the court ada phleger on behalf of lewis handy was present in the courtroom today the district court considered the relevant sentencing factors and determined that supervised release was not appropriate and then upset by court in conduct disrespectful the judge did an abrupt about face and imposed a new term of supervision as punishment for that in court conduct hoping that it would teach mr handy a lesson about respecting the judge and the law we raised two objections to th first that the new term the imposition of a new term of supervised release was plainly and reasonable because it was based on the retributive sentencing factors in thirty five fifty thirty eight and second that the imposition of punitive supervised release to vindicate the authority and dignity of the court was defacto criminal contempt imposed without the protections and sentencing limitations afforded  first the there is the general objection made after the imposition of supervised release and in response to that the judge says i couldn't for all the reasons given i can understand that that's on page two twenty two of the record which is referencing back to the arguments of counsel previously made i'm just guessing that the purposes of supervised release is not for punishment but for rehabilitative purposes and also we would argue that the issue to the extent that this court finds the issue not adequately preserved by that objection to note the context of the the context in which mr cheney is objecting this is a tremendously heated part of the proceedings the judge has interrupted him a couple of times during the course of his objection here we would argue that there was not an opportunity to continue on in that it was not prudent for him to continue to given so that is clearly a reference to the reasons that came before so it comes back to the decision the arguments made by counsel about the purposes of supervised release as well as the reasons that it wouldn't be appropriate in this case and on page two fourteen of the record where counsel argues that the purpose of supervised release is not to punish or cited the purpose of revocation is not to punish but to increase the likelihood that a person is going to make a smooth transition and counsel contrast that with the previous paragraph talking about how sometimes supervised release ends up being a situation where i need to get your attention or i need to do something to make sure you understand that i'm in control it's yeah he says that there's a tight little combine going on here because miller miller and a two way is counter intuitive a little bit and therefore it does help to say i'm making a miller objection here and especially as to disrespect to the law that's the one that doesn't hide the original sentence so you can't have disrespect as an enhancement ever those particularities weren't brought up your right  was never actually mentioned was a two way mention or was even you can't do it for disrespect of the law it may sound very particular lies but it's important to your argument because you probably lose under player with rivera sentence and hence for the original offense it's surprising to me the disrespect for the law isn't equally limited right i don't understand really intuitively why a sentencing judge if there is disrespect shown during the sentencing hearing case they talk about how the drafting of the sentencing reform act expressly excluded parts of the traditional sentencing factors under for particular sentencing determinations and the say that when considering supervised release imposition congress has excised any of the retributive factors and they were attributed factors are what they refer to in a two x so that's why respect for the law would go along with legal position that i don't want to put words in your mouth but you'd rather have all this governed by the contempt rule but that does run into more formal break doctrine that's other courts may not agree with right jerry's on all the case you probably know i was on there was a judge dennis dissented but the dissent would be the be more the viewpoint for your primary argument that this can only be dealt with contempt the judge can't sort of switch midstream but our law pretty much says until the gavel goes down a judge can adjust  sentence fair characterization or not i think that in certain circumstances that might be fair and in fact in the prior cases in the circuit that might be fair in our response to the twenty day letter that the government filed i think we distinguish that we're not arguing that the court no longer has jurisdiction and thus can't change a sentence based on things that happened in the course of the sentencing proceeding worst thing that the consideration of this particular conduct which was clearly as the judge says demonstrating his failure to respect the law and disruptive of court proceedings particularly after the judge to begin begun announcing the sentence that that was not related to any of the appropriate sentencing factors here and us should have been dealt with as a separate contempt proceeding not that argument is not that it's never heard miscible and i think the government cited the kippers case in their brief which admittedly is a probation case rather than supervised release but in that case i think that's a good example of when conduct in the sentencing hearing would be an appropriate consideration for the judge to use in in crafting a sentence there mr kippers i believe both on the stand and also just in his his courtroom conduct demonstrated a lack of remorse he demonstrated continued and  the victims of this crime so that's related to the proper things that the court would be considering in probation revocation and so i think those that we would contrast that to the conduct here which is very heartland of direct criminal all of the thirty the appropriate thirty five fifty three and factors as well as his long history with the defendant he that he thought that supervised release was not appropriate and then he very clearly changes his mind on ph to nineteen of the record and says i was going with your lawyer i wasn't going to do that and clearly that demonstrates that the motivation the dominant factor for imposing the new term of supervised release was the judge's desire to instill respect for the law and also to punish for his the government in their brief pointed to several other appropriate factors that they argue could fit these circumstances and the response to that is first that that isn't the issue in miller the issue is what the dominant factor that the court was considering was and second that the consider the factors that they referenced deterrents a future criminal conduct or protection of public safety are quite as candidly quite a stretch for somebody who has interrupted to ask a question of his lawyer and to point out that his violation was a grade c violation and not a new crime and we don't need to even go that far because the judge very clearly told us why he was changing his mind and why he was punishing mr handy with a new term of supervised release the purposes of supervised release and being to promote rehabilitation everyone in this transcript has already acknowledged that it would be of no further benefit to mr hamdi