your honor may please the court bob ward on behalf of the government i'd like to reserve four minutes for rebuttal i have to say remember when my judge did that for me that this was a great day also a very officious th grade the court should remain free sentencing the sentence in this case is substantively and reasonable given the seriousness of the injury and the disparity the decision creates among other things congress has consistent with federal interests federalized only a limited class of assaults and on the government's review at least this case when compared to any other federal assault what is the relevant comparison for disparity purposes as this particular statute is find but as i was a about to enter into congress's federalized certain assaults and those assaults fall into the same guidelines and the guidelines depend on the nature of the injury among other things and  up the government sees it the proper comparison is similar assaults this is not this is a case that were federal jurisdiction lies because the status of the victim but the case isn't about a and a senator reed  ult it's a federal salt and so the comparison for purpose of fairness should be other federal sorts if at least looking at the other assaults that the government found with similar injuries in territorial maritime jurisdiction if something like this neighborly dispute which there weren't any others in in the record that the government could find but there were shards and family  issues that arose with similar injuries that it was one of the same guideline similar ranges and if the ranges were higher the defendants received sentences within or close to sometimes above those ranges weren't aren't there hundreds of assaults that paul in that category there are and this is always a challenge usually we're on the other side of this issue your honor trying to suss out how these sentences fall certainly assaults on native american reservations assaults in prisons they happen fairly routinely and are prosecuted in the federal system as you know we talk about this in the  world least on our side sometimes how do we limit ourselves how do we find these cases generally what we do is try to find cases with some sort of an opinion and where the decision has been made and ratified by a  similarity of their criminal record to making that determination yes and in a couple of ways so there were i think in the just limiting you know the sort of three buckets for these federal sorts but looking at what i would  as the given the nature of this dispute probably the most similar ones are the ones on reservations and there was i think one of those defendants had a criminal history and that bumped the person's guidelines range up to about double what they got the twenty one to twenty seven months is here but the sentence was within that range there were two i think there were five reservation cases there were two with no criminal history but the guidelines range  was still a little bit higher and i can't offer up my head detail why it was a little bit higher but they were guidelines cases one of that one of those two was a twenty percent below the guidelines but nothing like ninety precedents are clear as are other circuits precedents this is an uncontested area of the law that you look at federal compared at the same time i'd also say that there is a practical reason not to look at it the county attorney testified yes we did charge a misdemeanor we didn't know the nature of the injury at the time and had we known we would have preferred it for possible i mean there's no real way to know possible felony prosecution by the co and it's just the federal government stepped in before that decision could be made but when you walk through that there was no was there any indication that the trial judge worldwide on that testimony at all to know the judge said i don't think this crime was politically motivated or she said that it was a neighbor we just view whatever which is kind of getting there i think but that doesn't actually  the same right as the number that was found out there but but i don't think there are any there's any any other indication that she actually did rely on it the only indication i was actually in the record is the sentence is exactly she seemed to accept that promise but there is no specific statement by the district judge the i believe this is more naturally comparable to a state assault misdemeanor assault  getting but but specifically indicating that it was a neighbor dispute between neighbors i think that would be getting very very i think that's getting there and that's where in government's view if you even if you take that premise which under the way that a six comparisons are supposed to be made you shouldn't take that promise but even if you do then you're in other federal assaults that have no political or the motivation is not part of the equation and where it's a family dispute punching somebody on a lawn maybe doesn't have to do with laundry but we have cases like that or a doctor patient dispute based on the irritating wait times in a waiting room these those sorts of comparisons are the state assault law of federal law because of the territorial jurisdiction and that's where the comparison should be made if the logic as your honor is saying is this is the like what state courts because it's a neighborly dispute this is not an assault on a federal officer performing duties in on duty as assigned  that goes directly to the point of the statute the statute is to protect senators and members of congress because of their status now but you don't even have to know  crime have there's no there's no way you don't even have to know i mean if i just happened to you know punch somebody in a bar and it happens to be a senator or subject to the statute that's right that you know prosecutorial discretion could come into play at that point but that's the onus of the statute or met in that case sure but where here the getting back to this case the defendant clearly knew his neighbor was even though they hadn't spoken for a long time and that goes also to the point that the general public especially in districts or states where representatives or their representatives that's what they see them as all the time it's sort of like being on duty so he knew and again it doesn't go to proof of the elements but this isn't a case where the judge could say this was both politically this both lacked political motivation and it's a clear case of not knowing who in the world you're attacking so in other words this should be a core three hundred and fifty one offense the only meaning you just you are here on that that jurisdictional gra as opposed to that conceptual problem that's addressed by the statute right that's right your honor and even to the extent the government relies on or cites the political motivation cases from two thousand and thirty