weapon and section motivated coersion are crimes of violence under guidelines section four b one point two because that was error and because the error was not harmless this court should remain free sentencing let's start with the sexually motivated coercion issue and i'll turn to the question of harmless which term in sexual motivation and it says the courts will answer its finding in the record and this court in the mast ok said that means that there is an on the record terminations by the court of what of whether something was sexually motivated or not so i'm wondering if you if you could tell me why you don't think it was harmless since the judge seems to have considered it both ways should be even make calculations both ways and then said here's mere statement without more that it would impose the same sentence regardless of the guidelines error is insufficient to get that it was more right well that i don't think there was your honor so the district court said if you look at pages your fifty five to fifty seven all the court says is oh by the way i think i should mention that i would give the same sentence regardless doesn't say why it doesn't say i think i would impose a same sentence because of mr young's prior offenses because of the facts of this case because of anything he just says i would impose the same guidelines range with one crime of violence is thirty six thirty seven to forty six months that's an eleven month variance which is a pretty large variance and there's nothing in the record to explain why the court thought a variance of that size was appropriate i grant you that the court did not in this same passage that you refer to on fifty six to fifty seven i suppose didn't give you know a specific explanation for the extent of the variance that would have to be contemplated but earlier in the proceeding i guess i thought the court went through a fairly lengthy real discussion wasn't it of your client's criminal history and why we assume that that's what the judge had in mind in terms of the reason for the port variance so that was not the courtyard i was the prosecutor the prosecutor did have a quite lengthy discussion of the facts of the prior convictions and the fact that he thought the senses that were imposed for those stay convictions were not sufficient and the district court said i you know i hear you i acknowledge what you're saying i get the argument but it never said i adopt that argument i find that persuasive it just said later on after time of path asked and said i would impose same sense if no indication it was adopting that particular argument as to post any other reason to vary up by such a large number of months so i don't think you can read you know the fact the government made an argument doesn't mean the district court adopted that argument and especially in this case where the government never raised the harmlessness issue i think it would be inappropriate to say so i just am confused by the statement you just made that it was the prosecutor so i thought reading the record that e r twenty four through twenty six on to seven is the judge talking it says the court and then it goes on and on about the history doesn't it unless there's a mistake in the transcript i think the judge i'm sorry but with pitchers starting at the r twenty four talks about two thousand wanted aged twenty he did this and then on and on and on the court is going through the the crimes that are listed in the p s r but the court doesn't say that's why i'm imposing this sentence never says that that's what i was saying i grant you that later when the court is saying either way i'd come out you know fifty seven or i thought five years was appropriate there's no explicit tying of the earlier discussion to that but why in the world i mean being fair to district judges why wouldn't we assume that probably what the court was going on and on about earlier in the proceeding that's exactly what motivated her to say that look i took a look at this whole thing and i think in five years is about appropriate if i got to do it from this guideline and get a low end or if i got to go a you know a lesser guideline that's what i think is appropriate why in the world would we not assume that it's probably because of what the judge had been talking about earlier well the district court goes through not just what it thought were these are serious offenses also talks about i remember correctly very minor things like traffic tickets and things like that and i believe it was happening as this court was just going through the p s r to show why the calculation of the guidelines was what it was here's where you know this offense is this many criminal history points in this fence is this money and cases where the court will sue a spontaneous harmlessness are unusual and extraordinary cases where it's beyond all reasonable debate the same thing would happen on remand and i don't think the court can say it's beyond all reasonable debate that the district court would do the same thing i i guess technical application of those those precedents because the judge i think laid out exactly what her thinking was as to why fifty seven months was appropriate regardless of where the guidelines left you are well and your honor i've read the cases i haven't gone back and looked at the doors in those cases i would imagine in those cases that this court also gave some indication of why it thought the sentence it was you know it went through the factors under thirty five fifty three it went through the p s r calculations which is what the court did here and nevertheless this court said that's not enough to make the mere fact that this court says i would do the same thing and think that that's you know complies with thirty five fifty three day is not by itself enough there has to be an explanation of the extent of the their aunts and the dischord never said  think a eleven month variance would be appropriate because this voluntary manslaughter conviction now involved the death of someone but ok but