probation and the defense agreed that that was significantly longer than necessary to achieve the sentencing goals the judge buried up to achieve the twenty fifteen illegal reentry crime of violence and handsome and sixteen level that didn't categorically qualify but that enhancement had been abandoned by the commission in two thousand and sixteen as reflecting flawed policy the district court committed procedural errors and the resulting sentence was subsequently upon reasonable where background my client was sentenced in june twenty seventeen eight months after the new guideline had come out in twenty sixteen the commission abandoned the sixteen level enhanced men because they put too much weight on a single serious prior conviction and they replaced it with a scheme put more weight on prior criminal immigration history and now other prior convictions are dealt with through sentence imposed enhancement enhancements the longest of which is a far the greatest of which is a ten level enhanced men which in this case recommended a twenty one to twenty seven month range this reflects the commission's most informed thinking about the best sentences for illegal re entry defendants to achieve the sentencing objectives in this change in approach is very pertinent to my client's  why it should be a little more precise are you saying the court should have used the later guideline well your honor given the way that the court used the twenty fifteen guideline yes she should have what's your best case for that because generally speaking if the guideline range is lower in a prior manual and then that's the one that's most beneficial to the to found and that's what that's what the district court started with well she calculated that range for the probation department did but that's not what she used as her benchmark and starting point she used as her benchmark and starting point the thirty three to forty one month range that was in the initial plea agreement that was based on the sixteen level enhanced meant and what most martinez and rest on say is that the district court has to use the correct benchmark and keep that in mind throughout the sentencing process but i think she used the correct benchmark she just applied it in a different way the work that ended up in the same same area because of the upper to just correct well your honor good but and then and then she says this is the guideline range i'm going to use so what's wrong with well your honor there are a few things wrong with what she did but let me to finish the point i'm making is that she never really used that as a benchmark way back in october twenty sixth team when she found out that it didn't categorically qualify she said from the get go i'm certain that's not enough i'm certain that you need to send it's close to forty one much guts on pages of the are forty six and fifty  make another words you know for the reasons expressed not to follow the guidelines oh your honor excuse a couple of responses to that the district court is required to take into account the policy rationale of the current guidelines under the sentencing statute and especially here even if it's harsher well why the current guidelines why the current guideline because that's the guideline in effect at the time of sentencing and the sentencing statute requires that to be taken  no no no and no you shouldn't just menow you apply the current guideline and just thomas said if there are more favorable to the defendant otherwise you have you have a double guidelines be or your honor you that what you're saying this is this is a different situation because of the way the destroyer from from what your honor it's the whole guideline that has to be taken into account to do consider which is more they're getting at i know we're peppering you with questions but this is a really important point and it seems to me that the sentencing judge has got it in ex post facto problem if he uses the newer tougher guidelines i'll grant you that typically we look at the day of sentencing that's the guideline that's one that's applied but she's using the one that's more lenient so what's the problem right there your honor the overall guideline was not more lenient if you look at the comment and the reason for amendment in the twenty fifteen guideline it says if the prior so this was not a categorical in the prior was not a categorical match right no but there were the facts were not objected to in the p s r they were supported so the district court said this is really a sixteen level enhancement even though technically it's not so but if you look at the entire guideline of the twenty sixteen manual and you look at the reason for amendment and you look at the commentary that guideline recommends only a twenty one to twenty seven month range and a ten month unhandsome it and actually if you look at  i understand that it is a matter of a substantive objection to the sentence but i just i just don't see a procedural error in using the guideline range that's more favorable to the defendant well your honor i mean that's the that's the basis from which you started now your argument is then she found her own way to get back to what the the to a higher level but stronger and it did it did result in a sub simply unreasonable sentence under the circumstances because she gave disproportionate weight to the sixteen level crime of violence she's not just talking about twenty fifteen guidelines she's saying this sixteen level enhancement should apply to you you should be considered it's consistent with other people that have that sixteen level enhancement but other defendants who are similarly situated and sentenced when my client was sentenced in june twenty six to twenty seventeen were not bees being subjected to that enhancement so what she actually did is she created disparities and i pointed in my brief on the in the reply brief on page fourteen that there was another individual who actually committed a serious sexual assault about the same time as my client's prior aggravated kidnapping which did not result in a sexual assault and he had a disparities that resulted in a substantive and reasonable sentence particularly given the fact that my client's history he was twenty years old at the time everything since then has been positive he has no criminal immigration i think she was upset at the at the  prior crime and you made the point that it was it was an old