questions from the court about obviously my particular case and sentencing as well the strength of the federal judiciary comes from credibility and public the public perception of fairness greatly effects the judiciary is credibility on page ninety two dollars of the joint appendix the district court said either the dogs have to be eliminated from the world where the people who fight the dogs or bo this was just one of the many comments in this case where the district court demonstrated and clearly showed it should have recused itself from hearing these cases pursuant to twenty eight dollars u s code section four  and unequivocal antagonism toward anyone charged with dogfighting and the record if looked at in the totality shows that this court clearly should have stepped aside from hearing these cases if it was clear to it so clear to you why wasn't there an objection to the commons well your honor st of all i'd like to say about three things about that st the judge has a suicide buntay duty to recuse itself well i don't know your honor it's the record shows none of the counsel below objected so i'll concede that nobody did object and no one moved for recusal but you know i don't want to beat that but you question why did you get it was that bad of a situation again your honor i wasn't counsel down below so yet so i don't know you know we get we do get a lot of special fellow lawyers come up here oh we it's depends if it does displays a clear inability to render fair judgment but if i could i wanted a definitely one answer judge he has this question st again the judge has a suicide buntay duty himself to do this nd the judge effectively raised and denied that motion to a sponsor on the record on page one hundred and seventy in the joint appendix the judge asked andrews trial counsel do you want me to step aside during his st real eleven hearing and counsel said no i'm not asking you to recuse yourself but then the judge in that same hearing sensually later said well i'll decide whether or not to send this to someone else or to hear the case later so  that little bit unfair that was in the context of a botched plea colloquy where the defendant that particular defendant declined to admit guilt to the drug count and so that caused some consternation on the part of judge boyle as to whether or not he should remain on the case that's an entirely different context than the question of whether or not these comments that you have described as or if they can i'll grant you they are a bit and judicious but the question is whether on plain error collectively the comments in light of the ultimate sentence that the defendants received and the detailed orders the judge entered explaining his sentences whether or not we should as a matter of plain er related motion to recuse the judge well i think it was structural or your honor and i think that no matter how this court rules that if you look at the plant the plain error doctrine that it applies in this case and this saying it's structural or your honor because well st of all there's a supreme court case rose versus clarke in which they found that a biased judge amounts to structural error and that's not subject to harmless error analysis the as this court well knows i mean you know the four prongs better than anybody who comes in appears before you but we did have air it was clear and obvious and it did affect the substantial rights of all of  these defend defendants while they were being sentenced the error did seriously affect the fairness integrity and importantly the public perception of these judicial proceedings what is said in federal district courts is important the public comes to see that the courts do in in federal courts and so the public perception of what the the court is doing is important and i think that if you look at the comments that this court made throughout that the many interruptions the fact that the court completely contradicted the evidence and spoke in the court's own words of folklore that didn't apply to this case demonstrate that this court harbored a very very deep antagonism in dogfighting cases and to all dogfighting defendants so i'm going to ask this court if you do decide that it's not structural error and merits reversal that you do find that the plane error doctrine should apply and sentencing hearing and we think that this court should definitely sign it directed to be assigned to a different judge there was another quote that i think helps to support our position here the court when the prosecutor the prosecutor was trying to also preserve the record and i thought did a fairly good job of trying to  and i'm paraphrasing he didn't say pit bulls at that he said this breed i think the breed needs to be reduced or eliminated and then as to sort of ties into the other question that judge diaz asked about why didn't anybody move for recusal and again i i can't speak for the counsel below but at one point and page nine hundred and eight of the joint appendix mr richardson's counsel made his argument and specifically asked the court all we ask is that you punish fairly to which the court immediately replied well i'll consider more than a five year sentence based upon his presentation and in fact he did he he fulfilled that and gave mr richardson three years higher than what the government had asked for on that one there were other comments interruptions that further showed the likelihood of judicial bias too high to be constitutionally tolerable despite either contradictory evidence or a lack of facts from this record the court repeatedly mentioned that what it referred to as folklore court say well we know the children have been mauled by pit bulls that was after officer keller the case agent in this case testified these dogs were