and in fact their commentary seems to sort of cast it as something of a trap for him to continue to be in supervised release which demonstrates why it's imposed as a punishment by the district court judge our argument is that he didn't but should have dealt with this conduct under that procedure he does say i did not holding in contempt him in contempt but then acknowledges that contempt is exactly what's on his mind and exactly what is motivating him says i almost i came that close on page two twenty three of the record i almost came that close to holding him in direct contempt but i didn't the court then goes on to say you don't earn trust by putting yourself in contempt of court and then on the next page to twenty four of the record the judge says as i stated before i have more than sufficient grounds to hold him in contempt our argument is not that he followed all of the procedures of rule forty two and conducted a summary contempt proceeding in fact the argument is the exact opposite that he did not abide by the strictures of rule forty two but was in essence conducting such a hearing and punishing pursuant to rule forty two and the reason that that matters is because criminal contempt is a very narrow exception to all of the due requirements that we would require in any other criminal proceeding it's been recognized as necessary for the authority of the court of course the court needs to a judge needs to be able to control his courtroom so the summary contempt proceeding allows the judge to engage in what would otherwise be a wholly unconstitutional trial presided over by the judge without adequate notice without a jury those sort of things and that is narrowly circumscribed for that exact reason it is a very narrow exception to our general criminal practice and lou would have an asymmetry problem though because the whole point of letting the defendant testify allocute at sentencing is that he can get mitigating credit and get a lesser sentence for remorse and good things so if the defendant instead chooses to turn his back on the judge wouldn't that be relevant to his history of characteristics underlying offense violates violates comes back in and it seems like to tell a district judge any time he sort of spurned you instead of expensive wars you've got to go through the roof forty two machinery i think  might be circumstances where they wouldn't be where the judge would not need to go through the rule forty two percy jurors here it's quite clear that he the judge had already considered mr handy his history his character had already had mr hand in his courtroom for years previously and in fact expressly says that he's basing a sentence in part on his history with the defendant and determines that supervised release is not appropriate and then goes back and imposes that exclusively on the grounds of his desire to promote respect for the law and provide a punishment for this in court behavior i think the distinction your honor is the purpose of the punishment here he is punishing he is imposing a term of supervised release to punish mr handy for this conduct if that is the only thing that happens between the time he says i'm not imposing supervised release and the time he says i am imposing a supervised re honour's may please the court my name is dal cam i represent the united states in this matter your honour's at first i want to point out something that is very important to the government's argument is that we have to look at besides what happened prior to this hearing what happened after the hearing judge mel from the very beginning of this case after dealing with mr mr handy for more than five years always wanted to him to obtain a job to be truthful and obey probation to get his ged or vocational training and to pursue participating orientation in life skills programs which is precisely what he did after this these antics took place in court with mr handy turning his back to the court etc most of the cases you will notice that are written that are related to the situation the walker case the rivera case i mean he went ahead and complied and benefited from the conditions that i was at in the record i once went to judge the mel said you're going to get more time on me you're saying he then actually complied and therefore that shows the system worked no no your honor i'm sorry the moment let me let me rephrase the point being is that rather than punishing mr tate mr hand will look at the record of the think it's on page two fifty eight he could have put mr handy in jail for two years rather than do that he went back to his rehabilitative things that he had done for the past five years which was simply to try to get mr handy to rehabilitate himself and make a smoother transition into of trying to rehabilitate mr mr handy in the cases that we look at it here where was going to just a second ago is most of them deal with judges hey going above the guidelines and be imposing it in prison and on  sorry imprisonment cannot be used for rehabilitation under thirty five fifty three we're talking about rehabilitation we're talking about supervised release we excise that out we excised that part i think it's a part of that in the brief you've taken so are you saying that even if mr cheney had objected and said objection miller you can't give him supervised release because he's because of disrespecting the law your position is judge the mel could have said yes i can but was more dominant and one was more secondary and that's why breyer brings the are where i was trying to make a point between what happened prior and afterwards your honor is that the what the judge was looking at is what he has always looked at which was rehabilitative non punitive measures and it shows think that when you look at the entire picture here to try to determine what judge lamell was doing here and besides twice saying that he wasn't why he said he wasn't just you know one of the defendant that's highly punitive because if this guy's got a history of not being able to comply it's going to get him back in court it's a little hard to decide but anyway go ahead i don't understand i understand the defendant are you not pressing that this this should be reviewed for plane air i don't know we don't have to parse out what's dominant no i do i do and i do have a position on that no i do say it should be pointed out and the reason first of all to discuss what happened on the record page two twenty two which is the first we have the general objection that happened at the end i think we all agree it was pretty general is the tie back to statements that mr cheney made prior made prior to that and the at that time you have to realize when you look at the records he's talking about arguing about imprisonment at that point he's not talking about supervised release and it's logical because at that point of the time he made those comments mr handy had not turned his back on the court had not interrupted the court those things had not happened yet so once we get to cheney was explaining to the court that the purposes of this is not punitive in asking him not to impose a paper a term of imprisonment which is kind of goes to my argument as to what we have to look at what judge will did before and after this th sentencing hearing