court my name is peter henderson i represent jerry jones in this case three procedural errors here i'd like to focus on the rd because i think it's the most fundamental  reflects generally how federal sentencing law works and that is that we take a holistic view of both the defendant and the offense conduct as the sensing commission explains in section s one point two sentencing courts are really to examine not just what the prosecutor charges not just the mere facts that that make up a count of conviction but to look at the whole picture we see that in the guidelines where we consider for example relevant conduct in section one b one dollar so not just what happened in the offense of conviction but also anything else that happened in the course of conduct  offense level that produces one guideline to arrange and then the district court can examine all of the conduct all of the defendant's history and characteristics and step one of the processes to determine what's the total punishment that will be conform that total sentence that is sufficient but not greater than necessary to the statutory criteria and so what happened in this case gets that backwards where the district court appears to have started with step two where he's going by counts of convictions instead of starting with the guidelines range and the total sentence under section three thousand five hundred and fifty three dollars a and that's how we arrive at this strange situation where the court dissatisfied with the total sentence of six hundred and seventy five months that comports with the sentences that mr johnson co defendants received six hundred and seventy five thousand seven hundred and twenty eight months that's th going to find that eight hundred and forty months is the appropriate time that's that's an impossible statement if we are following sentencing law correctly because the court should determine st what the total punishment is and only then apportion that punishment among the various counts that's the approach that the supreme court indorsed in dean and the supreme court expressly rejected an idea from the government that we should go count justification there is relies on inaccurate information the quote very clearly i think conflated one of mr jones's prior convictions with the offense conduct in this case and thought that mr jones or one of his good defendants a discharge transcripts the court is evaluating saying the typical three thousand five hundred and fifty three a considerations i need to evaluate the district characteristics of the sun and the nature and circumstances of the offense and he goes over them a the nature and circumstance after he's just misapprehended what actually happened and so that's that's his examination of the nature and circumstances of the offense and then doesn't say anything more about the offense and proceed to talk about mr substantially on the basis of how the district court perceived that the sense certainly the criminal history had had something to do with it but that that seems to be how the district court looked at this gonzalez case sort of squares with this a bit in terms of examining under plainer review what would constitute reliance on an inaccurate information and then the judge had thought my question to you is the court didn't explain why jones was not similarly situated to the other two is that right right right he didn't differentiate their roles  what does your answer do if he comes up with the same sense well that i mean that's exactly it is we haven't made a substantive on the reasonableness challenge here we're not saying the judges is been in all circumstances from arriving at the sentence but on this record there's just no there's no explanation i think that your point about the co defendants is an important one because he seemed to have imposed the fans thinking it was just in line with the other co defendants again step one of the process is thinking of the total sentence the judge thought it was six hundred and seventy five months and under you know to avoid unwarranted tons and disparity that would be a perfectly fine sounds so you know what the supreme court has said more recently is when you have these types of procedural errors every sentencing hearing is a brief but then it doesn't impose  you know a number of costs if if the court were to again find that this is in the eight hundred and forty month sentence that that's the appropriate sentence and actually provide some of the justifications that we've talked about in our brief that we're lacking you know comparing to the co defendants justifying why why i thirty seven years above the guidelines ranges appropriate in this case why the guidelines don't get it correct then you know it may be may be affirmed in the next appeal but we have we have a suppose we have the sentencing procedures to make sure that the district court is going through these times that's correct and i i think that if the district court order to do that then  may please the court brian writes for the united states i would like to take those somewhat and reverse order starting with jeff flock in your question the district court did say and i'm quoting this is sentence transcript sixty seven that shows his co defendants had similar records and similar conduct as far as going into that a little bit more the court did in the retired taishan of the statement of facts list out all the co defendants their inner workings and criminal conduct so we think spidey the district court mentioned an incorrect statement one time where the miller of the district court mentioned an incorrect statement each time he just the judge restated the facts of the defendant's criminal conduct where here we have one statement that followed the long re citation of defendants criminal conduct which is accurate then recites a sion the defendant's criminal history which was accurate and this one paragraph did sort statement must have influenced the court's findings that these were horrific crimes and jones threatened and vigils but of course that is in fact true with or without the inaccurate statements given given the statements of the court and he's talking about the victims and the great fear they were placed in and the fact that they were threatened and then he goes into the statements that's not accurate concludes these are just traffic crimes of violence and threatening individuals so looking at the record how can we conclude that his belief at the time that he had threatened what are the family members with a gun a shotgun after the robbery how can we draw a conclusion that he wasn't persuaded by that inaccurate statement well would like to address both those two inaccurate statements that the shotgun i think mr jones agrees is somewhat something of a distinction without a difference there there was a gun i think the primary and i can see that your honor pointed out was that mr jones didn't threaten the victims in that way that mr jones did threaten the victims mr jones threatened to shoot mr route if if mrs route called the police after they left so the statement that mr john stretton the not accurate yes that is that is not accurate your honor we haven't disputed otherwise but i think when especially in plain area when you look at this court's precedents there has to be something more than just  tating something that was wrong there has to be some reliance and it's hard to say there was reliance from one statement which doesn't really do any of the prod or findings that the district court made  this was with or without those it was a replica and mr jones did threaten individuals and i do want to step back i think mr jones is argument on this somewhat ignores what the district court actually did i mean the district court that the primary focus is for the judge where one protecting the public to join his posts and conduct which included a conviction for murder and three avoidance of disparities between mr jones's co defendants and the statements don't the inaccurate statements don't impact any of those three factors so in that context i don't think this rises to play air on this front what impact it has on us he makes this inaction inaccurate factual statement and then goes on to sentence mr jones substantially above the guideline range should that factor into our analysis i don't think so your honor the inaccurate statement especially in this context when the judge was pretty i think pretty clear about the three reasons why mr jones was sentenced above guidelines and it really wasn't that  think we can take that and it's certainly accurate but the victims testified at the sentencing hearing i don't think anybody questions that the impact on the victims was severe they're still troubled by it twenty plus years later so that inaccuracy doesn't really in any meaningful a meaningful way impact the victim suffering i mean yes as we said in our grief the the incident would have been worse if those things occurred but it did still significantly how big of an impact it had on him so the district court was correct that it did have a severe impact on the victims and there are no further questions at that i do want to not sure how much time i have left but i want to move on to the parsimony principle  here i guess i would start by saying that to whatever extent our brief implies otherwise we agree that the aggregate sentence is the primary importance in the guidelines are set for the aggregate  sentence but the district court went and knowing you're thinking that the final number should be the maximum sentence i don't think there's any dispute about that the district court judge said that a couple times that he thought the maximum sentence was the appropriate sentence then he calculated the individual sentences on the individual counts and it's true that he made a math a mistake but i don't think that that math mistake can rise to a parsimony principle violation other why this we pointed out that any time a district court judge makes a mistake in addition he would he or she would then be stuck with having to defer to default to the lower sentence which i don't think is the point of the parsimony principle sure i'll just say i think it's incredible to think that the district judge did not consider the seriousness of the if i'm so the primary reason to impose a seventy year sentence but i think the government sort of gets the game away in saying that the court did