and may please the court my name is mark worksman and i'm here on behalf of dr kwang son a dentist from korea who has now been in custody or home confinement on the island of guam for more than two years because of behavior on an airplane that the sentencing guidelines punish with the sentences zero to six months we hear i was going to ask you what it to be getting has he served out the entire sentence you know he's had forty seven days of actual custody in jail your honor and he spent another twenty four months at this point in home confinement but that time doesn't count against the sentence well what the judge did in this case is she gave him a sentence of three years but give him credit for eighteen months but not for home confinement time he did you run and that's why she called an eighteen month sentence during the recent thing in october of last year she basically go ok i got you ok you know i just want to make sure that we hadn't gotten this too late that's i'm an ankle bracelet confined to quarters awaiting this court's ruling on whether even if we were to hold that he was entitled to credit for since october he still would have additional time to serve he still have about a year to go you're right ok that's what i want to make sure we're here for befor the ninth circuit for the second time because the district court ignored this court's remain in order and we sentence the defendant to the same sentence as before three years and once again the district court did so without applying the guidelines in a manner that's  procedurally sound or substantively reasonable the district court paid lip service to this court's order that it should start at sensing analysis with the guidelines as a starting point and the district court revealed itself and it's intentions to basically use the statutory maximum in that sentence when the judge said and i quote so that's a huge range of zero to six months all the way to twenty years imprisonment that's what i'm looking at i'm not just looking at zero to six months the judge then proceeded to give d sentence six times higher than the sentence that's required by level seven of the guidelines which she agreed that the defendant belongs within which is a sense of zero to six months off for a crime you honour's that the government in the probation officer agreed at the original sentencing and again at the recent thing should have been served with a sense of thirty two days of actual custody which is what the defendant had when he was originally sentenced in the case the first time now it's up to forty seven days because he had an additional fifteen days for an apparent alleged violation of his pretrial conditions of release in the reset and sing in october of this past year the district court mentioned several so called aggravating factors but they were the same factors that she listed in her original sentencing in november of two thousand and sixteen as mitigating when she was then considering sense in defendant to between ten and twenty years under her then analysis that this was a case that was governed really only by the statutory maximum of twenty years then in the recent thing in the most significant procedural error she did not give any explanation or justification as to the weight she applied to these so called aggravating factors instead she appeared to be simply attempting to justify a three year sentence that she always had in mind the substantial and substantive unreasonableness of her three year sentence is revealed by the fact that each of the so called aggravating factors that she cited in the reception is an essential element of the level seven calculation that the guidelines reach in recommending a sensitive zero to six months in the first place the level seven contemplates there will be some minor injuries to the aircraft personnel in this case there was some very minor injuries to one of the stewards that's contemplated by the guidelines calculation he got two extra points for causing some injury that that's what got him to the level seven she listed as an act ready factor the fact that some of the passengers were uncomfortable during the alter cation that ensued but this is contemplated by the level seven of the guidelines she was listed as an aggravating factor the fact that restraints had to be used on the defendant but again your honour's the level seven of the guidelines which carries a zero to six month sentence contemplates that they'll be some interference with a flight crew that could lead to discomfort among the passengers and may lead to a defendant being restrained all the behavior that the district court cited for why she gave dr kwan six times the recommended guideline sentence are absolutely within the ambit and the spirit in the scope of the existing zero to six month level already in place leaving no room under the facts of this case for a substantial upward variance so let's let's assume we agree with you that the district court erred what would you have us do at this point your honor because there's clearly an animus on the part of the district court judge she's personalized this case she's even said on the record that this is one of the worst cases you've seen before her and she feels that if she were on that plane she would have been absolutely beside herself at this point you wonder because of the passage of time in the fact we've already been to one recent thing where the court more or less rigid disregarded the ninth circuit and went back to a three year sentence i would ask the court to exercise its authority to order that this that the defendant be sentenced to a time served sense at this point that the guideline level of zero to six should be the actual sentence and because he is now more than serve that the defendant should be released forthwith that's the or his or shouldn't really be quite extraordinary for us to ourselves sentence a defendant it's one thing to say you're entitle to a fair shot and maybe even to changes istra judge but for us to censor ourselves why should we do that because this is extraordinary your honor this court has already tried to give the district court some guidance this court already tried to rein in the district court and remind the district court that the court had to apply the sentencing guidelines in a fair procedurally and subsequently reasonable manner and the court didn't and now two years has gone by a man is sitting far from home his authority to order that the guidelines be applied if the guidelines are stick yeah but that that's different than that in lisp is accent you're talking about another words if we could do that well certainly if we were in the habit of doing that we would never have to entertain an argument to reassigned to another judge presenting whether we just in both sense ourselves that's the easy way to do it is that in one sense that's correct your honor but this is the extraordinary case we're here for the second time under twenty eight u s code court precisely what sentence it must impose i demanded