years ago it's largely to prove it about the injury not about how political motivation might come into play here or not and we're not seeing a judge can't consider such things that district judge has discretion to consider all sorts of aspects of a crime so we're in the main assault type claims and what takes this as a fairly significant discretion that is granted to judges so we know the request was for no time at all and then and it's ended up being the thirty days plus  one hundred hours of community service ten thousand dollars fine three years of supervised release so there were other components of the senate's what takes this  enough out of the out of the heartland that it would be an abuse of discretion here i'd start with one thing and then turn quickly to another st the fine is real but it's that the minimum is the bottom of the advisory range and i don't think that should be considered as somehow offsetting a ten thousand dollars fine he's a doctor i don't know if he's well off doctor or not a well off doctor but it's not like a fine for open your ears defendant and it is at the bottom of the advisory range turning then to the abuse of discretion aspects it's an abuse of discretion because the judge relied on his history and characteristics which are common enough among the professional class that they're not extraordinary really at all and i don't mean that as a personal statement about him it's a statement about the way that the sentence could possibly be justified on pretty ordinary background characteristics that other affair isn't to and i'm usually not for it they're not present an unusual degree and you need only look at other assault cases the defendants the government side of this a couple of the defendants really had bad circumstances in their past difficult family environments difficult you know  childhood in difficult family environments in the present and they got higher sentences that should if anything i'm not saying those sentences were wrong but if anything it should be the reverse if that's going to be a justification that in the government's view makes this in abuse of discretion and separately you know i want to know these things bleed together but that's about the the seriousness of the if there are that's about the disparities among individuals but the seriousness of the offense is real here the senator you know we don't have anything in the record about the senator's ongoing pain and suffering but seven months of a record of st pain and suffering is pretty significant there was a case involving a veteran  that you know again the facts of a case are different district courts have the discretion to address those facts but where there's very little mention of the guidelines the judge doesn't have to go through jot and tittle of the guidelines but where there's very little mention of it a near one hundred percent variance and that variance is based on something that is tired and remarkable and different it's background that is demographically different about that event it's background that this court has said in christman is not the kind of thing that should justify a massive just a massive variance and is lax complete regard for the injury that caused  year even if the on remand of the sentences relatively similar but there's a real reckoning with the injury that was caused here with the i mean i don't know how these things balance out but this was an abuse of discretion because the that this appeal centrally is about substantive on reasonable us or substantive reasonable to us and the court has repeatedly said in both published and unpublish to the court that there ready is no arbitrariness there is no compression is this judge botanic came in from detroit she is a judge who has sentenced many many many people and has  in her transcript she says she has resolved many of these types of disputes she took ten pages of transcript to evaluate the facts of this case discussed the thirty three cases judge sign or that says that the trial judge has a ringside perspective on on sentencing issues and they they are sort of down in the trenches so to speak and that's the reason that i brought that up they can so i'm concerned a little bit here about the disparity issue can you address that i mean there are a lot of cases involving this particular statute the three that have been cited all have similar sentences this one has physical injuries and i'm concerned that this case would become a benchmark for what this statute is despite the despite the injuries here in considering the disparity issue and it's the elephant in the room in this case i think and i think of this case as a garden variety assault case i practice a lot in the warren district court i'll be there tomorrow morning i'll be there friday morning  morning county would do in this kind of occasion i think it provides some guidance to this court yes or no for senators assaulted in the district of columbia we look at the district columbia court to say what they would do and  this court is that this case is much like a lot of what happens in the district court so in that case it's sort of a run of the mill or the run of the mind sort of situation but it does involve a u s senator and so that that's what makes it unique and that's the point yes and our case law for bit us from making a determination of sentencing based on what the state law yes i think the united states versus malone in two thousand and seven said that it's in permissible for a district court to consider the likely state court senates as a factor so isn't that off limits i'm not sure that i would completely agree with that judge and the reason i say that is i hope this doesn't come out flippantly it's certainly not intended that way but i know that  you wrote a an opinion in you know a case that involved a felon who had some shotgun shells in his possession in a concurring opinion and your discussion in your concurring opinion was that in a lot of states the possession of those shotgun shells wouldn't be a crime at all and i thought that that was a very remarkable and  very reasoned sort of concurring opinion in that case i believe the defendant was facing a mandatory minimum sentence of fifteen years just right off the bat and so on i think it has to i think it has to factor into your thought process either i don't know if it's consciously or or even subconsciously but at the end of the day this is a dispute over yard trash between two neighbors and whether it's a dispute about forgive me for sounding crass but your dog pooped in my yard or or  what happens when you find it's a garden variety dispute but then the the victim ends up in the hospital has pneumonia broken ribs i mean isn't i mean in the nature of this dispute is you can say it's trivial it may be but it's the injury is not trivial right and i would be the last person in the room to characterize it as