to st begin by recognizing that this is a case that is really a tale of two countries and this morning on the pleasure of introducing you to the consular officials from the republic of germany that are here to observe because tony sparks is a citizen of two countries and his story is told in two parts to begin with he was born and raised in germany and the record is replete with the problems that he had growing up with a mother who was to put a kindly of our fly someone who left him at home alone someone who allowed him to be sexually abused someone who caused a lot of problems but it is wisdom germany through its essential equipment of c p s stepped in and through was an exceptional young boy he came to a place where he was loved his st and nd grade teachers testified on his behalf as to what he was like as a child to think about that for a moment here you have somebody who's in the united states who was convicted of the crime of carjacking resulting in death and yet when provide when tony was very heartlessly taken from this children's home by his mother for a year and basically left to flounder in germany and then when his mother's new husband and admitted gang banger took them to fort hood where tony wound up in a world of gangs it's very important to recognize that all the people that we deal with are human beings and needed to be treated with dignity in this process but how is this apartment to your legal argument about whether miller's ban has that whatever the court does is just fine and we are here to argue that miller is not we're not arguing for an extension of miller we are arguing that the logical implication of miller is that there is a structure because what has happened here is miller took life without parole away in everything but the rarest of circumstance yes but mr sparks didn't get a sentence of life he did not write so he got thirty five years in the district court wrote a twenty six page opinion explaining it's consideration of all of the factors the youth and i take it from your brief that you can see that he properly considered the youth and immaturity of mr sparks at the time of the carjacking isn't that right yes and the district court also considered the two thousand and four prison riot the two thousand and six stabbing the two thousand and seven stabbing in the two thousand and eight the tempted murder that mr sparks had while he was incarcerated before miller what's interesting is the court says its focus is you have to step in the shoes of effect at the time of the original sentencing hearing and that's the next sentence what he does but he also then goes on to consider some lower factors and the thing is that becomes slightly confused because very technical are here are you go to the simply sentencing guidelines there are two issues number one he did not get acceptance of responsibility and when you look at miller and you look at the miller factor about whether the juveniles inability to deal with police and objections at the time of the hearing none of that happened here did it i mean there was an initial objection filed to the p s r i'm not trying to get a rabbit trail there but there was the issue is this is so many record but i don't think that's probably appropriate i don't know what so i'm just saying that what how could we possibly find that there was error if the district court had every right to consider the r and there's nothing in the record that contradicts the p s r i think you have to look at the miller factors and what at that disprove issue and when you look at that discrete issue it deals and miller point of before which is where the juveniles inability to deal with police and prosecutors result in a greater sense and given the fact that it's clear that there wasn't conversation plea bargaining although there was sort of shoved aside because at that point all death could have been on the table a plea of a life was ripe and i think that's really the point you have to look at when you get to this particular point which is statement there were no other witnesses that were available to the defense and given that point your honor and given the almost two thousand and twenty years of time that have all la it makes it very difficult so you have to go back and look at the reports and then look at when you read those reports you see factual errors in the report as i was stating earlier the reports seem to indicate that mr sparks itself was adjacent when in fact it wasn't it was farther away and so if he's maybe if he's making noise there was no percipient witness other than one gentleman who testified or gave a statement that was never subject to any kind of cross examination unavailable at pre sentencing to be able to show him for example is there any information in the record that he was actually unavailable or that any efforts were made to find him or any of that sort of thing that's not the record i inappropriate because miller itself takes off life without parole but in those so those were the circumstances so once you get to a point when you say well this is not one of those rare circumstances then you have to have a structure and miller provides that structure because it provides an analysis that allows a court to essentially check close thing go down and look at those five factors are you is your argument a procedural one that the district court failed to consider the five factors appropriately or is it a substantive one that the district  weighed five factors so which one of the five because i've read this very lengthy opinion the judge will wrote and i don't see a missing one and i didn't see anything in your brief that said that he's missing one so which which factors do you think he's missing i think that what he's done i by putting himself in the shoes of the sentencing court at the time looking at this after a time of scent little something rather than from the day i think there's a rich tapestry of facts that were developed after the sentencing but he had a five day sentencing hearing and he talks about all of the things that happened after one thousand nine hundred and nine including the riot three stabbings attempted murders seascape all that stuff it's all in here so i'm trying to figure out which one of the five of the miller factors do you think is missing oh i think the judge misinterprets life without parole i think he actually recognizes that without well without parole the hope of parole you have no hope and here once mr sparks had the hope his life changed around and i think that he misinterprets some of the testimony from our own wit fabian which talks about how once he have pope once he was in a safe place you have to remember this was a seventeen year old child that went to adult prison that had to fight his way in order to gain respect of his elders and peers and it's no wonder that he had to fight where he had become someone's possession property and once he was at supermax he is one of those rare individuals that supermax worked and as you know recognized for the st seven years of his incarceration he was in court for but that changed after he was a supermax it change when he was able to study getting out of below guideline sentence is that right well yes he did and as yes or how much time is he of fifteen more years or how long believe it seventy years seventeen years ok thank you we have your argument and you save time for rebuttal thank you very much the court my name is mike hardy representing the united states there is no miller versus alabama air because the defendant received a less than life sentence that issue is completely moot what do we do about the fact that the th circuit has gone the other way and the supreme court has taken the case and the supreme court took the case do you think that there is any need to wait procedural error in the calculation of the guidelines the district court found that the defendant participated in an escape attempt prior to sentencing and made a three c one dollar enhanced me finding which is not clearly erroneous that leaves the question if there is no procedural error the question of substantive reasonable most i think fifteen minutes the twenty minute argument we're finally getting into the question of substance