morning they please the court counsel my name is daniel help us and with the federal public defender's office and i represent mr armand you raise two issues on appeal one of the issues has been conceded by the government that is as to the improper imposition supervised release conditions so if court doesn't have questions on that issue i'll turn to the remaining issue on the appeal remaining issues whether the one hundred eight month sentence that was imposed on this to our mind was correctly impose hundred five miles so that error by itself that mistaken sense of what the appropriate guideline range was demonstrates reversible error in this case the second  problem with the imposition of one hundred eight month sentence is that because it wasn't about guidelines sentence there had to be a justification given for the increased punishment that was imposed and there was a you know you talk you know just about that frame reverse next there would be a problem argue about the lack of meaningful consideration for the crack pot or cocaine disparity argument that mr armaan made the district court concluded that there is a guideline and therefore the sentence should be within the guideline range which for all the other reasons we say there's a problem with the conclusion but in respect to the exercise of meaningful discretion for the cra cocaine this is the district judge required to address such arguments to the ask him to to reject a guideline there has to be meaningful consideration even if it is policy disagreement yes and i thought we had said a number of times that those are arguments the district judge does not need to address expressly stock arguments may not be expressly addressed the just court need not say much an exercise in its possession to reverse a policy or she has me to follow the guidelines and not exercise discretion to disagree with the policy determinations of the sentencing commission but something has to be said in the district court said nothing as about i agree with the guidelines it's not enough that i think saying i agree with the guidelines not enough more needs to be said how much more they guidelines this would be a pretty you're what you're asking for there seems like quite an innovation in her sentencing repellant review if we're asking district judges to get into debates and defend the guidelines and i think that requires much debate and little defense but as how how much has to be said that well when the relevant standard is meaningful consideration i can't give you a number of words or number of sentences but there has to be something that said nothing was said here so as a benchmark nothing is kind of the impression that the powder cracked distinction was important  to judge say bill in this case if you see he emphasized that he discussed other other factors he thought i think though your honor that demonstrates our point is that while he was focused on some things that led him to impose a sentence of there has to be some consideration should be meaningful consideration here there was no consideration he wouldn't have had to give a lighter sentence if he had said there's no meaningful distinction between absolutely correct or not no dispute there but he had to say something that let us know that he had considered it and he did and it was a principle and meritorious argument that was made by mr armand fine was it argued to him that  is more serious than i don't think that you can make that conclusion based on how little was said in this case it was something that was significantly raised in the sentencing memorandum by mr oman and virtually no attention was given to it by the district court other than to say there's a guideline others say what there's a guideline oh it's just court said there's a guy  addressed we also know that roberts versus united states said that cooperation is very probative of the defendant's rehabilitation and so that should have been something that the district court addressed explicitly and it did not there's no this first you're asking for a complete recency yes the government's agreed to that and does the defendant know that he could get more time in prison with a full recent incident you're on our way i always advise their clients that they have the judge has as much discretion the sentencing as at the release had a long record of problems with those right yes ok and then your honor if i may i have got a problem with if if there are problems letting somebody stay out and continue to engage in the ruinous conduct and using it against that person at sentencing we'd rather that that person not be left to their own devices in order to wind up with a higher sentence so i do wish to make that point that mr armand had he been revoked in the conditions of bond violation was brought to the court the court invoked him he would be in a better situation than he want to be so he should have been revoked i think so violating condition of bond was that argument made before the district judge before sentencing and eclipse i wouldn't think so now would be a tough argument to make him so not having taken that sort of queen's gambit prior to sentencing it's a little tough to make that argument now i would think but there are you familiar with the court's decisions in armor and douglas recently i guess on some of the conditions of supervised release that you've criticized here but which were upheld in armor and was correct yes and you pointed out in your brief i want to make sure i understood this correctly on the question about whether somebody on supervised release can be ordered to answer questions by the probation officer and i thought you said he's not one parole the probation or maybe there was the fourth amendment yeah he's not been given parole or probation in exchange for diminished fourth amendment protections and i'm that seems unlikely to me he's on supervised release why doesn't he have diminished fourth amendment protections because there's not the quid pro quo that there is in the other context of parole and probation why not he alternative is a longer sentence in prison no i don't believe so sure as long as he's under the statutory maximum that's an available option to the judge is not an alternative that's not a necessary requirement but we're going to hear argument in another case this morning where the defense has argued in essence that the judge didn't do enough to help the defendant reintegrate into society or prepared to reintegrate into society that's what supervised release is intended to to write supposed to be its primary function but in practical effect it seems to be additional policing powers that are exercised by this probation office that is in one sense an arm of the court another law enforcement and we've got a lot of rights that seem to be lost in the mix well i mean i know that you you've argued in a number of cases in essence that we need to treat conditions of supervised release as if they were criminal statutes in terms of the precision that's required and i'm wondering if you can direct us to any instances where defendants have had supervised release revoked and they've been  prison for soli file ation such as whether somebody has associated with felons left a district gone to a place where drugs are sold and so forth yes where is that there also a new crime no but that's our point is that you have conduct that is not criminal and they get revoked for it let me make sure my question is very precise are you or people being did i cannot recall cases by name they are cases that were necessarily appealed but there are sentences that were imposed on the conduct and basis for the revocation were things like leaving the state which to me  as a person on parole you have freedom i think to go within the state's borders but as a citizen who's an supervised release you are limited federally to go within a judicial district as opposed to being able to travel through  worse than then the restriction on leaving the state is when you're not allowed to leave the district without the probation officers because they had because who knows what the district for years and i was meant to leave the northern district good morning your honors may please the court counsel my name