at first and then also to talk about the motion to dismiss and the way in which mr seleznyov was apprehended and brought to the united states as to the sentencing issue it's my position that there was both a procedural error and and the sentence is also substantively unreasonable the two are very intertwined it's hard to tease them apart but the procedural errors really failure to consider and failure to explain the very lengthy sentence imposed on mr seleznyov mr seleznyov was thirty two years old when he stood before the court and he received a sentence which is almost equal you know to his life twenty seven years he had no prior criminal convictions as of course the court knows under thirty five fifty three the substantive reasonable miss of the sentence is to be reviewed under the standard to see whether the length of the sentence was necessary to accomplish all the purposes listed in subsection two of that statute was it really necessary to get a twenty seven year sentence to protect the public from mr seleznyov in future crimes  or any of the other purposes spelled out in thirty five fifty three like to terence or respect for law i noticed only yesterday that mr slawson has attorneys had not cited the  months so i wanted to get at least file something saying that i am in part relying upon it and bringing it to your attention there was a pretty important thing set a couple of important things in that decision one of which is that while the standard of review is differential it's not anything goes and in this case it's just as if as received a sentence which is longer than you can get if you have no prior criminal convictions for first degree premeditated murder in state court in washington that i hope to you i hope that makes you raise an eyebrow interest some this court said on page ten ninety recidivism ordinarily decreases with age and the court went on to say not for terrorists and also not for sex offenders mr seleznyov is not a terrorist in fact he's a victim of terrorism not a terrorist which i will get to when i talk about his medical condition terrorists and as i read the rest decision it recognizes that terrorists are motivated by ideological and often in this day religious concerns their motives for committing crimes can be go to the core of who they are especially when it's religious and they may even want to be a martyr the fact that they may get caught and sent to prison or die i not the kind of thing which deters them because in this case mr assad's case and others it's a deeply held religious conviction that what they're doing is morally right that doesn't go for people ordinarily doesn't go for people who steal money and make make money by illegal means the district court said and i'm not going to quarrel with it at all that mr seleznyov motives where you can i'm again in greed and to make a living but my point is that ordinarily ordinarily that kind of crime is not repeated if you are hammered with a fairly lengthy sentence it's the kind of thing that burns out over time to everybody likes money but it's not reasonable to say mr slawson have after twenty seven years in prison or he has to be there in twenty seven years because if he gets out any earlier than that he'll go right back to doing this people don't like being in prison and it is incumbent to satisfy the statute for the government to come up with some justification for why the district court could say well three years or five years or seven years or ten years is not enough to make sure that this thirty two year old man won't go out and do this kind of thing again counsel judge what is the most that i could say i can justify this if teen years i don't know he's thirty two years old and i haven't yet addressed the fact that he doesn't have all of his brain because half of his goal was blown off and because he's got a serious traumatic brain injury and a couple of other things but some to go back a minute to your reference to the guidelines it is the law of this circuit and the law of united states i think that there is no presumption that the guideline range is correct and it says at the end of the at the end of the p s r there's an acknowledgement there the last sentence in the p s r is that the author says the guidelines here over clearly overstate the seriousness of this and the type of sentence the person ought to get in this case one of the things that his attorneys in the district court said was he had a terrible childhood i don't think anybody disputes that he was abandoned by his father who moved from vladivostok to moscow when he was two years old he had no relationship with his father he had a mother who was an alcoholic he had a mother who was so alcoholic that he discovered her dead from alcohol poisoning in the bathtub when he was seventeen years old he had nobody to raise him and he had no particular avenue of how he was going to make a living in a career and he went into crime and that was argued as one of the things one of the characteristics of the defendant to the district court that you want to take that into consideration and the district court judge said lots of other people grow up in poverty and they don't commit crime submit that's an abuse of discretion i mean that's essentially rewriting the statute that's essentially saying i don't care that congress in this statute said look at the characteristics of the defendant lots of people have terrible childhoods and i just don't consider that i caused lots of those people don't go on and commit crimes that kind of a per se rule would lead you to say that if a child was starving and sexually and physically assaulted three nights a week for fifteen years that you just wouldn't consider that because lots of people that happens to when they grow up and they don't become major criminals that isn't logical small point but i wanted to point out about the statutory purpose about respect for the law i think it's dangerous to assume anything about the culture or about respect the