here the next case united states versus lu point thirteen years one hundred fifty six months which is greater than the guideline range was greater than the mandatory minimum and was greater than what the government asked for without stating any reason for doing so has a responsibility that only to consider the arguments of the parties but also to set forth forth the reasons for the sentence imposed without more the record just shows an a accepting what fact is he's not giving way to and he's putting he's presenting a sentence that is devoid of that reasoning so i say that's that's very important you know when you look at that statement of reasons which if it's a meaningless piece of paper i guess then that we don't have to look at it but if it's supposed to have meaning if it's supposed to get this court a basis to understand and to review a sentence it's useless  is it no place states to reason for that for the difference you know he indicates judge johnson who have great respect for indicates that he is going to  and then he doesn't shake off any of the boxes to explain what the basis is which would be to big a minimum of what he had to do it seems to rely on our decision in espinosa is its principle and can you explain why that you're on a stated in the the panel decision in syria which is that it's got to be more than just stating the mia reasons it has to be a an explanation to give the public an understanding and the parties an understanding of what the basis for did for the sentences and to give this court the ability to make sure this wasn't just arbitrary as i said before the dictionary definition of arbitrary acting without reason and i would argue that this is a classic case in which the court acted without reason you're asking for re man you're asking us three man to a different judge i think that would be for it re sentencing but isn't that  something that is reserved for cases where there are serious doubts about the judge's fairness and impartiality and i don't read your briefs to suggest look at the difference between reasoning and justification if it goes back to judge johnson he's going to be going back with the idea explain why you came up with this but he had that opportunity twice to do that and he didn't do it so what's he going to do case he didn't sit through an evidentiary process we go back before a new judge we're going to know that the judge is considering the arguments which are going to be made you know i want to point out you wanted a part of the unfairness of this case is the way that this wrong a letter to the court asking for the up with the porch it was two days before to set the scene and then for the first time they come in and they asked for more time you know they point out and correctly that in their plea agreement they don't give up the right to look for other factors and to go to the court for more time you know they got the plea agreement they had a waiver of appeal up to one hundred thirty five months and then they pushed to get the whole one hundred thirty five months asking the defendant to make a statement then he s defense counsel then the government makes a motion for an increased sentence and then he said ok i'm done he doesn't even give them another chance to respond so it's it's a troubling matter and in all respects i would point out that under the local rules in the eastern district the case actually should go back to another judge unless the chief judge finds that it's in the system united states attorney kevin trial from the eastern district of new york may please the court more than seven months past between the defendants plea on february sixth twenty fifteen and his sentencing on september twenty fifth during those months the parties engaged  extensive pre sentencing litigation where the government in which the government filed three letters to probation and a letter to the court discussing the defendant's objections to the p s r and the guidelines calculation set forth in that p s or in the government's letters in addressed each of the defendants factual assertions and as the appellant correctly points out took the position that the guidelines calculation in the plea agreement was correct by the time the parties appeared for sentencing on september twenty fifth there were no remaining disputes the defendant had withdrawn his application for a federal hearing he had withdrawn all of his factual disputes with the p s r and the parties were in agreement about the guideline range so although the investigation was lengthy touching on three continents two organized crime families and a number of very serious crimes the sentencing was actually quite simple there were no issues for the district court to  your honor noted judge livingston espinosa and broncho in espinosa the district court had before it an objection to a four level enhancement that brought the defendant sentence from a level thirty eight to a level forty two the result of that swing was a ninety eight month increase in the bottom in the bottom end of the guidelines the court did not address that objection and after the fact having adopted the p s r the court looked to the to the statement of reasons and said that in hansen is supported here what we're talking about is a far smaller enhancement a thirty six month increase above the guidelines three years longer and the government advocated for one hundred thirty five months in that it did in the  letter yes your honor and the district court gave twenty one months longer as is the district courts one under under any number of cases that put the duty to judge the facts before it in the hands of the district court in this case there was absolutely no shortage of information before the district court the government filed an extremely lengthy sentencing letter quoting from recording citing all of the crimes of the defendant committed there was no objection to any of those facts to any of the arguments made by the government to the government's repeated assertion both to the probation department and to the court that the court had the authority under the guidelines to upwardly depart based on conduct that was not otherwise taken into account by the guidelines to make the  laugh the entire variance section of the state reasons for blank i think not much your honor i think in this case what we have here is is a sentencing proceeding that looks very much like a number of sentencing proceedings that this court has affirmed the court heard extensive argument with no objection defendant didn't object to a single thing the government said in either the letter or in its in its in its presentation is ther from the from the government's perspective what's relevant in those cases i understand the court has talked about above guideline sentences as being different but espinosa i think stands for the proposition that a four level increase resulting in a ninety eight months conspiracy to import five hundred kilograms of cocaine from guyana to italy there's simply no doubt that the that the record provides ample support for the sentence imposed and i think for those of us who were in the room at the time and i think this is apparent from the cold record even the government had a lengthy argument laid out the defendant's crimes and when the judge imposed the sentence nobody was surprised including defendant the defendant didn't object to the process said nothing about the number it is there is ample support and the government's arguments just prior to the sentencing this is much like the court has said in the past we all understood what the court had done rejected the defendant's to gesture and that because he's a family man one hundred twenty month sentence was appropriate and accepted the government's undisputed representation and the p s r s undisputed facts about the extraordinary breath and seriousness of this defendant's crimes and given all of those facts to the court imposed a sentence that it was well within the range of reason bunder covariant any number of the courts cases and nobody disputes that so i think in light of all of those factors the fact to return to your question the fact that we're talking about an above guideline sentence i think is not the salient fact the salient one is that we're talking about a relatively small increase compared to other cases where this court has found that an adopted p s r is sufficient to support the sentence  me you know i think what we lose track of in the government's argument is is this is this sufficiency as opposed to reason what he says the government is asking the court to do is to substitute it reasons for the district court's recent and to say well the district court must have meant this because the record supports it is information a record supports it i don't agree for my reading of the record and i wasn't there but mr timmons was that there was a there were this this was expected or that everybody understood it my understanding is move that seeing move very quickly it was a busy day in the court and there was not a great deal of opportunity and at this kind of came out of the blue there was no notice of the judges but a judge he was considering you know put the party or variance above the guidelines of above what  considerations that ought to be put forward should be sufficiently compelling or to agree necessary to support the set of some post it didn't say the facts had to be sufficiently compelling it said the justification and the reasoning following the reasoning for this court to be satisfied that it wasn't just arbitrary and capricious i would also argue on us to consider the mandate effected a mandatory minimum mandatory minimum sentences purely a congressional decision as to what a punishment want to be if focuses only on punishment obviously the sentencing federal sentencing act the considerations are much broader we would argue that in considering a variance the judge would assist should have started now with a hundred and twenty months but with the seventy to eighty seven bugs which the guidelines calculated he agreed to guide what do you procure guidelines for this case and to ratchet up from there so simple statement that he read what each side said that there were two separate obligations under the law and he had to perform both of them he said he fulfilled in the first but he certainly failed in a second that is to state the reasons