sir please the court my friend mr gray i'm kevin connor from the u s attorney's office in south dakota here on a rare mission for a government attorney and that's we're asking that this court agree with my office and with the solicitor general that this is one of those things but i'm sorry it's only rare since gone well and that's certainly the case and these were cases where we were here asking the court to agree with us that this is one of those cases that deserves to be reconsidered because of the end reasonably low sentence there are others whenever there's a murder there's a tragedy and certainly a murder of an innocent child is in a category all its  cloud pleaded guilty to nd degree murder here he admitted that his conduct amounted to federal nd degree murder when a court is required to craft a sentence in a case like this it's appropriate to undertake the very process that the district court did here to consider the defendant as an individual to set aside bias sees to consider the writing of circumstances and that sort of careful thoughtful approach is why my office is  very often before this court arguing for the reasonableness of the sentence imposed by this very district court often in cases involving sadly very similar tragedies but at times mistakes are made and clearers is the standard in that certain factor so i say abuse of discretion rightly or of judgment oh i'm sorry you're doing that part of it going this is one of those cases we are not here asking to change the law in any respect we're not asking for floodgates to be opened for the government to rush and every time we're dissatisfied with a sentence the briefing has raised questions in terms of whether mr red cloud was sufficiently different from other child abuse or murder defendants that passed before the same district court that the briefing asked whether certain factors were ignored or overemphasize whether the court read certain aspects of doctorates forensic report correctly all important details to consider but what i would ask the court to ask itself when assessing this case respectfully is that when mr red cloud was sentenced to forty eight months in prison for the murder of his child when he was sentenced to a sentence so low that he walked out of being up the custody just four and a half months after his sentencing is this the defendant in are these the circumstances that warrant the lowest federal murder sentence on record that's how you say a case involving a deeply troubled young woman who committed an act called neo now decide which is the expert testimony in that case indicated was a product of a lifetime of abuse and severe mental health condition i submit th defendant was not nearly as sympathetic as that defendant and that sentence was six years longer than the sentence in this case i did locate a case from the th circuit i submitted it in a last minute twenty eight j letter i apologize to the court that it was so late but i thought it was important to point out because it involved a similarly situated defendant she had a juvenile codefendant they gave she gave birth to a child he was eighteen at the time and they killed the child just after birth tragic case involving violence in a way this case did not he was found to be in the clinical term used by the court was borderline mentally retarded that places him in a different category than from that th circuit opinion that it was an act of desperation undertaken by a individual with diminished capacity about two years longer that sentence seventeen months again here the picture is much less sympathetic mr red cloud was found to have low average intelligence in a port in point his his i q was eighty five dollars in some ways he tested out higher than his completed grade level reading comprehension score over grade twelve he dropped out of school after the th grade with no indication this was an act of desperation as a child starving to death his father was more interested in abusing substances that's the elephant in the room but it is that the way the district court saw it that sort of either or either i take care of my child or i gauge in substance abuse you said abuse seemed a little more complicated than that that this was a case of collect and that there was tragedy spread all around when you're on it bill household in terms of who could have supported who wasn't supporting what assumptions he was making of how what it meant to have a child right and i'm just wondering about that by mary sort of decision making process that you presented i just didn't see that it's one of the findings from the district court and i don't want to reflect th binary decision making process it's a totality of circumstances and district courts are allowed to look at you know a variety of different factors what was ignored in this case was substance abuse that was utterly unmentioned by the district court  court compare this to very similar in terms of substance abuse there was treated by the court as an aggravating factor in that in terms of the same district courts discretion the court talked about how the use of substances led to the neglect of the children it's hard to view this picture and not imagined how it could not have led to this neglect of this child now in terms of the family red cloud were the true that were caring for these children and the others in the house were not involved in the child care only to the extent of changing occasional diaper and so forth so this is an individual who withdrawal symptoms at a young age of age twenty like tremors and things of that nature so that in terms of you know the factors that the sport is to look at there are relevant factors that should have received significant weight that's the st factor  alcohol and substance abuse virtually ignored that has been treated by this district court and other like cases and also of course by the sentencing guidelines as a factor that should not be a mitigating factor but an tested out of any five i think if the court looks at that or its report in detail what they're finding is a young man who tested low average on many of the different tasks higher than average on certain subjects what the finding the expert guide here if it can't be wrong for the district court to agree with the expert well and there was no objection to the expert report being used in this case but when you dive into those test reports what you have here is an individual with a language based learning disability that's what doctorates determined because reading comprehension at a high level but verbal processing at a lower level and he found that you know the disconnect between those seeming related test results is usually indicative of someone with a language based learning disability to contrast by the way with the juvenile codefendant there was a question about in the sentencing of why the sentences were so different course she was adjudicated as a juvenile delinquent she had an i q of fifty four no question that that's a cognitive level of cognitive disability i don't want to reserve some time for rebuttal unless there any questions i'll take my seat for the warning i thank the court for its recognition counsel i imagine that every federal sentencing must be a very difficult decision for a district judge and it probably only becomes all the more difficult under circumstances factors there's no reason to remain