trivial i can senator paul was a friend of mine i don't know if he feels the same way about me anymore but i know the broken ribs hurt i've had him myself but he did go back to work within seven days he never went to the hospital he never took any pain medication  and but why should that i mean i'm not why should there run in the favor of the offender if somebody decides hey i don't want to take pain meds i'm worried about getting addicted or whatever and so anyway ok that one must not be serious again i just i think that you have to it's it's a multifaceted multi factorial issue and and isn't one of the keys in that circumstance that you have to show if you have the more substantial the variance the more substantial the reasons supporting it need to be and why does this case provide that necessary substantial boysen again the the court spent about ten or eleven pages of transcript i believe fulfilling that in this case the judge the the court is entitle to the trial court is entitle to a lot of due deference and and that's what we're asking this court to do to afford before deference but i  d find some authority that i wanted to convey to the court it's not in my brief and i apologize for that but it does go to the issue of disparity and  it's the thomas case from two thousand and ten it's six circuit and it says a comparison of the defendants sentence to those imposed in other singular cases is weak evidence to show on reasonable  ness singular case comparisons comparisons opens the door to endless rummaging by lawyers three sentences in other cases each finding random examples to support a higher or lower sentence as their clients interests dictate i was in judge stivers court last year and i was trying to convince him to probate a doctor for over prescribing pain medications and i gave to him lots of cases from around the country where doctors had been afforded probation and he he looked through me he said mate this this is impressive this is good research how did you do all this and i said well a lot of lot of hard work he said i don't see any cases in here where the doctor was incarcerated i said he said did you find any of those cases and i said yes didn't he said so you've cherry pick the ones you want to give to me and i said yes and that's what i did i cherry pick the ones i want to give to you and so i would i would ask that this court not put too much emphasis on an assault that was committed by a prisoner against a guard or an assault that was committed against the doctor or how many indian reservations and i understand that point counselor  but how many cases are there were somebody got a ninety five percent reduction essentially and in a case involving this kind of assault this kind of injury i mean i understand maybe you cherry pick them whatever but i mean the existence of one or the existence of two would be helpful i think to know that it's at least within the realm of possibility and i found some cases  child pornography cases where no sentence or a or a one day or a one week since has been issued there are some white collar cases where i've found that as well when there was a white collar case i argued that i lost on that issue called apple i read it read your brief right i mean the court was our court was pretty clear about using the discouraged factors are it the defendant's characteristics we said you're not supposed to you know unless it's unusual you're not supposed to do that in the end of the day i'm i'm here to try to convince you that this is a garden variety property dispute between two neighbors th e that the judge in this case did a very careful thorough meticulous job of evaluating all of the proof the government called no witnesses and sentencing they relied on the statements of senator and mrs paul we presented lots of information in our pre sentence report we called witnesses at sentencing the judge had this ringside seat perspective or he could get a lot of good witnesses if you had had somebody like mr made off you know and all of his big from what he had a lot of good things in his background never been convicted and he didn't harm anybody but you know there are a lot of people who for the st time committing a crime have a great background you know i sent up baptist preacher off one time because he was taking kickbacks from  neisha you know it's a lot of people have great backgrounds but you got to consider also what's happened to the victim congress passed this law and order to protect federal officers for years  he or she is a federal officer or a senator and then be facing federal repercussions in senate and prosecution and and sentencing in federal court it could happen  threshold research in this case and and they are entitled to that protection constitutionally so at the end of the day we believe that we demonstrated to the trial court a justifiable basis for imposing the sentence that it did and we are asking that this court this court accord the trial court its due deference and to affirm the sentence and i see i five seconds le well time to thank you better time but i'll try to wrap up quickly given that i went over last time your honour's i would just make a few rebuttal points st on the ringside perspective the of the district court the government is always pushing that is a critical consideration and sentencing review but one would think that that ringside perspective would at the very least have caused the judge to discuss the injury the serious injury in this case and i would just submit to the court that although the judge was thoughtful about some things the judge did not avail herself of the ring said perspective with respect to the seriousness of the offense and also didn't discuss disparities at all on this question of whether the cases were cherry picked  or the singular case comparison if the government missed any cases it was by accident as i said we limited our review to cases with some sort of appellate perspective but this is not a singular comparison case we took what we saw as the univers comparable cases and this is the one outlier we could have compared to all of them but we're trying to compare it to a general trend where similar assaults typically result in a two year or more s i would also offer that although senator paul went back to work quickly he then had to go to the hospital because the injury was so serious that he developed pneumonia from ribs broken in half th i don't know all the the medical details but that a period of puncture is long and so he ended up in the hospital multiple times as a direct result of this jack and this appeal essentially wrists a couple of questions did the district were justified dr bush's slap on the wrist given the seriousness of the injury and did the district court justify giving him special treatment based on his background the governments of mit's that the answer to both questions is no and that's why