not aggressive toward when the judge said we know the children have been mauled by pit bulls that was right after officer keller had finished testifying and responded to a question from the government counsel and said these dogs were not aggressive toward humans then the judge went on to more folklore well when some guys walking down main street with a pit bull on a leash your suspicions automatically get engaged that was a page a twenty six of the joint appendix and of course it was clear from the record and officer keller mentioned these none of these defendants actually walk down main street or put these dogs in any proximity to other people in fact he said they don't want them to to even bite the referee in the in the ring because then they would you know you lose your dog loses the fight and once again the court at eight page eight hundred and forty two said sometimes we read in the press that a child wandered into the access of a pit bull and was killed whether that's true or not is is not the point the point is that these are just more manifestations of comments and interruptions by the court throughout this hearing that demonstrate that the court could not be unbiased in this case accorded page eight  dogfighting is a manifestation and i'm again i'm paraphrasing of mental illness one who does this has something wrong with you and then interrupted the government counsel's next sentence kids who torture dogs and cats when they're ten years old have a problem when they grow up and we see them in the criminal justice system the totality of the record shows that this court should remand for a new sentencing hearing it doesn't matter as this court well knows from the case law that if it doesn't matter if the judge was that's true your honor and you know sometimes bad facts test a court's judicious mind but that doesn't mean that these imperfect appellants should not be got forty five months in this case now we could argue that there was no reason that the judge might have to consider going up the on the guideline range and the guy line itself recognizes that are you know at least two situations where that might be appropriate one of which involves extraordinary cruelty beyond the violence inherent and there's really no evidence in this case that that applied here and they talk about that being killing an animal torturing an animal that sort of thing all the violence in this case is basically inherent to the idea the nd thing the guy wasn't you know was it wasn't a dog actually shot and killed after one of the but that's typical of the dog fighting case with the guy in line in terms of an opera departures talking about his exceptional cruelty that prolongs the suffering i think and i don't want to talk about that in detail but there is what was a lot of information in this case about these individuals being involved in dogfighting for a long time and that sort of thing and if you look at that the way the court's case and you know the supreme court both ingall  chadwick's and thompson got an upward variance of eighteen months my client got twenty four months and chadwick got forty two months and if you read those orders you'll see that just talked about in each of those cases the three of the defendants were long time participants and dogfighting they all had port facilities or sponsoring flights handling things twenty to thirty pitfalls most of them were male nurse because of the was no no my client actually got the lowest sentence of anybody but if you look at the rationale that the judge used in his orders to explain why he might be justified giving extra time all three of those such cases are very very similar rationality and my point is if you did abuse scratch well if you look at those i don't think you can distinguish why thompson got eighteen months upward variance mark like a twenty four months and forty two that doesn't comply with the think requirements of the court that you have to give a reason and principle explanation and i think you can read those orders in the term and that there was a  reasonable differentiation between them there were reasons but i think it comes down to the great antipathy that the judge tore all of defendants and all who were involved in dogfighting once and that's why i skipped over all the may please the court i'm candid webb on behalf of wanting jeremy thompson the question for mr thompson on this appeal fundamentally is what was his sentence based on in our brief we've argued procedural and substantive  reasonable ness but it does run back to the single question is what is the specific basis for bearing upward in the specific basis for the selection of forty eight months confinement as your honor to raise this is what your route jail i believe that is the stronger of the two arguments and really is the core of the issue your honor mr thompson through agreement with the government agreed to a twenty four to thirty month sentencing range accepted responsibility almost immediately for his conduct except  had an enhanced role for his conduct which resulted in the very high sentencing range as compared to for example if the prior sentencing guidelines were applied in factors such as that and forty two of the joint appendix was that i was also sentenced dog fighting defendants and other cases in other years and my perspective from that experience is that in this particular case a sentence of forty eight months is take is appropriate what i see in the record as a whole in the body of the evidence that the that your honors have is that mr thompson was not individually considered the variance was not individually considered i do realize there are best evidence to have of what your client has done with your client with the supervisor or anything now your honor he