the judge found a sentencing guideline range of forty six to fifty seven months for mr ford however he said since mr ford to one hundred twenty months which was nearly two and a half times the yellow end of the range and over double the high end of the range this was a substantial upward departure based largely on the completely speculative unproven notion that mr ford was responsible for deaths overdoses or other suffering in the community prior to sentencing the court did not give notice to council on either side that it was contemplating a departure on this ground and ross violated federal rule of criminal procedure thirty two h which requires such a notice under the circumstances as well federal rule of criminal procedure thirty two one b which requires that the defense be giving him meaningful be given a meaningful opportunity to respond to such a departure departure and or the departure area argument disappear if it was a very you know you are not at all first of all from address i believe it's a departure but i would tell you that the thirty two i went to doing a summary go where you want to go i just you seem to be starting to emphasize that so i was starting to engage you but if that's circuit and due process in what we have here is first of all it is our view that is clearly a departure because the very specific language the explicit language of the united states sends in guidelines particularly in five k two point one point two point seven point fourteen point twenty one speak directly to the reasoning set forth by the court and the words and language used by the  when the court decided to have this up were enhanced women so clearly in our view this is a departure also as this court said in united states versus danny a departure results agreement with the guidelines a ground for a the key thing driving judge adams after reading the transcript was disagreement with the guidelines when it came to the opioid crisis i mean and if there's one theme that just keeps coming up with both individual sentencing it's that and so that's why i'm struggling with the idea that this was a low and behold departure well let us look at it is a variance that under the thirty two i one b the court is required per that particular rule of criminal procedure to give the defendant a reasonable opportunity to respond to this court in u s versus cop injure the twenty fifteen and your honor judge sudden you are in the majority on that in the unanimous opinion held that the sentencing procedure in that particular case and in all cases going forward must give the defendant a reasonable opportunity to respond  invariants situation so regardless departure various departure there's two rules in that i would suggest in a variance there's at least the rule under thirty two i one be that there must be a reasonable opportunity to respond i just want to make some getting your argument i mean i thought in both cases judge adams issued a notice so what i'm most interested in is not well if you think it's a technical problem tell me about the technical problem but i want to hear why there was a surprise and how this surprise affected your argument that's because that's what would seem to me to be most likely to lead on famous the notice submitted to counsel before the sentencing he said that he was going to look at the proximity of the residence where the drug activity occurred in relation to local schools number one and number two considering an upward variance on the history and characteristics of the defendant as set forth in the pre sentence report but certainly there is no reference in that so no this surprise goes to the fact that he spent so much time talking about the o the last one is or suffering right i mean so you can play up the death point i understand but i mean it was a clause that had several destructive parts and wrote it and i'm misremembering it even made a finding this is what's critical here first of all there was a surprise that this was an issue because he said there's circumstantial evidence that mr ford is responsible for deaths for overdoses and other suffering in the community he said the recent them stash level if they or am at the end of it but he said or eat the what i am the specific language his comments in this respect especially set forth on record sixty five id five eighty dash five eighty one and also at five ninety one and the emphasis in both of those is deaths he talks about he didn't he it's quite a long one to the explanation but the key for our to our position is that he said and this is a quote from  circumstantial evidence is such that anyone who is selling these powerful opiate drugs more likely than not preponderous finding that there has been a death through an overdose or someone who suffered because that activity but he clearly is attributing destine overdoses as well as community suffering to this person now prof and he said in his notice in regard to before hand the government did not submit any evidence to this effect the pre sentence report said nothing about this of course there was no submission no evidence submitted at the time of the sentencing all of this came out when he pronounced sentence so there was no opportunity whatsoever for the defense counsel to address this issue this concerns this reasoning and all of this was new the i'm sorry i would defense counsel address what other than to claim there was no proof and he would be able to argue that in he did say that there was no proof and the judge said there circumstantial evidence but none of it was apparent that i mean what else could have done other than what yours that's what i'm asking well i think that a could have brought on the testimony interestingly he called since want to say at the sentencing he called the principal agent on the case he could have called him to indicate that there was no evidence of deaths overdoses or community harm caused by this particular defendant as a result of his particular activity there could have been evidence submitted that there was no evidence of this but he came forward out of the blue and said this and then made a specific finding by he said by a preponderance out of the blue that there's an op under