if if that sentence that single sentence that you just recited had appeared in the transcript at the point that you're referring to then you would agree that that's the end of the if the court said i'm i think you know given the prior sentences were so lenient in that they were serious offenses therefore even if the calculation were thirty seven to forty six i would do the same thing you know i don't think that that would necessarily not be harmless how can it make a difference though so i mean the judge says i would do the same thing so maybe the judge then didn't give the explanation but we should remain so the judge can give the explanation i mean is there actually any question that th as opposed to four and said even if i got the calculation wrong i would do the same thing regardless and that here the judge actually did the calculation i mean that did the calculation of both crimes don't count i'm still going to do the same thing it seems hard to believe even if you i mean you may win on one count not being not counting but this judge has said very clearly that the same thing would happen well you know i think it's and i think with this court's case law recognizes that it's very easy to say look at what you think is the correct guideline going to pick the low end of that which is fifty seven months and therefore i think that's appropriate it's very different in reality to have a guideline range of thirty seven to forty six and say ok that's the anchor that's the sort of starting point and i'm actually going to actually very upward from that i think there's a psychology there that the guidelines are a real gravitational pull on district court judges they you know this court does not presume that within guidelines sense is reasonable but in real life in district court the guidelines are where the sentence starts and  generally you know follow that unless they give a really good explanation for not doing so and so i think it's very easy to say in the abstract yes i would do the same thing because i just think that sounds appropriate versus actually having that range and saying ok i'm actually going to carry out by live in months and impose that sentence ok let's hear from the government give you a minute for a bottle both ways and so you tried to get something on the record that would help her and will barely look at this and said you know you just didn't do enough so we can't make this argument i'm trying to figure out what what went wrong there here and i think the only explanation i can give you which is what happened as an oversight on my part because when i looked at this and we started from the issue of was it twenty sixteen was a twenty fifteen was it expos facto they were the shifting positions in the district court and so i was focused primarily on i think that the court used the wrong guideline manual but if that's the case do we still win because the crimes count as predicates and so i was focused on that and then when i got to the substance of reasonableness argument i did go into talking about why it was not prejudice under the third plain area view and admittedly it would have been simple to just cross reference that same argument i made in the first question and i just have to admit this is a mistake on my part you acknowledge what your opponent said to me and i think our cases have set a very high bar for raising our most spontaneous i mean that's correct is there something extraordinary about this case because i think that is the standard that's got to be extraordinary case in this tree strikes me as a run of the mill case in that respect so do you think that there's something extraordinary about this case that should cause us to raise our most and if you look at what this court said about what that extraordinary bar is it's whether or not the remain would be certain to replicate the same result and so i think that's what the court bound by and so the court has to look at the record and say is there enough there in the district court's extensive analysis of the criminal history in the court's repeated analysis keeping both guidelines calculations in mind throughout the proceeding i believe  mentioned it two or three different times kind of the beginning middle and end and so if if the court looks at that keeping in mind the government's waiver but just looks at it in says our extraordinary case high bar is we feel that if we remain and we're starting to get the same result because of what this judge said then that's the answer so sort of setting aside any additional arguments i might make today because admittedly that point but just pointing to the fact that we did provide some context to the court in that plane or analysis about prejudice i believe that the same arguments would apply here at least sort of fighting this sort of is there anything to be done on remand question for the court and even though it was in that other section i think the comments that were highlighted earlier where the court did go extensively into the criminal history the court also asked the government if even if this actually motivated coersion was not a crime of violence could that be taken into consideration such that a higher sentence could be imposed even outside of the guidelines or specifically under thirty by thirty three a day and then imposing the ultimate sentence the court did say that she essentially paraphrase cited by fifty three harmless or contacts it was a case like this where the district court calculated the range and said i would do the same thing anyway but we reversed anyway i think if i'm remembering the correct case your honor i think the issue there was a lack of more robust comments how is this case different from that case the in a few ways so one because one of this course case law does say one factor that would prompt the court to affirm and not  district court keeps both kylie and ranges in mind throughout and so we have that i'll just provide you a couple of record cites she mentioned it at twenty four twenty five twenty eight and also