was a trainer of the animals and the reason he agreed to the is hands role is if you look at the comments really you look at the record were not as as severe in the nd one it was they were interest st i believe there were it wasn't just straight out of the box he did hear some evidence but they were comments that were in sourced granted the evidence was significant and the government presented lots of evidence our issue is the fact that what i see happen to mr thompson is he kind of got lumped in with everybody as they're all like this i think the law requires an individualized explanation of the upper variance and individuals explanation i don't think the written order that followed that admittedly brief comment on the record at the sensing hearing suffices i do know your honor know there were some of there were some and as you pointed out a long time trainer conditioned response for of dogs he described the number of dogs found on his property their conditions etc i mean you might have wanted more but why isn't that enough where you're on i think that i'm looking at the entire set of facts and colored a little bit by having been there in person and i just think that the judge selected a sentence without really looking at mr thompson scenario me please a court set and i heard on behalf of mr chadwick in mr chadwick i had a twelve to eighteen month sentencing guideline range and he was sentenced to sixty months which is similar to a number of the basic rules violated procedural rules one there was no question of whether or not to defend it read the pre sentence report or in no findings actually meet at the hearing with respect to you know the factors  you know the findings came or an order later with respect to mr chadrick particularly this procedural error prejudiced him greatly because there was a specific fact in the present report that about the length of time he was training dogs that was eroni as the actual correct testimony came out during the hearing and the order used to vary him up so high was in large part based on that thirty five years or use that thirty five years of dogfighting wrong fact as  significant justification for his variance so d in this case mr chadwick at least has represented to me that he asked after a tree dug try to dig it out of him you know did you read the presents report what was that and so he really came into this well that's not repaired honestly that is not part of the record the only thing we have here is the sort of the judge's failure to inquire right and so how are we supposed to gauge that in the context of a lack of an objection well you're never going to have a in objection practically because if that objection is made then that a statement about his fighting dogs with thirty five years thirty five years versus training and raising dogs when did that come out it came out in the actual testimony of the case agent and i believe i had a cite for it but i guess what i'm asking is why wouldn't that have been the time to object because the testimony was true in the hearing but in the pre sentence report it was the false fact in the judge instead of using the actual testimony of the agent took the false fact directly from the percents report that the that the agent had rebut it in his actual testimony well is it is  inference that if you're raising and training dogs for thirty five years in the context of all that happened here that you don't find on that note the host back no your honor and he had he had raised not just but hit balls he'd raise all sorts of different breeds and had talked about having different breeds and he had been raising them not for these purposes until relatively recently and so there is a prejudice  there is language about it being articulate on appeal and that is showing that it's required and i contend we have articulated the prejudice on appeal and therefore we may place called i'm going widen house to represent aaron richardson mr richardson's appeal really comes down to a procedural reason unreasonable most argument that the district court failed to consider and explain why he was rejecting several non frivolous bases for having a sentence that didn't go on an upward departure this of cases that began with lighton but is most specifically articulated in united states versus blue it is very clear that their rule is if a defendant articulates or presents a non frivolous reason for a reduced sentence or to be considered when the court is making its decision about an up or departure the district court must acknowledge that raises on that basis and it's in sentencing analysis that did not happen here there were at least non frivolous or bases for a reduced sentence that he was going to work with his dad landscaping business it was evidence he had bought some equipment to do that its mother was going to provide six months of rant so he would be able to start that business and not have to incur the cost of four where those issues are presented to the district court and then the district court both at sentencing orally and then in its written order does not address those non frivolous raisins district court does have to acknowledge what the non frivolous reason is and as this court has see it in blue in the other cases if the dish or doesn't do that there's no way for this court on appellate review to determine  whether the sentence was was was justified based on everything that was presented to the district court is there need to be an express recitation of those non frivolous reasons or is it can we infer from the record that the judge heard the argument understood the argument but ultimately rejected it under blued dicked this court said in blue no you can't infer that that if it's in in fact it's the blue says it's not enough for the