factors incapable of bearing the weight of a sentence located beyond the borders set by the murder to find out which i like to talk about just two or three factors which the district court relied upon in upping the ante and going beyond the borders and i'm asking this court to patrol first the district court found that there was an innocent victim involved and use that  up the ante to go beyond the border that is in fact true of the person who was killed was in fact innocent he was not a gang member however the facts and circumstances surrounding the attack is not the typical indiscriminate frustrated group who loses one target and does and reaches out and strikes out of that and another the person  of the offense the savage murder of an innocent man followed not by refraining from violence but by other acts of violence including the time to murder in which your client absolutely wanted and let me redress that the seriousness of the of the offense is absolutely true but the seriousness of the fence is is included in the murder two guideline it is it is enclosed within the yes it is a death it is a double count because he was that conduct that subsequent so god of conduct was taken into consideration in the murder to god and i do take deposition  the other two factors is innocence vargas points out the two folks who he believed were the bad guys that they were after he was the only person who knew they were who they were and as a result the district court im knowledge or sensing knowledge of mr geraldo was misplaced so it's just since mr geraldo had no knowledge of who the guys they were going it's actually was you saying that it's a clearly erroneous fact finding th go and they went to confront a group of people so yes there was and i think their fact it remains a sound guy who was innocent but the information that they had at the attack demonstrated that geraldo had no way of knowing that there's only one person who can know that it's really i mean doesn't that contradict the whole idea of second degree murder here they want out to get the they want to get these guys i thought the idea of second degree murder was the leaders of their subjective intent to kill so there was none of that this was a as the district court at some point described an uncoordinated uncoordinated mel a second degree murder has a multitude of sins of course including relatively impulsive acts that don't involve going in hunting down a victim and second degree murder cases don't always come packaged with attempted murder  additions in new york the maximum sentence for second degree murder is a parole a bull twenty five year to life sentence so having a little trouble understanding why this is an unreasonable sentence you're  treating this as if the guidelines are somehow sacred and as in the old days there needs to be something super special to get you above the guidelines why isn't this just sort of looking at the universe of murders and saying this is an especially bad one because it's an essay ballot question because if if if factors are going to be real use to go outside the borders set by the guidelines where the guy and we all recognize that the commission has imperial data thirty odd years of a spirits and knowledge when they set that guy a line if we going outside of that let's take a hard long look at the reasons that we are is procedurally unreasonable in part because the the judge didn't consider the defendant's disability but when i read the record it seemed to me that he  and the district court was very clear and conscientious and very thoughtful and using some of the mitigating factors that we offer and to cap it above a guideline sentence however the two factors that he did utilize to go above the l boasting and failure to pump the brakes which is a statement taken into consideration subsequent seagal no condom boasting the district court did not take into consideration the core characteristics of a v h d or the core characteristics of a youthful offender which we know are people who specifically were mr geraldo who fails to access and understand the consequences of his actions who does not assess risks who have said who has deep self esteem issues who has these these who was laboring under these these very difficult conditions and so when when the when the court says it's degrees disgraceful for you to boast about it the court fails to realize and you you boasted about it and others don't he's comparing them to somebody who doesn't have those problems so the doesn't take into consideration those factors those are the medication factors that we offered on the critical question of whether or not the factor used to go above the line and beyond the border he does not do it he doesn't do it with respect to pumping the brakes because if he did it would if he took it in the consideration on the issue of pumping the brakes and subsequent conduct the court would have noted that people who have these problems can assess the risk can't determine the consequences and he's treating that person and comparing a geraldo to a person who doesn't labor under those disabilities so respectfully i don't believe that while the court certainly talked about it and he certainly kept his number and gave him the benefit above the law he didn't take into consideration to go above the law right now are you in your brief twenty five to let's say that the trial court here possessed limited you do show sentencing experience having presided for barely five years over a mix docket of more civil than criminal let me get this out there was a silly statement but me and i apologize for that say that was silly and uncalled for and you're absolutely right and this quote is absolutely right i wish i went too far thank you for admitting that managers diction a generally all that's necessary in a federal criminal case to confer subject matter jurisdiction court is for the indictment alleges federal offense and track the statute there are exceptions where there's conduct that's outside the united states or the indictment doesn't exactly or doesn't alleges an offense in this case concern and i didn't do the trial work this case of when you're on appeal there's nothing in the record that i can find where mr vargas ratified this second predicate act after he became eighteen years old everything that the government relies on is prior to his eighteenth birthday now there is an act and i was kind of wondering