cultural values attached to respect for law that a person who grows up in russia is going to have i don't think it's a big leap for me to say to you that there's not a lot of respect for law in the russian federation or in the soviet union the head of the russian federation is i would say a thug who murders his opponents people get ahead there by corruption by bribing people so to say oh i'm going to treat you this is necessary twenty seven years to show you how to respect the law is to blink at a characteristic of the defendant which is important which is that he grew up in a corrupt country which doesn't respect law and which thinks it's normal to bribe people to get ahead  i want to talk about to terence as a purpose of this stature most criminals really don't think about deterrence at all they just think they'll never get caught it doesn't dawn on them criminals who do this kind of thing i think do think about deterrence in the evidence in the record here i mean they do think about getting caught and the evidence in the record here is that the moment he was arrested he said but there's no extradition treaty is there between the maldives and united states so obviously he did think about the fact that he's going to go on vacations and travel places where there's no extradition treaty but when you're saying what do i have to give this man as a sentence now well if we when he gets out he now knows that the fact that there isn't is no guarantee that he's not going to get apprehended and sent to the united states he knows that now so i think that's something to take into account that you don't need to lock him up for twenty seven years the most important procedural error about failure to explain committed by the district court is just simply not responding to the arguments about his medical condition there were undisputed facts about how he got this brain injury he was in morocco when he had the bad fortune to go to some cafe and sit there that a suicide bomber also selected to blow himself up and twenty people were killed but mr saleh was not killed he was almost killed but he wasn't killed and he's part of his skull came off he survived he miraculously survived he was evacuated he was flown to russia he has all kinds of he had a year or more in russian hospitals that he lived all those medical records are in in the record of this case and those medical records are also in the excerpts of record no one contests the fact that he has a chronic seizure disorder no one contests the fact that he has a third of his top of his skull is now an artificial titanium top no one contests the fact he had to learn to talk and walk again because he lost the ability to do that and no one has replied when both his attorney at the sentencing hearing said the doctors say he can expect a progressive deterioration in his mental condition it's going to get worse as he gets older and no one contested the fact that he and mr selection have both said the doctors don't think i'm going to live to be in my fifty's so effectively this is a life sentence for him and if he ever should serve this long and get out what reason is there to think that he's going to go right back to doing this when he doesn't have as much of a brain as as a normal person does because he lost part of it to this horrible accident and the district court didn't respond to anything said about his medical condition just never mentioned it i think i would argue to you that's similar to the failure to explain i thought he did know his near the district court just experience that this record judge did not talk about his medical condition i mean he may have talked about the fact that i know you were in an accident but he never talked about he characterize it that he was following the incident that he had to struggle for his life  to what happened to him you must be right for tell me that your honor that must be to two or three words saying that he said that but he didn't talk about what i mean he's going to die i just know that suggests that he you know he was fully he was the district court judge was fully aware of it and knew about it what was he supposed to do he's both explain why that somehow not withstanding that he's rejecting the defense argument that i need to lock you up for twenty seven years because otherwise either you'll go back to this or i won't protect the public or there won't be respect for law or one of these other things and he doesn't explain it well suppose he says you know i am where or when we can assume that he will read yeah the recanted his testimony thereby sacrificing to prosecutions why he would give him the same amount of leniency that he'd give him in an earlier sentencing when that when the man had done all that and this court said that failure to explain was  procedural error and that failure to explain carries over into the substantive error if you can't give an explanation as to why you're doing this then the court concluded this is an abuse of discretion if the judge had said so we wanted the record back to doing this and you'll just keep stealing from banks and people even when you get out if you live that long i mean he even answer he's not expected to live that long your honor he didn't even answer that nobody answered that i don't have a lot of time left but i do want to touch upon the motion to dismiss in the way he was brought before the court and it was zero in on what i think is the key to my argument it's a finding of fact forty six small deviant authorities appear to have elected to accept a red notice as an alternative to a war and to put that in context the evidence is really all undisputed the secret service agents through the state department contacted some even authorities he said we want your help will you give us or some help they said we will assist you they said our plan is you know you arrest him and then you turn him over to us they got some word back from the police commissioner yeah we'll arrest them and we'll turn him