we will turn to the next case from that same video source and that is united states of america versus jordan vote where morning council good morning may it please the court my name is ann berger i represent the appellant john vogler in the subpoena it's my intention to rely on my papers with respect to the substantive reasonableness point in the brief instead argument to address the procedural error that we argue occurred at sentencing here in particular with respect to the court's application of guideline for a one point three and imposing an up or departure for under representation of criminal history the question here is whether the district court committed procedural error when it upwardly departed using its own vertical procedure and imposed an eighteen months sentence nearly double the high end of the four to ten months range identified in the pre sentence report first the district court committed error in considering convictions which under the guidelines for a one point two would ordinarily have been excluded as being minor infraction although there were certainly other convictions the district court could have would dwelt on and considered it spent the bulk of its comments with respect to mr bowker driving record and these minor infractions relating to driving secondly the court committed procedural error when rather than following the horizontal by criminal history category upward departure process outlined by for a one point three of the sensing guidelines it created its own process areas first there seems to be this persistent error and perhaps it's a minor error with respect to the court's understanding that mr vogler can committed was convicted of a misdemeanor  while on pretrial release that was a factor that he commented on at sentencing despite it's being described as a plea to a traffic infraction in the p s r even when that issue was corrected it showed up again in the judge's statement of reasons as being a misdemeanor again perhaps this is a minor thing but that's certainly something that the judge could clarify in terms of whether that being his view that it was a misdemeanor an incorrect view made a difference it's an unlicensed gratian while on release and despite pretrial warnings that he couldn't do this so why do you characterize it as minor to the extent that the person is on pretrial release has been warned against certain conduct and persists in it any way i'm not sure we can view it as quite as minor as a matter of law as your urges in this context judge reggie the language of the wordage that i use of minor infractions came from the martinez santos decision and i was a case that dealt with the interpretation of for a one point two excluded offenses i'm sorry one point three or even any kind of violent crime i understand that but the  circumstances here is that your client has you know forty two prior convictions including nine felonies for which i think he gets or six of which he gets no points for his criminal history and the district court explained it was concerned about the seriousness of his criminal conduct including conduct the persisted while on supervision you know going back to your original point the precedent that requires step by step  analysis for increases from the guidelines even pre book or had been somewhat mitigated by this court in united states v being in two thousand and eight the court noted that we had backed away from the explained whether they are sufficient is another question but i don't think you can say they're not really fully explained in terms of procedural error and that's why i think if if the matter was remanded and i think if the  court was once again in a position to consider really what should drive i mean the district court doesn't have to do a step by step horizontal analysis with as long as it explains its reason obviously we're not disagreeing with your honor's assessment of the fact that this doesn't have to be in lockstep with that precise procedure but instead the idea that the court very clearly was basing its its upward departure on factors that were otherwise not worthy or unreliable i think is is the best way to describe the on the floor i a bill in what way because i didn't think that was any doubt about the facts of what he had done so unreliable in what way first the point with respect to the judge's belief that there had been a conviction for mr mean and i won't repeat that secondly with respect to the judge's opinion that mr vogler continued to drive now the record as as i reviewed it as second and third time to prepare for argument today describes three instances over a period of two years when mr boger was driving and should have been one when he was ticketed charged and then ultimately convicted with the facilitating and a traffic infraction to win on the first instance in two thousand and sixteen shortly after that his pretrial officer saw him driving and warned him he was admonished not two and three final time i believe in early two thousand and seventeen now certainly the district judge could have determined that a non guideline sentence was warranted because of this misconduct occurring on pretrial release that's certainly an option available to the judge if the judge makes that determination but the court went further here and went so far as to argue that there were probably many more instances in which mr vogler had been driving i think at one point he says something along the lines of i'll bet you one hundred bucks you're doing this all the time or something to that effect  if these are indeed factors that the courts considering and it's based on not the three instances that are in the record that i've described but this suspicion that although there's no proof he's been driving along and then have to help me  understand the transcript when i look at it i'm not sure that there is such a sole focus on the driving i agree with you he says i bet you've been driving on other occasions but there weren't there were a lot of driving infractions it does make it more serious that they were occurring on during pretrial release and he begins by no disregard begins by noting this is offense can the offense conduct was not just lying but the negotiation of eighteen separate checks over two or three years so i was reading the transcript it's c transcript but the district court is is focused on an extended period of criminality for these the felony that's before the court and then and then along with that all these driving infractions which are occurred even after being warned by pretrial services judge livingston i would respond in two ways first if if we look at the other convictions which certainly the court could have spent time on burglary third there were two of those there's an escape there's a felony dwi in there and a number of others there was very little information describing