and for a different sentence and i think understanding of course that my primary duty here is to answer the court's questions but i think the spot to begin is where judge bike and let me begin with a question  y i just did some rough math here and it appears to me that the forty eight month sentence is seventy seven percent below the bottom of the advisory range the only there that been  bothered much discussion in the briefs about about percentage ranges and yet that was the basis for our decision in doubt of it which was an eighty percent below the bottom of the range so what percentage below the bottom of the range if you found this is what the supreme court and god limited us to looking at it said week we had all the right analysis but we we overcooked the the extent of the review and we can it is appropriate to require a greater explanation and stronger factors the further below the range you go but don't look to too much more closely than that so the greater the variance there better be a greater explanation of why there's such a great number on the sins that that was the holding so in and out of it was the court had all right factors but it failed to justify the extent of the variance it seems to me that's the issue befor us as the supreme court has limited our role in reviewing sentencing correct that strikes me as as where we are and so i'm i'm sort of starting what's what's the biggest downward you found so that i can go read that and see how it was don't have a good apples to apples oranges to oranges comparison for you on this particular case there's doubt afic which as i recall is the officer under color of authority who is striking an innocent individual this court said that that was alternately too far in this particular i guess we would have tom from the th circuit although on reported but the united states recently presented that case but this is not a case that involved wanton type of violence this was a case as the prosecutor at the trial level explained was a runaway negligence this is a father who with cognitive disabilities according to the district judge failed to provide for his child and so the court then focused on the fact that the guideline range in this particular case for nd degree murder that the statistical analysis behind that guideline was not helpful here because of the conduct and i'm using some different language in the district court but the conduct of mr red cloud that he admitted to would not be in the heartland or what we would ordinarily consider when thinking of nd degree murder which is why judge reich and found this to this kind of conduct to be more  a recklessness as opposed to some of the other extreme conduct that we're seeing in several of the other cases for example in the feather men case were judged by confound the parents and that i'm sorry that the caregivers reactively or people in the home are actively trying to hide food from the children there's a different type of conduct going on there than we have going on in this case now i realize that that's a different type of analysis in me giving you a what would the range of been had he pled to two very manslaughter without having a precise guideline calculation in front of me i think we're going to be the same fact think we're going to be probably closer to where judge by confound but i don't have that guideline calculation in front of me so which then turning back to the issue to judge by can abuse his discretion when he's going through and looking at these various factors i think the analysis is if we look at the case the way that judge bike and found it to be if we then turn our attention to what the prosecution or what the government's not looking for as aggravating factors this is not a case were judged by  confound or right found that the prosecution argued very vigorously that someone was drunk in the car of the entire two months that this child was alive and that's why someone passed away this is not a case where we're talking about alcoholism or being drunk has a direct impact on the crime for example someone who's had numerous duis than they were involved in a dui accident that hurt somebody in a case like that certainly would be more of an aggravating factor to look at the history of somebodies alcohol use but here if we're looking at the offense conduct even though it arguably could be an aggravating factor that someone has a history of alcohol abuse it's not the same type of conduct that would warrant issuing him or th sense in a case like this when viewed in the context of the entire case the same analysis also applies to mr brett clouds criminal background although he has no convictions in federal court or in state court he had a russian tribal court ye while he was at the jail as a court was going through i think it's a reasonable assumption for us to view that the court did not find those types of issues to be as relevant to this case because the former bad conduct is not similar in kind to failing to provide for a child being angry with the guard or spraying the spread another inmate is not the same type of conduct as we're dealing with here at sentencing and so therefore it's not going to be as relevant for determining an aggravating factor in a case like this so when the judge is weighing these out and he's viewing mr red cloud and his issues being which critical to determine why this crime occurred that's how i came about fashioning the satins so is it your view that the district court did consider substance abuse and alcohol abuse but just did it with the appropriate at the appropriate amount of weight or how would you respond to the to the argument that it did not consider it so cruelly the district court did consider it i mean not only did the district court mention that it prepared for sentencing on two separate occasion and spend hours reviewing the pre sentence report and other materials he also of course as you pointed out earlier made that a specific sentencing condition to address mr red cloud's alcohol and other addiction issues so clearly the court had those issues in mind when determining what the sentence should be so i think the only question is well that he abuses discretion by not weighing that factor heavily enough and my simple answer would be will given the offense conduct prior alcohol abuse is not going to be as relevant a factor it's not it's not an abuse of discretion to say that the other mitigating factors would outweigh this potential aggravating factor the other important thing that judge like and found in this case which may be different and disting my understanding from doctors this report and from what doc i'm sorry from what judge viken said from the stand is that in his experience his forty one years on the bench his understanding was is that families from our native american reservations historically or traditionally have been more of an extended family type unit mr red cloud this this right to me is reverse ethnic discrimination is that something is permissible for this records and sentencing reversed in the past you know their record that i can discriminate in sentencing because taking substance abuse for example there's so much alcohol abuse on the reservation that you rarely see a crime that where it isn't at least a minor factor now is is that is that permissible under our under the honor of our society's abuse of discrimination