the st case to be heard is usa vs tomorrow clinton and let me just briefly state what you may already know which is that castle will have the full time allotted to them perhaps a little more before any either any of the judges ask any questions when they're come on they have completed their time of argument i will call on my colleagues in the order of seniority and we will  good afternoon may please the court my name is jesse segal i represent mr clinton mr clinton is almost forty three years old is serving a sentence of twenty for ten months or seventeen and a half years court erred when if them mr clinton could be a career offender as the instant offense conspiracy to distribute and possess with intent to distribute cocaine under section titled twenty one  states code forty six does not qualify as a predicate conviction under the career offender guidelines the government correctly argues that our argument is now  r by the court's decisions in united states the ten and united states of the richardson neither of which had been decided will be submitted or recent december two thousand and nineteen this kind of is bound by those decisions nonetheless there is a split among the circuits regarding this argument specifically the th circuit in the united states the swinton disagrees with that conclusion abandon it and reserve our right to sions supreme court for tertiary we've raised two other arguments which are related one we've argued that the district court erred why the disparities in this case did not require a lower sentence and relatedly that the two hundred and ten month sentence imposed on mr clinton was substantively on reasonable for various reasons including the far lower sentences imposed on co defendants who were either much more involved in this offense than mr clinton namely codefendant jaylen allen who received a sentence of forty one months  whose involvement in the offense and criminal histories were roughly similar to that of mr clinton namely co defendants michael months and who received a sentence a forty one months and daniel williams who received a sentence of thirty seven months we've also argued that the two hundred and ten month sentence imposed on mr clinton was substantively on reasonable due to the extremely short duration of his involvement in this conspiracy which was three months his role in the conspiracy which was as a customer of a member of the conspiracy not a member of the blood gang and that he had engaged in no violence the government makes various legal arguments which i'll address in a minute but does not factually dispute that allen was far more involved in the expense that was the subject  clinton or that the involvement in criminal histories of monsanto williams were roughly similar to that of mr clinton yet he received a sentence that was more than five times as long as any of th the government's main arguments is that the district court was not required to consider or address disparities among co defendants as section eighty six is primarily addressed on warranted national  not part of disparities within a case and furthermore the government maintains the district court did consider defense counsel's arguments that although they didn't specifically address the just to court said didn't consider the arguments made by defense counsel and that that was sufficient we would argue that if that's in fact true that the district court's analysis of those sentencing discrepancies unwarranted sentencing the discrepanc fair game that is if the district court considered mr clinton's argument that a certain should be consistent with those imposed on his co defendants then the court's conclusion that it was still appropriate to impose a sentence five times longer that this constituted a legal error the sentence was unreasonable because it was based on legal errors there are a number of points regarding  disparities argument that i have but one of the things i'd like to highlight is the practice in the district courts within the circuits which in which the district courts do seek to avoid an learn to sentencing disparities among co defendants routinely it is routinely addressed in sentencings in large gang cases of this type and district judges will routinely ask prosecutors where particular defendant not required to consider disparities among co defendants in those cases not only does the court make that point but then the court actually addresses the merits of the arguments that there weren't more seeing disparities among the co defendants whenever there is nothing else in the judge's decision to indicate that in fact had considered that and quit the point that i was trying to make with that well if in fact the court considered it and rejected it then this court is able to keep or whether or not the district court was justified in essentially rejecting those arguments sentence it can consider not just the defendant's role in the particular in the offense but also his criminal history writes yes sir so even if we had a rule about considering unwarranted disparities between defendants it would have to take into account lecherous a role in this offense but also whether the disparity or the sentence was justified by his by the defendant particular criminal history that would certainly be like him were in criminal history category six he was in criminal history category six both because he was a career offender or because he was a career offender but even if he had not been based on the number of criminal history points he had which if i remember correctly was either eighteen or nineteen but two of the co defendants also who received far lower sentences also had were in criminal history category six so while it would be appropriate to look at his criminal history in terms of analyzing the disparities there was not a significant difference between the defendants to justify the disparate treatment was mr williams who i argued had a worse criminal history than mr clinton because his involved violence to mr clinton's did not involve violence at all there might have been like one or much i think it's without question in this court as recently as this year reaffirmed that a district court has no legal