is phil floor and i'm appearing on behalf united states in this matter with respect to the sentencing issue it's the government's position that  they're the error with regard to the one hundred eight month sentence was harmless the well i don't know why you say that he's the president just three months no your honor because of the record that the district court created indicates extensive discussion about the sensing factors as to why the court arrived at that sentence it the district court stated up front that it had reviewed the p s r in supplement you didn't say there was no erisa it was a harmless sentencing guideline range which in this case was eighty four to one hundred five months and the district court made a comment that he thought that he believed that the sentence he was about to impose was within that range so if in so far as that but that implies that he what the district court said is that even if the did the range was much lower even if it accepted the crack powder ratio and the sentence was the range was forty six to fifty seven months it still would have imposed that same one hundred eight month sentence i think with the district court was lower he said forty six to fifty seven months he still would have imposed the same sentence for a series of reasons regarding the defendant's criminal history that his general history and characteristics the need to protect the public the need to grange why did he say it was with him you're i think it's clear that he was he was mistaken or he misspoke misspoke about about his understanding of the range when he made that comment neither party raised it and in all seeing it obviously in the record it's very clear but i don't recall him making that comment or i perhaps i might have done differently but neither party made any any reference to it at that point and i think in part he had he had spoken great length regarding the defendant's history and he said in connection with the crack powder ratio that he just did not feel that that was a significant factor he felt that the history in characteristics of the defendant his lengthy lengthy more so than in the sentencing guideline range in this case so the eighty four one hundred five months that that is the range in the parties that was the parties understanding going into the hearing but the the district court right from the outset had had several occasions during the sensing hearing that there were other factors that were far more significant than the quality or quantity of the drug the district court also said the single most important thing was the defendant's history the district court also said that he felt that there were other quote non guideline factors that were significant that were not amenable to arithmetic calculation and it just did did this because judge was he interested at all on the question of whether crack is more serious crack a fest more serious than a power of your own or the district court's discussion that issue was was fairly brief you mediately to discuss his sentiment that other factors were more significant he did and i would i would counter the defense argument to some extent there wasn't no discussion it was just very brief discussion and sensually he said that he was expressing deference to congress  segue for him to then transfer transition into that the things that were most important to him again that's the history of characteristics of the defendant and other what he described as you know non guideline factors that weren't  amenable to arithmetic calculation and that's that was the point at which he spoke for approximately seventeen minutes about you know extensively about the defendant's criminal history he reviewed his  violations going back to his time as a juvenile a number of serious offenses including violence and help and home invasion he also then you know discussed the mitigation report that that the defense counsel submitted and he came back to and ultimately imposing sentence again stressing the importance of the history and characteristics of the defendant the need to provide promote respect for law before to adequate deterrence and and protecting the public  range is just one factor under thirty five fifty three and it's clear that the district court believed that the other factors were far more compelling in the district courts case or the defendant's case there's no indication as in some other cases that have been decided where the similar issue had a similar a similar issue has arisen like bartlett that the district court peg its sentence of one hundred eight months to to any of the guy like ranges in fact that district court emphasized that it was belief that the sentence was justified by the other thirty five fifty three factors separate and apart from from the guidelines you off and then again the district court also talked about the the incapacitat the advisory guideline range played no part in the governments or the district courts determination of the sentence of imprisonment and that's why your honor we believe that the the error on that issue was harmless and it demonstrat that the the breadth of the district court's analysis demonstrates that it's sentence it's chosen sentence of one hundred eight months was a result of a deliberate choice rather than some mistake regarding the a political divide lines range and for these reasons a district court is  anybody i don't know i mean it's a good it's three wholly arbitrary three months is where would you look for where would you look for information as to whether a person said should be a hundred and five months or a hundred and six months or with that because a district court did not make those distinctions it's difficult for me to try to infer into that but the one hundred eight months is nine years so it might have been in the judge wanted to get nine years yes ronnie wanted to give him nine years for the acts of the myriad reasons that he expressed on the record regarding the history and characteristics of the defendant the need to protect the public and the other thirty five to fifty three factors that we've view that the district court's determination with respect to that sentence should be and should be affirmed and with regard to the mill you agree though that the entire sentence has to be vacated and because of the perhaps reconsider the sense of imprisonment in light of the supervise release that it imposes however it is our position that the sentence should impose a similar one hundred eight month sentence for the same same reasons it did in the first instance that that would be a efficient time but the judge never said that he would have imposed the same sentence regardless and the judge very clearly said that he was trying to get the sentence within the guidelines range and yet he didn't and as far as repetitive acts and so forth if the district court is genuinely concerned that my client can never be compliant follow rules he has many months and imprisonment and i have a disciplinary record i think that be highly probative to the district courts now assessing their pepper versus united states to determine whether the sentence should be lower and also their practice theory post post sentencing yes record right and also the crack disparity had it that argument been embraced there's a thirty seven to forty six month sentence i think that could have resulted if the district court had meaningfully considered that we hope that he will this time and furthermore he was recently pointed out in united states versus gregory sanford in other cases it just reports appropriately consider their discretion and recognize that supervised release is a punishment that in addition to the amount of incarceration that one serves perhaps this judge would be inclined with all these numerous conditions of supervised release to treat it more in the sense of parole as judge hamilton sort of indicated that it's been done historically that this person sentence should be lower than what it is now have a period of supervised release but also the conditions and therefore if he's violated he faces the possibility of additional incarceration for not being compliant those rules had nothing for them thank you well thank you for everything defenders