punishing for this crime because this crime has led to an epidemic which i am witnessing the suffering of and if you're reading any books at all you would see that it's real but this kind of  not you really want going to get up there and say sam canoas is wrong there is no opioid crisis and this is way overstated we all recognize there's a crisis or a soap but that can't that be a ground for thinking the punishment should be higher certainly ground here was he said there was desks overdoses etc caused by this particular defendant and there is no evidence of that so we have the argument first rule is no notice there's no opportunity district court erred by failing to give this court findings of fact by failing to clearly announce what its guidelines findings were then departing or varying upward in a way that either is a completely unknown number of months or possibly sixty number of months or possibly more are you referring to the mistake in the guidelines calculation there that you know the next question so why don't you answer it the answer is there's either an error over here or there is an error over here either the judge i thought it was only one possibility that he made an error that helps your client if except then he says that i'm going to depart i'm going to do a variance upward because i don't think the sentence of one hundred twenty months is enough and that means the judge isn't using so it's it  so the point no the the judge departed upward from one hundred twenty months not seventy to eighty seven not somewhere in ninety two to one fifteen but in fact one hundred twenty caused by the confusion of the order of which the you would say it's a departure as well same same argue departure or variance doesn't doesn't make a difference in argument it is not out so can't you also read what the judge said that they he was departing first from the guidelines and then from the mandatory minimum because he first says the guidelines are not sufficient in my use and you're on page i d four sixty four and that section seems to suggest judge that he's conflating the two but they're the same that guideline range is one hundred twenty months which would completely ignore the downward departure granted earlier in the hearing everybody a chance to say did i make a mistake and no one said whoops right that's the only time judge adams gave the defense hey do you have an objection about where i am right now i guess judge the sudden it was in mr williams as favor but later on in the hearing when the judge jumps from here's the guideline range that i'm finding and says ok now i'm going to make an upward departure variance making the point no one said at that point wait i'm not sure what you're doing that's true i can see that at that point defense counsel did not say hey wait a second did you say that the guideline range is one hundred twenty months but there are two times in that hearing where judge of bush pointed out on four sixty four and then on the next page four sixty five and obviously the one hundred twenty months to ten years in many circumstances might be ok but ten years is not sufficient here and then goes on to impose a sentence of one hundred eighty m it seems to be that an incorrect process a failure to say this is the guideline range that the government's argued that what the judge is done here is ok because he went ahead and said the r was right and i'm adopting the p s r therefore those are his findings the problem is so in challenge the there were no objections to the p s r the p s r was correct at the time because there was no downward departure for cooperation so you can czar which makes one calculation of what the appropriate guideline range is when you haven't gone to the sentencing hearing and received the one level downward departure for cooperation which means we've now can go below the guideline range and despite the fact that the judge could go below the guideline range by the time he's imposing an upper variance it's gone anything under one hundred twenty months is in the rearview mirror not even being considered anymore now we're using one hundred twenty months as the effective guideline range and going up sixty months to one hundred eighty months so we have both the failure to give findings of fact followed by an incorrect guideline range followed by a tremendous upward departure which we're arguing is substantive substantively and reasonable because it's more than a two full category upward variance based upon a run of the mill  times i can think of substantive reasonableness challenges that one where way you just made a you know non custodial sentence or you know just but otherwise i mean if it's a drop you know there's a fifty percent increase if it's fifty percent drop it's i'd be really shocked if we could find a substantive on reasonable suspicion from this circuit to take a step from this client and just defense bar first second then i worry that our consistency in the guidelines is going to take a slippery slope downward and it's going to be one thousand nine hundred three again and we don't have the guidelines and we don't have what we thought were going to be you know we're going to be able to have made this argument  don't you usually aren't you really eager to push for a greater downward variance and who cares that it leads to disparate sentencing hasn't been i mean that's the norm it should be the norm that's what i would do if i were in your shoes but but i'm too if we're go go ahead and say that an upward we can just go as far up as we want out of a you know a kimbra argument that you know i don't think that the guidelines take care of it here and someone can suffer in this way with this kind upward variance simply because the judge felt that this person who only had seven criminalists or points was a low end of category four i'm going to sentence him to something that's in excess of what he would be with category six and i worry that if we're going to allow that to happen you know sometimes we'll win with downward departures but are we going to lose just as much with up for barry and says i don't know it seems like at a certain judges aren't this it to six not exactly s metric between