so inherently dangerous that it's unlawful for anyone to possess them without the proper registration and defendant of course was not just barred from possessing machine guns but any gun because he was a felon based on two prior felony convictions  possessing or transporting machine guns and still undeterred in this case without any hesitation or reluctance defendant manufactured sold five machine guns to two a confidential informant three to an undercover federal officer time manufacture maybe it's more like a hobby well he had done it on multiple occasions and the statements on the recorded recording suggest that the cia and the undercover were not his only customers and so you're correct that you know we have about one gun a month in this case but his own statements suggest that he's doing this with more regularity and respectfully given how dangerous machine guns are and i think even manufacturing and selling one gun is one too many and in this case of course he also had to priors for machine gun possession and that he and based on that second his second machine gun conviction which was a federal conviction and it was the basis of a parole search where they found the hallmarks of a manufacturing operation multiple you know receivers silence under five fifty three does the fact that judge real at least on the record seem to rely upon things which are simply not true in accordance with the guilty plea is that requires that a person a reversal send it back for resentencing or can we i understand the judge real maybe misunderstood certain things but this is the way with sentence based upon  criteria that are not required to be set out such as in the fifty three fifty three a analysis i think that the extent of the variance is critical here the fact that this is a one hundred six month parcher departure from the low end of the guidelines means that under card to undergo all the district courts justification has to be incredibly compelling to justify that departure and here the only justification that is given  incredibly i mean great yes no yes yes your honor based on the record factual correct and in call the supreme court has made clear that the reliance on clearly erroneous facts is significant procedural error and to the extent that any harm with this argument could be made i think one it would probably have to be a guideline sentence and two there would have to be some other justification there beyond the clearly erroneous facts and here the district court doesn't do it recites some of the generic thirty five fifty three a factors with no analysis whatsoever any minimum sentence involved here so that if we just send this back and judge real works out it is there a minimum sentence involved that with automatically get above what this the defendant was sentenced to in this case or is it all discussed in other words in the defendant pleaded guilty to certain crimes for among record the subject of cases the court could take judicial notice of and i think the timeline is interesting here so if your honour's recall in february of two thousand and thirteen before the defendant of scotland's from pretrial supervision there is a motions hearing supervision for about nineteen months and then he sentenced two years later while the defendant has of scandal from pretrial supervision the government filed an indictment in a reversed stash house case that was assigned to judge real and that  involves the a t f which is the same agency and that was september two thousand and thirteen and then in i believe march twenty fourth teen when some of these defendants in the reverse stash house case are supposed to be sentenced judge real expresses concern about average a rapist government conduct and ultimately dismisses the indictments post guilty plea and that's actually the subject of a separate government appeal but anyway so after that happened in september of two thousand and fourteen after the months and the court is presented with all this new information both in the p s r in the defendant's own sentencing letter and the defendant's guilty plea that make it even more clear that he wasn't the to move in entrapment and so it appears that the distaste for the a t f based on this other case which the government also believes is unjustified had infected its decision here there's nothing directly in the record of that but i think the time line suggests that know your own it's going to come up in the minute and it would help him if you would tell us now what you think the bottom line should be in this case if we should just agree with you position well so the only claim that we have raised in this appeal is that the court relied upon clearly erroneous facts and that that error was not harmless given that it was the only justification for this very substantial variance and so the government is asking that the court vacate the sentence based on that procedural error and remand for recent to the same time we have not affirmatively requested reassignment your honor that is something that it's an extraordinary remedy it requires approval of the solicitor general but we do believe a very serious error has occurred here he essentially made statements that not only contradicted the record defended statements on record it calls defendants changes we hear in defend 's own sentencing letter but contradicted his own findings at the february two thousand and thirteen may please the court my name said robinson i represented mr davis at the sentencing i did not represent him in the motions hearing in front of judge real prior to his guilty plea i did represent him on the guilty to paris you bring up thank you for framing my my position for me the only thing before this court is whether or not the district court judge real committed significant procedural error and if this court looks at the two statements that he gave at the end of the second sentencing hearing excuse me that mr davis was not in the business of guns that all the allegations and guns come from the informant taken in a vacuum that's not true that would be clearly clearly erroneous but what i have asked the court to deal with i suggest that in the reply brief by the government data acknowledge that this issue has to be addressed is a judge real was talking about reasons for his sentence so if if we're talking about judge real reasons for mr davis's sentence we're not talking about a finding of clearly to tell you but this is the second time somebody mispronounced his name and yes yes i am fifty six my car didn't break down on the way  i would bill the grammar exam as well excuse me i think it is your argument that we should disregard the statement the defendant was not in the business of guns because sure that's not true that's not looking at carty card he talks about how thirty five fifty three c of title eighteen requires that the court give a statement of reasons and that reason has to explain communicate to the public that the parties were heard on specific non frivolous arguments tethered to a relevant thirty five fifty three factor in my sensing position paper and argued twice had both hearings i directed the court of the mcclelland decision from this circuit which deals with imperfect entrapment now imperfect entrapment under mcclellan and suarez does not require a finding of predisposition mr davis did not get an instruction for entrapment i would suggest rightfully so because his part convictions clearly indicate that is predisposed but for a sentencing argument that is specifically tailored to the thirty five fifty three analysis the nature and circumstances of the offense is the aggressive government use of this particularly informant the judge real relied on carcassi party says you need to look at the entire record for  reasons and the language says it would be most helpful if it came from the bench judge real did not give anything that was meaningful at the end of the second sensing hearing other than to say this is nothing to be proud of but when the court goes back and looks through the excerpted record and looks at the motion hearing create pretty plea looks at the first sentencing hearing the second sentencing hearing my position paper