it please the court my name is ron kuby and this case presents two questions the st is whether the district court in correctly designated the offense of reckless manslaughter as a grade a offense for purposes of the sentence at sensing guidelines and the nd is whether the near exclusive focus at sentencing on the facts and circumstances in sequential a and tragedy and horror of the underlying offense rendered the sentencing proceeding itself procedurally unreasonable to take the st one st it there does seem to be at least tacit agreement that the defense the prosecution the probation department and the district court in sentencing is ramos all relied on an incorrect outdated guideline from one thousand nine hundred and eighty eight and we all collectively were unaware that that guideline had been changed in two thousand and sixteen to include only voluntary manslaughter rather than all the other types of manslaughters and the government i mean they haven't expressly reliance on that but they've sort of shifted to a different rationale which we see in footnote  eleven so we can find a footnote eleven in their brief where they're arguing that the residual clause seven b one a one b which i'll just call subsection be said was not to take up too much time at that government wants to do is to simply read in as this court to read in the words of or offender into that clause so instead of simply saying offense it says offense or offender and there's no reason why this court should ignore the clear a wang which of the guidelines from that's where we start right as a matter of construction start with the language there's no ambiguity in the word offense and that's especially true given the structure  i'm so if i thought you would say that because that's that seems the reasonable thing to say and so the question is it's a matter of form that the state instead of defining to subsections within the statutory offense definition has an overarching enhancement for vision that applies to all or most or many or some offenses including this one  reason why all of those cases were decided under twenty one u s c eight hundred and forty four a which in fact has the very scheme that you're talking about where in the very definition of the offen in fact in the very same subsection butt in different clauses it prescribes a penalty for st the bans which is misdemeanor level giving everybody a break for simple marijuana and in he answers it enhanced as it further and what i would argue there is th g felon in possession where you can't even get to an offense without considering the underlying crime of conviction the underlying felony but but the fact that congress did that which is congress parag it doesn't mean that's how we interpret statutes where congress or the state legislature has not spoken as has spoken in a in a very very different fashion so i wouldn't say it's quite a matter of form i'd say it's more a matter of what the legislative body did ok i hear you i hear you and i and i appreciate that maybe it's stacking the deck still in a way to call it form but i guess i'm still wondering why why would we say this why would we say that by choosing to put the sentence enhanced mint in one place in its statutory scheme rather than another place the new york state legislature has done something that should be read in reading in interpret the guideline provision  which the new york state legislature is not responsible why should we read read it differently depending on how the new york state viewed the guideline differently depending on how new york state chose to characterize its sentence announcement and the only answer that i can give you which which i think is a good answer is that the guidelines themselves have pacific language and a specific structure and that's where this court should begin following what this court in other areas tends to do which is to follow a categorical approach simple question is this an offense punishable by more than twenty years answer no it's not reckless manslaughter classing nonviolent felony it's punishable by a maximum of fifteen move on now is that going to resolve every single question under every single statute it's not but it will resolve this question under the statute and nd very very briefly i just want to turn to the procedural on reasonable most of the sentencing proceeding itself i'm not going to repeat everything that i've said in my brief but but suffice it to say that everything that happened in this case and the way that it happened happened precisely because of the dissident was in new york city police officer who died in the course and for other ins of its duties this was not united states versus career smith where there was a very clear focus on the prior sentencing proceeding without excessive discussion about the underlying conduct this sentencing proceeding from the beginning from the time the probation department report came out on december th which we received i think on december th said the only offense arguably more serious than this reckless manslaughter would be the intentional murder of a police officer the court endorsed that particular report  its entirety and everything else that followed at the sentencing proceeding tracked the specific horrors of the crime underlying offense itself it's sequoyah law it's what it's done to people and notwithstanding the fact that the district judge kept saying oh this is not about the underlying offense everything that was done in that courtroom was exactly about here i hear what you're saying  even puzzles me is you're right the district court said these things it was following the approach that we've told district judges to apply so are you saying that once the judge made the decision to hear from the underlying victims families at all that was error and it's all over because what you're focusing on is the fact that he heard those people and here's what they had to say and i guess implicitly that must have influenced the court in some improper way or something but the procedural irregularity it are you just saying that he should not have heard from those people no no no no but but once he did that you see then we have the situation that you're complaining of that now in terms of the number of transcript pages the amount of time the amount of emotion in the room that altered everything that's what happened in this case that's not what had to happen in this case and nd that was not the only thing that happened i mean we see from the record that before we even showed up the judge had done some extra judicial  sleuthing had determined that the p b a was very unhappy with with this ramos is parole and had claimed unfairness and the judge on december th based on that made the preliminary determination that yes indeed he's going to hear from anybody and everybody who wants i think that's that's an unresolved question honestly judge sullivan i think that there are certainly can make an argument that they had the right to be heard to a limited extent to an appropriately cabined extent you so that's a step up so go ahead you've got ten minutes thank you and may it please the court my name is kristen mason i am an assistant u s attorney in the eastern district of new york i also represented the government in this matter before the district court the judgment should be affirmed in this case because of the district court did not err let alone commit plain error in imposing a twenty four month sentence for bessie ramos is breach of trust in committing a new crime after then district court judge reggie imposed a lenient sentence for ramos a federal drug trafficking crime i'll follow the structure that mr couey used and start with the question of the grade of the violation as this is  the primary issue on appeal raised by mr ramos the grade of the violation is determined by section seventy one dollars a one and at a minimum the district court's adoption of the p conclusion that this was a grade a violation was not air under the nd prong of that provision that states that any crime or offense punishable by a term of imprisonment exceeding twenty years is a gr know that that would be an uphill battle as the current state of the case the law particularly because we recognize that in united states versus scott this court determined that st degree manslaughter is not a crime of violence has not yet decided whether nd degree manslaughter