honor thank you and i'm sorry you're not here with us but we certainly understand thank you lou it's morning or honest i represent a more tailor in this appeal and of all the people on the long list on the cover of the briefs my kind claim got the longest sentence by far and he was not the worst guy he was not the most culpable overall and he didn't deserve the longest sentence overall  that in our view that makes the sentence extensionally on reasonable appellant my client taylor in this shooting was a tool not unlike the gun i mean obviously he had more awareness than the gun but still he was a tool who is pointing in the direction of this crime by the leaders of the conspiracy the conspiracy sentences if you look at them alone show who the worst actors were in this conspiracy despite that were you say it was abuse of discretion for the district court to rely so heavily on the shooting of the three people including one quadriplegic as i was  an abuse for the district court to say well that's the principal reason why this person is getting that extra five well i think i think what it is is it creates a disparity in sentencing and i think that to rely that heavily on something that's heavily influenced by chance is wrong i mean i think well this isn't the situation and i think an extreme example is in order and if you had three shooters with with assault rifles mr taylor with a derringer going for one bullet and his bullet happened to be the one that did the most damage and then the anybody would say he was the worst actor in that bunch i think to rely on that exclusively is wrong and clearly he did he did a bad thing he and it had a bad result i said no i know you said that was an extreme example pare that back down to what occurred here what what occurred here why are the other people all the worse or equally bad so that he should not have received the sentence of the district or you know we have to that we have to acknowledge that he was not a leader and he didn't say i think it's a great idea to go shoot people somebody else the leaders of the conspiracy said we have to go there and shoot people to for whatever reason and and you're those people i'm so your client took a gun  shot and somebody was severely injured there's no question about that and i'm certainly not arguing that he's innocent or or or abused in general by the system but bike we do have to look for sentencing disparities and i think there is one here well there's certainly a disparity in the length of the sentences there is a difference in the outcome of the shooting the factors to be considered under thirty five fifty three include from od'ing respect for the law and general deterrence as well as individual deterrence why is it illegitimate for a court to think about public messaging in the way it deals with actions that have catastrophic if it's not illegitimate at all but those traffic events are more on the slate of the leaders of the conspiracy who set them in motion then then on my client who again was a tool in the process not the person who decided that this had to happen not the person who said here's a gun go do it not the person we review this for abuse of discretion right yes i mean that's our  what is the message that we send back to judges on the district court somewhere situation what do we tell them that this is why you exceeded the bounds of your discretion in this particular case because we put everything on the one person who had a role in it but not the key role he's got a sentence with except with one exception is double on that count the sentence that anybody else got he got ten years everybody else who had a gun charge in this entire conspiracy got five except for one person who got six i mean why can't the district court  conclude that he exercised his free will when he was told to go do something but ultimately he went out in denver right he did in but again this sentence is for the the gun offense he didn't plead to the shooting itself he didn't he didn't plead to an attempted murder we're looking at a conspiracy and gun charges and the combination of those things he has by far the most severe sentence and the leaders were also participants in this same shooting and other shootings that my client wasn't part of so there is there is definitely a disparity here we have not even touched the disparity with national sentences if you look at the statistics and i don't remember the exact numbers but in an enormous majority of people receiving sentences on these gun charges get the minimum for that particular church which in this case was five years getting double the happened this morning and i thank you for the opportunity to participate this is an appeal from a conviction for a record carrying conspiracy in possession of a firearm with sixteen months and sixteen months  moments the the pre sentence report however correctly indicated that there was a double counting of the five points with discharging a firearm in the dooms the guideline calculation to  alternately the court's responsibility to make a correct guidelines determination and there were facts admitted in the plea allocution and otherwise in the record that supported the ple computation of the probation department that the court alternately used this in that grand isle slightly correct your honor because the court was very was concerned that the sentencing that the three asks that he usually used to back into the guidelines calculation were not mentioned in the plea agreement was plain that effected that we submit the defendant substantial rights because of one from one seventeen or one thirty one as opposed to what we think it should be of ninety three to one warm and it seriously affects the fairness integrity and public reputation of the proceeding and due to that incorrect calculation we submit it's unfair to  enforce at this point the waiver which was based on incorrect calculations and if we apply the basic try to draw a clear rules true to the pre sentence report i'm sorry the clear agreement which can only be modified by in writing and signed by the pardon obviously the quote the agreement at bound by the guideline stipulation in the plea