good morning your honor i'm ryan archer and i represent the united states the appellant in this case in this case the defendant infallibly scarred three little girls through his reprehensible sexual abuse of a five year old an eight year old an eleven year old little girl through his counselors own testimony he trained these little girls to conform to his own deviant sexual desires he did not stop this conduct until two days prior to when the girls finally got enough courage to go and inform the authorities about the type of behavior even then although the defendant confessed to his activities he did not fully admit to causing this abuse in fact he indicated that they started he indicated that a five year old little girl placed his hand on her buttocks and started to move it back and forth he indicated that an eight year old girl came in with her towel him into the bedroom locked the door jumped on top of him and started kissing him and because of this if you came around and committed the sexual abuse that is is at issue in this case well congress and the federal sentencing commission have explicitly found that this type of conduct is so reprehensible it is deserving of the most significant spencers in the federal system count four in this case which defendant guilty to has a maximum if if what you're saying is slow and there was a mandatory minimum we'd be where we were in the case you just finished but there isn't in this case so where do we draw the line how do we say you abuse your discretion if you do a but not if you do the i guess you say the guidelines determine which you i don't know what you to clarify your i'm not sure i'm understand question complete i'm going to say the question is that the government usually does not have discretion to decide what the sentence is going to be correct around or and and i gather from your argument the government is deciding in this situation it will have the discretion and it will fix no your honor i i believe in this case the argument is simply that the district court here went outside of the rod the court will use to determine whether what's this i think that's really the crux of the question the crux of the case here in the crux of the government's argument here what is the measuring rod i think if you look in this case we have several indicators that the district court sentences on reasonable first we have the fact that although the defendant at some point did show remorse and the government acknowledges that it's not exceptional it's already accorded in the guidelines for acceptance of responsibility at this military court wiped away virtually every sentencing enhancements in this case enhanced meant that these three young girls were under the age of twelve that there were multiple victim there are actually three of them this is not abuse of just one girl and the fact that took back the enhancements but you're saying the effect the final sentence of it was she or was imposed would have matched the base offense level before you added those additional correct i don't know the district court's thinking was we're go disregard the fact that there are multiple minors so just looking at the whole picture of the district court includes was under thirty five fifty three a sufficient but not greater than necessary sounds forty eight months i understand your argument about the effect of it is like disregarding the extras but isn't that the district court disregard of the fact that there were minors no no on on the record the court added all of those enhanced but what what i'm talking about is when we use a measuring stick what do we what do we judge reasonable meant by and i believe that's one indicator because the federal sentencing commission has clearly said this type of conduct warrant enhancer the fact that they were under twelve the fact that he was in the care that they were in the care and custody of him the fact that there were multiple victims vs this in multiple incidents and multiple incidents a period of two years in fact i think those are specific indicators that congress through the federal sen g commission has indicated are reasonable factors warranting and enhanced that sentence and so when you effectively although you you add them in your guideline calculation when you effectively impose a sentence that disregards all of though measuring stick of reasonableness here additionally in considering the thirty five fifty three a factor the government doesn't dispute that the district court on the record consider them however the government's position is that the district court gave too much weight only two factors remorse and rehabilitation there are numerous other factors that were deserving of weight here and there was the deterrent the need for deterrence and the need for respect for mandatory minimum congress has expressed as of july of this year he received a forty eight month sentence and that is unreasonable because it unreasonably gave too much weight to his rehabilitation and his rem two different kinds of challenge one is to the specific findings by the district court that there was exceptional remorse and exceptional those events rehabilitation and you raised the question i was going to ask you which is is what why is it exceptional what does the what does exceptional mean and i'll get to that and the other category is the overall sense judging it against a reasonable standard i think we have to to  look at that separately depending on whether or not we take the factual findings as they are or decide that they need alter so breaking it down in some fashion you start with the exception remorse and or the exceptional rehabilitation and speak findings that the remorse and rehabilitation here was exceptional what we have here in the government acknowledges that there was uncontested testimony from accounts or that the defendant here expressed remorse and rehabilitation however the defendant never said he was sorry on the record and so how can a district court find that remorse and rehabilitation is