take a short break after the third case give or take just a short recess as the next we're going to roll through i won't belabor the point except to say please stay in that market phone good and keep your voice up sometimes a little difficult applied a sixteen level crime of violence and hence meant under the two thousand and fifteen version of guideline section two l one point two based on his prior california conviction for resisting an executive officer in particular he argues that the review as we know the guideline commentary defines crime of violence in relevant part as any other offense that has as an element the use attempted use or threaten the use of physical force against the person of another as a sign that that's correct objection and neither did the district court or probation or the prosecutor what else could they be look of then you know sort of scouring around for you know these kind of deals i mean what else distracts counsel below besides the evident synthesizing of the defended it cetera et cetera so if it comes here it's palpable neon size neon sign sized era yet it was invisible down below so we trigger play narrowed it here you know it's sort of you know it's worrisome years in the first one but you home i understand your honor i do believe the supreme court and hernandez compared lawyers who would for good object sensing objection for that so that they could get a better chance of winning on know we're getting me so even son in might be somewhat open on problem three and probably for us just not getting it i mean it's not like you've got a hundred classed as one person it's the same california that is the same thing here and we've got good a new jersey statue new york statute california when the reason for the objection is to alert the trial judge so the judge in the first instance if there is a problem can deal with it that's the point you know we'll think the point you're missing that we don't get off of there is a universe of cases probably the difference between relief of a defendant and no relief is the fact that there was no objection we see in cases in which if the there from the standpoint of a client who represented it very clearly can make a difference not every case some cases would be the same but there are some cases where the absence of objection we change the standard of review makes a difference so she has something to think is one where everyone would have said oh my gosh i can't believe we didn't think of that of course this enhanced mention apply i think it's hard to say it's plain or obvious if it's an issue where the district court might have said you know what that i need some briefing on this i'm not or submit a brief and then we'll come back next week and i'll try to figure this out and why doesn't this fall into that latter category because there's no case on point which there doesn't need to be necessarily but you also get into this issue of well as california really applying fight that's been the law for some time now then we have ninth circuit cases to publish opinions saying that de minimus force or found it offensive touching qualifies under this california that they're on published aren't going to be cited right that's true your honor but in the case our own case martinez well first of all that those california court rules don't apply to federal courts and martinez which is an unpublished case in two thousand and fourteen that this this court says this court said that we have previously considered state cases and conducting the kind of coracle inquiry this makes good sense in determining the actual application of a statute a conviction is a the decisions of the state appellate court show how they're earned to give again the numerous instances in which the state's prosecuting authority has secured convictions based on this overbroad conduct that we're arguing about and when you also without the sixteen level has been the guideline range would have most of been eighteen to twenty four months and the district court relied on the incorrect range and i like to stay within that range and since i'm closer to the low end of forty eight months the court did not state that it would have  the same forty eight months and it's as an above guideline senates so under martnez read rodriguez which is scott says molina martina's supreme court case because the record silent as to what the district court might have done had to consider the correct guideline range this is enough to this case your honour's a citizen asperity is tremendous is twenty four months forty eight minutes month sentence is twenty four months or one hundred percent higher than the top of the correct range of eighteen to twenty four months this twenty four month disparity is far greater than the eight month disparity in that case given cruise that i cited my twenty eight j letter where this court recently rejected the government's argument that an eight month disparity is a small degree of error errors in the final on the fourth prong inquiry can we consider that this defendant's california offense actually did involve physical assault on an officer because the district court even if it's not categorically a match under thirty five fifty three under the general sentencing discretion can consider all that or should we consider that of the fourth prong you know i think you can consider it but the gist or judge in this case who is in the best position to judge his history and characteristic took that into consideration and chose to sentence him quote closer to the low and did not say that the judge should not say that she would have imposed the same sentence as an above guideline since the court did this because it was his first illegal re entry and the thing and the court also said that she thought that the things that he did in the past were quote probably because of his severe drug addiction he had a serious problem with methamphetamine in the past and your honour's i would like to leave you with this one thought and that is that the fifth circuit does take a different approach from some other circuits on the fourth prong the tenth circuit for example writing to the rights or the public's perception of the fairness integrity of the judicial process more than a reasonable probability that an individual linger longer in prison the law demands only because of an obvious judicial mistake and the honors that if you're close and we understand it so you have to kind of focus on the fact that we're recording it in a lot of times what's happened the recording is not getting it all later even though conversationally we may hear some of you say give us your theat thousand and twelve and two thousand and fourteen the the fourth circuit addressed the the maryland statute which is a comparable statute to those on bach and said that the maryland statute is does not equ to a crime of violence so the day the issue was there and when the district court is making its its statements such as i'm not giving you any additional points because you were sixteen level nobody's fighting about