on behalf of mr davis the specific questions the judge real ask the government to brief with respect to this particular defense informant was twenty eight arrests fourteen convictions got a pass for a very serious state case paid money by the fifty three factor and the law in this circuit says that imperfect entrapment was the basis for departure when the guidelines were mandatory under kimber under pepper the court and gauges in a broad inquiry into all actions with the principal objective profit this isn't information that came from a confidential informant this is an admission and writing of your of your clients doing business in machine guns and he did it he did business in machine guns were not disputing that but prior to this particularly foreman with whom judge real was was so concerned that he tethered his variance to the imperfect entrapment reason the informant had traded through a middleman drugs for guns the government acknowledges that and this is what judge real found to be the most serious aggressive type of government behavior that would support the variance is rather than do you do you recognize that this  converting it into a substantive reasonable review which is not what the government raised on appeal and if we are talking about whether or not sufficient reasons have been given by the judge based on the entirety of the record which carty allows for and it's tethered to a recognized reason under thirty five fifty three for a variance then we are left with the abuse of discretion standard with respect to the procedure used in the government if that's the case then this court does not even reach the degree of the variance but i would like to say this with respect to the degree of the variance gall was clear the supreme court  clear in saying that a percentage analysis of that variance was what was not an acceptable means to determine the sub stand the substantive reason on this of the variance because it took in the face of a guilty plea in his thirty five fifty three analysis which he really doesn't have to spell out he did and if he said say there were factors one two three that were totally contrary to the guilty plea but he included them in a thirty five fifty three analysis what do we do with that and that is that an abuse of discretion where it the judge is obviously in clear error of the facts of the case what do we do with that in your hypothetical judge smith you'd have to remand because that would be a sentence based upon clearly erroneous fact that we have here and you know card he says look to the entire record best to have the reasons come from the bench but they don't come from the bench look to the entire record the only thing the judge real was concerned about ordered briefing on it heard argument on it under thirty five fifty three c which is what he's required to do so this comes down to in one sixty three it says that line three of the court feels that the defendant was not in the business of guns which is most generally the problem of the a t f and that all of the allegations and guns involved in this case came from the presence of the confidential informant which is nothing to brag about well that's what he said he relied upon now you look at the guilty plea none of that's true so what do we do with that you're suggesting that the judge's reasoning he's just you know letting reason he has the ability to do that under thirty five fifty three eighty two and we just let it be is that your position to two responses if i may first response is no look to the entire record it's clear the only thing the judge real is concerned about the only thing he's very specific in his concerns direct briefing for the government on this concern is the use of this  informant this was all kong gave the court some history outside of the record i was involved in the stash house robbery cases as well i understand what real concern was this is not in the record but judge real concern is with the a t f setting up the cases in those reverse sting operations use of informants and so when judge real says what he says about the the  r davis is not in the business of guns and he makes reference to the a t f in his statements on the record i think it's clear from what we know that judge real does you know it may or may not be true and the guy member maybe he doesn't get paid or whatever the reality is he signed a document it's own hand milling the allegations that are the guts of what we're talking about here didn't and he had this please let me back up when i say no he didn't mean this requires of gymnastics but going back to the entire record when judge real says this is nothing to be proud of that statement as they could is it may be has to be considered in the context of the entire record specific lee what judge real was concerned about and again to beat a dead horse but it's the only thing he was concerned about and judge real again addressed this specific informant how did he get involved what how to go from the sheriff's department the a t f what kind of compensation did he receive the government acknowledged throughout the pre plea hearing on the entrapment defense and in their sentencing position that there was a transaction at least one just more than one where there were guns for drugs exchanged through a middleman between this informant the judge real found to be the reason for his thirty five fifty three now says greg variance and mr davis so we get down to credibility which is why i think you're going judge smith of judge real has to draw has to decide who's for the variance based upon the conduct of this informant then i don't i don't see those as being competing because the factual basis is merely to get through the guilty plea not to set forth a sentencing position with respect the application o thirty five fifty three factors but then we get to the abuse of discretion standard i think i think as you suggested we have abuse of animals here and beat a dead horse i appreciate that you're record isn't that pretty much well my position would be that if we take what judge real had to say as reasons as opposed to facts if they're facts then yes it has to go back but if we take what judge real said as reason supposed to facts i think your put your argument is that reasons untethered by facts are valid reasons tethered to the entire record thank you but not to me to death or  and if we amend the case goes back to judge real you realize you don't have an interesting day courtroom but you but hopefully you know in remand the court is told these are the army's facts then the court will look to the larger record and see that there was not only no entrapment but no one perfect in fact i just want to briefly press the guns for drugs transaction because my opposing counsel brought it up the whole narrative of that argument is contradicted by the defendant's own sentencing letter a letter that presumably is submitted in mitigation in that letter he says it was my sell guns so i reached out to my friend jimmy and that's also not only how i get in contact with this person who's not even a confidential informant at that point he's just a private citizen and there can't be any government and use it without the government but not just that he said and i didn't want to sell the guns for drugs i wanted to sell it perhaps but he was only able to deal with drugs and i sold most of the drugs to make money and i sold them immediately and so i think that just completely contradicts uniform it was holding drug over him to get him to sell guns was feeding his methamphetamine addiction and is really fatal to his claim the last thing i'll say is just that the ultimate question in any of these cases involving procedural error at sentencing is whether the appellate court and the public can be satisfied that sentencing occurred in a reasonable way and i would submit that the reliance on clearly erroneous facts that contradict defendant's guilty plea that contradicts all  evidence in the case and that contradict the district court's own findings just two years before cannot promote the perception of fair sentencing and requires that the matter be vacated thank you thank you for that this cour