the underlying conduct for many of those convictions presumably because they were very old and in some instances there was no underlying information describing the particulars of what conduct was during mr vogler had in gauged it there wasn't much raw material with respect to most of those six prior felony convictions from which the court could have drawn its argument in support of the upper departure now in addition to that the judge spent almost the entirety of his comments on the driving in and then added a separate factor which was to suggest that specific deterrence needed to be brought to bear  vogler with respect to dui and that that seems on the record inconsistent with mr boag there's last dui which had been thirty years prior to him so i think that certainly there would have been generic material the court could have relied on including these other felony convictions but based on the court's comments it the court continually returned to the issue of driving again and again having the matter remain and it would be obviously that's what we're requesting but it will allow the district courts to consider reconsider whether it wants to put so much weight in these factors that don't warrant the wait thank you counsel you reserve two minutes for about oh thank you we'll hear from the government quite a central inquiry for this case really does boil down to whether or not an eighteen month sentence is substantively reasonable and we talk about the procedure first do you agree that the judge  s departed howlers on totally rather than vertically i agree that the court try to articulate his moves as a horizontal and a three step move orally and you know that the you know that according to four for a one point three eight two he should have done it the reverse correct ultimately precede the procedure the question really with respect to the steps or moves made is is not whether or not the court used a roque to make his move to twelve to eighteen or played his night which  would have put him at twelve to eighteen might think the judge has perfect right to sentence where he wants to but there is a procedure in place that the judge ignored is that correct i don't believe that the court that the record is the from what the record shows is that the court wanted to get to a range within type i understand what the court wanted to do but we have a procedure in place for how you get there and i'm just asking if you agree that he i the procedure that's part of the guidelines which are not mandatory but he ignored that isn't that correct i don't think he did nor did he may have misapplied to refer to it at all he did he did talk about it at sentencing he said i'm moving horizontally in three levels to get to the arrangement but he didn't say as opposed to vertically right he didn't say he did it he didn't say vertically and then where he ended up on the guidelines because he ended up finding a criminal history of five which men and offense category of seven so i think he misapplied the moves that he was supposed to make but at the end of the gate that's not important what's him well and what this is my question to you  do you think the government tends any responsibility at least a call to the attention of the judge this sex or for a one point three eight two way and just point out that he was not comply with the rules from that section do you think the government has an obligation to do that i think the government i don't i am not sure if it's you know the guidelines are not supposed to be applied formulaic especially when it comes to departures which is what is happening here this is not a question about whether or not the guidelines were procedurally incorrect when we first started the sentencing analysis here the court try to use the guideline framework in order to provide justification as to why the reasons why i am going to impose a sentence of eighteen months i believe that the criminal history category of  our scuse me mr wagner is critical criminal history is under represented he got to the right place but he just made the wrong moves and that's right side that's my question to you is does the government have an obligation to tell the judge that you made the wrong move your honor i guess to what effect and i point in sentencing in terms of your honor what effect well don't we believe in this whole system of rules i mean isn't that if we live by but he is trying to apply the right he's trying to apply the right rules and he just did it in the wrong way he didn't make the right moves but that's my question i know i know exactly what he did he want to have an outcome that he wanted and he just went there without following the rules that we put in place your honor the main rules those are not statutory rules those are guidelines in order to try and have some uniformity with respect to sentencing the main rules are are the dictates of thirty five fifty three being followed are you basing the sentence on individual eyes consideration of this we're not talking about them there are each other and i'm not talking the merits of the sentence and whether it was substantively reasonable i'm talking about whether there was procedural error which in our analysis comes before with terms of the substance or do you concede that there was procedural er no there was no procedural error well it was no procedural error in terms of how the departure ended up being and that is he had the theory that the district court adequately explained its provided the reasons for  basis to impose an eighteen month sentence is the sentence within the range of permissible you know decisions that the sentencing court could make it was clearly within that he based it based on the nature and circumstances of the offense it wasn't just lying it was lying about eighteen checks that had been converted from his late mother's v a benefits that to which he knew he was not entitled to it was also based on the nature and circumstances of this particular defendant who had a history a lifelong history of demonstrating that he had no respect for the law that he had no respect for the rules and that he had no respect for you know the fact that he had been told time and again he cannot try he had been told time and again you cannot commit new crimes and yet he continued to do so ultimately taking all these factors together provides the basis in which was articulated by the district saying as to the reasons why this particular defendant deserved a sentence of eighteen months so it really doesn't matter that he may have misspoken or mis moved but he also might lead got to the range of twelve to eighteen months supported by the most important factors for sentencing and that is a consideration of everything outlined in the statute thirty five fifty three and about your argument that there were also perhaps minor in some