over to you the mother has asked for documents it's undisputed they gave him the documents they requested and the secret service agents were arriving on july three and four they're having meetings with the most of the vians and the arrest is made on the fifth and in the afternoon of july for that the day before the arrest suddenly we know from undisputed e mails that involve the state department official suddenly the mall even say we are pursuing an arrest warrant we need an arrest warrant from him all the judge that's exhibit four says we are waiting for that court warrant that comes at four o'clock in the afternoon on july fourth and in exhibit five they are told a little bit later i think we expect the warrant will be done by nine it doesn't have an am or a pm after it but as near as i can tell that means nine tomorrow morning then it one twenty am on the morning of july fifth there's another exhibit that says there's evidence that the state department here is the most even want to read notice issued from inter and it's undisputed that red notice was issued at seven am in the morning the issuance of that red notice creates a need for speed at least in the minds of the agents who they think they've seen this happen before in another country when they were looking for mr once there was something put out over in the inner paul red notice was put out it seems he got away so it's undisputed that now the russians know because the red notice is issue is coming around ten o'clock to take an eleven o'clock flight and we have to act fast no warrant ever comes no warrant is ever issued no mall given ever arrests him the united states eventually c cedes he was arrested by a secret service agent mr swan or and if you look at the red notice which is excerpts of record i think it's when he gets around one twenty two it has two little provisions one is about extradition but there is no extradition treaty between the maldives and the united states and the other is labeled provisional arrest it says for the country at the request of which the president notice has been published that's the united states of america this red notice is to be treated as a formal request for provisional arrest this red notice issued at the request of the united states is the united states request that the maldives is going to arrest him which it's undisputed never happened so the district courts finding that the red notice was apparently accepted as an alternative to mold even arrest makes no sense because the red notice says we want you to go arrest him which everybody agrees never happened so what does that lead you to conclude i mean if i don't like i managed and you just went through but well i did not rise to a due process violation well i think it i think it's struck man says outrageous governmental conduct or it can give rise to the need for the exercise of your supervisory powers to keep the hands of the court clean and to deter this kind of conduct and it does violate his recognized rights i think his lawyers pointed out in the reply brief it violates the international covenant of civil and political rights article thirteen clearly there's no argument as to why it does it it violates two scoggins it taints the judicial process it's a warrant issued at this court  that's what he's arrested on so i would ask you to just think of it as the shoe on the other foot think of it if the russians did this in the maldives by spiriting away an american citizen that they wanted to try for something in russia and the finding was well red notice arrived and so suddenly we don't need an arrest warrant anymore and we can just take up this country would call that kidnapping and i think you should too and i don't have much time left but what  good morning honors may please the court michael morgan for the united states i appreciate the dilemma counsel finds himself in with the extra minute and think of parachuting into this case late but oral argument is not the time to be advancing claims that are nowhere in the briefs nowhere in the briefs is there any claim that the motion to dismiss should be reversed due to an everyone is factual finding no where similarly nowhere in the briefs is there a claim that the district court committed procedural error in failing to adequately explain its sentence no where those claims are waived full stop on the merits what counsel would like this court to call it kidnapping was in fact a paradigm example of cooperation between two countries to bring a fugitive to justice officials agreed to assist them out devean officials on their own with the approval of their attorney general and president expelled him into the united states custody and he was immediately taken to the united states for a prompt arraignment under no set of facts could that rise to a level of a due process violation now under this court's precedents and certainly not under the supreme court's pre and with respect to whether or not there was a violation of mel devean law that's simply irrelevant whether or not or not a domestic arrest warrant was required under domestic law which considering the attorney general of the mal the signed off on this operation i would doubt but even assuming that to be the case that's not misconduct it's chargeable to the united states the united states pacifically requested that mr  itself over jurisdiction when the united states officials violated none of his rights and more inclusive a question for you which represented by the appell number of counts the amount of money and are talking about the actual cap of the guidelines because he was kept out at forty three even with a level one the guidelines did provide for a life sentence and but none of the counts of conviction in fact would authorize a life sentence so under the guidelines the guidelines sentence is the maximum permissible statutory sentence which in this case if i've done my math correctly is five hundred fifteen years if you take every cow and run consecutive that's the maximum