it if they had raised the objection at that point that would basically have alerted the district court to basically make more express statements of why the court is considering the thirty five fifty three and factors and the possibility or probability or likelihood whichever word you want to use of an upward variance the court difficult to argue that the use of force or violent element of section sixty nine does not include mere offense of touching when the jury instruction setting out the elements of the offense the second element of which is is  resistant is accomplished by the use of force and violence and then references directly to the battery definition or use of force which of course includes offense of conduct which does not  which equates to physical contact not physical force and not a crime of violence for purposes of the guideline application going to directly to the fourth prong as the coordinates that even if it's not a crime of violence for purposes of the sixteen level unhandsome and it is it is a crime of violence factually and the district court acted well within its discretion in considering it as such under eighteen u s c thirty six sixteen i mean i'm sorry eighteen u s c thirty six sixty one there is no limit placed on the district court's consideration of information concerning the background character and conduct of the defendant for purposes of determining the appropriate sentence and that is exactly what the district court did in this case other than apply the sixteen point one handsome because there was no objection she thought it was a categor match and apply the sixteen point she didn't say oh well i'm not worried about the sixteen points because this is what he actually did regardless of how the guidelines were history and his district court  you have a pattern jury instruction that references crime of violence including offensive touching and this law was pretty well settled that it doesn't equate to a crime of violence for purpose of the guideline application would be a very looking at this without sixteen it would be between eighteen and twenty four months or it would be between eighteen and twenty four months without the sixteen live that the question is the question is is that is on the face of the record the district court's intent to impose a four year sentence clear on the face of this record and when you're under the fourth prong which of course is within your discretion to grant relief or not relief is the district court's intent to basically impose a thirty five fifty three since whether it's a kind of line or focuses on the thirty five fifty three elements and what she does is is she considers everything in this record she found looking at his his criminal history she found it and serious we're not talking about you know just a ten or fifteen year ago but we're talking about offense that you committed in two thousand and fourteen which was basically four months before you get deported the second time and the best way to to explain what the court is thinking is to quote what she says and when i look at the facts of our particular event they are shooting tasers and carpet fist at him and he keeps charging the off also had nothing they can do to stop him he seems like a very dangerous individual that was not the court's only concern the court expressed its concern that you have you have numerous daughters with law enforcement you have three prior  drug convictions you have a this with what she called a severe drug addiction and you have two prior deportations and you returned lawfully unlawfully to the united states within six months these are the things that i am considering and i'm imposing a forty six i mean a forty eight with a four year sentence because i determined that this is appropriate punishment for your your offense considering as congress instructs me to do your your background your character and your conduct for your prior and your or your recent one of the things that the court also said i mean the  the course also did the i guess the point can play that district judge as to you considered his arguments and i'm going to give you she said i'm going to give you credit for for because this is your first ever illegal reentry offense but what she did also was note that he absolutely should have been prosecuted before this offense for that before the first conviction he could have been prosecuted under thirteen twenty five for illegal entry before the second conviction he could have been prosecuted for his first illegal re entry but the problem is when the sentence or the guideline that should've been didn't happen here but also that's about the third prong venue then the defendant can show substantial prejudice but i think the government's not arguing that you can see that did there was prejudice yours was all about the for the discretion of the fourth prong and  were cases even with less than doubling but i would if there's a doubling you know it's we're in a difficult position on within your discretion to send it back the bottom line is in my view is that there is a high probability based on everything that the district court said that if you sent it back the judge is going to impose the same sentence and because that is clear on the bright face of the record itself that's my best argument it goes back to the original point you know not belabor it of the significance of the objection because of the objections made the judge is alerted and it's a judge no staff but nonetheless a is you know because of a b c d and e i'm giving you this sentence they were never here or at least the defendants appealing are straight up when i guess in it whether the judge would have done the same senator or not now we sing you know would have been and so who knows you know what the judge might have done had they been i worded in the first instance and many of the judges are very savvy if you will for you know putting in the record all the other considerations that they may have it may be relevant cond i mean a whole panoply as you say from a to venice background which might well worn you know the sentence was the best case you can there's one out there and i haven't found it no no no i've yeah i don't just say asking you mean you know these we get a lot of these cases as mentioned we all try to keep them working as best we can there's just a little bit of a difference you know in the out there there is no discussion on on why that is the there with the p s r does is factually set out are set out factually that is a crime of violence and with the p s r does is give  statute and the statute of course has use of force or violence written as an element in the statute but did the court did the probation officer alert the district  that he his wife called the police department and this is because of the conviction for what you're talking about this is the conviction from which i'm talking about yes that is why i call second prong under the the the california statute section sixty nine resisting a officer in the maybe and in my not understanding