our final case for today is united states against kyle williams and we'll start with mr mullens good morning my name is brian mullins and i represent kyle williams on this appeal in the united states versus holland's case issued by this court last year about a year ago the court commented that we have cautioned district judges knots or pre term in the appropriate punishment and revocation sentencing hearing exam and other sentencing hearings and that is essentially what argument as in this case is that the district court predetermined a sentence at the statutory maximum we believe that the district court's pretty germination is illustrated by two procedural errors that we have identified the first is that the district court did not give adequate weight to the policy statement for the violations of the issue and that the district court did not consider one of the defendant's mitigating arguments which was that his criminal history category had been incorrectly assigned at his original sentencing hearing so that a couple couple things about this mean as in the same district judges in the marmion case she does begin  the session seeing where the that the hearing on what sentence for the revocation process should be given with a statement of the policy ranges recommended in chapter seven of the guidelines so she she knows it's there and she does talk a lot about why in her view he is not a good candidate for that and that she thinks maybe those  recommendations aren't so good in this situation and she wants to use the statutory range as her point of reference but i'm going to will see why that's not within her discretion she's certainly aware of the nine's and she invites us so if this criminal history problem as a thirty five fifty three is really thirty five eighty three or whatever it is but the as a factor it i agree with you there's not a lot of follow up on it but at the very end she says is there anything else you want me to explain about my sentence it's just not anything else is anything else about the sentence and counsel for mr williams says no so why doesn't all of that add up to something that may be very harsh sentence for this person who clearly has serious problems of addiction and who perhaps was victimized by the second doctor but that why isn't that all within her discretion well i think that the sentence i mean there is a way for the district courts who opposed the sentence that it did and act within its discretion but in this case you know i think that what she does and the court didn't use that term but i think it's it's implicit in the way that the court does not give much attention to any mitigating factors which were brought out by mr williams there was testimony by his mother who was a nurse that he became addicted to opioids after he suffered an accident there was there is evidence that he was clean from heroin for three years during this while this case has been pending he has been working so there were mitigating factors that we do not believe  giving proper weight to both the statutory maximum and the policy statement range and that the court would give more attention to those mitigating factors but she doesn't mention them you know i'm looking at her sentencing transcript she says no one disputes here and add a few things to mission for some time but she just doesn't weigh it the way you would have and that's where we believe that that presumption of reasonableness to the statutory maximum is displayed in that in the weight that the court gives those are some of those mitigating factors including the criminal history category which is significant even though it's only in maybe a few months but it does impact the deviance from the guideline range of the original sentencing which is of a relevant factor for how much to vary upward as s the brother cation sentence and then it also effects what the policy statement arrange for the revocation sentence itself is the i think there are some procedural issues that the government has raised which are significant in this case and  probably bear some clarification i think there is some to keep a lot of some of the cases aren't completely clear as to whether the court reviews procedural errors that revocations for to do this court will only apply one standard of review to a revocation sentence that is different than the procedure used by the court for for the original sentence i don't believe that there is legal justification for that just one standard of review for the purchase just to find plainly and reasonable the procedural errors you know there are statutes and policy statements that the standards that are put in place by which he would have got to the point where there are absolutely dictating what the core sense should be and the district judge does have some discretion right right just certain things have to be considered and i think the consideration good afternoon your honour's and may it please the court greg walters on behalf united states irrespective of what standard of review this court applies what this court has stated in and examining the sentences imposed upon revocation of supervised release it assesses whether a court has complied with thirty five eighty three that is to the court consider the relevant policy statement range and if the court consider that thirty five fifty three a factors in regardless of what the defense is arguing one cannot look at this record and say that judge pirro did not consider the policy statement range when it's clear from the record that she read the violation memorandum she stated the polic statement range on the record she indicated the weight that she wanted to give the policy statement range in the reasons why and then she considered application no four to seventy one point four in the united states versus looked at the exact same allegation my defense and said that allegation was quote patently false the judge darryll did not consider the policy stated range so there is an additional wrinkle here which is  appears to be just an error in the middle history calculation the first time around and that's a little troubling since these things are half dependent you know in a certain respect and it seems i don't know what the remedies are other than perhaps taking into account as discretionary factor at this point which you volunteered to do but never really follows up on at least not in so many words or i don't know whether the probation office ever filed supplemental memoranda that could be used to fix a mistake like that it seems unfair for it to be baked into the procedure when i know it's a mistake well i think two things on that first she did offer to continue the hearing to allow briefing by the partisans this was an objection that was first raised right at the hearing they chose to go forward she offered to say are for making argument right mitigation the fact that he made the argument mitigation doesn't mean she had to accept it and i think by explaining the weight that she was given to the correctly calculated guideline range that she also explained why she wasn't going to consider even a lower range that she believed based on this contact that she was that courts were basically out of options that she was going to go above anyway in fact stated that if i could give you five years i would but i'm giving you three of course that argument also by defense presupposes his cunningham argument was a wait and i think this is on all four points with donnelly when this court stated that argument a kind of an argument is waive with counsel in response to the question would you like any further elaboration for the reasons for the sentence and says no that's waiver of any cunningham argument but regardless of waiver or alternately the cunningham argument loses on its merits so two things the two issues that the court consider the policy statement range the record is clear that she did that's the argument that was raised and that's what we addressed where he's coming from and the same thing with the court predetermine the sentence was predisposed and that there was a presumption those arguments were made and if if there is an argument about bias he should have made it as opening with an initial initial s with what judge pirro did or not reading her seven to eight or nine page explanation for the sense that she gave is not what you would consider to be a reflexive reaction by a district court judge and so we would ask th i would just like to clarify our argument with respect to the criminal history issue we are not arguing that had the court been cognizant or taken it into account that the court would have imposed the sentence within the policy statement range but just that it should have been considered when just a terminating the overall sentence and the record does not make clear that it was consider