is but i know that would be a tough argument right now i do note that the supreme court has granted certain a case board in versus united states when it where it will potentially determine  whether crimes with a recklessness mens rea can be crimes of violence so it may be that this area of the law will continue to evolve i will note that this indicates there is no plane air on the district courts part because there's no settled well well well but really i mean manslaughter one is equivalent to voluntary manslaughter and it's not a question of whether a recklessness crime could be a crime of violence of course it could be used those and that's a legal question we've decided one way and some a secret might decide a different way but the the issue here is that that for vision that you are relying on everyone was relying on below the firs to voluntary manslaughter as being categor y a crime of violence and this is not voluntary manslaughter as any common look would understand that term it's a different kind of crime right yes your honor and as i've said the government has not relying here exclusively on whether it's a concession or whether whatever the government's position might be in another case in this case the only issue before us that would in the government's assertion save the class clear it is clear that she did face or she did commit an offense punishable by a term of imprisonment exceeding twenty years that's not only clear because of her sentence of twenty two years or the fact that she served twenty two years but also because of the the case law in this area and one point that i do want to emphasize is that there is no circuit split as suggestion suggested by the appellant in the briefing all of the circuits to have decided this issue have found that the port should consider the any receipt of this enhanced meant as part of the the maximum possible term the appellant cites garcia the hand yet from the st circuit  it's the government's position that the appellant has misread that case in fact the st circuit in that decision made clear that it was not considering subsection b or the question of the length of the possible  of imprisonment but was rather deciding whether the offense was a crime of violence and what standard should be used in determining if it was a crime of violence at the court make clear  that the question of the length of term or subsection b was not relevant at all to that appeal and so if you look at the cases that have decided this matter these are the ones cited in the government's brief from the seven rd th six  because as a th circuit explained in trotter the result was determined by the supreme court's decision in u s vs labonte so levy was decided in nineteen thousand and sixty one year later the concerned another provision section four b one point one of the guidelines having to do with career offender status and in that context the supreme court considered all of the arguments that  is making here before this court and and rejected those and made clear that the court must consider all everything that goes into the potential sentence including  and determining what the maximum possible penalty was the appellant argues this is double counting or that somehow there should be a distinction between the offender and the offense the supreme court dealt with that issue  trotter adopted as a must the reasoning from labonte and applying it in section seven b one point one as well and so all of the cases that have been followed from the circuits that i listed earlier have adopted this which grade the violation falls within some of those cases concern the distinction between less or more than one year some of them concern more or less than twenty years but it's the same analysis the question is whether prior convictions should be considered in determining the maximum possible sentence in the courts of all the term and that there are unless the court has any questions about that a move briefly to the nd argument from the appellant today with regard to the focus of the district court's decision the district court heard argument from both parties and extensive briefing on the breach of trust issue the government's provided to the district court the underlying cooperation agreement the details of the underlined sentencing and noted and relied heavily on the fact that miss ramos with sentenced very leniently by then district court judge reggie she faced a five year mandatory minimum sentence and a guidelines range of one hundred and fifty one two thousand one hundred and eighty eight months and that was before booker  in that context the government moved under section five dollars pay one dollar a sentence below the mandatory minimum and below the guidelines and placed its trust in ramos based on her cooperation judge reggie heard arguments on that and granted the request to sentence mr ramos below those the guidelines and the mandatory minimum m place great trust in her in doing so it was a result of that trust that mr amos was out and committing more crimes and committed this crime that led to the violation for which she was sentenced that was a six a focus of the government's argument before the district court and the district court noted in sentencing that he was not sentencing mr amos on the underlying crime that had been done by the state court but rather was sentencing miss ramos for her breach of trust it was entirely improper in that regard and if the court has unless the court has any questions with regard to the other arguments raised by the appellant in this case would have asked that the judgment of the district under board which has not yet been argued may lend different guidance to this court about reckless manslaughter but right now we're we're simply not there rd whether there's a circuit split or not depends upon how frequently done which is to take a categorical approach and under at least as a gateway as a threshold matter and under a and it decided that case under that categorical approach if this were to do that here of course this would not be  states versus smith and i think a magic if you will the following that instead of what happened in smith actually happening what happened in ramos happened smith where are they the probation department said this nd degree possession of a weapon was arguably just as serious as the intentional murder of a police officer suggested good cindy be cast aside and there should be more emphasis on the specific crime because the crime was so horrible in addition the courtroom was packed with gunshot victims who not only appeared there as spectators were sort of specifically introduced on must support and then the court heard repeatedly from the friends and coworkers and family members of the injured party who talked about his moral purity his goodness his godliness all the while cursing at the defendant who inflicted that wound in the  miscavige you're still going back to what all those people in the court room did isn't the question what the judge did and you know don't you have to be saying that this influenced the judge that the judge in effect did not do what the judge said he was doing but instead was relying on something else it's not it's not the fact that these people said these things the judge pretty much said i can't really rely on that di well yes that's exactly what the judge sent in other parts however at the judge you know after he spoke right after the rest of them talking about this was perhaps the saddest day on the bench because he couldn't  adequate comfort to the victims of the underlying offense who testified i mean i said inappropriate for a judge to say i mean the problem is he's got these people who are very emotional quite understandably quite correctly about what they experience is hold that the district judge was disingenuous in the sentence imposed but if you're not saying that i have trouble understanding what the problem is deal i was i would feel obliged if i were the judge regardless of what i wanted to do even if i decided to say time served because miserrimus has changed over the years or whatever the outcome was going to be it seems only respectful to give that comfort to victims of the underlying crime i'm not sure i see why that's inappropriate i'm sorry judge if i was unclear i didn't think the district court was being completely disingenuous i think the district court based on its