triggered by a failure a single failure to appear in court sixteen years earlier on a case that was ultimately dismissed this enhanced based on his failure to appear in court sixteen years earlier increased his guidelines range from fifteen to twenty one months to thirty seven to forty six months you're not suggesting that the guidelines calculation was wrong you know it's not i'm not suggesting the guidelines calculation was wrong what i am suggesting is that i guess the best way to look at it is when i when i represented just indoor b and united states against doherty i asked the court to look at the child pornography guidelines as a flawed guideline and the court did so i looked at the two l one point two and hansen's those enhance was arrested for firearms possession and receipt and was deported and then but then kept coming back into the country illegally and he did it twice more he was deported after each one it is disturbing according to the guidelines according to the research by the sentencing commission and i cite these statistics in my brief the average illegal entry defend has been deported has been as illegally reentered three point two times previously but he had a prior conviction for illegal reentry previously for which he received a thirty six month sentence so in your view when you do it again the sentence should go down i'm not there it's an open question as to and i there is some good in our brief i cite some discussion by the district court judges adding who have had to apply these guidelines and some of the district court judges feel like more time does not necessarily equal to determines the sort i think judges may think that of course but the i think the issue for you is whether or not the decision to impose this guideline sentence was substantively on reasonable that it was unreasonable for a judge to reach that conclusion that's a pretty tall order i think i think the flaw in this sentence you need to look at what generates that guidelines range it's almost like there's a presumption that as this is guideline range thirty seven to forty six months and out is i'll address it in the time we have here i would commend to you you why was the eight level and handsome and inappropriate ok because the oddity of the two l one point two enhanced mince is that they are the only enhanced mint in chapter two that focuses on par convictions as a specific offense characteristic even though the prior offense has no factual nexus to the instant offense or e entry in other words the fact that in two thousand two he failed to appear in court on a case that was ultimately dismissed did not make his illegal entry worse that's how the two l one point two enhancements are different if you look at enhancements in other in other crimes like  ok child pornography enhancement for sadomasochistic content clearly that makes the crime worse unreasonable to look back at some years earlier he engaged in other criminal conduct well because in the commission in two thousand and sixteen realized that stale convictions should not be used for these in hansoms and that was a positive change unfortunately because of what there were subsequent convictions after that ass year i mean including one for possession of a gun  the not provide further support for taking into account the longer history i mean no words that have been the only conviction it was sixteen years earlier and there was nothing else sense you know the argument makes sense out of you know it but but there were  subsequent additional criminal activities well the the gun conviction was too old to generate criminal history points so if you look at his criminal record after that you have a decidedly minor criminal record when you say minor he got you got a sense of sixteen to four years for that for that state charge right now i'm talking about subsequent to that the deportation reentry after that charge you separated out i mean you know these are three five five three a factors that the judge is looking at and criminal history is relevant to those those under those factors and and there's no limit on that i mean you may not have a good habit now the criminal history points that that would boost his his range but but from based upon that of those those are not the judges and prevented from considering things but what i am saying is if you certainly a firearms charge be a possession of firearms charge buying a legal alien is serious subsequent to that on his initial returns which conceited the only things you have two thousand and ten misdemeanor possession of marijuana two thousand and seventeen misdemeanor patronizing a person for prostitution sentenced time served so  that extends that includes five convictions because there the court can look at at the older convictions but what i go back to is the flaw in the two l one point two enhanced meant creates an inflated guideline it definitely creates an inflated guideline the issue is a reasonable and i lied i think it is because if it were not for quirks in timing ok he committed the bail junk in two thousand and two he was convicted in two thousand and six because he had no conflicts with the law because otherwise the want would fall on the let her of the amendment two thousand and sixteen is to recruit stale convictions he didn't fall within the letter but he certainly fell within the spirit of that it was and that amendment he wasn't convicted until october two thousand and six but he got a sixteen month sentence