next case on for argument is united states versus factors in determining that such a disparate sentence was sufficient but not graded the necessary to accomplish the statutory goals of sentencing can lead to only one conclusion the district with did not follow the mand of aggravated identity theft and she is not that's correct and i get underneath that that has a two year mandatory minimum rect and it says that you the statute says you can't reduce the other charges to account for the mandatory minimum  are both statutes that are of equal import and because they're both equal in what then the court can and we submit usually what we do is we decide which is the more specific so is not the specific offense of which she was inequity of the set of the plea decisions were or rather the prosecutorial charging decisions that were made in this case when the facts conduct and criminal history of the parties are identical wouldn't be your argument and maybe you'd say sure and this is great but wouldn't your argument also apply in the case of a standard narcotics and with a five year mandatory minimum  variance to more equitably employment or variance from what is your argument that what the court should have was give less than eighteen months on the other count that's correct but isn't that prohibited by the same three factors to consider one the nature of the fence itself and the participation of the parties which is identical to the background and character of the individuals and their breaks down into two factors one what the prior criminal history is now both in the exact same history criminal history category three the coach will considerably on mr deal was prior criminal history with a criminal history was actually a number of misdemeanors and violations and those misdemeanors and violations were all for selling counterfeit see these on the street which is in essence what he had done his life we've been through most of his life and the other factor that should be considered of course is the individual's background and character and how it's going to affect this person going forward in terms of sentencing both past present and future and what the court focused in on to a large extent as it related to mr heller was that she had stage one breast cancer that had been recently diagnosed and previously been in abusive relationships and there was evidence to show that this was an abusive relation and if you look at all three of those which i looked at closely miss taylor had stage one breast cancer which was in complete remission under control this is not somebody who has stage four breast cancer something which runs from the core bring that up to say that she got the diagnosis right around the time she entered into indeed but she had  one and was under control she did not need chemo she did not need surgery she did not need radiation yes unfortunately frequently women are diagnosed with breast cancer but fortunately the large percentage survive and live but not  do so this is not a stage for situation where the horror of what was about to occur should have been seriously considered in an appropriate way but rather it was a factor to be considered as it related to an abusive relationship yes she had been in abusive relationships but her relationship as a concern the offense had nothing at all to do with the offense conduct she invented the scheme she created the scheme she recruited him for the scary saying she should have had a heavier sentence no i'm saying they're equally culpable not that not that it should have been a factor to take into account to say that bequest will be entered use of english and she had her sentence was lower because of these mitigating factors and you're saying mitigating factors were inappropriate then wouldn't the remedy be no reason for sanctions over her court and can at least and in a greater amount of emphasis in rationalizing the disparity in sentencing upon those personal character s of her if you look at them closely which are not warranting a fifty percent or lower sentence when his factors were that he was about to be removed and will be removed to be named where his father might well have been executed most of his family's been executed and he's going to have a certain there's no doubt about it at this point because of the nature of the fact that this is an aggravated felony no ticket no go he's gone and he's going back there and he has two children that he was supporting that he's never going to see in never going to support again and the court didn't take into account those factors and those are really really significant factors that counterbalance what her factors were and the court didn't consider them at all so i would submit that when you go back and at substantive on reasonableness between quiet is in essence a shock the consciousness stand in a sentence of twice the amount of time for people who committed the identical acts with the same criminal history and who have backgrounds and collateral consequences that are both significant and his might will be significantly greater a double time sentencing is substantively unreasonable and therefore it would be in violation of the parsimony clause and as applied in this case thank you mr nelson you reserve three minutes for a bottle may please the court my name is adam hobson i'm assisting united states attorney in the southern district of new york i represented representing the united states on appeal as i did below the pellet has not the appellant does not raise any factors today or his brief they were not considered by judge because still when he imposed the bottom of the guidelines and it's on mr de awara judge to still consider the adverse immigration consequences he considered the defendant's history and upbringing he considered the defendant's role in the offense and importantly years sentence run concurrently with any other term of imprisonment and specifically prohibits in determining the term of imprisonment to be imposed on the felony during which this aggravated identity theft occurred the court shall not in any way reduce the term to be imposed for that because the person is also facing twenty four months exactly that may be good policy or bad policy we may like it we may not like it but am i wrong that the judge really had no choice st he did essentially what mr nelson suggests he should and which is give the exact same sentence to the two defendants on then congress prohibit him from reducing that to take account of the fact that he's facing twenty four months and requires him to impose a consecutive sentence of twenty four months exactly i think that's when the most significant so the only mr it could win is not just to show that this is unreasonable that we would think it was unreasonable if it was done in the judge's discretion but that the statute is actually unconstitutional as imposing cruel and unusual punishment because of it's constitutional we have to follow it yes i'm not sure if you would have to go all the way to the constitutional issue but it's it's certainly true that  as a district judge you know this is a similar consecutive sentencing thing as you well know in section nine hundred and twenty four c and i thought when i was st doing this well i guess i really the only fair way to honor the intent of congress and impose a consecutive sentence is st do the drug sentence and then ed nine hundred and twenty four c five years and i got told by the courts that was wrong the higher wiser courts of of me that know it just all it requires is that it be consecutive and you can take into account the fact that somebody is facing a five year mandatory gun charge in deciding the narcotics thing well congress didn't change that or overrule that decision but it wasn't it quickly decided we're not going to be tricked again that way we're going to make this one very explicit that you can't not just that it has to be a consecutive sentence but that you cannot lower the other sentence because the guy is facing this additional two years so again i don't see how judge his dell could have done anything else at least one he decided that think we have these two contrasting things and one of them is more specific the one that is a more specific also sense not withstanding any other provision of law and three thousand five hundred and fifty three was on the books when it was passed exactly that the sentencing court does not have to do a comparison of the individual defendants once the court does this court has the authority to review and compare the rational basis for doing so and what would you have us tell th situated the fed we've got the statutory provisions and let's talk about what we say to judge my argument to the court at this point is that as applied to this case without utilizing thirty five  there are certain unusual circumstances but that occurs and in this case it's one of those circumstances because at no time did the government ever want for this to dui or a plea so only through the bank fraud charges that's something you take up