crime and he had changed that's the that was the argument that you heard as well yes your honor but also under the current thinking of the commission it is inappropriate to put so much weight on a single serious prior conviction and that was a very serious flaw of the old guideline that was not based on empirical study the new guideline is and it that rationale should have played a role in her sense of calculus if she was going be very up sure she's going to sentence him within eight to fourteen months the twenty fifteen range without the enhancement that's great but that's not what she did she disregarded that from the get go and she disregarded the commission's new thinking about may it please the court ceremony for the united states the district court acted well within its discretion when it applied the twenty fifteen guidelines the guidelines more favorable to the defendant and imposed a thirty three month sentence that included an defendant was sentenced under the twenty sixteen guidelines because the new version provided a higher political advisor guideline range version in place at the time of the offense there was no objection by either party at sentencing and the d she she started at the guideline range the advisory guideline range and consider that in addition to all the sentencing factors and her decisions and she just discusses at l several of these three five five three factors in addition in both the twenty fifteen and the twenty sixteen guidelines for illegal entry when considered as a whole as the guidelines require under one b one point eleven  of the manuals provide for an up or departure based on the seriousness of a prior offense so the sentencing guidelines themselves anticipate that well i guess their own inadequacy in the context offenses include a particularly wide range of conduct and it's not possible to include all of the relevant circumstances in the offense level would you disagree that the sentences imposed fail to is that if you look at her decision she goes on at length to list the reasons for the upward variance and one is that the defendant has in his own defense counsel's words a disturbing prior kidnapping offense i mean in context it seems as though the scribing it was a serious crime was the primary motivating factor for the district court would you agree you place great weight on it given the serious violence here but in addition what we have year is a season when you said she placed great weight on it it seems to me it's more than that right isn't it his only prior and he's had twenty years of pretty exemplary behavior since well the is there any other explanation for this that the district court judge stated that he hadn't showed that he had rebuilt it rehabilitated and indeed when looking at the p s r he arrived in this country in  hundred four and within four years he had been arrested for two separate violent crimes against women violated a protective order and of course he was arrested for this very serious  a it's a serious conviction i'll grant you that but but but there is there is this track record since then pretty startling so is there any other explanation for the sentence the  twenty year period well the defendant really didn't put on much evidence to show very many mitigating factors she didn't consider what he did put which were statements by counsel in the sentencing memorandum statements by counsel at the sentencing hearing in the defend had an opportunity to describe what he'd been doing for the past twenty years he didn't all he did was write a letter and have the translator read it to the judge and in that letter he merely mentioned his family and and how we came  evidence during the sentencing hearing the defendant neither confirmed nor denied it ok and but the immigration but the dischord judge didn't do consider these mitigating factors when she was weighing it against the adverse factors a served by the crime and that appears to be an untreated sex offender so she's she's interested and her her decision reflects that and she even states that she was considering the need to  a respect for the law and in fact she did consider these mitigating factors because she was inclined originally to perhaps go as high as supporting month sentence and and instead she felt as though based on the facts presented that term of thirty three months was was fair and appropriate and nowhere near the statutory maximum of ten years and and she acted well within her discretion because when the defender returned to this country in two thousand and sixteen he was forty years old he had been he had served a considerable sentence in the united states he had been deported and more and then he couldn't return again without a permission from immigration authorities and then if he did he would be prosecuted he was forty years old when he returned he should have known better so the court also considered that the that the defendant previous significant sentence may not have been enough to germ from coming to this country again and violating the law unless or any other questions tha your honor the district court simply did not consider or explain why twenty seven months was not enough to achieve the sentencing goals although the new guideline has a departure provision it's not based on the same rationale it says if a prior conviction like murder is too old to receive criminal history points then the district court may want to give an upward variance murder is the most serious to of crimes the sentencing commission was certainly thinking about serious crimes when it came up with a new guideline in the ten level enhanced mut that it deemed sufficient and she did not address why that was not enough he did present evidence of his activities in mexico some of the certificates were presented in the  memorandum of e r eighty one to ninety eight he presented additional documentation at the sentencing hearing itself i believe that's on our seven he did not return to this country for twelve years he didn't just keep coming back he did so because a very desperate situations with health issues with his family his crime when he was about forty years old was the nonviolent crime of illegal reentry and the prosecutor who represented the government senate seeing suggested that unsupervised probation would be enough given his evidence of rehabilitation the prosecutor at sentencing accepted that evidence and this was just an unreasonable