exceptional when he never apologized in fact in the record on the record testimony by the defendant all focused on him his trouble what why he engaged in the conduct he did when we look at the entire spectrum of conduct here this is not a case where the defendant problem  but when you argue that it was an exception when you have built it you have to know that that i don't think you have to ignore that fact because that fact is what the government acknowledges that there was a degree of remorse there but what but what i would point to is if you take the entire scope of conduct in consideration this was not a case where the defendant withdrew from the criminal activity before he was caught this is not a case where the defendant came in and gave a confession and completely gave himself up in fact that the defendant here abused the children up until two days prior to when he when they went in and turned him in then he went in and confessed and he pointed the finger at them he blamed a five year old and a little eight year old little girl and an eleven year old little girl for initiating the contact there that is not exceptional the guidelines that at section three one point one talk about acceptance of responsibility acceptance of responsibility has to be an admission of not only the conduct of conviction but if you look at application one to that section it has to be an admission to the conduct of conviction as well as all relevant in addition that application and also specifies that acceptance of responsibility requires rehabilitation or treatment if that so required all of these factors account for what happened in this case there's support for its finding would be from his not exceptional because that doesn't take into account the full spectrum of activity from the time that he's abusing them for the time that they inform authorities to the time of his first confession when you look at the full spectrum of activity he's at a point is there where he is even if the court doesn't find the very clear air of a court still abused its discretion and to send this back i think the instruction to the district court would be you gave too much weight to rehabilitation and remorse in this case i think it's precisely like the case in the cotton fields never know the answer no that that's true well i think if you look at the eighth circuit case of united states recall i think that boy that case is clearly on point in that case the defendant actually withdrew from the criminal activities prior to being caught he went on and got a college degree he was respected in his community and his work in community and the court there how to drastic downward variance from the cen and on appeal the eighth circuit said visser court you relied too much on rehabilitation in this case it was too much you need to consider other factors such as deterrents and such as the conduct of conviction and in and i think if it's clear that the district court stepped outside of that because it gave too much weight only a few factors affection thirty five fifty  may please the court and see ferguson representing mr went to shit this sentence was reasonable it was a product of a very thorough and considered application of the factors under eighteen u s c section three five five three eight two the facts of the case the findings here the evidence here was rooted firmly there was an abundance of it and there was a very proper application of the factors care what the man said the records show that didn't stop until two days prior to the time he was caught now you know that what the record shows absolutely no matter who only pays two to come in as an expert to testify he can't change that fact any he show it to minimize the ca view there was never an event where he was doing it he is that he's a sex offender and the crimes were committed and they're bad crimes never a dispute about that fact the issue is now taking  the daughters of the think you should be shot they're difficult cases they are offensive cases and it is for that reason that i think we are here in this posture of the problem i have and you can tell me how assembly don't know what happened there i don't we say that points up the say you don't have discretion no well that's what the governments are advocating and i think that's contrary to the law was hers are the limits on the court's discretion well i think that there are limits probably in an individual case but that limitation is not subject to a quantitative analysis it is as booker says as justice prior sad and in the remedial opinion appellate courts are guided by the very factors in three five five three eight in determining whether or not a sentence is reasonable or unreasonable so clearly there if a court below were to not apply those factors or were to ignore factors or were to rely on disputed evidence or false evidence then there could be a case where there is a man a proper managerial role by the appellate court to say lower court you need to do this properly under the law under booker mindful of the factors but what you have here i offenses should be treated the same they they should not the law it does not allow that and in fact the law requires a different application and the app that application  exceptional was his therapist who testified that of several thousand sex offenders that he had dealt with and this is a man dr separate is a man who typically works for the states out of thousands i think he said three to four thousand sex offenders this man stood alone with the degree of remorse that he showed when he came in he was suicidal he was despondent he hated himself for wh he did which is contrary to most of the founders they are looking to hate other people for they are in denial they do not respond to therapy and and this judge had experience with sex offenders in the state system she too for for eighteen years has dealt with this type of an offender so you see somebody like this who comes forward and and she has the wisdom she has the experience she has the judgment along