and at this time we'll hear united states versus good morning may please the court my name is melissa toohey i'm with the office of the federal public to enter appearing today i'm behalf of the defendant appellant mr brock chase appeal addresses the procedural and substantive reasonable innes of the fifty year sentence mr chase received for four counts of sexual exploitation of a minor i would like to begin by addressing the denial of the downward departure that mr chase saw sought based upon his extraordinary mental and mental health condition firstly i would like to address whether this court has jurisdiction to review the denial of the departure the government in its brief contends that there is no authority to review refusals to depart but we submit that this directly conflicts with the mandate in united states versus booker and the case law that followed from this court including united states versus crosby united states versus brady united states versus fernandez which was affirmed in the united states versus ca our argument that the court committed procedural errors in selecting the sentence by applying the law incorrectly with respect to how the facts had to rise to a certain level in order for m honor yes and in that regard we're saying that the error the error occurred when the court said that his conditions didn't rise to the level of the defendants in united states versus rivera and states versus brady in brady i understand that the legal standard isn't necessarily set in stone but i think the court was saying we can't say that you can't get the departure because it's not as shocking or  s just as what happened to the defendant and united states versus roe that's an error of law because i think this court specifically held that you can't say well it's  abuse isn't the same as those defendants and therefore he can't have the departure because under the facts of his case his his abuse is extraordinary in a different way given the fact that he was a person that was already suffering from mental health conditions including bipolar disorder attention hyperactivity disorder obsessive compulsive  was being punished for not behaving in a way that people wanted him to like his father reacting in anger that he couldn't just do well in school and being frustrated when his father was dealing with his own issues reference well i think that well in either case i think this court can review it because it's still a misapplication of the law to say because what her statements were at sentencing was his facts haven't risen to the level of the defendant in those cases which was specifically rejected in brady that it has to match in order for the departure to apply so but in any is then we're saying that the sentence is  reasonable for the failure to depart for to grant this departure which in the united states versus brady the court did say that can be procedural error that we are to consider all guideline sentences or non guideline sentences which includes the application or non application of a departure which in this case is what we're saying was erroneous because in this setting where he was dealing with all of these mental health conditions he then became a victim of sexual abuse being raped when he was eleven of course being too afraid to disclose that for fear of retribution as he had already experienced when he didn't behave in certain ways he would be punished for example when he was in school being placed in a closet for not behaving correctly the p s the a dent into the p s r which fully documents the state of his mental condition at the age of thirteen after the rapes occurred and it during the time where he was on the internet performing sexual acts through a webcam being coerced by adults all things that he didn't disclose until the offen currently and he never received treatment for that did the court credit these revelations so that that pertains to our substantive and reasonable in his argument yes the court did acknowledge that the court considered these rape eleven a yes and took those into consideration and i i'm sure the court is saying well ok he still didn't get a guideline sentence he was sentenced to fifty years therefore why does it matter fifty years is monica correct however the the nine guidelines sentence wasn't for the those reasons the guideline sentence the court imposed because the court wanted him to receive treatment in the most effective manner in order for him to come out of prison and to be the better happy positive person that he said that he wanted to be the court wanted him to receive a n sentence in order to receive treatment so that he could meet those goals and then come out and beyond the lifetime supervision in order to fulfill those goals well it's our position that fifty years is excessive because it can't meet those goals because holby seventy two years old when he's released at that point he won't have his most ardent advocate his mother who is a trained trauma nurse who is understands his condition and now understands why her son at the age of thirteen wanted to kill himself all of these factors were missing from the equation when he was being treated for all of these conditions when he was a child because he was too fearful to disclose this fact so i think that this is a very harsh sentence for someone in this situation and who there was a letter submitted to the court from dr berlin who noted that you know he could get treatment like he's a person that never had the ability to obtain treatment and when he comes out how is that going to help society he won't be able to get a job he will have sex offender restrictions where will he live will have computer restrictions offense and this instance is particularly low so yes yes your honor and i am not at all discounting and i'm just saying that fifty years is very excessive in comparison to other cases where for example i know it was a recent summary order and united states versus sawyer where thirty years was found and reasonable in a situation similar to this in the united states versus brown the defendant received a sixty year sentence but there were multiple victims in more egregious conduct i just think that it's not necessarily true that mr chase can't rehabilitate himself if the court wants him to receive treatment isn't that for the purpose of addressing his problem to rehabilitate himself to come back into society and be a better person which i don't think a fifty year sentence can satisfy that goal good morning hours may it please the court michael get darian on behalf of the united states i'd like to start my comments with respect to the five h one point three departure decision i'm not sure that there is disagreement over what the standard is to hear defense counsel say or that there was a misunderstanding by the district court under the circumstances that it could depart that the facts had to rise to match a particular set of facts in another case i don't think that's what the district court said i think if you go back to the transcript of the sentencing proceeding the district court certainly cited other cases in which five each one point three departures were at issue but i don't think it's a fair reading of her of her statements to say that she said well it must equal this for me to be able to depart she cited relevant case law she then went on to conclude in her discretion that the facts and circumstances here didn't warrant a departure under either of the two prongs in so far as this court were to review it for abuse of discretion there was no abuse of discretion here i think the court was well within its discretion first to make an assessment or human is that the district court reading of the record and that the standards that this court has set out for situations where the district court would manifest a misunderstanding of its authority are not met here by what the district court said about its its understanding of when five that enable somebody to emerge from prison and then sentence them for fifty years i don't think so your honor i mean the district court obviously was presented with a scenario where it could have imposed life or not life it shows a lengthy but non life sentence in the sense that it's certainly possible that this defendant will be will be released and the fact that the district court hopes that he is rebuilt rehabilitated in in prison and then potentially also outside of prison i don't think it's inconsistent i mean certainly the district court was aware of the defendant's age was aware of the length of the sentence and also to the you know in so far as the defense argument seems to suggest that a particular factor that they're focused on wasn't weighed sufficiently as opposed to the other purposes of sentencing i think that's inconsistent with substantive reasonable in this review there were other purposes of the sentence the district court talked about the other purposes of the sentence and the rehabilitation and treatment of the defendant is but one of those factors and i think it's not the approach to say well because the district court said x about treatment o resulted not receiving treatment up to this point in the bureau of prisons as i understand the record he's in a facility now we're not receiving treatment i think your honour's correct at least up until the point where the exchange of  correspondence between the district court and probation is concerned at first i guess i would say i'm not sure that's part of the substantive reasonableness review but insofar as it is the defendant still may end up in a facility with treatment options obviously the bureau of prisons has to make a lot of determinations about where prisoners are placed in the course of its execution of its of its function just briefly your honour's with respect to the cases cited than the conduct was in in somewhere and the background in so far as the background was relevant to this court's decision in in so here is also different as the court noted and with respect to brown although it's obviously true that there were more victims in brown than there are here that distinction i think is something that the court ought to be cautious about relying on to say that a sentence here is substantively on reasonable because this victim was our facts are more egregious than in sawyer but argued that possibly of thirty years was too much for jessie sawyer maybe that is sufficient for mr chase i would just like to add one final quote from the court's recent decision on april seventeenth two thousand and seventeen in the case of united states versus jenkins i know that was merely a possession and receipt of child pornography case but i feel that these statements are relevant to the current issue additional months in prison are not simply numbers those months have exceptionally severe consequences for the incarcerated individual they also have consequences both for society which bears the direct indirect costs of incarceration and for the administration of justice which must be at its best when as here the stakes are their highest and i would like to end with that your honour's thank you thank you both will reserve decision