sentence that would be allowed this was a twenty seven year sentence i'm not going to stand before this court and say that's not a severe sentence but it's also a he he would need excellent health care to survive that's true and but it does go to show that i mean even a twenty seven year sentence is not i understand the position that given certain health conditions mr slawson has that this is functionally a life sentence i'm not certain that's true i don't there's been no showing that the bureau of prisons can't adequately care for mr slawson in his custody with respect to one point the counsel made that somehow his medical conditions support a lesser sentence because he's not going to commit crime what did he do after he was it suffered those injuries in this terrorist attack after he recovered he started up again so obviously whatever issues have a rose from those injuries they certainly didn't prevent him from acting in the same criminal matter he had before so i don't really understand how the fact that he has these injuries is somehow a mitigating factor and i would also point out that the record makes quite clear that the district court knew very well mr slezak medical conditions he actually discussed it as as just pointed out and it's on fifty eight he says quote your third chance to avoid all this occurred when you had a near death experience that should have been your wake up call to abandon the fraud that you had already committed in multiple ways three months of recovery struggling for your life you should have it that should have been an invitation to to give you wrongs to right your wrongs and recognize that you would be given a second chance in life instead your recovery was focused on recalibrating and building a cipher cross a cyber fraud dynasty the court knew all about this it just didn't feel that the that mr slezak medical conditions warranted a further downward variance in this court's precedents of the supreme court precedents require a court to address in detail every mitigation argument advanced by a defendant as long as the record shows that the court knew about the arguments and considered them that is sufficient that is procedurally sufficient and the record here is no under this course precedents is more than sufficient for you to find that he a veers well i think there's a lot of benchmarks you can look at in our sentencing brief we pointed out some you know fraud defendants in our district with much lesser losses who got thirty years sentences we pointed out perhaps like the one of the best benchmarks is mr slawson was indicted in the district of nevada and charges that arose out of the the very scheme that's at issue here and a low level player in that case went to not this proportionate and this court affirmed that twenty year sentence on that subject to a substantive reasonable a challenge so if twenty years is something reasonable for a low level player an extra seven for the top dog can't be substantively unreasonable i think that's sort of where the government's calculus was is looking at those players like you know who what would you say are the most important supreme court precedents and ninth circuit persons that that give us guidance  completely off the reservation and you just can't say that on this record and i think it's unfair to judge jones to suggest that he didn't explain his sentences explanation went on for over eight pages  went in detail about all the aggravating factors he found and how mr slezak had never accepted responsibility how you tried to manipulate the courts after his after his arrest how he had just on and on and on about all the aggravating factors he that was his m o he's that he stayed in russia knowing full well that he could operate and face no consequences he thought that when he went to them all these he just miscalculated but that's a defendant again who i have if you're thinking about if he's likely to receive the recidivist why is he not when he said finished with his sentence going to be removed to russia there's no reason he would start up again he would again be immune so in terms of general deterren i think the court was quite correct to say that these cyber hackers who are overseas in immune from process need to know that they are not operating with impunity and if this that they step out they face substantial risk i mean look at the losses in this case almost one hundred seventy and it's just ensures that hackers in russia will never really well well well well i leave again  it may hurt them out of interest industry i understand but it but it's true it is that they really do think that there's nothing to deter them and her and i think the district court needed just to send that message as a matter of general deterrence that these crimes if you are caught you will pay a price and again when you look at the amount of losses almost one hundred seventy million that is a lot of money this is like that caused a lot of damage to small businesses when you know what those are the real victims here the financial institutions no one is going to shed a tear for the financial institutions but the mom businesses who are like having to pay these mediation costs record shows one of them actually went bankrupt i mean these are these are so this is serious harm and it calls out for serious pleasure and certainly under an abuse of discretion standard you can't say that judge jones abuses discretion specially compared to the record in the case the number of victims in the case both mom and pop stores and big banks the record there is a complete list of restitution it's owed at the trial record we highlighted some of the local businesses that were harmed and there was in fact that one of the trial of one of the business did testify that he was bankrupted by the remediation costs resulted from this so the record does support that you know that actual finding and again when you compare this sentence those stiff to the sentences to other fraudsters again that