in the extraordinary departure that it showed that it imposed without without justification all evidence the error that the court committed this court should reverse that case reverse the error and correct it the court below had several factors to consider among them the appropriate guideline range of offense level of ten the criminal history category of one and then divisor a guideline range of six to twelve months the five k two point one factors  listed in the guideline departure chapter the case comparisons provided by mr bullfinch or which included the offense facts offender facts criminal history calculations guideline calculations and departure analyses of the was in this court's discretion to consider each and every one of these factors and in fact in she cases submitted by mr ballinger the same factors were considered by courts in cases that were relevant in particular no song and grover involved the police officer charged with a civil rights violation this case reversed the substance that was imposed because it found the sentence to be unreasonable based on the weight that the court below gave to various factors a primary feature of the year a case was a close case comparison of the facts involved in various cases and the facts involved in the case of a re below one way in which the eleventh circuit demonstrated the and reasonable in this that the sentence was through the case comparisons included in the array opinion there must have been eleven cases that were included opinion to make that comparison i gave to judge jackson since retired seven or eight cases that ma factual comparisons those comparisons include criminal history categories guideline analyses departure analyses offender facts and the fence facts for each and every case that was included in the memorandum so let me ask you this understand you've made that point in your brief to him you've given us all these right but i thought aside from your case comparisons you also had some corals with the basic logic of the judge but your piece because you said it seemed to imply the judge relied on improper factors for example you argue about the asthma condition and then i think you were complaining that the judge treated this fellow more harshly because he was a friend of the deceased and you seem to argue that that doesn't make sense because a commercial drug dealer would be treated less harshly than a friend of the deceased let me say there were i understand that correctly or like think that's somewhat less significant than a different point i'd like to make right now which also relates to the more to disparity in this case i mean those things i think are true but they're less significant than one factor which i think this court should consider much more closely if i may and that is th apply had you been convicted under title twenty one u s c section eight forty one b one c and the court said i didn't quote an appropriate starting point to that base offense level that's important because where we started in the case  was with an advisory guideline range of six to twelve months a base offense level of ted and a criminal history category of one the court was a was appropriate for for the court to consider at the cases that i gave to it though i don't think it gave them much weight the advisory guideline calculation mr ball under which included the calculation of a criminal history category of on the offense level time and advisory guideline range of six to twelve months it was even appropriate for the court to consider the  if you look at no sonne where the court also considered that base without several it imposed a sentence of sixty months on a criminal history category one offender with an advisory guideline range of ten to sixteen months and in grover where there was a criminal history category six offender who served three prior terms of imprisonment had amassed sixteen criminal history points trafficked in heroin middleman multiple deals went to trial was convicted the court there considered the same factors including u all right you may do so as whistler will hear from you good morning it please the court my name is reno miller whistler and it is my privilege to represent the united states in connection with mr bollen jer's appeal i also served as counsel for the government in the district court one of should move the microphone so they're sure thank  erred in improperly considering three factors mr stener the victim's asthma condition his use of vivitrol and opioid antagonist and the long friendship shared between  wonder about those points first of all your honor it to the extent that mr bollen juror alleges that any of those factors were inappropriate for the district court to consider it's crucial to recall that the government moved in this case for an  the extent to which the district court could properly depart right foot and what he's saying is that the judge gave me a lot of extra time and it was in part based on this notion that the asthma condition made the man more vulnerable and because we were buddies and then you're either factually wrong or you are certainly other reason not appropriate certainly did say that certainly the district more did consider those factors your honor however mr bollen your would have this court believe that those were the only factors that the district court considered in arriving at this sentence in fact not only did the district court consider the asthma condition the use of vivitrol and the long friendship the did so in the context of evaluating the section five k two point one factors pacifically the extent to which the death was intended or knowingly received obviously and as decided by the district court the long friendship between these two people and the intimate knowledge that mr bollen sure had with regard to the victims medical vulnerability and specifically his particular vulnerability to overdose is what drove this decision they were not however the only factor also found that mr bollen sure was aware that mr sanger the victim had used terror when earlier on the day that he died mr bollinger was aware that mr stener the victim