once we get to the in court room behavior i think it was incumbent upon the the defense to specify that it was either thirty five fifty three a two as a or it was a miller objection because at that point the judge could have as he did with clarifying himself on the contempt issue could a very very easily rectified the record at that point and said it clarified that issue to give him a chance to do that which he's been robbed of now that we're hearing under the dominant factors in this case i like to call you know like to call back to your attention that judge will mel's word choices in this case he did say in that point punishment towards the beginning it shouldn't be viewed in a vacuum i think that that's not what rivera stands for that the court has to stand back and look at this and try to figure out what the dominant reasons for this sentence work and if the dominant reason is what it had been from the very first day was not to punish mr hanley but to try to get him to get a job get some sort of training and become a productive member of society which he continually refused to do it's important to recognize at that point that the judge could have if he was trying to punish him could have  instead of eleven months of it's been president he could have imposed two years in the prison it chose not to do that it chose to go where as the some of the other cases that surround this did we what had an upward variance in most of what we sentenced to prison he didn't do that he just continued to try to get mr hanney to come into society properly contempt is not an issue in this case as far as i'm concerned your honor because the judge said it twice said it wasn't contempt it it was contemptible behavior for sure but rather than punish him he just decided to continue to keep trying to rehabilitate him and i'll point on that is a fair one to make which is even though the judge says right after trying to back judge said judge mel said that showed me something about you that the court in the issue only wanted to discount he also said that right after saying twice that that is further evidence of your inability to further evidence of his behavior both of those comments refer back to not just punishing him for this particular issue of this particular bad behavior in the court room but it ties into my argument about either sides of this hearing and lamell himself considering this man's it gave the judge a second to stop think about what he was saying observe what was happening in his courtroom and reconsider to change his mind realizing his in kepler's the judge had made a mistake i think this court has set in there and they made a mistake in that same hearing decided to rethink whether that was a good decision that he had made i don't think that you read into this record to say that it's punishment in fits under contempt or fits under the thirty five fifty three and tapioca are in miller exclusions is to isolate judge will mel's comments in a vacuum government was silent throughout the exchange i was know well during that exchange no the government attorney did not say anything no objections were made or anything like that but looking at it i don't know that there was a reason for him to have objected at that point in conclusion your honour's unless anybody has any any other questions for me respectfully a failure by judge will to respond immediately and decisively to what happened in this court room is substantially more likely to impugn the public reputation of  of the judiciary judiciary proceedings judge let me know that exactly what you would want him to do he saw he observed he stopped and he we considered not allowing a judge to change his mind looking at this type of situation unfolding behind his eyes would be more of an affront to the public integrity of the judicial proceeding for these reasons we ask that the district courts sentence respond on a couple of points first the argument that supervised release was not intended to be punitive in this case and looking at page two sixteen of the record the judge says i do agree with mr cheney that it this is before the imposition of a new term that any recommitment to see her eyes for at least would not have any practical benefit for his client supervised release in this case was the thing the judge had at hand to punish mr handy he'd already announced an eleven month prison sentence which was in fact the top of the guidelines the government also argues that seeming to argue that the judge can reconsider his sentence our argument is not and has never been that a judge can never reconsider his sentence in the midst of a sentencing hearing our argument is that when the judge reconsider is his sentence and adds punishment based on factors which he is not permitted to add benefit the punishment based on that is a violation so the arguments about further evidence or things i was trying to discount about you it's clear still that before the imposition are the judge decided there should be no imposition of supervised release these are the only things that are considered and then the judge decides to impose a new term of supervised release and he tells us why he did it further evidence of your failure to respect the law you've been through court too many times not to know you're not just speak when the judge is speaking turning your back on me does not help you there and finally the government seems to continue to see that this is potentially contemptible behavior had this been a contempt hearing there would be several per visions that potentially would apply and provide rights to mr handy including that potentially summary contempt proceedings might not be available in summary contempt or seedings are not always available where the contempt is directed at the court but the judge can be recused in those situations so mr hanney would have the benefit not just of a contempt order reciting particular fact but also of potentially a neutral arbiter in this case here that the imposition of a new term of supervised release which everyone here seems to recognise is a potentially insurmountable hurdle for mr hamdi is clearly punishment in the gu of court order i guess one questions to what you what's the limiting principle here because in the defendants that are back before revoke revocation sentencings are always the ones that have shown inability to adhere to a sentence so when a judge does impose orally the sentence if the defendant then is scornful right there publicly court what is what are you saying is the restraining authority of sentencing judge has didn't say well now you know i just don't think you have it here this is further proof everything i've done so there's got to be more that's that's how can he do that the distinction doesn't turn on whether or not the conduct is within the court or three a factor so that's the distinction between this case and again the kippers case again a probation case but a circumstances such as that where the conduct in court went to factors the judge is allowed to consider and sentencing here it went to factors that the judge is not permitted to consider the congress has decided should not be part of the decision whether to impose supervision and expressly has done so because of the purpose of supervision which is not