respects but but there he also misperceive the record and he apparently is referring to the danger of drunk driving when those are older offenses you also referring to a misdemeanor is in fact not a misdemeanor in the course of the sentencing i think in the course of the sentencing though what you're what we're looking at is we're not looking at the my new show but after overall who is this person that standing before him and for the district court mr vogler representing the individual regardless of the details of the details of the misdemeanor infraction that occurred while upon release the fact is he did something he was not supposed to putting him in another court during the time that he was on release and the fact that you know in the past he had it's not just one d w i in his past he committed this that type of crime five times without regard to public safety or anything along those lines and surnow obviously not that that explanation would not get to the ultimate sentence but that that's not quite how the district put it and that he may have misapprehended were mischaracterized parts of the record and do we just ignore those those mischaracterizations because you've got an ability to point to other ways of looking at the record correctly that would support the sentence not render it substantively unreasonable i i think the way that he articulated a sentence was basically just acknowledging that this is not an individual who's a one time or first time offender that he has a lifetime history of committing violations that he has shown his disrespect for you know and hearing to the law so it's it's much more of a distance looking but there are facts you have mischaracterized the previous offenses a felony rather than a misdemeanor with that same argument pertaining given this history where there were already six felony violations that were not that were not counted as part of his criminal history that were outlined in the pre sentence report  i think the one mischaracterized the one mischaracterization when you're dealing with a forty two offense record it's it's a minor you know mr act prevention but what the comes down to is is there a basis to support the sentence and there is and this court has always recognize that it has to give due deference to the district court is there you know the question is is there are we still off the reservation here with respect to an eighteen month sentence we are not and that's what it comes down to the district court to support its sentence and help find its reasons why mr vogler in particular with the offense he committed should receive a sentence of eighteen months and that is what we have remanded even in circumstances where the district court could impose the exact same sentence on remand but because we identified procedural error and the choice of sentence is in the first instance the district court's so if it sentenced on a misperception a fact that was material we usually send back and let the district court decide whether a correct understanding of the fact would alter its sentencing choice the answer might be no but it's the district court's answer not ours is that right true but i would say that this this particular sentence was what is amply justified it totally meets the requirements under the substantive reason analysis that this court has reserved two minutes for a bottle yes thank you two points if courts are free to devise their own methods to apply the guidelines then we have to question where we go next and think  example of a career offender guideline which permits for a one level horizontal departure downward from criminal history six to five if the sentencing court determines that six over represents criminal history further we get away from the procedures as provided for in the guidelines the closer we get to a scenario where courts decide what the sentences and then make a determination for example in the career offender context to pick the range and then explain well you know i got there this way even though it's completely inconsistent with the process outlined for the career offender secondly mr vogler scheduled to be released from the b o p s presently at allenwood low  departure by moving incrementally down the sentencing table in other words you're at six so the only way be for you to movies vertically offense level points rather than horizontally it's if you're at less than that that the court is told to determine the departure not by reference to incremental steps but by just more generally by looking to the criminal history heretick glory applicable to the defendant's close who closely resemble the defendant and this is just advisory now not not controlling it's our opinion intro bianna that talks about the incremental review even when you're less than six but we've departed from tropi and when simmons and of the other cases i cited to you how as there are here well you're no no longer bound to do you're not bound in this instance to do it and you're not bound by our precedent well i mean that in the sentencing guidelines are the starting point in the initial benchmark nothing in the guidelines says that you have to do it step step by i met you when i referred to the career offender scenario in terms of upward or downward departure i guess and in that case if this court is comfortable having a scenario where someone say in mr vogler situation who is it if five or maybe someone else is it a three with the court makes a determination i'm comfortable with him being a criminal history category three but i think his offense level should be higher for under representation maybe that's something that this court determines is really not too far afield from  you have a scenario where a court step by step goes up to six and then decides to go down by an offense level but then come down one to criminal history five i mean if that's where we're headed then then obviously that's for the court to determine but i think that nothing that i've read so far suggests that we're headed in that direction where courts are free to calculate and apply the guidelines as they see fit and i think that line may be drawn for the government when we're talking about the say the career offender so if i were here arguing about a career offender where the judge determined he should be a six and over represents i'm going to put him in a three i would imagine at that point that would be a line too far for that for the government but i think this can be dealt with with the current state of the law which right does not require that a judge in lockstep you know explain that each increment how to proceed but  go further than six you do it for her to claim correct thank you thank you thank you both will reserve decision the bench is going to take a five minute break while the video equipment is being removed thank you we shall return very