upward and downward buried no they're not but i found this case troublesome and and very different than anything i had ever seen before or i'm not even sure what i'm going to argue is the upward variance because i don't know what the finding of fact was on what the guideline range is and how much the departure is is it sixty months is it eighty seven months from your theory that if people lying calculation  correctly he would have gotten a lower baron's if the if the variance was sixty months but he took it from the correct guideline range in any correct guideline range below one hundred twenty months mr molino martinez case applies here because yes the guideline range used before the variance was higher if then if the guideline range would have been correctly calculat good afternoon made it please the court math you call for the government i'll begin with defendant william since that's what we were just discussing the return to different opportunities in the record for defendant williams to raise any kind of objections to how the district court proceeding past playing here we may be into a waiver situation because it page four twenty seven when the guidelines summary was was placed in the record by the assistant u s attorney the court then turned to defense counsel asked if he agreed with it and he stated that he did the district court then adopted it had he sat pat had he not said anything we might have a plain error even if we are under plain error standard of review though the defendant hasn't satisfied that because as you pointed out judge sutton if there was error in this case it resulted in a guideline range that was lower for the defendant and they haven't cited any case where the district court used a lower guideline range and that was found to have harmed the defendant  district court relied on the factual basis from the change of plea that's what the probation department used in preparing its precepts report there were no objections to that base offense level of of twenty four based on one hundred forty grams of f there were no objections to that raised before sentencing or at the outset of the sentencing hearing the only change occur due to the one level departure for substantial assistance in the way the government calculated that was to look at the defendants mandatory minimum that had applied of one hundred twenty months given that he was in category three the offense first level that included one hundred twenty months was offense level twenty seven the government asked the court to go down one level from that and also to give the defendant three levels for acceptance responsibility taking him to a twenty four defense counsel stated affirmatively that he agreed that that was how it should be done in the district court said the dr that there were no factual disputes at the sentencing hearing that and it didn't dispute the about the school stuff and limo focus on four because i think ford preserved that after the boss to question so that wasn't something you recommended that was on the p s r that came from the judge of the judge did a lot of people and obviously had done this research but what do we do with that in an urban setting which this this was well it was in this particular case and i think it's proper for a district court to consider the neighborhood in which a crime occurs that  more people at risk and i don't think it's improper for a district court to consider that when looking at the seriousness of the offense the need to protect the public which are all relevant thirty five fifty three a factors for the court to consider it was discreet seem to be focused on the distance to schools within the area and if it's an urban setting you're always going to be within a mile of a school true but the northern just for ohio contains both urban areas and very rural area defendant and committed the crime seems to me there's two different things he's including both your honor if i think the distance to the school goes to the nature and circumstances of the offense the court but just be clear this crime had nothing to do it was schools it did not your honor right there was no evidence of them dealing drugs in school and in the clear did not reach that far but there was evidence about where the drugs were dealt and you'd be pretty surprised to see a lot of kids there it was a short distance from a school in the court took that into account the defendant didn't not neither defendant challenge the accuracy of the court's information of the facts that the court was presenting they just argued that it wasn't a consider and it was like their perspective is what seems unfair about it is if you're caught dealing any type of drugs in an urban setting judges will always be able to say what about the kids and that seems like it's not doing this fairly i disagree with that your honor because i think it goes to the harm that it poses the public the seriousness of the offense and the need to protect the public all of which are relevant section thirty five fifty three a factors then you're sentencing a crime and that person committed i think the record shows that judge adams considered both for each defendant he did a thorough review of each defendant's personal history and characteristics in each of their backgrounds and fully considered that before he imposed his sentence aware of the guidelines the sentencing commission having considered proximity to a  school i'm not meaning any kind of punishment in the guidelines i'm not aware of the sentencing commission considering that your honor but it certainly weighs into the nature and circumstances of the offense which is a relevant section thirty five fifty three a factor so is it the government's position that if there's a factor that hasn't been considered by the commission in formulating the god mindset that's a permissible basis for a variance from the guidelines i do your honor if it is rooted in section thirty five fifty three factors as it was here because it goes to the seriousness of the offense the need to protect the public and the general nature and circumstances of the offense which the court is not only permitted but background personal history and characteristics