in his appeal to this court he has raised two issues i do not plan unless the court has questions to address the second issue which is whether possession of this particular weapon was a crime of violence for career bender purposes i think this court this panel is bound by mobley and it's you know it's been raised as a as a preservation issue your position preserved thank you ok without oral argument i didn't think i would convince you anyway judge tracks were always was issued with respect to the first issue about whether the district seems to me the government is conceding that there was procedural error here or in one form or another same that indeed the court did not explain its reasons for the sentence that imposed so it comes down to a question of harmless s and we would argue that in a case like this where the defendant makes an argument for able low guideline sentence and gives what are non provable reasons and he gave two reasons here that i don't think can be fairly characterized as frivolous first that the reason he possess a weapon was because he was in fear of being assaulted of now the government says that was not a justification for him to possess a weapon and that's absolutely right it was not a justification but the test is not whether for sentencing purposes has is not whether it's justified the question is does his reason for possessing that mitigate the sentence it should be imposed and so this was an argument or mitigation of the of the sentence second point was that he was sick man that had a very serious illness colon cancer that he had had his colon removed that he had during the time the defense attorney had known him had lost forty to fifty pounds those are relevant his reason for possessing the u s weapons or on a number of other occasions prior to any with that man and that one other weapon possession and judge that i think this goes to a point the district court and we are not arguing that the district court was required to accept the argument  but what we are saying is that under the case law the district court did have to say something a district court does not have to say very much but it should say something and when you look at this record the court all the court said was it had considered the thirty five fifty three a factors the relevant thirty five fifty three eight backers but there's no statement  those factors apply to this individual and the cases require the court to demonstrate an individual ised consideration and there were individual eyes considerations to be taken into account here and the courts simply did not address them and we we argue that that this court therefore does not have a basis to determine whether the  court properly consider the factors and that should not be a harmless error if if you are being put in a position where you have to comb through the pre sentence report and the record to find reasons that the district i think that in those cases there has always been something the judge said that you could look to the size just a bare statement even the battle case which the government sites you know the district court did more there than than simply said consider the factors were present report i have not found a case where what judge fox say here is all the cour  might influence they view he's reformed his ways maybe if you know that the judge explains why he's imposing the particular sentence defense counsel may be able to say something that would that would change the judge's money one of the reasons i think a court has to say something is supposed to court is misapprehended that the argument is being presented you never going to know that if the court doesn't engage somehow with was the defense attorney if he had said i've considered your arguments but have protected them in the context of the other evidence or that it that but again say a parent or a partner in this case that you know that might be send this case back with our that that this was that the phrase from the well that the problem with this case is that i think if you hold for the district   well i think is harmless in this case i can imagine a case where would were you couldn't on every present virtually every person's report i've seen you can try to find things to justify that sense of the  you know and i think that's part of the point for having the courts say something i mean there are cases where no matter what the defendant would have said would've made a difference but this court would never say in a case where the defend it was not allowed to allocute well he couldn't he couldn't mitigated he said the sentence anyway we're not going to send it back you would so again you're not asking the the the district court a look at these cases and i think you know sometimes judges just pretty get to articulate what they're thinking and if this era were called to their attention right then the problem could be solved right then without all of us having to go through the celebrity really with the merits of any of the issues of the day but don't the lawyers have some responsibility to remind the judge when they see something like this happen that that he didn't give the reasons for his ruling to say judge you haven't based on the judge same thing that allow you to determine that it's going to be the same sentence so that those reasons respectfully as further questions i'll reserve good morning may please the court the ribbon representing the united states although we do acknowledge that the district court should have said more in this case this is a this case is a good example of this court's harmless error analysis and the case that i would direct this court to compare it affirmed saying when we look at the record in context of the hearing when we look at the weakness of the defendant's argument we have para surance that i thought and as i recall the witness part of the problem with over his arguments with was that they were generic arguments that apply to the run of the mill defended this defendant made some individualized arguments for a variance of his help in the particular circumstances of his offense it was in this a bit of a stronger case than bill where no your hon don't think so and the reason is i think actually the defendant in beaufort did make individual i start as what she said was that she lied several community groups i think she ran a cosmetology school she had a lot of kids at home that she was the caretaker for those may be common for lots