope that as there's a question  here the district head to the district judge did get into the aspects of youth that mr ferguson felt were mitigating evaluate him against the the factors under thirty five fifty three a and most importantly i think that the way this works mr like any defendant is entitled to an individual eyes assessment under the thirty five fifty three a factors and that's what he received here the judge can judge to take in youth into consideration it took a lot of other factors into consideration reachin his determination that thirty five years was was appropriate in this case or make just one comment on the guidelines with acceptance of responsibility in a murder guideline like my calculations of he would get  a small discount off of forty three but would add in some more he did under chapter three he did fly to reckless flight after after being chased so at at a minimum be three sixty to life plus ten why the carjacking guidelines were were completely off base in his he was here and that is it provides a very good explanation i think for where the judge was coming from in addition to as and that's the facts of this case the judge and milwaukee sounds yes your honor i think the judge was was hammering that as well but also the judge really focused on the risk that mr ferguson presents the community mr ferguson is conduct in this case is conduct leading up to this brief points one his discussion of the brain development is also in the context of well psychiatrists also tell me there are sociopaths and other social past in this world it's not a true evaluation this was more said of a tongue in cheek you know yeah the supreme court has said this i guess i can't do it you know yeah you know there are psychiatry to say this but that doesn't stop us from having to punish you that doesn't stop us from chain their social past in this world it's not the true evaluation that we'd expect from something a miller where you're really weighing these factors and the second part is if there is going to be that this is the justification i'm using the murder guidelines and this is how it's going to be when this court has seen an extreme variance from the guidelines it has had a lot more to go with a lot more to justify it whether it's a good in case or twenty two page sentencing mental or sense human decision whether or not it's alice where you're really getting into like this is just the worst do it i've seen and that's what this court should demand and i get it that we're asking for a third bite at the apple but we're asking for a third explanation that weds to thank you all right thank you very much thanks to both counsel take case under