with directions to impose a particular sentence not to follow the guidelines or to stay within them or whatever but one where we told the district judge you must sentence this defendant to x number of days reaction of or of years and that's the mandate of the court if there is there such a case there is it the united states versus estrada at seven seventy seven federal third thirteen eighteen it's an eleventh circuit court district eleven circuit opinion from the year two thousand and fifteen in which the government requested the eleventh circuit to issue unlimited remained directing the lower court to impose a specific guideline calculation and the court granted that request and ordered the district court to sentence within a guideline range this court could you know yes i point out that i guess a different question and i understand i understand what you're say you're asking us to tell the district judge that she must sentence this defendant to time served well the reason i would request time served your honor is because if the court orders that guideline sense it would be between zero and six months and by the way that's the sense the government requested that's the sentence that the probation office recommended if a court order to go to the district court decisions within zero six because he's in forty seven days of actual custody and almost two years now of house arrest the sense would effectively be served and that would because you know we do acknowledge that the sentence that the court imposed on the defendant was in the sense that we had argued for so weak knowledge that however the role here for the government is to provide some context with respect to the on behalf of the appellant so with respect to the time served and i'll address at point i would submit excerpts of record for the court sentenced the appellant to eighteen months incarceration and so why is that important that's important because in the first sentence seen on the court had imposed a twenty eight month sentence some on the part of the opponent and song recent scene it does show that the court was open minded sentence well let me ask you a procedural question about just friends make maybe it's a substantive question but that there have been similar sentences senses involving similar incidents at least two or identified in the record from the district of hawaii from the district judge says well i don't have to pay any attention to the district of boy more or less i've never seen one of these before in guam and so i was noticing that it's not err i mean just the whole purpose of the sentencing guidelines to try to normalize sentencing across districts and across the country yesterday with respect to the comment that was made about not caring what they do and why you know we would submit that you know me that maybe that wasn't the most appropriate sentence or statement that the court could meet however we submit that the cases that were provided the court to consider the court considered this information and i would submit with respect to the disparity aspect you know she talked at length with the government excerpts of record twenty nine hundred thirty four and in excerpts of record fifty nine she said that there wasn't enough facts for her in those cases at least what was presented to her to actually rely on those  so again we knowledge that the senses were provided to the court however you know she made the decision exercised her discretion that she didn't have enough facts before her considering that information and again she sends  judge i read the reasons you're hearing the district judge have to say maybe reduce the time served it didn't change your view of the nature of the crime or the sentence you wanted to impose so with rich with respect to that your  we submit that the court was very thorough on the facts and the aggravating factors of what you relied on in sensing the defendant and i'm referring here to excerpts of twenty seven through thirty two the journal recent scene that she also considered the smoking in the lavatory to be encompassed under the guideline consideration but what she also indicated inch and she also relied on was other factors so she relied on the fact that there was forty five passengers that had to restrain the defendant she relied on the fact that we had a defendant who was very belligerent very violent to the point where he had to be taste well here's here's one thing that bothers me about the case oh he's pretty much underspin that he was agitated is pretty much under spirit there are some mental difficulties going on that maybe he should have been taking his medication look at the medication might have actually gone on the other flank that he got the didn't work out i mean there are various circumstances that show that this is not someone who makes a career out of making people nervous or bothering people or small you know this is this is aberrational he's got mental problems at least at the time and now because of the sequence of things in this case he's certain to korea when this was when this happened he had an active dental practice in korea he was living with his mother and support helping to support practice has been destroyed i understand that it's not served eighteen months in a prison facility but he and i'll serve more than two years in a place that is distinctly disabling him from living as normal life under house arrest insanity is trying the same thing over and over again and i hate to raise any case in which mental health issues are raised but wouldn't it make sense if we were to remain to ask a different district judge to look at this in your honor great point and  your honor so i thank you i do remind you that this very principle prosecutor in may of two thousand and sixteen begged the judge to release dr klein with thirty two dollars if you were only the two you would have no problem here so unfortunately we have a third party that we're talking about and appropriate to to this court question this judge and want she doesn't care what they do in hawaii she doesn't care what they do in pasadena she doesn't care what they do in honolulu she's going to give this guy thirty three thirty six months your honor the only reason why she cut the sentence ten months during the recent thing was because she gave him ten months for credit for time served in this exile he's serving an ankle bracelet a little house in guam far from home family in his practice i will also just in closing your honor but i'm glad that the case of  and i was raised i raised it in my reply brief because they got a case involved a defendant who was sentenced at a level eighteen that's why the ninth circuit upheld his thirty three month sentence he was at level eighteen because he endangered the aircraft the pilot had to leave the cockpit and it was a very different more scary factually difficult case this client this defendant was at a level seven and the judge had she didn't have to find a level seven but she did because the facts require a level seven