defendant to be able to articulate the reasons it's not enough for it to be in a sentencing memorandum it's not enough for the judge to hear it or read it the judge has to say he's considered it now of course the judge can reject it he can find it's not strong enough but he must articulate articulate that in his either in his oral sentencing or in the written order following the sentencing hearing otherwise this court doesn't know that it's followed and spring considered so i think good morning may please the court christine frets on behalf of the united states asking you to affirm the judgment of the district court d human eye is doing abhorrent and utterly without redeeming social value that was how dogfighting was described by the house committee and its one thousand nine hundred and seventy six report during which it was considering legislation to criminalize animal fighting ventures i would submit that some four decades later those descriptors are exactly the same in this case this judge was presented with compelling evidence of the crimes and of the dupr of the conduct of these defendants and held lengthy sentencing hearing steering which everybody was allowed to articulate their position make arguments at the end of those sentencing hearings the court arrived at individual eyes sentences that it tailored to each person and those sentences are legally and factually sound they should be affirmed and all respects i want to address st the argument that's common to all of these defendants which is that the district court should have seen a sponsor recused himself because of his aversion to dogfighting and i acknowledge that there are some comments there that as your honor judge he has said we're not judicious but when you look at the comments the timing of the comments all of the court comments throughout the entire thing in the context of this case i don't have opinions they can have strong opinions and i have to emphasize you know another one like i have seen the judges express strong feelings about the crimes and  do and i was clearly not no but i think that st of all we need to remember that we're at the sentencing phase of this trial and the court made these comments after it had heard extensive evidence and many of these comments the court was engaging in dialogue with the defendants and their attorney about their arguments was this regularly cruel versus excessively cruel so berger where you have where you have a judge who express when a judge when a motion for recusal is based upon dispositions that are developed by the court during the course of a proceeding or based on prior proceedings the defendant has to show that there was such a high degree of favoritism or an as to make fair judgment impossible impossible that is a high standard and that is the standard that has been set by the supreme court in light and then this court in billu in leventhal talks about how opinions formed durin current and prior proceedings almost never constitute a valid basis for partiality motion and i acknowledge that yes some of these comments were in articulate but when you look at the sentiment behind i don't think that the judge was necessarily focusing on something in concord or something controversial for example the idea that you can gain insight into a person's character into their value system into their ability to empathize by the way they treat other beings i don't think that's very controversial emanuel concept we can judge a man's heart by the way he treats by his treatment of animals he said it eloquently and judge boyle i admit did not but it's the same sentiment and when we're talking about how this crime has no place and civilized society i think quite frankly congress agreed with that back in one thousand nine hundred and seventy six when it enacted these laws it has strengthened these laws over time and it doesn't have a place in civil society and the courts comments focused on that the courts comments talked about how this is something that is malignant and needs to be eradicated from society dogfighting isn't an activity it's not like tennis or jogging it is something that is an attack on society and this particular crime is of such a nature that it's more warped more disturbing than others and a i don't think that that's a controversial notion the idea that we're going to judge a society based upon whether they're going to tolerate this type of inhumane conduct any person who was at that sentencing hearing and saw those videos and saw the exhibits that the court saw and i will say that throughout both of these sentencing hearings that was something of most concern to this judge that before any reviewing court he even says i invite scrutiny and i was history and it based upon that thank me i think that is absolutely something that this court could say and do and the record supports that before and i want you to answer that but let me back up a little bit to the question i asked mr gilbert with respect to the failure to object and he seemed to suggest that we don't get into this issue of prejudice or harm because this is somehow a structural error what's your response  that i disagree that this is a structural err i think that to the extent that now on appeal they're saying that this was so shocking that anybody any objective person who was there would've known that this judge could formed based upon things in trial the this court for example and below vs leventhal came up with three cases across the nation which you described as having singular and starting fact startling facts st you have  levon i'm sorry st you have burger which is the german americans their hearts are reeking with just loyalty the nd case dealt with a situation where from the outset from when these defendants were charged