the honorable the united states court of appeals for the st circuit is now in session all persons having any business before this honorable court make it their attendance and they shall be heard god save the united states of america and this honorable court the district court committed procedural and substantive error and fashioning a seventy month sentence for an airman lee homeless men suffering from one specified schizo frantic spectrum disorder st the district court committed procedural error and failing to once did the district court mention the psycho diagnostic report of the expert clinical psychologist to evaluate it mr cooper or make specific findings on the issue it's well known that those whose criminal behavior is shaped by mental and emotional problems childhood trauma and poor social support have long been viewed as less culpable and warranting of draconian punishment both the p s r and the government no counsellor is isn't it correct however that the district court specifically discussed sending your guy to a penal institution deadhead mental health facilities that's correct your honor but that's a general discussion perhaps of mental health it didn't go to the heart of the issue which was a specific diagnosis get it but it wasn't that it wasn't that a recognition however that that the judge understood that he needed mental health treatment i think it may be a general recognition that mental health treatment is is relevant on some level your honor but what the court needed to do was address the specific diagnosis that was at hand mr proposed specific mental health history and apply them to the th and identifying his quote potential and cheating rehabilitation and recommending a sentence more than our case law isn't terribly friendly to these kinds of issues when  when the p s r contains information about a defendant mental health problem or anything else but in this case mental health problems and when there's a general that there is a mental health issue at case law sort of assumes that the court took it into consideration in fashioning an appropriate sentence well your i believe that the court had it take into account the specific diagnosis here and the the psycho diagnostic report that the expert rendered assuming that it did or on some level and the closest that the district court did to doing that that mr cooper had difficulty controlling his actions because of a quote chemical imbalance and stating he needs to quote remain committed to his medications and that treatment that statement doesn't support the sense in court rationale  rudy to go off i mean that seems to be the kid not in the way that you would want but that seems to be a recognition that your client does have serious mental issues w this significant history of mental problems and substance abuse it does on a general every level judge again the court needed to confront the specific diagnosis here but one thing that i do want to add symptoms that he's suffering from it needs to confront those symptoms and evaluate how it impacted or could impact his behavior in relation to the offense conduct for example if mr pupil is suffering from a disease that affects how a because i just have a slightly different question in putting together this plea agreement did you tell your client that the judge could go in a different direction from what the parties bargained for yes and generally are you sort of a way or that at least our experience with the district court in puerto rico that judges tend to fish and sentences that seem to be higher than the organ for sentence but i think it depends joins when there is mitigation to the extent that there was in this case i think and i hope that there would be a tendency to to depar recommending a sense that was more than a year below the sense that was only fashioned by the district court and those are two powerful considerations that we thought the district court would consider in conjunction with the psycho diagnostic report which was identifying for the very  time a mental health diagnosis that is never going to dressed in the past so if mr pupil was receiving treatment or had received a diagnosis in the past for this specific condition that his is any sort of mental health treatment he was receiving in the past would not have been affected and if it was coupled with drug abuse then that's a vicious so for petula eating cycle that was driving his life at that particular point in time and that's why it was so important that the district court take into account this specific diagnosis because for the  st time we had a comprehensive view of mr cooper mental health past and what could be done in the future if he's medicated which is what the report said that his risk of recidivism is much lower because he's not exhibiting symptoms and so for it would a couple that with structural changes in his life such as a stable living situation a vocational training that greatly reduces for the st time ever his risk of recidivism and that was something that the district court didn't want didn't take into account and didn't address  specific impact of medication on his specific mental illness that was an issue in the case we spoke about general concerns and him being a time bomb but the district court never never once a consider the specific report and what medication would have  and maybe that's what he did when he mentioned the ticking time bomb i wonder if you do you can see them point or is your argument that the only way that this mental health diagnosis could be applied in the senate as a mitigating way sure i think if the court had considered the specific information that was included in the report and made specific findings relating to that diagnosis and the impact of medication and how that would impact the risk of recidivism and his level of dangerousness that would be something that was considered the problem is that that wasn't done that the minimal statements that the district