of defendants but they are particular allies to her and this is the key comparison between that case and what this court recognizes she didn't offer any evidence to make her case now my colleague says that this was two arguments during the sentencing hearing in this case one was the beer and the other one was his weakness to me reading the sense in transcripts it seems like he was saying that he was in fear due to his weakness and it's one argument but we have evidence of the cancer of course in the p s r th but what we do not have is one shred of evidence that he was vulnerable in prison in fact what we have if we look at the record in this case whether whatever she was he supposed to bring that he's vulnerable with groups other than him tell you what his medical problem honor but at the same that he's making it up that he's i'm not you don't buy into your the belief i'm not your honor and nor do i think that the defendant bowler is making an appeal there but the court said you need to present some evidence to show that you in particular are vulnerable and this defendant now maybe you could get prison records maybe but what he could certainly have done was testified or allocute or given a specific instance he just said and this was a very short we've talked about the district court not saying much but it it should be stated that defense counsel didn't say very much he said he's had colon cancer he said much of his colon removed even though that was actually after the offense conduct in this case his owners were moved that was in two thousand and thirteen and he said he's been assaulted several times and most recently he's been vulnerable that was the extent of the argument now i think a lot of of defendants would say that they're vulnerable in prison or that they fear in their lives they fear for their safety in prison and just like the defendant in bowl where this court should ask for more than that if the to court has of the condition of his client or any sort of place regarding this crime if the district judge found that unbelievable or it was challenged by the government then you might call them of the two the spam will produce whatever clarify that it's not so much an issue of whether that statement was true or false so much as individual izing that statement to make this defendant different than any other defendant who could say prison is a dangerous place is court discussed automobiling prison is a dangerous place i needed a weapon to protect myself you can be vulnerable for lots of reasons you can feel vulnerable for even more reasons now a description of attacks a explanation for how since his cancer diagnosis he's become particularly vulnerable i don't know whether that would have been enough to make that a compelling argument i'm not sure that it would be given this court's statements about violence and prison and mobley but maybe but we don't have that and that was defense counsel to make that argument strong had run the other actually i mean that nothing to help make the record that you're conceding should have been made that that's right your honor and i would agree with my colleague that both both attorneys should say something and that would be the better practice here and that is something i can say as an aside that we're educated on as a good practice is that we don't we don't want to have these kind of appeals we want to settle that in the district court of it's possible so just traxler to your practical concern i would like to address that practical concern importantly and i think my colleague did refer to this a little bit if the harmless error analysis is gone it actually would incentivize and i'm and i'm not suggesting any particular defense counsel to do this but it would actually incentivise silence already think you have an incentive to say something i do yes or so i think we do your honor and ideally both parties would want to but it does it would incentivize the other direction if there were no harmless error analysis and mr gordon actually mentioned when he talked about you asked why it would be different on three men and he said well his conduct since then might be mitigating which is kind of an interesting statement that that conduct would have not even occurred during the sentencing so there it would be an incentive defense counsel if he wasn't happy with that sentencing maybe he can get another one in six months and have improved and we'll have some good reasons to come in and get a better sense and that's that's not really in the interests of the fish and sea and phonology that this court recognized in bor and recognized in line even though the court ultimately reverse that increases the burden on duty to correct the obvious here let me ask you this as mr gordon pointed out them establish the fact that if you raise these issues your position is protect wave their right to a deal on grounds of procedural error due to the i think that's a that's a difficult question i do think it falls outside of what lynn was analyzing i think i think maybe yes your honor at least at least procedural errors that would appear on their face there could be maybe some more esoteric procedural errors that it might be it might be somewhat difficult on council to hold them accountable for not catching something very minor a very minor guideline calculation issue but something such as the explanation for the sons when as we've discussed today with both attorneys both parties are in a position to say your honor i think we need a better explanation than that if the court asks have i x a specific belief i could make your scenario more this is a common issue is repeated over and over and over to you know don't be some way to solve this problem i think that would certainly help garner an education of attorneys on both sides to make sure they realize that's part of the sentencing hearing obligation is to make sure they raise any concerns at the end of sentencing i think would be helpful in this case unfortunately we don't have that but the reason this case and i have to disagree with mr gordon that the court affirms in this case it will destroy the procedur plausible argument that they had presented they were on the very border of being career offender it was very old offenses they also had a very strong argument that they were more of a korea than a king and they were being sentenced at a very high level as if they were high up in the drug organization that may not be