the court made clear that it intention was to recover the funds allegedly taken by the defendants and again that was from the beginning of the case before guilt had been established and then the other case that this court found was one where it was a contempt hearing and throughout the contempt hearing the court directed profanities repeatedly at defense counsel and plaintiff counsel and didn't allow them to respond to the contempt motion so i haven't come across a case where it wasn't apparent that that recusal was appropriate and i think it's tricky because what they're asking is they're saying that this judge should be recused from all dogfighting cases forever more because he feels strongly that dogfighting has no place in society you know and they talk about how there was evidence about the the court was very clear that there was no child mauled in this case that there was no walk to the neighborhood dog be i would hope that he would have opinions about individuals who have come before him they've admitted guilt they didn't object to the p s r so there was extensive briefing on the motions for upward departure variance with even more evidence than what was offered at sentencing hearing at that point in time when he came into the sentencing hearing he was familiar with these defendants conduct but he allowed us to put forward all the evidence and the court and there was ample cross examination and and i think what's interesting is the court did engage the parties for example there was conversation about whether or not the dogs were aggressive she humans when testifying the court asked are these dogs aggressive basically how does this work if the dogs are aggressive g m and how how does this happen and the witness said no they're not aggressive to their handlers because a dog that bites a referee is disqualified but when it's something that's the same size  or another dog it's a completely different story and then what the court says so it's more nuanced whether they're dangerous to humans he's engaging in the arguments that's exactly what you ask them to do and one of the other tests i guess of whether or not this is so extreme and i think the defendants have alluded to this is whether the judge's bias was just so he was so overwhelmed by the horrific nature of these attacks that he simply couldn't contemplate any mitigating factors that defendants presented and one of your counsel the white house in particular mentioned his client situation where there was some evidence of it a geisha and were suggestion for an alternative sentence that the judge simply never referenced that talked about how are we to consider that in the context of this recusal motion i i do think if they're slightly different questions i think that the court did take great care to have individualized portions of the sentencings and the court did engage the parties and then after the fact the court did very thorough written orders when you look at some of the arguments that were made and richardson's case essentially the court responded to the argument that this isn't that this is extraordinary extraordinarily cool for example i believe richardson argued that well the condition of his dogs were typical or this is typical behavior and i think the circuit instruction if certain case and hackmen is kind of informing because in that case the court said wherever the line between ordinary and extraordinary cruelty is these defendants have passed that and i think that that's basically where this judge came down and i think that some of these arguments that aaron richardson has made for example the argument that well i didn't train or fight the dogs mr richardson drove across the country with andrews to pick up four dogs from a renowned breeder to drive back paid anders paid twelve thousand dollars for him drove back those dogs were intended for fighting added to that in richardson and i'm like these other defendants we had multiple bases on which we were seeing above guideline sentences for example his very lengthy criminal history i believe only one of his thirty you i think that the yes i think that the court engaged i do think that to the extent that he is arguing about recidivism or trying to argue that his family support will decrease his likelihood of recidivism i think the court absolutely responded to the notion of recidivism it outwardly departed and varied because it didn't believe that a lesser sentence would effectively deter incapacitate the defendant so while the court didn't necessarily say i think that's wonderful that your family is here and that they're going to help set you up when you're when you're done i don't think that that's what a court needs to do you that might be logical and that might be better especially for me standing up here but the court needs to you need to be confident that the court considered the arguments that were probably form and made a judgment that is fair and reason and it was the basis of its own acts own decision maker but the question i asked earlier was in a vacuum without these comments on the front end by the judge whether we agree with them we're not perhaps that alternative reasons for not bearing upwards i think that if this court had stopped maxed all of these defendants i would not be standing here because i would say yes you know what those comments combined with what he did and the other things he said give us pause but that's not what the court did and throughout these different sentencing hearings for example in cook sentencing hearing the court said how i've sentenced your co defendants it's not dispositive of what i'm going to do for you i'm taking each person individually and similarly in the nd sentencing hearing when we have thompson the court says effectively that i