reserve two minutes for re please the court counsel my name is mark worksman i represent the appellant dr kwan is a forty seven year old dentist from korea who was sentenced to thirty six months in federal prison for interfering with a flight crew your honour's i submit that the sentence that was handed down to dr kwan was procedurally unsound and substantively unreasonable because simply put the district court went rogue the judge abandoned the sentencing guidelines she failed to follow the sentencing guidelines she failed to meaningfully or completely consider the sentencing guidelines any reference that the district court made to the sentencing guidelines four or five times during protracted series of sentencing hearing through quite a lot of hearings for five there were at least five substantive hearings in which this court considered the sentencing of dr kwan and each time if the judge mentioned the guidelines she did so as a form of lip service because she made it very clear from the very outset of this process that she viewed this as a twenty year statutory maximum case and that after some further consideration in her mind it was a ten year case and she thereupon proceeded to consider the thirty five fifty three a factors not as a way to analyze and come to a just sentence under the guidelines but as mitigating factors as to why she should go down from ten years to three years her sentence was completely untethered from any serious or meaningful consideration of the guidelines well there are there are references in there in all fairness i said i think regarding your baseline argument is that th district court stated that it had considered the sentencing guidelines applicable to this case and that the guidelines were a starting point in the initial benchmark that's used why aren't those statements coupled with the fact that the district court repeatedly referenced the guidelines throughout its five sensing hearings anough to satisfy the requirement that the district court use the guidelines as a baseline to keep the mind throughout the sentencing because your honor in the context of what happened in the context of the full transcript those references each time the judge mention the guidelines the government mentions them in her briefs their brief five or six times is lip service because in fact she said more times and she referenced t guidelines she made statements like the guidelines doesn't matter because i'm not sentencing within the guidelines she said we just went through the guidelines they don't apply because i've thrown out the sentencing guidelines she said i can sense the tenth amendment from zero to twenty years she basically said that she could do whatever she wanted and that's a quote she did say that i can send him to quote whatever i want to sentence him from zero to twenty years so i would ask your honour's to go beyond the lip service glancing references almost as a matter of course she had to say the guidelines but she didn't follow the guidelines she didn't consider them it vies or even she was untethered him let's assume just for purposes of argument because we you know i'm not representing the panel or even my south but let's assume for argument's sake that there were procedural difficulties do you agree that this case should be remanded to for the court then to go through all of that i mean i know at bottom line there was a situation there that the government and you recommended a certain sentence to the court and the court didn't follow that and i'm assuming you would concede that that no court has to do what that tourney's tell them absolutely so and there could be and stances and having been a prior trial judge there were and it's rare i mean usually if the parties to grade the court generally follow suit but there are instances where the court views as a circumstance differently and has the authority to do that correct absolutely so if this if we were to find there were some procedural errors some procedural errors is the proper remedy to remount it to the district court and not in this case your honor because the judge in the district court already made a finding that this is a level seven under the guidelines and by the way not only the government vociferously and repeatedly urged t in her glancing tribute to the guidelines did find the case to be a level seven that's one of the problems with this case what makes her sentence suddenly and reasonable you could send it back to her but she still bound by the finding she made which is that this is a level interfering with a flight crew that seems to be the only criminal offense that applied there was him smoking in the lavatory but that's not a criminal offense and attack one of the flight attendants or something well arguably he scuffled with a flight attendant but that's what the statues of  guidelines contemplate you under the guidelines contemplate in the run of the mill interfering with a flight crew case which usually involves someone getting drunk usually involves someone trying up a cigarette it usually involves somebody who is mentally unhinged all of which apply to my client in this case usually applies to someone who gets into a scuffle with an attendant they usually end up on the ground hog tied that all happened here and you don't seem involved grave danger two hundred people on an airplane but that's what the statue and the guidelines contemplate this case was was within the sweet spot of a level seven everyone agreed even the judge your honor there are simply no aggravating factors that this court considered which could reasonably be appl either raise the sentence under the guidelines or justify a completely non guideline sentence off the reservation at thirty six months and by the way you write is this is a good time for the court to consider the disparity issue because this came up in the sentencing the government was aggressively trying to implement the plea agreement which i will i will add in passing here the government's position today ought to be a stopped it's somewhat outrageous that the same government that was begging the district court to give this man thirty two days time served is here today arguing that this was a perfectly reasonable and lawful sentence but and it's cringe worthy that i would expect more from our government but your honor in the district court mutually and consistent they are your honor because the government in the lower court brought cases from district courts in hawaii where defendants in other interference with flight crew cases were given i think one guy got eleven days one guy got thirty or lawyers and  we're article three and you can take that position and add a point when the lawyers lose then you put on a different hat too and you look at what the what the court did and then you look at whether there it was to and seek to opportunistically take advantage of a ruling that favored them now when in the district court they were saying they would they argue to the judge you are going to create a problem because i just started spending more time and that you want to reserve reasonableness procedural formalities and all of which were followed so the government does not feel it's really a proponent here we really feel that our duty here was to to flush out the record more than was done right well let's let's go from that point at district court is to use the sentencing guidelines as a baseline right insurance sense and based on my review of the record i counted at least seven times where the district court stated that it was initially thinking about a sentence sentencing sang to ten years and it's that's she looked at it that's basically asking for probation you know i don't know how much more she can stay tethered to such a low amount she found this agree just she found the conduct you know reprehensible and she talked about the ho months and eight days is what we've