good morning your honor me please the court there are two particular issues i'd like to use my short time to talk about today that i'd like to develop a bit further the first issue is the question of disparity of sentencing which was discussed at the at the sentencing hearing the second has to do with the obstruction handsome under section three c one point one turned first of this very question is something that just as defense counsel we run into quite often during sentencing hearings and  what sentences are appropriate to look at in other cases to discuss disparities sensing and the third by fifty three what's interesting about this case is that trial counsel at sentencing commissioned a report that looked at its sentences for fraud cases under ought to be one one one in this circuit and particularly in the northern district of illinois and presented that to the district court in support of his arguments that have been identified in the forests identified whether or not destruction of justice and handsome have been applied and you know let me just interrupt you here and say you say he dismissed it out of hand the district judge certainly knew that this was an argument you were making he made the point which strikes me as a valid one that it was not clear why the sentences in these other cases were where they were where they because there was an obstruction and hance meant would did start out higher and go lower for some kind of minor participant there were just a lot of details and so he didn't find it all that useful in his consideration and you would certainly agree that the district judge has a lot of discretion in choosing a sentence he knew you were making a disparity argument but he just didn't find it compelling i will absolutely true that you are and the reason i want to talk about that this morning is that the problem here is as truck counsel mentioned during the sentencing arguments that kind of application of the sentencing guidelines and cells is a big step in the direction of national uniformity then all we need to big be sure of is that these guidelines were  correctly computed as far as codefendants to me i think we've moved to the point obviously a district judge can look at that if the judge is so inclined so so yes i realize the kind of  you thought he was looking for isn't there but it's not really necessary what's what's interesting about this particular case your honor as in this case the district judge did look at mr mercer it's worse or he was talking about the micro level as well as the macro level and by rejecting the report that was put out the district judge said look what i've got is about the micro level which is the co defendants in this case and also got the macro level which is the sentencing guidelines and that takes us to the more interesting question i put before you get there even if what you're saying is true that you don't have access to the grand you know level or you should be presenting that a trial counsel make any effort in the northern just tricked of eleanor lane or in the where the case took place to go want to see in the c f and look at the other fraud defendants who are attempting to compare to see if the obstruction of justice and hanssen had been given and those defendants because well maybe he couldn't do it nationally he or she is as a defense counsel at the trial level that's something that defense counsel here and defense counsel in general are trying to figure out as how to get the best information from the district court judge and the judge did say this was very interesting and very helpful for a very interesting to read but ultimately not helpful in determining whether or not it's what he should do about this and that's because he didn't have this particular debt that's not something that defense counsel could know prior to and this is an unusual certainly offense counsel in putting that together could have found that out for the northern district of illinois because the point among warranted disparities in thirty five fifty three is to make sure that you are comparing equals to equal and if you have somebody who of justice precious somebody who does not have that enhanced meant that's not equal to equal and that's a fair point and i think that's what the district judge was saying the question is what does defense counsel know going into this and what can defense counsel do to get that information out there  often times and sense in cases that is something that it's what the government science does is look at other cases in the district to identify what may or may not be available and the trick is with things like this where we've got multiple and hansen's and flavor point regarding the guidelines themselves and this is something that was brought up in the brief and for the court's awareness there was a case united states versus trial moose that came out last week that dealt with very similar issues so i just want to make the po products under to be one point one there is no real impure the evidence for those sentencing guidelines and that's the larger point so the question that i have here and the reason i want to talk  what does defense counsel do when we're talking about disparities what is the evidence that we need to show to bring this the district court's attention and the issue here is going back to the shots defense counsel simply didn't have access to that level of granularity the district court wanted he didn't but you know i just want to take this back to maybe the real world needed a lot of defense counsel are making arguments about the lack of heracles support for different parts of sentencing guidelines and thus far all the signals from the supreme court is well it's our fellow circuits are that if the sentencing commission has come up with some guidelines then then we then the district judges at least intitled to follow those guidelines now of course this judge goes way below the guidelines and so i'm not sure if it's a substantive unreasonableness point but that's a heavy lift for a sentence it's this far below the guidelines  range or whether there's a procedural flaw in the entire sentencing calculation system that you're trying to suggest that and i will agree it certainly heavy with drama and