sentenced all of your code if he was the last individual to the sentence i sentence all your i've heard a lot of this information i think that based on all of this with your circumstances forty eight months is appropriate so i think that to suggest that the court in such an extensive sentencing hearing just didn't bother to listen with to what was being presented i just don't think that's fair to judge boyle and the case law says that it needs to be clear that the court considered the arguments and h reason basis for its just making it doesn't say and actually really goes on to say that we acknowledge that the judge might have said more he might have added explicitly that he had heard and consider the evidence and argument the supreme court hasn't required the judges to go through and explicitly identify and respond to each point because in certain cases like this one where there is a lengthy sentencing hearing and it's clear that the judge is very familiar with all the evidence in front of it cont and the court's explanation make clear that it did engage in a thoughtful sentencing process and part of the reason for the explanation is to ensure that the public does have confidence that individualized sentences were arrived here and when you look at what the court said and what the court wrote after the fact those are absolutely individual ised i appreciate the argument as to the guideline range that there are certain considerations that are uniform throughout these defendants but quite frankly they were all involved in the same animal fighting conspiracy so that makes sense and the outward departure provision talks about the situation where there is dog fighting of an extraordinary scope or where there has been extreme cruelty shown and i think that the court focused on a number of different considerations as to why specifically he thought that this guideline range was the guideline was short sighted because it doesn't take into account a lot of things that doesn't distinguish between the number of dogs the duration of an individual's involvement in animal fighting the depth of the involvement was this and average or typical offender as defined the as p c a defines a typical offender as someone who attends animal fights occasionally and has one or two dogs or a few roosters whom he uses for fighting a few times a year that description applies to not one of these defendants not one these were individuals who devoted a significant amount of their time and effort into fighting animals they were actively involved in breeding and in some of them breeding managing bloodlines training sponsoring dogs you look at cook's facebook he's spreading the gospel of dogfighting he's encouraging people to stick with it he's talking about switching from leads to bungee he is in mash and this you look at chadwick he had  ceremonial break stick that was signed by harry hargrove the date was after harry hargrove had been released from custody what that says to me is that he's an individual who knew the dogfighting was illegal you knew you could get caught up in federal court you could do your time and he didn't care same with the other individuals on the subject of chadwick let's talk about this issue with respect to allegedly erroneous fact that he'd been fighting dogs were thirty five years st of all do you think that that was and correct as a factual matter if it was what's the effect of that on his situation i think that the testimony was clear he said that he had been involved in raising and training dogs for some thirty five years the context in which that statement was made he was in a yard surrounded by pit bulls who he was breeding and training to fight i think it's a fair in france that the suggestion is that he's been doing that for a while but let's say that that is incorrect and that he did get into animal fighting later that is actually something that was explored by his his attorney  examination and argued starting around page eight in the j and defense counsel acknowledges that he admitted to getting involved in dog fighting about seventeen years ago i to tell you i don't think it would've i think a defendant is hard pressed to show that a different outcome would have been reasonably probable in this case because you had been fighting dogs and brutalizing dogs for seventeen years as opposed to thirty five i think it's fair to say that you are still very deeply involved in this sport and the blood sport to the extent it is is called that so even giving  that ok so maybe he wasn't training fighting dogs for thirty five years he admitted to doing it for seventeen i don't think the judge boyle would have perceived that to  to have been a reason basis for any sort of a lesser sentence and the case that that is relied upon when discussing the rule thirty two dollars era think it's lockhart and in that case it's interesting  court did talk about you know it would be helpful to have a bright line rule where the judge asks but in that case they went on to say that even though there was an error in lockhart wouldn't it made a difference because they asked the question what error would each of challenge if expressively asked about the p s r here apparently whether he was engaged in dog fighting for thirty five years seventeen years and i just think that even if that was challenge even now they haven't really put forth anything to controvert the statement and i just don't think that in the context of this case there was any reasonable probability of a different result i also think that when you look at the facts and law that was a case where the p s r was mailed and it was returned undeliverable it was a very so there were questions about whether the p s r had been reviewed in a sentencing hearing like this these