something the court would have to credit but this court said we don't really have fair assurance that the court addressed that argument seems pretty strong and we don't know based on this record but this is different and i don't want to to fail to bring up a very important part of this record which is defendant's history before and during his time which has to be considered if we're accounting for whether it was something that would compel the court the saruman about weakness and this defendant wasn't threatened he was threatening if we look at his history before a sexual battery in one nine hundred ninety four in one thousand nine hundred miler over a striking a homeowner with a tire iron a domestic assault with bodily harm in two thousand and two but in a lot of ways it actually gets worse in prison it not once but twice was he caught with improvised weapons before this incident once with two shanks and it was in two thousand and nine and in two thousand and ten he was caught with a weapon a very similar description that one was a lock attached to a lanyard this one was a piece of conduit attached to an improvised rope  especially to remove some of the profanity from it but the defendant started threatening a guard threatening that threatened at least twice to harm him to put something in him and then approached the officer with this hands concealed underneath his shirt when the b o p staff member ordered the defendant to submit to a search phillips began to walk away as the b o p staff member requested assistance philip turned aggressively toward the officer ball brandishing a lock attached to a twelve inch lance this is the record that was before the district court this defendant was not threatening or was not threatened he was threatened and so when it when i discussed the fence counsel didn't put evidence to show that he was threatened it's not so much that that statement the court just thought the defense counsel  making it up so much as if you want to come against that evidence of this being an aggressive and threatening defendant defense counsel should make that argument he should put that in the van it could have allocute it and he could have described i was threatening and now all this stuff is happen g we don't have any of that and while that doesn't relieve the district court of the burden of at least saying i don't find your argument compelling it does allow this court to look and say that is a weak it is not a strong argument and that  don't think that this district court would have credited it if it had said more and that's the test in our most there is whether this court has fair assurance that if the district court had addressed this argument it would have reached the same sentence and just as i think you asked really do you think this will change on remand and i don't on this record i don't think it will change on remand because the fence history and the other piece of this from the board case is that you look to the record in the context of the hearing there wasn't much discussed of this hearing first the defense counsel challenges curve under status and then he made this argument for a variance both of which he talked just about his fear in prison being one of the main motivators that was basically the entirety of the hearing in this court in an unpublished case we cited in our brief alaska's and alice noted that when the court sat through basically the only argument hearing this court's going to assume that the court heard that argument understood and i think that gives due credit to the district judge he was clearly there listening to this argument the fact that he chose not to address it and this is the quote that gets used a lot in the rita case he must to believe there was not much more to say and again we certainly acknowledge that he could have said more that he should have said more and that that is why we conceded procedural error but we do not think this case is one of those cases full where and for that reason it should be a form it's a court has other questions i'd be very happy to answer them thank you first i would like to apologize mr rubin is absolutely right i neglected the judge that when you asked about prior incidents i neglected the one in the locker my mom was focused on what he actually had offers very compelling reasons or mitigated sentence and the judge simply says i have considered the pre sentence report and thirty five fifty three a factors and then imposes it within guideline sentence and then the government comes back and says well you know your honour's look at the present report this is an awful person obviously the judge thought he was an awful person and rejected them i don't know why it doesn't work for a case like when it works in a case like this as well  so i think from a from a practical standpoint i think i think you may have found the answer which would be i think if a judge at the end of the hearing were to say you know mr gordon you asked for a downward variance you satisfaction explain or address your concerns i think if i say yes i waved it i think that issue is way even with when i don't think it's preserved and that might be the answer that a simple statement by the district about the several arguments and i ruled on each one and then the best counsel said judge if you considered these factors in combination and i had not articulated when they are you know that yes individually i felt like none of them individually warned of the dangers of but i really appreciated the defense counsel reminding me that you know i also need to consider the factors in combination i just tell you that if that many times  and i think the court's point is very well taken and i won't beat this but i just would like to say one more time i have yet to represent a boy scout and mr phillips is no boy scout but i think i think his record of his concern about being vulnerable he had cancer at significant and that's a significant difference between you know the prior record and maybe maybe even his prior weapons possessions and his aggressive conduct in prison and what followed i think that cancer is a significant point and it was a point it was made and it was not addressed and so i think it was  procedural error i would i would urge the court not to apply the harmless error analysis or not to not to affirm on a harmless error basis given this record where there was no engagement with with with the defendants argument by the district court