for defend it williams that was set out in eleven different pages of the record over page four fifty sixty four sixty five third defendant first it was over page five seventy nine to five eighty five and  looked in detail at and each defendant's background as to defend it williams argument that the court varied from an improper range or varied from the mandatory minimum that's not supported by the record the district court did not touch its variance to the underlying range or to the mandatory minimum just recorded adopted the calculation that the party stipulated to the court then did the thorough review of the thirty five fifty three a factors and then came back and considered the guideline range said that that would not be sufficient then it next consider whether a sentence with the previously appropriate mandatory minimum one hundred twenty months would be sufficient and said it wasn't the court then consider what sentence would be appropriate to determine that one hundred eighty months would be appropriate a district court is not required to calculate the amount of its variants in route it to the guidelines a court can do that but it's not required to do that the courts only job is to impose a sentence that is sufficient but not greater than necessary and that's what was done here both defendants were sentences were substantively reasonable as to defend it williams yes he was criminal history category three but that ignores the fact that this was his fifth drug related conviction he had in one nine hundred ninety one drug trafficking which was tool to count in one nine hundred ninety five federal drug trafficking conviction that was too old to count he had served seventy two months on that federal conviction plus a twenty seven month consecutive term of supervised release when he violated that he had a possession of cocaine with firearms specifications for your sentence and a two thousand and fourteen heroin trafficking sentence for which he got a break he only got eighteen months of probation he was back out and committing the offense that brought us here today within a month of ending that term of probation so the sentence was substantively reasonable based on the defendant's background the court considered the relevant thirty five fifty three factors the need to protect the public the need to provide specific deterrence and the need to deter others as to defendant ford's argument he couch is this is if it was a departure i think a fair review of the record shows that no time whatsoever did the court ever look at chapter five k or subchapter five k of the guidelines and couch it in terms of an upward departure the  court after allocution an argument adopted the guidelines in the p s r and then it said it would turn to the other statutory factors and that's at page five seventy eight five seventy nine and then as i said thoroughly reviewed those thirty five fifty three factors fro page five seventy nine to eighty five the court commented on the nature and circumstances of the offense the need to provide just punishment adequate to serve its protection of the public and for its own personal history and characteristics these are all thirty five fifty three a factors this was a variance under thirty five fifty three it was not a departure even so the court had provided notice before the sentencing that it was contemplating a sentence above the advisory guidelines range so there was no  error in how the court proceeded and as to defendant ford sentence it was also substantively reasonable the court looked at his background the court considered the full nature and circumstances of the offense and his personal history characteristics and again the factor that the court found most compelling was ford's recent forms lengthy criminal history previous sixteen month sentence three year sentence and then a seven to twenty five year sentence for which he served eight years in prison neither of those who did none of those who deterred him in the court found that because an eight year sentence hadn't deterred him that a slightly longer sentence was necessary for a defendant forward and it chose a ten year sentence and that's not substantively unreasonable that's simply a court weighing the factors turning to mr ford's argument that there was some sort of information that was excluded or not disclosed to him the cop in your argument i would simply know that the facts here versus are vastly different in cop unsure of the court considered thirty three pre sentence reports of co defendants that had never been disclosed to the defense and it considered all of the information and that in the court to those thirty three precepts reports that there was a technical violation of rule thirty two here the courts conclusion was drug trafficking harms people this was an argument that was reasonably foreseeable to the defendant  court spoke of the fact that the argument about victims or the information about victims was not reasonably foreseeable to the defendant in that case here the argument that drugs harm people in the community certainly was reasonably foreseeable defense counsel below basically conceded the point at page five eighty nine where he agreed with the court that drug trafficking does harm people but made the argument that there was no direct evidence th particular defendant's drugs had led to anyone's death or serious bodily injury and as judge sutton throwing it out in the transcript in this case that's not what the court found the court found specifically the circumstantial evidence is that anyone who is selling powerful opiate drugs more likely than not there is either there has been a death warrant over overdose and her someone who has suffered because of that activity the conclusion that judge adams reached that drugs are harmful to people given the climate of today i don't think took anyone by surprise and was not reasonably foreseeable you can't turn on the newspaper really turn on the news read a newspaper without seeing that as i was sitting down to breakfast this morning at the hotel the front page story in the usa today was of opioid abuse begins with a pill bottle the newspapers are as accurate that's true your honor