court made on the issue of mental health actually undercut it sensing rationale because it spoke about how now m understand he needs to follow his medication regimen but if mr people wasn't understanding at the point time in the past that he's obviously not at the same level of culpability as somebody who enters into criminal conduct with a clear mind and also it's wasn't such an explicit argument because there i i think this court has pointed out that if there's an issue that's central to the case that's the paramount concern that impacts everything from the nature and circumstances of the offense the personal history and characteristics of the offender to criminal history and things of that nature that's something that the district court needs to take a close look at it needs to make specific findings and it needs to directly answer that information into the sentencing calculus and put on the record what its findings are with regard to that particular issue it obviously doesn't have to go through you know what this court has referred to as a road incantation of the three thousand five hundred and fifty three a factors or address every single argument that if and it's making but if there is an issue that central to the case that's paramount to the case then it is something that should be dressed that was something that the th circuit noted in an area that identical case and united states versus miranda case it's factually almost identical to this case it was reversed and remanded for a fifteen month sentence for an individual attorney mccutcheon if you could please meet your device at this time and attorney connor if you could under your device audio and video and introduce yourself on the records of the court ok good morning your honour's this is greg connor on behalf of the united states in this case the district court weighed the mid escalation in proposed criminal conduct the admitted lack of impulse control and consider those alongside other factors like struggles with mental health it then imposed a low end guideline sentence which is presumptively reasonable under this court's precedent so this court should affirm the sentence because there was no reversible error in the district court's weighing of the sentencing factors or its decision not to downwardly depart now st there can be no serious dispute about what the main focus of this sentencing hearing was mental health was discussed throughout and that started with both parties recognizing the connection between proves history of mental health struggles and history of drug addiction and his escalating criminal conduct then th district court agrees and connects the history of drug abuse and mental health struggles with his criminal conduct and as the panel has mentioned expressed concern that he was a ticking time bomb i it then recommended treatment programs during the incarceration it recommended a mental health facility and it includes conditions of supervised release that related to a treatment program so the notion that mental health was not adequately considered at the hearing is is just blind by the record that that is a stretch of this sentencing transcripts so really and i think what is evident from the argument who makes today is really he just disagrees with how the district court weighed those considerations and this court has made very clear that it's not going to step other not at all of the argument that in their brief opposing counsel criticizes the trial court for apparently factoring into the sense in decision a series  was part of its broader discussion and and our position is that this court shouldn't look at selected portions of the transcript you know isolation the impression the district court had of his criminal background was discussed throughout the transcript and the district court mentioned everything that had in front of it including the half dozen criminal convictions that were escalating during during  life including the arrest and including the juvenile offenses and actually one of the things that the court left out which presumably could could lead to an argument that his criminal history was under represented is he had just attempted to steal a government vehicle from the airport and he was put in a mental facility temporarily for that so that didn't factor into his criminal history and it's obviously related to the carjacking in this case so what started as relatively minor petty thefts gradually became more serious became a car thefts of a government vehicle and constitute error but what's troubling here though is that the court seems to attribute any substantive outcome of those arrests to some problem with the puerto rico justice system which which takes it a step further and it seems more problematic because it's nothing but speculation as to speculate it's negative speculation as to rather saying those arrested an amount to anything because upon closer examination of what evidence was available there was not sufficient reason t specifically in regard to the decision not to downwardly depart it's based on the district court's impression that he had quote many brushes with the law and that includes a half dozen adult criminal offense which remember more than half of those are one point offenses so when the district court is mentioning the arrest it's part of the if it's part of the district court is concerned that there is just there many of these run ins with the law that are are stacking up and the district court made the determination that that's coinciding with with the history of mental struggle troubling him so how is this sentence the most effective manner of dealing with that mental health diagnosis which and the statute says that the judge is supposed to consider the most effective manner of getting a defendant mental health treatment that's correct your honor and i think that's the reason that throughout the sentencing transcript the district court is addressing the concern that there