the next case united states versus santos perspective an amplification of what he had previously said to the when he's asked by the marshals escorting him you know you need to calm down that was done to say and then he made the nd comment seconds later the nd comment not reputation here is somebody who got excited in a particular situation and did something it may have been one thing or another but it was not anything more than says single instance and interpret that as a single episode and they look at temporal proximity how close is all the action together and is he talking about the same thing and here we submit it's clear that these are the in temporal proximity there within seconds of each other and he's talking about the same thing in fact he's responding to a question or our comment about his prior comment so anyway you slice it from our perspective that has to be considered a single episode  d there are multiple cases talking about time lapse and one of the cases an hour goes between when the st statement was made when the nd statement is made so there's no sensible way the say well if you say it twice that suddenly become more than a single instance i can just think if you say you know i'm going to hit you and then no really i mean i'm going to hit you in the fact that you say it twice doesn't turn one instance into tears there's evidence that this wasn't was acting as a person under control of the person ranting and raving that's not what it is deliberation is planning or doing something to try to carry out the threat and here in terms of planning we don't have any of the indicia that you end up seeing in the other cases that industry goes from maybe finding the address putting a postage stamp doing that kind of stuff and russell it's walking from alabama to georgia you have some conduct that will support planning and underwrite there are only half a defendant's course of conduct leading up to and following the time the threat was made is closely tied to the communication of the threat or if we made any effort to go ahead and carry it out here ironically i mean we kind of have the perfect model or hypothetical frankly or zamzam question as far as by the marshals and then he makes the comment for which he is convicted and then within seconds the amplifies that calm and so the notion that there's any evidence of deliberation or planning frankly i know we submit that there is none the government points to two prior statements he made to his mother and phone calls which basically indicated he didn't like his piano go f yourself or the piano and another comment along those lines we submit that the fact that he doesn't like is p o which is probably present in almost any threatening case where you don't like the person those kind of statements are not what deliberation is intended to be under the right right there i saw case i'm thinking of sanders sanders is the th circuit case where the gentleman went ahead and sent racist letters to certain ethnic groups clearly that person probably had all sorts of prior statements about his feelings viz a viz those ethnic groups but the courts are probably focused on did he have to go to the post office did he have to sit down did he have to take time to write these exciter i can't think of a lower archetype example of a single impuls of somebody having just gotten agitated that's deliberation in terms of remedy i don't want to briefly touch on remedy and the one a frustrating part about this from our perspective is that every additional day that passes is a day that it should be in jail without the four level here's my problem if we agree with you that this was a name single impulsive act then we would send it back to recess because it is possible r collective wisdom is much broader than mine obviously i mean i have seen some cases where if the panel unanimously feels consistent with where you may be inclined that this was incorrect rather than holding it up for the decision that would explain that to the world in the future there would be an immediate with instructions that a he should be released on appropriate conditions of release pending sentencing there should be a resentencing  and see a suggestion that well but if a re sentencing comes up with the same sentence and what happens then he gets put back in general that's a risk is willing to take it i know it's frustrating because he's within four or five enough to go on talking about the logistics of that i expect and i think the government will go and affirm that insofar as he's not yet released you know at at at thirty six months on a forty one month sentence i'm expecting that  court my name is mark silverman i represent the government in this field starting with one particular question that came up at the end of the anticipated bureau of prisons release date for mr santos's may th two thousand and twenty as counsel indicated there may have been some behavioral problems when i checked with the bureau of prisons yesterday there were three disciplinary tickets issued two for drug offenses in one for an assault so to judge calibrate these point earlier if you were inclined to agree that there was a single impulsive act how that would actually work in practice i think there's actually a risk that were this to go back to judge thompson he may not apply to reach sentencing considering all of the circumstances  stood before him he may think a longer sentence is appropriate now i don't obviously i don't know that but there is a rebel but they're saying that they're mad they're willing to take the druid's so short that would be the rest so let me then response would be twenty one to twenty seven yes sure he could he could that's toxic would take into account conduct in prison absolutely so he may decide that an ongoing line sentence is now warranted and go upward either by departure variance from that twenty to twenty seven month range i'm sorry he make that absolutely absolutely and if the defendant is inclined to take that risk then i should turn to the merits of the sentencing challenge i understand from judge calibrate these representations earlier he tends to think this is a single impulse but i wanted to respond to some he was saying i'm implying and i understood understood your honor counsel suggested that he can think of a better of example of something that would be a single impulse and i wanted to try and meet that challenge so if the probation officer toper had given his position the probation offices position at the violation hearing just as transpired and said we don't think that mr santos is ready to take advantage at this time of substance abuse treatment we think he ought to be remanded if mr santos had at that moment and for the st time ever had a negative interaction and said hey torpor toper i thought you were supposed to have my back i'm coming for already unhappy with the probation officer what evidence is there that he would have done anything until he gets to court and ordered who is famous for being sensitive to drug people he's set up with drug special drug courts to his surprise says no you're going to jail and at that individually so it may be that the court decides our situation is close enough to that scenario and that there was some procedural error here i understand that i guess one thing i would say is you mentioned judge calibrate the surprise but judge arter had warned mr santos on august th when