for that bill jump you seem to be sort of just sort of throwing it off like it's kind of a joke no i'm not throwing off like it's kind of jokes teen month sentence he received it was longer than he got for the firearm the possession of a firearm it's it's a sixteen month sentence but it's also from two thousand and two no it's a conviction and two thousand and six he was going on from two thousand and two to two thousand and six and wasn't  you know wasn't available to them but the crime continued to outright but what i'm saying is that if it's through quirks in time i see that i'm about to  up it it's true quirks in time and that he didn't fall within the spirit of the two thousand and sixteen amendment that he didn't forward in the letter of the two thousand  amendment in other words the act was a stale act the conviction was not considered stale under the terms of the amendment so what do you think the act ended his failure to appear when he  day he didn't show up or all the days in between or he didn't show up well theoretically it's all the days in between until the time he's involuntarily returned on the warrant that would not be stale would know but i think the focus should be on the problem that counting if counting that conviction as an aggregating as an aggravating factor to the illegal doesn't make sense i know the guidelines do it but i ask you to consider whether that makes sense did that failure to appear in two thousand and two and up until two thousand and six did that morning your honor may it please the court illini fodor representing the government on appeal your honors the district court's guideline sentence should be affirmed for the following reasons first mr guideline sentence of forty six months imprisonment was reasonable as the sentencing transcript makes clear at sentencing mr not only did not contest the calculation of his guideline sentence as appropriate but he also explicitly stated that a guideline sentence would be reasonable in his case and that is precisely what mr christie or received a guideline sentence in rendering mr christie a sentence judge has considered the appropriate guidelines range as well as several thirty five fifty three a factors including as personal history and circumstances such as that mr mr christie has reasons for leaving mexico when he did as well as his criminal history and multiple unlawful re entries into this country and the seriousness of the offense before the court giving due consideration to all of the party submissions and these factors judge gave mr christie a sentence that he found was appropriate to the aims of promoting respect for the law the need for specific and general deterrence and to avoid unwarranted sentencing disparities among those convicted of similar conduct this is not an exceptional case where judge cristol sentence cannot be located within the range of permissible to citizens and  guidelines range he has waived those arguments and those arguments are substantively wrong in any event as the district court committed no error in sentencing mr did not object to the guidelines range calculate also waived and is an incorrect as a matter of law under the precedent of the circuit at sentencing the parties agree that mr bill jumping conviction would be considered both for purposes of enhancing his often level as well as for calculating his criminal recognizes in his appeal it is well established in the circuit that the district court does not err when it counts a prior offense to calculate both the off and as well as the criminal history category so long as the often to itself is appropriately counted as part of the received criminal history points thus the bail jumping in fiction was not improperly double counted as mr christie who suggests fourth and finally mr christie has various arguments that he should have received a more lenient sentence were fully considered by the district court judge to still considered that the underlying charges associated with mr bail jumping infection were in fact dropped he also consider the nationwide statistics for average sentences for unlawful re entry defendants for the year two thousand and thirteen and mr christie has mitigating personal history and characteristics weighing all of the factors in after careful consideration judge himself found that a guideline sentence of forty six months was appropriate even if other judges would have weighed the factors differently that is not sufficient to render mr christie a sentence substantively unreasonable there was no error of fact there is no error of law and there is no reason for this court to disturb the considered judgment of the district court for all of these reasons the judgment of conviction should be affirmed unless the court has any questions for the government the government will rest on its very thank you is what i am saying that double counting is allowed because it's supposed to measure two things it's counted for criminal history because you're supposed to measure the likelihood o it's counted as in enhancement because it is supposed to reflect the seriousness of the crime and moral culpability right yes what i am saying is that it is a that that the flaw in the application to the seriousness of the crime to the enhance two thousand and six he was a fugitive but that did not aggravate the circumstances of his illegal reentry that is why dadt enhancement is different from the other chapter two enhancements and that why that's why there is a