are identified in the government sentencing be twenty years twenty five years for losses less than this so for one hundred seventy million twenty seven years is not substantively unreasonable this is there was one issue the council didn't just i'd just like to hear the government's use on it and that's the the in the pro yes with respect to whether or not he waived yes waived for kin against privilege yes the issue as i understand it that what the district court found that he waived have for ten with respect to his own statements this court found that he had not been adequately advised with respect to how his proffer would affect his attorney's ability to present a defense so the court ruled that the four ten waiver was still applicable was not applicable to the fence counsel's argument so no matter what defense counsel did this weapons process proper statements were not coming in the court did go further and said counsel you have an ethical obligation not to present evidence or argument that you know or have reason to believe is false if you think you have a good faith basis to believe that some proffer statement might not be true and so therefore you want to present this that's fine but that was separate and apart from the waiver so this is a general ethical obligation a general ethical obligation and the court vindicated mr celebs for ten rights by not enforcing that one provision of the wa that he didn't agree to so he's been given all the relief he was due so i don't i think that addressed what the courts concern was about that point yes ok thank you for make sure i understood it yeah it's limited it's just limited to what defense counsel but did they ever suggest that there was something they wanted to present no no and in fact that the evidentiary hearing then defense counsel sort of recognized that the reason they wanted to proffer in fact of and his father who were pushing for the proffer looks well recognize the evidence of guilt especially once his computer was searched it was just there was there was no defense there but the normal defense in a hacker case is i'm not the person behind the keyboard and that is the defense they raised you know they argued that there was evidence from which you could suggest that someone else was doing it that the government hadn't proven which they were and that's that they were allowed to argue the government that hadn't met its burden and they did they argued that the government had proven that mr slezak was behind the keyboard but there was really no way once you had his computer once you had all the passwords to all the carding sites that they would be able to get up and say with a straight face my client didn't do it which is really the only defense that was barred by that would have been barred by the proffer waiver or the court's ultimate ruling in forcing the counsel's ethical obligations so know that the defense is never identified any defense that they somehow were unable to present because of this ruling unless the court has questions with respect i want to respond to that contention that things weren't raised with respect to the finding of fact that i say has no support i agree that was not raised by anybody until me today but all that stuff is in the record including the it's there it makes it plain that it's clear air with respect to the argument that they did not raise failure to explain argument i don't agree with that and i refer you to page sixty one of the opening brief where  as lawyers for the court completely failed to mention let alone consider appellants precarious medical condition look that they didn't use the word explain but they said he didn't even get to considering he didn't even mention it and mention it he didn't talk so i think that was raised with respect to you asked a question judge paez about did the defense offer a specific sentencing recommendation he did not however at the very end of their presentation  defense counsel said you know mr slawson has already been locked up for three years now prior to sentencing and he's already suffered a lot he won't do it again and judge jones responded directly to that and he seemed to and he seemed to interpret it as  suggesting i give him just three years that would plainly not be enough and it would reward people that i think only have to go do three years of time in order to make these massive amounts of money so he didn't exactly suggest three years but he kind of quietly hinted at it which i would say would not be a reasonable sentence really for this when you ask about the size of the loss and the guidelines i do want to point out that that special application note for fraud cases says that anytime there's an unauthorized use of a credit card automatically the court shall treat that as a five hundred dollar minimum loss and that means in this case with two point something million stolen credit cards that when they multiply that by five hundred dollars they came up with a loss of one point two billion dollars which automatically added thirty levels just thirty levels being go which is i think one of the reasons probation said that these guidelines really don't make a lot of sense here there's a but the opening brief did a good job and i repeat of saying there's an awful lot of overlap here between sophistication use of a computer more than ten victims large loss yes once you were here involved with a computer hacking and stealing these kind of stolen numbers of credit cards all of those things are going to always be present and yet they contributed another two levels and another two levels and another two levels and another two levels  thank you both for an excellent argument and we're always happy when we sit in seattle because it has such great advocates here to thank you both and the  v case shall be submitted and as i mentioned at the outset judge gregersen will watch and listen to the arguments and participate in the panel decision but you'll get from us in due course thank you again we are