but i don't think anyone disputes that drugs are harmful and that we're facing an opioid crisis in this country and judge adams who is on the front line as all district judges are certainly know what is harming people what we're seeing an increase of damage from and not and it wasn't improper for the court to consider that had the defendant been unduly surprised by that he could have asked for more time to respond to that he didn't in response to the boston question he didn't say judge i was surprised by the your conclusion that drugs are harming people drugs or killing people i need more time to research that an address that he didn't ask for that additional time because i believe this judge pointed out that's really undeniable at this stage and in our community so the district court judge stated that he had a philosophical disagreement with the guidelines that he felt that as a matter of policy they were too low for these types of offense that's a district judge is right district judges can find the guidelines don't meet the appropriate needs of sentencing and that's what this judge concluded he weighed the appropriate nature circumstances of the offense considered each defendant's personal history and characteristics and determined a sentence that he believed was appropriate to meet the needs of sentencing and we don't believe that either sentence was unreasonable or inappropriate so we would ask this court to specific finding by preponderance of the evidence that he was responsible for deaths overdoses or other harm to the community and there is no evidence of that the government concedes there was nothing on the record about that such evidence there's nothing in the pre sentence investigative report i didn't ask him after the the whole point of the bostic question is to get clarification judge do you mean to be talking about the opioid crisis in general or you know do you mean to be saying my client created these deaths because if it's the latter i think we need to talk but no one did that and so then where that puts us in plain air land and then we give the judge the benefit of the doubt which it's easy to do here by thinking he's really talking about the crisis and its impact in the community in general your honor respectfully he says he had four different objections to in response to the boss to question and i'm suggesting that he did challenge that but that was after the imposition of the sentence everyone i'm suggesting i'm saying here clearly the rules of criminal procedure i think this case boils down to the correct procedure wasn't followed and here are the procedure wasn't followed there's not fairness because of people there wasn't an opportunity to respond and then secondly there is no evidence of this it's virtually admitted it's just that it's out there somewhere that these are causing problems and there's no question about that but he made his finding on a proponent and standard that he was the mr for was responsible for deaths and overdoses and that led to him giving this huge huge upward departure or variance whatever you want to call it with there's a variance or not he did not follow the rules and about the school's point you haven't raised that yet but i would rely on the brief but i will say in regard to schools what we made we made the argument to first of all it was alluded to earlier that in this particular urban area any drug activity is going to be with some proximity to a school and secondly interestingly enough the every federals the all the federal standards not apple necessarily but it is a guide post and that is the thousand feet that's talked about in federal statutes and that is if there's  within a thousand feet there's an enhanced sentence here the closer's was eight hundred feet that was the closest so there's really nothing here out of the ordinary nothing different certainly nothing within that thousand feet that would call for this enhanced moment which ended up being you know it when combination or other very serious and handsome but we would say that was certainly one of the reasons which we challenge which also challenge of course in the brief the drug quantity thank you your honors we didn't cite any case where a court has found like molina martinez that there's an error when there's a lower range used because that didn't happen here it didn't happen here that the two times the judge explains what the judge is going to do in relation to an upward variance and talks about rejecting the guidelines he does so right next to saying one hundred  twenty months the guidelines are going to work here goes one hundred twenty months isn't good isn't enough next page the guidelines just aren't sufficient here because one hundred twenty months are enough that is i think telling the court that  minimum there's confusion on what the judge has decided the applicable guideline range is and there's at least a really good chance using the language of the love case really good chance that the judge used the wrong guideline range before applying the upward variance and i don't think that that comp liberation of those two facts is is that crazy when the government and its brief page forty pretty much does the same thing saying after rejecting the guidelines the district court from the longer you say that the government government's waiver point this isn't waiver because the error occurred after the defense attorney said yeah i agree with that guideline range that guideline range did i gree that there was no objection made but we can't we can't rely on the exchange between the judge and the defense attorney about hey that's the correct guideline range because at that time they're talking about something less than one hundred twenty months when later in the hearing the judge makes the mistake that we get from the but the cases we cite in the brief where there's one one ring stated but another one used when the judge then uses a different one and then makes a variance yes there's no objection but that's not affirmative waiver that's not agreeing that one hundred twenty months was correct this failing to object to one hundred twenty months more of a four year thank you or others if you for your helpful br