agreement to questions of facts or as to the determination of the proper guidelines to apply to the facts and that the parties reserved the right to answer even make all appropriate arguments concerning the sane and so unless you're saying that the court's determination in the probation department determination were inconsistent with their unfounded in the record how is the court making its own computation that is different from the one sent forth in the plea agreement inconsistent with the court's authorities  he was a leader in organizer and what he what he claimed was always the manner in which the court did it but what about the result that you challenge what the court basically said what do i have to do to maintain a hundred thirty one month government on appeal and the government asked the court to affirm the judgments of conviction this case of the defendants raise several claims on appeal and we believe those claims should be rejected turning first to defendant taylor appellant counsel argued or suggested that taylor was a tool in the shooting that is not accurate he was not a tool at all he volunteered  volunteered to go do the shooting he was not forced to do it he was not paid to do it he was not coerced in any way this is not a situation in which someone a leader of a gang it took advantage of a member of the gang was particularly vulnerable in some way there's not a situation in which the leader of a that was targeting some particular rival yes the leader of the gang asked fall and asked for a volunteer to go shoot a rival gang and taylor effectively raised his hand he chose to go he took the gun he went and shot he shot hit three individuals one of them is paralyzed for life and in thinking about sentencing of course of course in part someone's intent matters and their various contexts in which the criminal law and criminal sentencing distinguishes based soley on the consequences the difference between attempted murder and a completed murder there is no difference in tent or even in conduct the only difference is the consequence and that can result in a dramatically different sentence here he hit three individuals one of them tragically is paralyzed for  d calculation defense counsel said no and here you have a situation in which the government and defense counsel agreed on a revised guidelines calculation there is no dispute about it was an agreement among the parties the district court adopted that guidelines calculation and then proceeded to impose sentence to the extent counsel is suggesti wanted to get to a number and backed into a number in terms of guidelines range that is not accurate that is not reflected in the sentencing transcript at all and this situation in which defense counsel the government agreed on arrange and then now for the first time on appeal for the first time on appeal defense counsel is saying oh this is somehow in accurate or illegitimate or unfair in some way adopting something in a district court affirmatively adopting it and then saying on appeal oh that's no good so it's not a question we were we would submit of being reviewed for playing there we think defense counsel cannot make this argument we think cannot raise this argument now on the first time on appeal having embrace this in the district court he has precluded any one of a number of doctrines he is completely precluded from now saying for the first time this is no good government and then enters his plea later on everybody agrees that the number was right the final number of the offense level but that the way of calculating it was different it seems like it's almost like i i i would not have entered that plea if i had known that the calculation would have been different even though the outcome was the same it seems to be the arguer as well to the extent that thinks and that is the argument your honor that r s guidelines calculation that final guidelines calculation the calculation that was adopted by the district court that was agreed upon by the parties the agreement between the government and defense counsel  was memorialized and the government sentencing submission to its own which defense counsel was was copied and then at the beginning of of the sentencing judge sullivan fully aware of these revised calculations and ended up in the same exact range asked defense counsel you know and the any objections to this and the answer was no so it's not just the agreement here it was not just about the range even the calculations of how you get to that range were agreed to by defense counsel before the district court unless there are any further questions we rest on our brief thank you thank you m you even if we take as true everything that counsel said my client is is still not the worst person in this conspiracy and nationally he's certainly not one of the worst gun offenders ever in the country and giving him double the minimum makes him that as far as sentencing goes and to try to finish answering your question about the message to district courts i think the message is that consistency in sentencing is important and avoiding big disparities is is critical that i think that the analogy to attempt in succeeding in a murder is also a false one in this case because that that's not what's being compared here what's being compared is to people whose conspiracy had the exact same result it's not a question of whether you succeeded or not because the success attributes both to the leaders of the conspiracy and the person who carried it out so that's that's not really a relevant distinction in this case there was a there was a bad result but it's not all on my client it it's more on the people who set the whole thing in motion they're the ones who ultimately caused it my client did not that i'm sorry that what we tried  craft an opinion to impart to the district court when you have a conspiracy you've got somebody at the lower end i think your argument is volunteered as the government put it to do a particular job most important thing i think you have to look at the conspiracy as a whole look at the culpability of all the people for what happens and not single out somebody who yes was a cause the most harm