obligation under the sensing factors to consider lawyer a point that out the written submissions of defense counsel made the argument that clinton should receive a sentence not unlike the senses defendants and the court said that he didn't consider those written submissions also at the time of sentencing defense counsel made the same arguments obviously orally and before imposing sentence one addressing mr clinton the district court said i'm aware of the argument you know the arguments that your attorney made here today so  while there is no legal obligation for the court to kind of considered these arguments it appears from the record that it did so the the one thing that  i think counsel for mr clinton doesn't play cygnus sufficient emphasis on is that mr clinton was the only defendant that we're discussing here or that word was discussed and mr clinton's brief that was a career offender so it may be that there are certain similarities between the criminal histories of the co defendants and mr clinton but only mr clinton had the t quantity of criminal history convictions that require the imposition of a career under guidelines and that distinction in and of itself in the opinion of the government addresses why disparate sentences were imposed and as well to the extent counsel for mr clinton argues that you know we're unable to  no legal obligation to consider sensing disparities among co dependence there's no common an obligation by the district court to discuss or address the arguments alleging the sentencing disparities with respect to the substance of reasonableness of the sentence imposed the district court made clear that mr clinton's criminal history spans some twenty five substance convictions and a series of violations of parole including the instant conviction which clinton engaged in just five months after his most recent release from prison and while he was on term of parole supervision and finally when the district court imposed sentence it made clear that  there is a basis to conclude that somehow the district court abused its discretion by imposing a within guidelines just like your hono well i don't know how to answer that question i mean any any defendant who has been correctly determined to be a career offender presumably received a sentence or anything i can't say all of i'm certainly about right i'm still thinking in terms of months room you know counsel for mr clinton today raised the question that he was he had not engage in violence and he was not a member of the gang that was the principal subject of the investigation but his sentence was not enhanced in any way because he engaged in violence or because he was a gang member the career offender calculation results from the nature of the instant conviction and the nature of mr clinton's prior convictions which involve the distribution of controlled substances says there's not a limit i would not say that there is no limit your honor and you know it the analysis may not follow the unwarranted one since in court should not look to other sensing as a point of reference and certainly if the district court here had said i find a two hundred and ten month sentence to create a anything you want to say about why the finances were justified considering those histories the disparity yes briefly judge i looked at them to confirm that none of them were career and you know i'll just leave the guidelines are no longer mandatory but case law seems to be clear that they are the starting point at least for the you now says of the reasonableness of any sen and the guidelines have chosen to treat drug distribution convictions more harshly if you will then possession of controlled substance convictions meaning that in order to  part as a career offender the prior convictions must involve manufacture or distribution or for all purposes distribution and while there may be a similar number of drug convictions for one or more of the defendants that mr clinton has pointed to there are not distribution offenses and it's not irrational for the sentencing guidelines to have drawn that distinction or for the court to have relied on it as well let me just check whether i can be heard you can research my view but it doesn't seem to be working thank you very much i have just a simple question of service or yeah i think we've already got your similar case i gather you agree that it's controlling with respect to clinton's argument that right that is correct your honor i hope the court received a twenty eight a letter i submitted  referencing the fact that a petition for rehearing in tab has been denied and there is another reported decision from the court in united states versus richardson reaching the same result great thank you very mr williams criminal history is summary pages thirty four to thirty four and i would just note that a lot of the information here is drawn from the government's sentencing submissions where both of s case which the government relies upon that's another case in which the governor of the court noted that the wall sorry noted that the district court had not been required to consider the question of disparities among co dependence but then went on actually to examine the nature of the disparities and determined that  which was admittedly when it was enacted addressed to the national disparities that does not mean that that is the only thing that's rel in wills the court noted that there's nothing in a six the statutory language which limits the disparities which a court should and i think you know you taken your honor's question to mean that that doesn't seem to be appropriate that under certain circumstances it's appropriate to look at disparities that exist within cases and that this court should take note of them and let's say i misunderstood the question and not say that there's a limit there's a limit to the rule and that's what i was trying to correct i mean that sorry i don't mean to say your correct i think that that's how i took the court's question as well and certainly if there is to be any limit then i would argue that the five times the sentence imposed on mr clinton compared to was similarly situated codefendants has got to be over that