if this would end up in the government's brief but i didn't see it in the pre sentence report on paragraph eighty six it talks about two burglaries that mr vargas participated in in two thousand but they were never charged and i can see in the criminal history part of the precincts report and i'm not from the area but looking at a city man from the bronx it doesn't look like the burglars took place anywhere near this area us were in their territory this is this is a question that it seems to me does not go to guilt as such it only goes to the question of whether or not he can be prosecuted whether the statute requires that he be prosecuted at least in the first instance as a juvenile right now that's what this is about  doesn't need to have done a second act because he's only pled guilty to conspiracy to commit a rico violation certainly but i misunderstand my understanding is if predicate warn is committed as a juvenile then there has to be something and i've cited the cases in my brief they're not from the second circuit but they're all that i could find he has to do something after he reaches eighteen to ratify his involvement in this conspiracy that's what would allow him to be that's what would give the court jurisdiction it seems to me you know what is the statute is set up in such a way as i understand it and please correct me if i misunderstand that if someone is under eighteen at the time of the offense he needs to be prosecuted for an act of juvenile delinquency and then alternatively then then maybe the government can get permission to prosecute him as an adult of course of years prosecuted as an adult the normal adult standards would apply and he can be guilty of conspiracy to commit rico even based on one act the problem is he was prosecuted as an adult from the get go and there's not any clear finding by anybody that he ratified the the act as an adult so that they followed the wrong procedures well again i didn't do the trial work i asked in this may not be in the fifty two sealed documents that i want allowed to view i don't know what what's there what's not so i don't know what what the government did in terms of certifying him a few seconds i've got left i want to have brink of course attention given the federal statute or the federal constitutional level of what is required for a voluntary guilty plea still pertains i think there are instructive if nothing else to ninety nine p thirty six eighty three six eighty eight next one is seven fifty nine north west second to eighty three to eighty seven footnote for the last one does not specifically cited to dominguez beneath his but it he basically makes a distinction between mere ruhleben violations and due process and that one is united states first bradley three eighty one and third six forty one six forty five and on structural r is that he did knowingly and voluntarily that's correct that's correct i mean maybe he understood what was necessary for a rico violation and maybe he didn't there was just nothing in the records when not separately discussed by the judge when he pled is that correct correct in the case law that i read says there's basically three ways that you can do this you can say counsel can make a representation that he's been over the elements or or the judge can say this is what the elements are and i came in third way but i don't see any of that here and this is a guy with a sixty five i q at least according to recent report and you know i'm not the i'm not suggesting that i want to give him a lecture on relatedness in continuity well the judge could have done what repressed the judge the judge could have done what he did with the jurisdictional aspect he could have and i wrote some of this down here if he asked he asked the government during the during the mentioned that you were aware of the gang activity selling drugs can you specify what drugs or at least one such thing and he says marijuana well i mean my my my concern there is he's aware they're selling it in the distinction i make in the reply brief is that there's a difference between being aware of and agreeing to that being a endeavor that the enterprise is involved in that you want to further so that's the distinction i make their let me ask you just one other thing  respect to paragraph one twenty nine it's also about the burglaries is that your understanding as well i'm sorry your honor i didn't understand the question if you look at the paragraph one twenty one twenty nine it also speaks of burglary is it does or says there is no objection to that it's inclusion right there is no yeah well yes yes your honor it's correct that nobody objected that i can see at the trial court level to the fact that the factual basis for the elements morning explain to the defendant i can't i mean so if there's no objection anywhere that i can see to that in the trial right thank  morning may please the court i'm jim brandon i represent mr suspend a's is to suspend as was and has a criminal history category of one he was eighteen and barely nineteen at the time of the fence or at least the time that he was actively involved with the gang which was six months he faced a guideline sentence of two hundred thirty five to two hundred ninety three months at the time of sentencing one that i think he might reasonably have expected to get given his youth in the short period of time he was part of the gang and some of the other mitigating circumstance stances surrounding his life instead he ended up being sentenced to not quite double but four hundred twenty months imprisonment which happens to  be a hundred and ten months more than mr geraldo who in my opinion was the most closely similarly situated defendant to mr suspect is as i've set forth in two meant at this point for him but it's a mere fortuity that mr although didn't kill a second person he was involved in a second stabbing that person happened to live but the quality of the act is very very similar to mr suspenders as second murder what the judge did in this case is rather than choose mr geraldo as the closest comparative or using his words the judge compared him to the lopez of mitigating circumstances and the judge can weigh those to the extent however that he adds one hundred plus months i find it hard to me very unreasonable at least i wanted to note though the judge says that the difference in the sideline the guideline range between one murders and two murders