is a connection be tween mental health and drug addiction and the escalating criminal conduct and yes that is a consideration it's one of many considerations of weight that is within the discretion of district cords making these decisions and for example there were in addition to the escalating conduct the lack of impulse control the district court mentioned the mentioned mental health throughout mentioned the impact on the victims and and again it required pleaded with the defendant you have to stay committed to these treatment programs or you're going to continue to have problems so to the defense's point that the import of medication was not discussed that's not at all the case below it that the district court specifically ordered as a condition of supervised release kind of direction from the district court i'd have to confess some ignorance because i think there is going to be determinations within the bureau of prisons about availability and  e individual capacity of the facility to to address mental health concerns but i think this is demonstrative that the district court was recommending all that it could to address who goes elements and you know drug addiction and struggles with mental health so yes there is some decision making that the bureau of prisons is going to do that based on availability of  rooms and beds and that sort of thing but as far as the case before you and whether the district court sentence was reasonable it i think demonstrated it's it's good morning again andrew mccutchen on behalf of a pupil you're just the last thing that the district court mentioned before imposing sentence was dismissed unproven allegations from nearly a decade prior in united states versus on such arrests quote sets the wrong framework for the sentencing proceedings and requires a reversal at the end of the day the criminalist category of five year was based in large part on the theft of nintendo games perfume and men's clothing severely overrepresent the level of culpability here and it is quite simply and reasonable i think another point that needs to be addressed right now your honor is that mr  p victor ville it's a united states penitentiary he's not at a medical facility the district court can't control where he goes it simply makes a recommendation and the sad truth is that he's most likely not receiving any treatment let alone effective treatment designed to combat his specific conditions and that's why it was so important for the district court to take into account is specific diagnosis to to review the specific medications that he was taking to review how those medications would impact his mental health and his ability to function in the free society in the future and then to make a reasoned decision based upon all that information including you know specific conditions designed to address is mental health diagnosis that the over arching point here was that mr pupil had a new diagnosis never in the past had he received might get treatment which is mental health controlled substances addiction treatment that's what he needs that's what he's never received in the past that's the type of treatment that's going to change his behavior for good and that's the type of treatment that mr pope identified in a sense he memorandum including specific locations where he could go for that treatment including a placement with his mother heirs give me his aunt in florida those are all things that are going here's my my real quandary with you are unconvicted arrests argument this was a case where you were arguing for a departure from the criminal history category right yes or two levels down you wanted and q levels horizontally so your burden you didn't you didn't dispute the criminal history category in the p s r it was a five that's so it sounds to me like you are going for a rule it would seem to me even despite the circuit law on this point it seems to me you're arguing for a rule that in considering your request for a departure where you have the you have the burden to show that the category over represents his his dangerousness it is less likely to me that a judge can't consider his arrest record even i'm convicted that seems to me to be a reasonable thing for a judge to consider a discuss at least examine is that not the case i don't believe so your honor based upon this court's precedent because when you're talking about unreliable information and violates due process to consider that information and that's specifically information that's that's not reliable simply untrue and other point that i'd like to add your own if i may just briefly is that the district court assumed all the dismissed priors from two thousand and mine two thousand and nine were from speedy trial violations that's not true that's a factual error it wasn't it was not finding of no probable cause and another that was simply dismissed so not is not only is the record insinuating that mr to post games on a technicality it's also making factual findings specifically relating to those prior dismissed a problem the problem that you have though is that the category five is based upon actual convictions i mean your primary argument was that those were heady crimes and that it over represented his criminal history so that the arrests in the the arrests alone as were really not factored into that category five finding  think they should be under forty one three i think it should be primarily concerned with convictions and i was hunting for dismissed unproven allegations and that's a violation of the framework that set out in the guidelines and it's also a violation of this court's precedent because you're  aging in the type of speculative fact finding in creation of information that this court has repeatedly found to be improper you know the questions of my colleagues thank you counsel thank you for that concludes argument in this case attorney mccutcheon attorney connor you should disconnect from the hearing at this time