got time served so the sentence was she said i believe it's thirty six months and somehow she credited eight months and then she literally lowered it she took the credit and chopped it out of the thirty six and if you read the written judgment it says twenty eight no i understand but in her mind she was given a sense of thirty six months minus the time for credits are correct i he's still going to occur from the time for i'm twenty five whether it's twenty eight or thirty six months what makes this case your recommendation is case was thirty two days right recommendation was and the court sent it over a thousand days roughly so how do we get to eight hundred nine hundred days seven hundred days from thirty to what how do we get there in this case i would concede it's not that different eighteen days thirty days but then you do have in the case law which was not brought forth at that level but the not harney case all the talk about that case is that case was tried here in the central district and in that case there was a plus a taint for recklessness and in that case the defendant never admitted guilt in fact he said i was saying clean america not kill americans that's a completely different case than this case i guess i would disagree i mean he when he lost the jimmy was he went to trial and he didn't prevail and he never someone who goes to trial right ok so i'm not sure you can really put those two cases they're not apples and apples here well the language used by thirty five fifty three is similar conduct with similar records it's not similar guideline ranges and i think if you look at the conduct it's the same i mean i've actually would say that this defendant's on it was worse but but did he get a plus eighteen for recklessness in this case or not whereas in the gone he did yes ok so i mean right off the top there are some pretty significant differences between the two cases no plea of no plea of guilty on one and reckless finding in this case plea of guilty no recklessness ok so those two are different what else besides negaunee you know much i mean again this is i appreciate the tough spot you're in but i'm trying to see is that if there's a way we can justify this to court did i'm trying to see how do we get from the the thirty days an experienced prosecutor recommended to twenty eight months and the only thing i saw was pointing a gun in the gun is a very different case so is there anything else besides negaunee you can point to no not not in the case of well let me ask you this if we vacated the sentence summary mandate for we sentence in just the government intend to seek the reckless endangerment unhandsome and under section two a five point two eight two i was not trial counsel and i don't know what would we we would be bound by if this were fermented but it would seem to apply i mean it does seem to be it could have been a plot it wasn't wasn't as soon as we want this case to be over with yes ok yes well that being said though is there if we feel that there were some procedural defect we don't then need to reach the substantive wellness counsel for the appellant seems to be arguing that we have the authority here to end it all you know that somehow that we can send some to credit for time served or we can order the court to that we should end it right here because if it goes back fat the district court's going to go back to its guideline findings already and embrace visit what you know this if this isn't just one sentencing case you know i'm concerned about what's our authority you know we generally vacate and raymond and then we leave that to the district court we tell the district court what you know what you have to do what mistake was made and then go forth and we don't tell well what if i'm just you know i'm looking at this from a perspective of the judge and i know that she i believe right said at looked at the other cases that you as that that both counsel cited to her as being well these are like that and i think part of what she said is but i don't have to look at everything exactly the same as someone else i can find something more of great just than someone else and as far as i know and  appeared in front of a lot of judges as well just don't do things exactly the same so it's a judge prevented from saying well i think this conduct is you know i find this sort of behavior worse and also to even saying something to the effect of well obviously it does you know it hasn't deterred other people from engaging in this kind of contact this is serious stuff is a judge prevented from viewing it differently than another church i don't think so i  definitely put a tremendous amount of weight on the nature and circumstances deterrence just punishment and that pushed the scale down and the other stuff just that is up a little bit but no i think that's within her profit and as recognized in the case that we cited th to said you know it doesn't have to be within the line of cases as long as the court is cognizant of the other thirty five thirty three factors which she did i mean she really went down the list at least two or three times what she found to be relevant under thirty five countless reasons to support her sentence and so i don't think we can say hey you know no one is different thirty three is the high she could possibly ever go and i don't think that's that's fair there's going to be another case where it can go higher so long as the court complies with the requirements of sentencing it seems to me all the court had to do here to avoid this problem was make clear that she had considered the guidelines and then explain why she didn't think a guideline sentence was appropriate and in spite of fact that there were five hearings it looks to me like she never did do that shouldn't an appellate court insist that the district judge you do it right even if we send it back and it comes back with the she said the offense level of seven has never been altered she said well to get to a level eighteen should have had to state in the record how many levels i'm going to you know she says you have not done that she says how do i get there i can't get there so she already considered her options under the guidelines and found that she was stuck at a level seven but that nevertheless she departed way up because she was thinking not in the guidelines she was thinking this is a ten year case under the statutes now you're on the disparity issue the issue is it has come up these cases where a level eighteen was applied there's something that distinguishes them distinctly from this case in each of the cases where there's been a level eighteen there's been somebody either setting fire in a laboratory or the pilot had to leave the cockpit or the private got involved in the fight or the pilot had to take the plane down early ok none of that had to be i what i would like you to quickly address in your last remaining time is give me your best legal argument about how this court can end this matter without katie in remanding this court should make a finding that the lower court abused her discretion and that she illegally failed to adhere to the guidelines but that she did make a finding of a level seven level seven was a urged by probation by the government by all parties and that this court should find that this is a level seven case and should be sentence with an a level seven which is zero to six months and this man has already now been in custody more or less for four hundred sixty one days after a three day trip to go i am thirty nine days of actual custody and then the rest in home detention he's more than served an adequate sentence in this case and i would ask this court to find that her sense was unreasonable it was procedurally unsound and that this should be a level seven zero six time s r thank you for your argument and let's see their my colleagues have additional questions for you thank you