and the direct answer is of course it's not but that's not go then why is why are we talking about cultural differences between it's a reality the i guess you can't ignore it but but is it something that is properly an explicit it relevant sentencing factor and so like the answer to the question would be its use in this case was not as a factor in the traditional sense and which would be improper it's used in this case because judge b understand why the crime occurred part of mr red cloud's cultural background would be the extended family unit but in his particular case that's not something that he had d quote cultural differences unquote i don't believe he did home because the district court does begin the whole litany with cultural differences pointed out but dr what was he talking about so as i read that and my understanding is is that there's now been a breakdown in certain cultural areas so in mr red cloud case in the pre sentence report what occurred his father wasn't there for him i'm trying to talk about d cultural differences that's what i'm asking you didn't use the term cultural differences what's the district court talking about in dr urged report so my understanding is dr who the court knows very well in his reviewed numerous reports from is talking about in traditional code a culture you've got the extended family and that's something that mr red cloud did not receive he did not get that type of hesitate used in that setting no that nets in black and right and dr right thank you and that's what i believe that judge viken is going off of and of course he's not as he points as judge by can points out is not simply relying on what only doctor has stated he's also saying in my forty one years working in this area and even talks about his own culturally extended family so and getting back to judge locke is question what judge viken is doing is he's saying all right look you have a young man who doesn't have that traditional cultural extended family his father wasn't there his mother essentially wasn't there and it was a grandmother that came in the staff then and then later it was a sister that stepped in as more of that prattle role so when mr red cloud comes into it twenty one or twenty years of age becoming a father he doesn't have that traditional model he's now in a different type of environment which is very frequent on the reservation unfortunately where you don't have the traditional print of figures being present however there are other people in the home and saw the judge like and didn't use the word detrimental reliance he's looking at a household here we have other people that are helping to care for the child to some degree and so you've got this very as judge if i can describe that tragic fire and the family dynamic that mr red cloud has come up in and now he's here in this household and so does he have the best equipped background to be prepared to race this child no he does not is not a defense you know that's why mr redcloud pled guilty and that's why he's being sentenced and why he received a forty eight was to address the culpability of his actions and what judge like and was trying to do was to assess not only the factual basis in the situation but also mr redcloud specific characteristics so we could arrive at what our position simply stated is we might do something different on appeal there are certainly other cases but judge if i can use his discretion properly carefully review the record went through everything that was before him had the firsthand opportunity to see mr red cloud in person to determine that he found him to be sincere when he said that he accepted responsibility found that these factors i'm sorry that these facts were deviant from the other cases that he had worked on and in trying to fashion but just punishment for these aberrant circumstances he did not find the guidelines to be useful because these facts were different than what you would typically associate with nd degree murder and so he therefore went forward giving credibility dr suess report and fashion the best sentence that he thought was reasonable under the circumstances while accounting for what the prosecution is now pointing out as aggravating factors and so i think the court for its attention on behalf of mr red cloud and we would ask that the court affirmed judge if i can use of his discretion in this matter thank you thank you mr gray and the for adequate child care traditional culture methods are related to raising children have often been identified as being destroyed in american indian population but then he goes on to say and i believe this is the important point neither darwin nor his son's mother appear to have been exposed to these child care techniques for different reasons i believe that's important as i think what dr to say is that traditional childcare methinks methods have been destroyed in other words if they had been in place and this child had received the  care that traditional childcare methods in this culture would have provided we wouldn't be here today but they have been destroyed generally but nonetheless this defendant wasn't subjected to traditional childcare methods so it's sort of not had been destroyed and i think the implication is destroyed by other cultures now because they're not there he did not have those at his disposal and he was not able to rely on these least these traditions that would have otherwise provided him and his partner the support in your heart i think that's smart for way of trying to say what i was trying to say i mean i think what dr it's what agree with you that's not what judge viken took from that if you look at the sentencing transcript he took from that that because of mr red cloud's cultural influences he was somehow less culpable as a father caring for a child maybe we're all saying it a little in artfully but i feel like we're all saying the same thing i guess i didn't see that as a direct contradictory statement in relying on the report but maybe that's just a matter of thank  you and it was maybe and i think we know it's accusing anyone of being discriminatory here and judge alito can i would like to speak to your question about whether these factors can be considered at all and i would commend to the court the th those are relevant to determining a sentence and the sentencing commission says no right there's a policy statement on that directly five h one dollar but you know so what about the federal law so it's a sense a judge should be deprived of no information making the decision well is that statute in conflict with what the sentencing commission is s it's a difficult question because i'm often here of course saying that a sentencing judge can look at all aspects and i certainly believe that to be true that's what the statute says but this is a question about whether there are certain sort of off limits thanks i'll tell you the seven circuits reasoning which i think makes some sense one of the things they say is for instance if you consider a defendant's cultural heritage for crimes like especially like this one that involve a family member victim an entire class of victims of the protection of federal law right what does that mean for children growing up in the pine ridge indian reservation like this child here it means that if we consider the cultural devastation in the factors like poverty and so