had been to rehab at least once if not twice mr bollinger was aware that mr stener was taking vivitrol shots and had been for eight to twelve months prior to his death mr ballinger was also aware that prior to beginning the vivitrol regimen mr stener typically use one or two capsules of heroin at a time to get high but after beginning the vivitrol protocol mr stener began to use four or even five capsules of heroin at a time to overcome the blockade created by the trial and in mr bollen jer's own words during his interview with the police and  detective kurt sullivan testified to this at sentencing mr bollen or was aware that mr stener was using dangerous quantities of heroin in an effort to overcome the blockade created by vivitrol mr volunteer was also aware so generally you render any opinion as to whether or not that played a medical role in the victim's death however what she did testified to was that mr stener is breathing would have been compromised by his as much she further testified that that heroin and opioids in general act as respiratory depressants in other words and she testified specifically that a healthy person breeze sixteen to eighteen times a minute when someone is suffering from a heroin overdose their breathing gradually decreases to the point where they actually stop breathing someone who already suffers from a pulmonary condition whose breathing is then suppressed by the ingestion of heroin certainly one could conclude as the district court could have that the asthma resulted in an effect that was greater than what would be suffered by a normal person mr bollen or was aware that mr stener suffered from asthma mr bollinger was aware that mr stener his breathing was compromised on the day he delivered the heroin there was extensive testimony about the fact that text messages were exchanged and that mr volunteer had to walk up the driveway and hand the hair went to mr sanger and importantly the last three words mr bollinger ever said to his friend work dude be careful mr bollen or was well aware of the dangers of overdose deaths generally he talked about the fact that he and mr stener had acquaintances who had overdosed multiple times he also was aware of the increased danger of overdose based on vivitrol use he talked about a specific friend who was on vivitrol and who had used too much heroin in an effort to overcome that drug and had overdosed as a result none of the cases that are cited by the defendant in his brief by mr bollen ger have those facts there are no cases that are cited in this brief or anywhere in which there has been such extensive evidence by a defendant of a defendant's knowing risk of death to the ultimate victim mr bollen or suggest in his brief that just that the district court disregarded the cases that he cited however the exact opposite is true the cases that are cited in the defense and mr bollen just brief he also cited in his sentencing memorandum to the district court and cited them again during his argument at the time of sentencing to suggest that the court disregarded those cases is absolutely without merit the argument he makes today very closely mirrors the argument that he made before the district court i would also note that of the cases that mr volunteer cites the vast majority of the those cases are not cases that were decided by the circuit court that is to say they are not binding authority and were not binding authority on the district court one of the case he is a district court case out of the northern district of iowa and has absolutely no precedential value whatsoever the only of the two cases that he cites from this circuit one is the  in the government's view is largely in consequential it's twenty years old and it was decided well before booker well before kimber oh well before gall bone churchill evanson and certainly the case that was decided by this court in november to which what knows and doesn't say is that a sentence above sixteen months would have been substantial of it substantively unreasonable that simply is not the case why do you think this man deserved the extra t was given in that case for example your honor i would suggest to you that it would be difficult if not impossible to find a record more complete than the record that judge jackson made in her sentence of mr bollinger i firmly believe that the record that judge jackson made with regard to all of the section five k two point one factors more than adequately justifies the departure in this case i think that judge jackson went to great lengths to explain that not only did mr bol journo inly risk the death of his friend that this event required some degree of planning some degree of preparation mr bollinger as the district court noted went out of his way and made a sixty mile round trip to acquire this heroin for his friend he certainly was aware that he had every opportunity to decline to provide these drugs to mr stener he certainly was aware of the dangers of his conduct miss the district court also discussed your honor the general deterren that she connected to the sentence she specifically stated that the general public should know that the distribution of a controlled substance resulting in death will result in severe consequences it's important to recall that these cases are not decided in a vacuum and when we look at the did chose to deliver heroin to his friend who ultimately succumb to it and was found deceased the following morning and with that your honors i thank you for your time and i will submit the matter very well thank you for your argument both codependents that makes sense with the internal logic of narcotics addiction one last quick point to find may i see my time is up one last quick point under five k two point one the factors no factor suggested this case was aggravated at the planning preparation was no nimal drove her friend there was one death not multiple deaths no other factor involved suggested his case was aggravated now anyway i would urge the court very well thank you for your argument thank you both counsel the case submitted and the court will file an opinion in due course