fifty six she said either it the court in that case calculated it both ways too but you're saying in our case they calculate it both ways more times is that what you mean that well it is specifically because the the rule in the case law that says if you can do this or not even if you calculate it both ways at the beginning that's not enough the record has to demonstrate that the court was still keeping it in mind throughout because the idea being if you calculate it both ways at the beginning but then you go through this long proceeding you're hearing different arguments and you considering all these things there's nothing to say that you're really thinking about well it could have been twenty one or it could've been fifty seven all the way at the end and so the more comments you have from the district are keeping in mind throughout both there's this argument that there would be no difference on remand so i think the difference there was mentioning at the beginning is insufficient whereas mentioning it keeping in mind throughout would be an indication to this court that the district judge knew what it was doing in arriving at the specific sentence and choosing it based on this defendant his history what was going on here and not merely because something is a predicate under the guidelines or  necessarily any of the issues regarding whether it qualifies whether anything qualifies as a crime of violence or not and we were just a firm on that ground whereas if we were to reverse then we would normally reach first the question would have to reach the question of whether the search there was a  two crimes and that would at least provide guidance for other district courts who might have to confront that issue so i think there is a practical difference in its impact on other district courts in which route we take i don't know if you want to comment on that and i hesitate to even raise convenience for the just records grab the solution  share your honor i think i think it's kind of up to this court how it wants to decide for example of the court says there's no ninth circuit decision on about us actually motivated coercion and we need that however the court is saying at the end of the day it doesn't matter based on the district court's comments and harmless error even in the light of the government raising it but we have this standard that we are confident that the district court will do the same thing on remand because what she might do on remand then is exactly the same thing and it might be irrelevant whether those are crimes of violence or not because she might say yes they still both are however i'm going to make even more comments and make a finding that under either guideline and here's why and so on and so forth kind of bolstering the record on that and so you could provide sort of that advisory opinion but even if you just went on harmlessness i think you might end up with the same kind of reasoning from the district court just providing alternative bases for getting to this fifty seven months that she selected at the first sentencing hearing so i think it it depends on what the current city of i see i have about two minutes left would the court like me to address nevada in the section about the guidelines now assess in light of the comments that we made about the non prejudicial effect of those alternative findings that the court looked to its case law that says if you're certain that remained would come up with the same result that you would have from the district here thank you thank you let's give you a minute  i very brief briefly your honor i've had a chance to look back at the pages of your that you mentioned and as i read them the district court in that case is simply describing the facts of the prior convictions there is no commentary about how those are serious offenses and how the punishments were not serious enough and he should have received more time and therefore need a harsher punishment in this case it's entirely descriptive not normative and so i don't think that those passages support the idea that district court was basing its decision it's harmless error a decision on those crimes and in fact this record talks about things like jaywalking traffic tickets obstruction or contempt of court things that just could not have been the reason for a variance up to what the district court did so i don't think those passages support that but in addition i think th questioning respectfully is a perfect example of why this court is reluctant to sue a sponte retry messias the government never made this argument about how this passage shows the district court would have done the same thing regardless wasn't in its breath or wasn't its twenty eight day later that i filed last week this is the first time i've had a chance to look back at these passages carefully and consider them and part of the reason this court doesn't sue a spontaneous harmlessness is that it doesn't want that against to be sandbagged based on arguments that were never raised by the opposing party which is why we issued the order we did and why we have you here to address the issues or arguments related to harmless i agree it would be totally inappropriate for us not to have allowed you to respond but you you have been given the opportunity and now exactly what i'm saying that these passages on your twenty fourth or twenty eight or the or the evidence the court could use to show the error was not harmless you know the government never raise that so i was unaware that was you know the potential the basis for that argument and having look back to them i don't think they support that argument but if they'd been raised in the briefing i would have had a chance to lay it out much more carefully and advisedly and i think you know it just goes to show in general why this court doesn't do the government's work for it yes i agree with that certainly ok thank you very much the kids just argued will be submitted we will move to the next case on our calendar which is gardner versus chevron capital