brief that this is the united states attorney pointed out in their reply brief for their apple a brief ironic erroneous lee characterized the ten year one hundred twenty month sentences imposed as the statutory maximum for those then says clearly that is an error it's a twenty year statutory maximum now up having said that i think that that land support to my argument and other words the trial judge had adequate sentencing options available that would be sufficient to satisfy the purposes of thirty five fifty three a day without stacking these sentences in the manner that he did to result  forty five year sentence the government has argued that mr payton's counsel did not adequately preserve this issue i take exception to that when the judge was done  posed the pasta question to the attorneys mr payton's attorney did object to the upward variance and so i think that that issue was adequately preserve that were not operating under a player standard i just know there are cases that say if if if it amounts to more than a life sentence taking into consideration life expectancy  but that is ok as long as it isn't with imposed within the guidelines but this isn't outside of the guidelines case this is the guidelines in this case were two hundred ten two i believe two hundred sixty two months and what you ended up with was a five hundred forty month sentence and that equates to forty five years and i do cite actuarial statistics within my brief that this is stems to more than a life sentence and i'm not arguing this as a cruel or unusual punishment argument as that as the adequately fulfill the guidelines but or thirty five and you can talk about those options but here you had a situation where the court is looking at all of the thirty five of the factors the court is looking at the defendant's past history m clearly the judge determined that based on past conduct that this defendant that  he had continued to engage in this conduct immediately upon serving a sentence for the same type of conduct and so in that situation doesn't that sort of going to be against your argument guidelines talk about a total punishment and the judge can fashion a sentence appropriately to meet what he considers to be the total punishment but where is this five hundred forty months come from and where does he talk about that and why five he talks about why he's going to put him in prison and why he needs to be in prison but the five hundred forty months just seems to be a little bit over the top doesn't the judge say that under the facts of this case he does under the facts of this case given the city and its history that co ncurrent concurrent sentencing doesn't you know doesn't meet that objective and that it warrants and second half of the cost of that purely concurrent i would i would agree that there would be a legitimate issue with that but this is this isn't purely stack the five years on top of the conspiracy and then we get twenty five years now he's seventy one years old he's put mr peyton is pretty much asked if not past his life expectancy at that point that would have been sufficient washington does it that makes that question the you talked about inappropriate sense the total punishment and i think that the total punishment here goes beyond the thirty five fifty three a purpose give basically sending the guy or way to die and there's there's no hope of reintegration into society to use the resources in the prison system to further himself and perhaps you know he's seventy one years old probably doesn't have the energy to go out robbing banks but well he wasn't could it could explain the district judges i mean there's a lot of reasons to explain his sentence the problem you have is that the sentence gives your client no real future and that which factor in that that that minimum true what the situation that he offered to the district court his record  difficult for this court to say that the district court was outside its its why range of discretion here and i understand that this is an extremely difficult argument that i' not one which is weighted with of the already other then thirty five fifty three itself i know i'm going out on a limb here but i think that there should be some parameters when you talk about sentence sentencing someone to a very like the term imprisonment where you're vastly exceeding the guideline calculation which took into consideration everything and that the government's asking for three hundred and then you go to five hundred forty where it's it's factors and looking at the purposes of sentencing and you talk about punishment but there's rehabilitation that's also protecting you know the community and here the record shows that this particular defendant in addition to being you know undeterred by these other markets in the long sentences was preying on people who were particularly vulnerable people who are oftentimes drug addicted prostitutes he was getting other individuals and training them and supplying them m some look like serious drug conspiracies where there are actually homicides involved and pointed out your honor you only gave these people twenty years and so he kind of threw that out there but the court was there was no sentencing them filed by the defendant all these arguments were at the sentencing hearing nothing that would give the judge a preview of what was to come before they get in the courtroom but he did point that out and in spite of that and the judge acknowledged those per other sentences but in spite good morning your honors please the court docs also staying on behalf of united states from the judges question i think the court really gets what the sentence was all about but i first want to briefly touch on this whole argument about so you must admit there's a goose connect there somewhere your honor we asked for at least three hundred months that was our request it was an awkward variance based on the record of this case we agree with judge cook this was a remarkable record but he's going to be out there robbing banks after he received three hundred months after he's seventy five or eighty years old i mean we know as a matter of common sense that some point in life people do you stop robbing banks only agree that you're in the normal case your honor but with respect to mr payton there's no telling how old mr payton would be just have to stop committing these crimes even look at his record he is as judge donald said he's going to give him a hundred years more i mean you're just saying the district judge as we marry discretion can do whatever he wants to you can do whatever he wants to he has to tie it to thirty five fifty three a factors which he did in this case he explained exactly why the defendant with this record should have what would appear at first blush certainly certainly to be a harsh sentence but it was justified based on the fact that he did your honor what were criticized often for blindly relying on the guidelines and acting like robots but he said he listened to both sides at sentencing and he said ok i've heard both of you but what i'm going to do in this case is make an individualized sentence based on this particular defendant in this case and that is just what he did all we have to say this is my judgment  honor he saw not only all the bank tellers come up and testify how traumatic that was he saw as barta testify he saw in his flurry he heard from the agents you heard about his other cases including appearing on oprah after his first one i mean when he heard that recording your honor you could not listen to that recording and know for whatever reason he is never going to stop and it would matter go back to your original question about age he read  thirty years well he's preying upon the desperate your honor he doesn't need to have a romantic relationship with these women he's preying upon drug addicts and prostitutes who are desperate for money and he can the record supported the judge's conclusion all the thirty five fifty three a factors including deterrence including protecting the public i mean he had two prior sentences where if you were sentenced to ten years for each one effectively at the functional if they were so quick but they were after supervised he was committing these crimes right after he got out of prison essentially served eighteen out of the last twenty years in prison he was out for i think  sixteen months and we know during that time period he claimed he committed eleven robberies plan countless others and getting back to what facts were in that hate that tape he's not only planning these robberies your honor he's enjoying it he is telling them he is going he knows he's being followed by law enforcement it doesn't matter he's going to do it anyway they work eight hours a day he's got he says twenty four hours to get around the task force and he is just brazen enjoys it and the record established for whatever reason he's going to continue doing this he had a good job your honor the record reflected after two federal convictions he got a nice job downtown as a clerk making thirty one thousand dollars a year he's still preying upon these women this was two and a half months after he got out of jail prison for his second federal conviction i think the record adequately  honor is correct sometimes the past is a good indication the future which we do people do have the power to change people to have the power to become different from what they were i'm one that could have easily gone another way but i'm here because i was headed down the wrong path one point time the judge in this case said that this was the worst form of the offense that said what i believe  relate to this predatory activity this defendant preying on the desperate altering the life outcomes of other people through his actions isn't that what that referred to i didn't read it that  i can imagine no weapons being brandished inflicting more tear mascara the teller saw the note the teller had every right to feel as if she could be killed at any moment but she didn't disseminate that information to the other people in the bank were aware so it's really not the worst form of the offense and and so that is a statement that the trial judge made that supported the sentence and i just point that out because about it to account and here i want to go back to this creditor in nature this is the individual who is looking at individuals and the judge is looking at this wrecker this individual has reverted back to this conduct each and every step out of prison and have not just gone around himself and committed the robbery but he has actually created on these other individuals primarily women to go in and do his bidding that's what he's case he is engaged in this parasitic predatory behavior and the judge says the only way we're going to be able to stop this stuff ocular and the age of twenty