good morning may please the court counsel upon a motion for reduction of a sentence pursuant to a federal rule of criminal procedure thirty five the district court judge reduced mr harrington sentence by thirty month this reduction amounts to a reduction of approximately fourteen percent of his sentence at the time the motion for it to production was heard this despite the government's motion for a reduction of twenty five percent and the defense request for thirty five percent in granting the limited reduction the district court violated the law mr mr carrington's case should be remanded to the district court the district court relied upon four factors in determining the reduction first the first factor was that the district court did not believe that the assistance was substantial in not believing that the as far to me that the assistance with substantial the district court relied upon the fact that the targets of the underlying investigation were acquitted now judge power you asked earlier and in an earlier argument if that wasn't a consideration of the judge why did the judge mention it in the government's reply the government suggests or response the government suggested that the district court in fact did not rely on the fact that that the that the targets were acquitted however in the transcript which is cited at at length in my substantial arising the second consideration was that the court was troubled by the fact that mr harrington had committed perjury during his own trial now this factor does not say that mr harrington apart from any or from other individuals who were granted rule thirty five reduction motions pursuant to their cooperation in this investigation in fact this consideration raises the question of disparate versus chapman this court left open the question of whether the court has jurisdiction to consider whether imposing a limited reduction under rule thirty five violates the law because it could result in disparate was in substantially the same position as mr parents and having testified falsely at his own trial received a reduction of upwards of thirty five percent from judge terre the district court was well aware of this fact in fact the district court inquir factor that the government relies a kind is that mr harrington had committed perjury his trial and somehow gotten away with it that the district court was concerned that mr harrington did not receive an obstruction of justice and hanssen this if i may judge your hono is somewhat of a red herring to try to have a question in fact both the government and probation argued at length to the district court at the time of mr harrington sentencing that he had committed perjury probation asked for an obstruction hence meant it was not given not because the district court did not believe he committed perjury but because the district court believed that it would lead to unjust result if the court relied upon mr harrington testimony to establish both the weapons and hansen and the drug crime today and then give him obstruction points for a lie in other words to rely on his testimony for one purpose and then to say that it was false for another i don't think you're making  going to end but we'll move on to that the consideration for the district court is whether or not mr harrington substantially assisted the prosecution of attorneys friendly in thompson in this case mr harrington met with the government and that the government was content with prosecutors  multiple times along with myself he testified before the grand jury he testified for over a full trial date at the trial and me also warned if the judge did have correctional keep recommendations of course of course he likes but as as understanding i've seen needs a decision and the reason why she granted the request that shapes credit off the top this because it overcompensated given the fact that she had denied the obstruction of justice judge again and cements and that's that's what she said and we should take her at her word but my but it's her i'm sorry i don't mean to interrupt her words unsupported by the record in fact if you look at the record and it's in the record obviously we have the transcript the record of the sentencing below suggests that the judge did take into account the fact of likely perjury during the original sentencing that in fact she didn't give the obstruction or handsome it because she relied upon mr harrington's testimony to establish both drug quantity and the weapons and handsome and so it wasn't that he got away with something he didn't get points or credit for something well it would not have been inconsistent it would not have been first of all air for her to give the obstruction of justice enhanced meant the basis for it and the fact that there might have been an internal inconsistency would not have undermined it it was already considered the only new factor at the time of the recent thing was mr harrington's cooperation his substantial assistance the government moved for a reduction of mr harrington sentence based on his substantial assistance the district court found that he had you know it had given substantial assistance and granted the reduction which is all consistent  with the rule the reduction was not as great as the reduction the government had recommended but there is nothing about the rule or the law governing the rule that says that the ditch or court is bound by the government's recommendation the court has the discretion to decide for herself explore with you what your reasons were did she say to you justify twenty five percent i don't think that that's part of the record no she did not do that you know as you know in court i mean i think she court heard that argument in the district court reached a different conclusion and she stated reasons for the conclusion that she did reach question it weakens prosecution to to reduce the scope of you need his help you want to give him want to give him a break that's his compensation for helping you he's going to say well i don't know if you can you can say this but the judge i just mean that  that so it weakens the justice department to have the judge making her own judgment as to what is the appropriate discount it is not an unfamiliar thing in many cases and in this case as well he drew it well certainly it was made clear and on the record here that the defendant knew that going in i have yet to see one work wasn't made clear and the government also knew that the good that the that the district court was not bound oh and could did it's correct she did say that but she said that by way of explicitly explaining that that's not what she was relying on she was not basing her decision on the outcome of the trial of which harrington was a witness she was memories the the district court's decision to to reach your own conclusion regarding the value of the cooperation and to impose the sentence that she imposed was not an error of law and that basically is the question for the court as far as what district standards are that you know that that would be a matter for to take up i guess with u s attorney so you you don't know if if the northern district of illinois standard differs from milwaukee  think i don't know for sure i'm hungry you know i think that in the run of cases you can see that that recommendations for sense reductions for cooperating of defendants tend to follow a pattern  whether that pattern is the same from the prosecutor's office in milwaukee as it is a prosecutor's office here i can speak to that sort well and this was kind of a special case to this involved that prosecution against a couple of attorneys was an unusual case that is also correct if she if she had given him no disco but you are still be defending i believe that i well i would have to look at the reason for the decision not to grant a discount if they were contrary to the law governing the district court's actions on rule thirty five motion then that might make for a different matter but i i will say that in this case the judge assigned a value to the assistance that was provided as the rule contemplates it was a lower value than the defendant at open war and a lower value than the government recommended but you signed a value she granted the reduction she complied with the law first as to the question whether or not there was a reason given for the percentage of reduction there was in fact on the record there was some discussion individuals who testified falsely and their own trials but cooperated with the government there prosecution of attorneys and thompson where we see recommended to twenty five percent reduction individuals who cooperated with the government but had not committed perjury in their own trials were recommended a fifth of forty percent but that was a case pacific standard that's not that's not  it's not district that's correct prior to your question there was a question about whether there was an explanation for that percentage that is not district wide or as i understand it justice white that was just this case policy for this case the justice department policy for cooperat the eastern district of wisconsin policy i'm not sure we could call the whole justice department yes got it this case that secondly there is the question of whether mr harrington can be held responsible for the acquittal this sets in this case that's a dangerous precedent to the extent that that was consideration in the judge's mind the judge mentioned it there was a reason she mentioned that she stated on the record that she did not believe that mr harrington's testimony who was proved beyond a reasonable doubt that's problematic and it sends a message to potential cooperate years that cooperation credit will not be given which could give cooperators the incentive to lie and exaggerate and that's a dangerous precedent that thirdly the government closed by saying that the judge assigned a value to mr harrington's cooperation is just a court did not the district court did not properly consider the extent of cooperation there was no fly on mr harrington's cooperation at all and so the fact that the district court considers factors other than the cooperation such as his prior perjury detracts from the value of the the court's finding it we believe that