she saw him for a compliance hearing that if you failed to enroll in and successfully complete an inpatient detoxification program she was going to sentence him to six months  so the repetitive act really has to do with the meet our maker statement in court as he's being scored out of the courtroom after judge arterton has left the bench he makes his comment along the lines of i'm coming for you to the probation officer he's scored it out of the court room down the hallway down another hallway to the elevator the marshals are making efforts to talk with him and then he says you know we've all got to meet our maker whether it's by me or someone else it may be that you decide that's all part of one episode alibi well so the record isn't entirely clear on this issue and for the court were to remain and i think judge thompson would have an opportunity to revisit his factual finding that the defendant had evidence of planning or some effort to carry out the threat i mean the following day the only thing he ever did about the threat is the call of mother in africa policy i don't think there's any evidence that he tried to execute the threat that he tried to carry it out in terms of planning though and whether the knee jerk reaction i conversation mr santos says just give me the six months and go f yourself and then in two recorded calls with his mother following that he repeats that bill garrity uses the full vulgarity and he says i told my p o to go f him self and i'm going to fight mothe til i die clearly he's very unhappy with the probation officer and he knows he might be getting the six month sentence when he shows up on august st started to and has already warned him of that that is planning in any s or is that just a statement of a general background of somebody who is obviously this is a very troubled kid probably person but how is that what is is th ere or is it to deal with people who have planned something or is it there are people who have been on happy for some i understand your question and emotional need jerk reactions when there's no planning ahead of time then when there's no attempt to execute a repeat the threat afterwards are the sort of instances that this reduction is meant for in this court decides that the circumstances here are close enough to that that it should bind a procedural error and it should re r i guess what i'm proposing to the court is that there's really two things that this thing which are circumstances here from what i would view is a protocol threatening statement that falls under the auspices of this reduction the st is the context santos has his outburst in fact during that period of time as judge thompson found mr santos is still well under control he's making do wants arguments with the judge as he sees that things aren't going his way he starts to get more agitated in the dialogue he engages in one he's still talking about the fact that this time he's not high as a kite he's been in custody for seven days you know be able to take advantage of another detox program the way he hasn't been able to on seven previous occasions so he's still making his pitch and he's making it in a way that's not just emotional it's not just impulsive he still making an argument doesn't that just mean that when he exploded he exploded and that's and that's an explosive episode and it lasted possibly two minutes well that was me walking to the the elevator that could be your honor that's certainly one way of looking at it but another way of thinking about it is have described it somebody who is being logical is arguing is unhappy and so on that is all ultimately i mean you almost made the argument for him b was under control that's galbraith the i guess what i would say is it's always difficult for the government to put on evidence of exactly what's in someone's head but here is difficult for judges absolutely but judge thompson in his role as fact finder looked at the same record and drew a factual finding it may be one that you have drawn yourself if you were serving in that role but this is a clear error standard so if it's a reasonable interpretation of the facts it's not clearly erroneous if someone could rationally find that that's what happened  because he's lot of the read pleasant person and then in that class and then one day he calls on you and you say something and the teacher said mr scherer very money couldn't be longer and at that point you explode and say simply yes your honor i understand the point that all of you have made and i think if you disagree which is thompson's factual finding the appropriate remedy would be to decide there was a procedural error in to remand for re sentencing obviously i would disagree that mr santo should be released i think there's a protocol in place for how that proceed under statute but you could direct judge thompson to proceed expeditiously with that re sentencing and what doing i don't know that there is one that would prohibit you but there would be findings that would have to be made with respect to whether he posed a risk of flight or a danger to the community or others given under the bill reform act given the circumstances here about a threat that officer toper took seriously i would think that a judge would have to make careful findings about the danger he might pose to others now i guess just quickly and i see that i've run over my time already i understand that the court may be open to remaining for resenting if i could just say briefly that the government if there were any questions of the specter the sufficiency challenge or the evidentiary challenge i'm happy to meet them otherwise i'm happy to rest on the papers and would ask this court to affirm the judgment thank you will hear the robot was deliberate and repetitive as the nd circuit your honour's have addressed when a question as a mix question of law and fact if it is primarily a legal question then we're going to use a do noble review a here the notion that these facts are kind of in any way shape or form disputed they're not we know what he said we know he wanted elevator we know what he said then i'm not disputing any of the judge's findings with the judge found that he wasn't ranting and raving and that he repeated it and so so that fact pattern exists it's a question of law whether that fits within the guidelines or doesn't fit within the guidelines and trying to continually characterize it characterized as a finding of fact frankly fundamentally disagree on that it's an application and interpretation of a guideline case  passage of time the passage of time in other words the government started with well told or had testified earlier and so there was a passage of time but that's just pure speculation as to what's going on in his mind sentencing argument except that it was a true threat but trying to fill the right there or saw notion of planning into a passage of time between a reason why he would be angry and then doing something would erase any definition of planning and finally because dutch and you started with this in terms of multiple threats the freeman case st circuit talked about a single instance connotes temporal relationship and single purpose or scheme these are both directed or they happen very close together and i think more fundamentally and more fairly his nd comment was in response to somebody saying what you just said was dumb and then he responds that i can't that's a