of reasonableness we don't believe that that issue has been adequately raised in the brief but if your honour's believe that it has been we were quests that the court review for preserved error and we make that request because the defendant did in a sealed pleading make a specific request for sentence that was less than the one that was imposed it was a two hundred dollars and the defense requested a sentence not in excess of two hundred and forty eight months that is in document five  taken the position that if the defense does make a specific request for a sentence less than the one ultimately imposed that that is sufficient for to preserve error for regular review by we should not review matter in this case that the all of the three thousand five hundred and fifty three factors were considered and carefully weighed there is a substantial body of law from this court to the effect that th given the fact that they got the wrong room number well i'm i'm not sure i'm prepared to concede that they got the wrong will number or whether that's even especially material if if it were nearby yes is the answer to your question in the government's view there were sufficient and issue of reliability and there are source documents available that were available to the involving an interview of two witnesses to the escape attempt one was the vic the victim the guard who was choked another was a fellow detain a and those two people provided detailed statements to the coin police department and those reports provide all sorts of indicia of responsibility in supporting the detailed pre sentence report the twenty eight team revised pre sentence report paragraphs sixty seven through seventy two recite the the factual detail that is involved in the attempted escape so yes is the answer and as your honor pointed out the defendant had an opportunity to to present some countervailing evidence had that no i wouldn't agree with your honor that this is that the district judge was saying he's not sitting like a parole board where there is an imposed sentence and the issue is whether the defendant should be released early this particular recent missing judge is dealing with no sentence at all the original sentence was vacated this judge is imposing a sentence so he's saying i'm starting from square eleven that's what he's original sentencing court in the sense that everything the case i was trying to think of was malvo versus vienna and it has to do with whether or not miller is announcing retroactivity which is what  the th circuit did give to it well that is but it also has to do with it may implicate its application beyond the scope of the life so is there any reason to wait on mal before we rule in this case i'm completely unfamiliar with that opinion i would i would be pleased to look it up in each submit a twenty eight dollars j if they so are inclined by next monday simultaneous twenty eight days just addressing whether a th circuit opinion in the circuit has any implication here but not it is not a brief this is a twenty eight day everybody got that the district court's finding that there was an acceptance of responsibility credit it's i think perhaps useful to consider that what the miller factors address is different to an and that possibility under miller there's a very strong presumption that a youthful offender does have that possibility but when you look at the a guideline sentencing the burden is on the defendant to show by clear evidence that he has sincerely accepted responsibility and that didn't happen here that is to say that the district court denied acceptance of responsibility credit a finding unchallenged on appeal and there's ample support for that where in that they district court did consider the defendant post original sentencing conduct counsel just to clarify we stand at liberty to either require the miller factors or not right and the circuit split is already there i'm not aware of a circuit split well that's between the th and yes there's a stop to tell you there's a circuit split on whether the miller applies to a discretionary since it's not life but so  but but we have not we weighed in an unpublished opinion so we could today decide that miller does apply for we were so inclined and believe that was the best reading of the the supreme court precedent does that in any way hinder your position in this case i don't think so although i would point out that there are in addition to the to the th circuit a less than a life sentence it says that it did matter here i don't believe way i don't believe that it does matter because the district court indicated in its opinion that it was considering and you were just talking about the substantive component of miller that is that the th amendment somehow imposes certain sentences syrups or prohibits the imposition of certain sentences so a sentence obviously of life would be prohibited by miller as the government previously took a position in this case and then there's a question about sentence less than life that miller interpret see them interpret it that's i understand to be a substantive rule that the supreme court has announced there's a different question that is implicated in the blue brief in this case which is the procedural component of miller that is that the district court needs to consider these five factors in addition to that three thousand five hundred and fifty three a factors in the federal sentencing case because obviously miller and malveaux in these other cases these are state cases dealing with the substance of the at the moment not federal sentencing cases like this a with respect to federal prisoners at federal sentencing i am not aware and i would again point out that even if this court were stretch well beyond miller's holding that the district court did that in this case it filtered youthfulness considerations into every aspect of its consideration of a contrast with due process in this case is there anything unfair about this and we understand we've got consulates and all kinds of people watching us today we've been informed is there anything unfair about this procedure or this outcome in this situation your honor were plying the laws of the united states of america there are two people who are dead in our view in part because the actions of tony sparks i don't believe there is unfairness we've had a repeat but by virtue of graham and miller there has been a recent in this case this defendant received as as judge oldham's pointed out five days of rehearing testimony there were twenty witnesses experts and lay witnesses there were statements of allocution from the defendant and family and friends of the victims there was more than eight hundred dollars transcript pages close to nine hundred dollars pages of exhibits in the case there were more than one hundred and eighty thousand thirty nine and that all call minutes in a twenty six page memorandum opinion if there is more process that this defendant should have received i don't know what it would be he received ample due process do you have anything further counsel if the court has no further questions we urge that they your honour's affirm the sentence in this case and we'll back the balance of our time thank you we have your argument counsel you so time for a bottle thank you what occurs to me in listening to the government's argument is that have to wait and expense simply does not equate to either due process or proper application of the law i will grant that the court gave us a phenomenal amount unprecedented amount of funding to go to germany to find the witnesses to tell the other side of that story and once you consider the other side of that story i think the court had a very hard time in equating the crime the person that was there in one thousand nine hundred and ninety nine with the child that had been raised with the person that exists now it is i will concede a tough call but at the end of the day the legal questions that you pointed out in are central to this case and i would agree that a decision should wait until such time as the supreme and i believe the supreme court will give us that answer in malveaux even though that was essentially a state case but it does go to the heart of mil