was only two and a half years which the judge thought discounted  the second murder far too much you want but in doing that he completely decided that the grouping rules for the guidelines were irrational so without understanding or making clear that you're quiet minute to participating as also did mr geraldo the judge was thorough with regard to the sentencing but i do believe that there were two overarching errors that he made and  one was in throwing out the grouping rules for the guidelines in the second was comparing my client to the lopez brothers who faced mandatory life terms of imprisonment so they got life four times over and three times over respectively so i think that the client did not he did not because he was convicted of murder two after a plea not murder one or murder a native record so there they are very distinct co defendants my client is much closer to this co defendant than to the lopez brothers so those are the two errors and i refer the coat court to the mercy decision in the third circuit which essentially remained it for resentencing when the trial judge or when the sentencing judge found a very large downward variance because he didn't agree with the career offender guidelines this is exactly the flip of that so that judge the circuit found had not explicitly recognize that he might be creating a risk of unwarranted disparities between the defendant and similarly situated recidivists in that case so i don't know how this case is really any different this judge just threw out the guidelines because as you note it didn't add enough in his  opinion for the canelo murder the second second degree murder without recognizing that that's going to create a problem under the nationwide system that we have that the sentencing commission has set up right those are the errors thank you think about regarding jurors direction with respect to vargas yes your honor the district court appropriately exercised subject matter jurisdiction in this case in this court's decision and the court stated that in order to determine the relevant act for determining whether the juvenile delinquency act applies you look at the actual crime charged in the indictment you don't look at the underlying predicate acts here the the crime charged in the indictment is a conspiracy that spans well past the defendant's eighteenth birthday in those circumstances he could have been him and i don't agree with you that at the time the indictment is filed it charges an adult crime against mr vargas right now but then what happens after that in the case of long there was a question raised as to whether he actually had committed the crime as an adult so what what if anything has to happen later on of course mr vargas could be guilty of the crime charged in the indictment and if you weren't adult for participating in the conspiracy for a lesser time than the indictment charges right yes how do we know that that isn't what he pled guilty to when he did not admit that his fleta anything after age eighteen and no one raised this issue at the at the sentencing so there is not any clear finding by the district court that he did anything after his eighteenth birthday i would disagree a little with sentencing i think there is no dispute that the defendant was a member of the trinitarians past this eighteenth birthday at sentencing there was an issue at just a little bit of context in this case this issue had come up where we'd identified people that were charged under the age of eighteen and under the juvenile delinquency act and were on charged essentially taking out taking out of the indictment so the government was aware of it defense counsel was aware of the issue at sentencing there was absolutely no objection or no you know that defense counsel for argus was aware of this issue but i'm sorry i'm assuming based on what happened in the case but more to that were not objected to such as post eighteenth birthday activities that are cited in the p s are they were not objected to there's also a what exactly are we referring to here this paragraph one twenty nine of the think the sentencing itself there was clearly no indication that there was any issue with respect to his post eighteenth birthday activities with the trying to torrijos he had actually fled and there is reference to this in the p s r we believe he need to be an active withdrawal not just that you didn't commit any more murders or something like that that's correct and maybe to circle back to your original point did there need to be something that happened for the court to confirm i haven't found a case that suggests that is what the rule isn't in these and i think there's an analogy here when the court looks at subject matter jurisdiction with respect to eighteen u s c thirty two thirty one which just confers subject be more different than this one and that case the defendant was charged with first degree murder he ends up pleading guilty to second degree murder he was never even presented with a document charging him with second degree murder he wasn't informed of the nature of the charges there was no indication it's an extensive document that discusses every aspect of the conspiracy of the enterprise of the means and methods not going through the elements of conspiracy with mr vargas who i guess we all that it is often the better practice to go through the elements one by one i think in effect based on the record here all the elements were covered he discussed in detail the interstate commerce element he referred to the indictment which specifically has the elements of both the pattern of activity and agreement between two or more persons to join the conspiracy to join the the enterprise and based on the the defendant's own elocution i think that you can see that he included in the exhibit to the plea agreement talks about the specific details of retaliation against rival gang members which is again if you go back to the indictment specifically one of the things that the that the gang has done so i think in those same thing and i also think that judge lynch's point is valid that there is no evidence whatsoever that he actually would through from this conspiracy and there is certainly no suggestion anywhere in the sensing that i can recall that he was through from this conspiracy so with those factors i don't think it is necessary in the circumstances to go back to the district court to make that determination