defense attorneys they were prepared defense counsel for a child rick did ask about well i did ask them to clarify that statement similarly an issue that richardson talks is where he was residing that again was something that was focused on in cross examination and similarly in terms of that being i'm sorry that's thompson not richardson thompson contest whether that was his residence in terms of making a difference i'd submit to the court that it absolutely wouldn't he acknowledged in his guilty plea and his plea papers that he was accountable and for those thirty two dogs whether he lived there or not it didn't matter and the evidence that he put forth he puts forth now to contravene him living there is remarkably weak it's a pre service as investigation report that references a sister who's not mentioned in his p s r and you also have the statements of the cooperating witnesses you have the aerial surveillance that put him in that dog yard and you have him bringing three of these dogs to fights and i believe in two of the cases with the dogs nancy and you know i think that he was in the ring with them i think that he was actually the handler so if we're looking at also does raise the rule thirty two dollars argument and i would point out that on eleven o six andrews attorney actually says we have no objections to the pre sentence report as prepared by the probation officer similarly and if i could back up with mr andrews were you go to guidelines he got the top of the guideline sentence and we submit that he has waived his right to appeal his sentence we did not move to dismiss because he did join in the common issue about recusal but in terms of the rule thirty two dollars alleged errors those are the three individuals who focus on that and i would point out the at least with thompson mr webb represented further on the actual argument and knowledge that with thompson he was the last person who was being sentenced in the courts commentary as to him wasn't very robust he did say that i've compared you and your conduct in relation to the other defendants i'd like you to look at that in the context of the fact that this there weren't mitigating arguments or there weren't really arguments advanced on his behalf during his individualized portion of the sentencing hearing they acknowledged the court's previous rulings on these motions for upward variance and they did not have anything further to add to that and so then the court and he said i think it's we understand your honour's decision and we have nothing further on the actual argument of the motion in that case we asked for sixty months in the court disagreed the court gave him forty eight  there are ample indicators that the court consider these individual e and arrived at what it thought was the appropriate sentence for each and it would be a little baffling to say that his explanation was lacking because i think he gave this case a lot of time and he it's not that many cases where you have written orders after the fact i think he wanted to impress upon everybody the defendants this court anybody who took a look at this case that he took his sentencing obligation seriously and he arrived individual sentencing  whatever that issue number one in the brief however one doesn't waive the right have a fundamentally fundamentally fair sentencing hearing judge when you asked in there are some cases another case similar to this that come from this court and the one that comes to mind is united states versus left see i may be mispronouncing it but it is cited in our brief and that's the one where the district court i think it was the same district court was reversed that in a trial setting where the judge continually made negative comments about the visa program and people who try to participate constantly raising again folklore about the visa program that was not grounded in fact as the that happened though in front of a jury as i recall yes or that was a jury draw different context slightly different but that's the case that came to mind about other outrageous comments in response to judge wins question you also  judge diaz asked about asked some questions of the government counsel about structural air and so i wanted to again point out to the court i believe that we did brief this between our brief and our rebuttal brief  but this i don't believe the supreme court has yet said whether structural error automatically satisfies the rd prong of the law no on plane air but this court has said it does and there's no specific need to show prejudice in the united states fluorescent that was where the court found that there had been a constructive amendment to an indictment in the united states versus david missing element but by analogy we believe that having a fundamentally of iran fifteen years of oh my client orally disagrees with that but that's not for the record that would put him in the range relative to a lot of other defendants and if if this is being used as a reason to single him out for quadruple your range over and above other defendants i think that's a very relevant fact and at least it goes into the total mix and  dispassionate judge looking at that may have come to a different outcome cumin all of the judge boils comments displayed an antagonism to the level of activism dispassionate judgment but passionate zeal for retribution to make a statement as a whole the process itself is structural error it affected and cause procedural errors and in my client's case resulted in a substantial vly and reasonable sentence and for those reasons i'd asked the court to grant relief we request thank you very much come down  reat counsel and join for today this honorable court stands adjourned until tomorrow morning god save the united states and this honorable