that's why this has been brought up and i think this is the problem for going to bed with this court's bucking about it but that's the the ultimate question is it moved the goalposts when we're talking about situations where the guidelines themselves artificially inflated the district court here certainly focused on i need to look at what the guidelines say and if the guidelines and  that's what he has to do that's the last to start there it there he can go under thirty five fifty three which of course is what he does today we're down to twenty was a pretty massive discount wasn't it was mean and that's down to twenty down to twenty one months i mean he clearly recognized the lesser culpability compared to hansen but but said the culpability it doesn't take it down to where you know a non custodial sentence is is warranted i certainly agree that you're  get i recognize the heavy lift on that because of the standard review but that also brings us back to the obstruction of justice issue and that that's ultimately what the trial court relied very heavily on altering the  in appropriately applied that guideline that he would have given the same sentence if you didn't take it out of your and that's that's the trouble here is because based on the findings of i find the guidelines going to accurately reflect this and even if i had found the guidelines wasn't properly applied i still would've given the same sentence the sense itself was driven by the obstruction issue and if there is no obstruction that creates significant logical problem here how would it be logical to under thirty five fifty three and when you're supposed to look at the history and characteristics of the individual and if the judge which the judge found here that the abstraction was part of the problem isn't that a thirty five fifty three a issue not a guideline a ship had t good morning and it may please the court the district court sentence imposed upon the defendant was both procedurally sound and substantively reasonable the sentence was about forty five percent of the low end of the guidelines defense counsel focuses his argument today on disparities that are somewhere between the micro and a macro level to the extent that he's arguing a procedural deficiency at sentencing that argument is without merit the district court did not as  dismiss this study out of hand he said what i understand this court to be saying that there are inherent flaws that are not comparing apples to apples or oranges to oranges by taking a nationwide study of fraud defendants that doesn't take into account the facts of those crimes whether there was obstruction whether there was acceptance the loss of malice and other kind of inherent limitations of looking at defend that's that that's at that level i just report also noted properly that according to that study a number of the defendants a large percentage of those defendants received a low guideline sentence says the district court noted that he thought that a guideline sentence wants to cry in this case in the context that discussion and indicated that that's something that he would take honor so it would have dropped her down to levels her or her guidelines range with obstruction was forty six to fifty seven two levels below i believe it was around thirty six sentence i do not agree that it was heavily heavily drove that sentence the district court made a very thorough record considering both aggravating and mitigating circumstances under thirty five fifty three a it appropriately considered that even though the defendant approached by the i rest about the money that her son owed as part of the scheme her enhanced and conspired together to continue to cover it up by stealing additional money she never accepted responsibility even throughout the you know the context of the much very much reasonable it was after sentencing that the judge in the docket in tree indicated that even if he had wrongly calculated the guidelines he would impose the same sentence he had not said that during the sentencing is that something the court can consider i do think that the court can consider it as a clarification you know the defense counsel focuses and especially in a reply brief on the order accompanying the bond pending appeal and that was after the notice of appeal transferred to this court the docket entry however was entered the same day as the sentencing you know in the event that it was inconsistent with the oral ruling at sentencing i think we have a different case but here all the district court did really is calculate the guidelines w these additional forward clients use of the minor and obstruction taken off to explain that the sentence would still be below the guidelines and would be justified by all thirty five fifty three a factors that were discussed at sentencing and so the government believes it is proper for this court to consider it as a clarification and for that reason even if there's an error here it obviously would be heartless and and i think you're saying this but it's a clearer clarification that's completely consistent with the weight or lack thereof that judge dow seemed to place on the obstruction when he went through the thirty five fifty three factors yes and i think i do believe he did go back through the obstruction in that context not only in deciding that hanssen itself but saying you know even if this is legally didn't apply here are the facts of this case and it warrants under forty five fifty three a you know the sentence that i'm posing and it's you know coupled with this idea that the coverup was was far more serious in the context of you know the disparity for comments and other arguments that were being made by the defendant something we could have addressed at sentencing the fact that it was added after the in a written statement after the docket or the after the sense was completed and then further elaborated on the response for the judge's order on the  from bonds that create significant problems for defense counsel these are things that could have been arrested and clarified at the sentencing hearing there were not which is largely why i bring them up here today if there are no furthe questions i will love all right thank you very much the case will be