with deviation in the federal system then the government is right if there is no room for the exceptional offender then the government is right now that's not the law and that's not the law if there is a what occurred in this case based on the applicable law at the time you know the government comes before this court arguing that there was a well they never disputed and all of this evidence there was never  i think it's not unusual senates considering the circumstances and out for i don't think you can get around that can you for an unusual case and fully warranted by the record let me understand if you're the procedure by which you arrive at the sentence being reasonable what you're saying is that the remedial decision and also by justice breyer as that if the trial court a considers certain factors here remorse rehabilitation is being exceptional and if there is any evidence which unreasonable burden of proof on reason bill it is on the government and as long as there is sufficient evidence to sustain any finding under any of the thirty five fifty three a factors should not take a step back as to the procedure used in arriving at the sentence and see based on its experience its concepts however  focused of fairness reasonability should not do a second reviewable first review was the procedure followed second review overall it reasonable that second review should not be done all it has to be done is to and all that can be done is to look at whether the factors under thirty five fifty three a were a considered b whether there's evidence or bottoming any of the findings and if there is evidence why many of the findings then the burden is on the government in this case to show that that evidence was  that should not be a consideration the shock value based on the judge's experience and similar things should not be considered so long as any of the factors  also a range of conduct through that i haven't gotten down to but the trial court has the benefit of that there is worst behavior this is bad there's no question but with one of these girls there was one single touching over the close so we have three but we also have some some range in all of that but i think that certainly those are all those factor all the factors need to be adequately considered and that's the pursuit will part of this that your honor is talking about as a as a threshold determination i think cantrell and the other cases that have dealt with review of reasonableness of the trial court sentence talk about that you don't have to go through a litany of every one and do some you know flow chart but you do have to generally exceptional then the results of the forty eight months cannot by itself we review for reasonability based on our reaction and experience well i think not because i think that you're you are always there is it's good because if you tell us as it stands we might have very good reasons and that's because as it stands now same facts same everything he would be looking at a mandatory minimum wouldn't be your honor twenty years ago you would have been looking at straight probation i mean that does not necessarily the case you're lying or well i mean this is  function of the range of experience with these types of offenders in there and i think that has been your point thank you very much and in this case the district court cross that line there's a range of sentences that are reasonable in this case of this type of serious conduct and having a downward variance forty eight months that essentially wiped away all of the sentencing enhancements indicated by the federal sentencing commission the seriousness of the congressional mandate on these types of crimes departing that are down simply isn't reasonable here and it's not unreasonable because the district court missed allocated the weight of the thirty five fifty three a factors i think the answer judge there's a question so the defense counsel is that just because the district court makes a finding does not mean that it discretion is locked in and unable to be reviewed at the perfect court i think the tenth circuit case in the united states  explicitly addresses that and that case the district court had evaluated all of the thirty five fifty three eight factors and had come to the conclusion that an extreme downward variance was possible however the tenth circuit  that can still be unreasonable and it can be unreasonable because the district court while the findings may not be challengable while the findings may be good and solid and on a solid foundation the district court mis allocated the weight of those factors and i think that this court discretion this court can still look and say ok district court your findings are ok we disagree and now you've already heard our position is that this was not exceptional remorse  e but even if you find that it was and that the district court was justified in making that conclusion i still think that this court and the case law coming out of the tenth circuit so that this court can still evaluate those factors in in light of the district court application of thirty five fifty three and say although your findings are ok you gave too much weight to only a couple factors and you did not actually give an appropriate weight to factors such as deter one has not yet found that sentence was unreasonably low but i think that the facts of this case and what the district court did here on this record i think this is a case where the district court crossed the line and just addressed a factual point  your honor i believe that this case would be worthy of an opinion i don't think that you would have to write an opinion on this case just because of the egregiousness of the facts and circumstances here however because there is no defense counsel has continually stated that the defendant here came in and confessed to more than the girl told him he never actually in fact confessed to the fact that he abused the eleven year old three times which he now that thank you counsel for the argument the case just