united states versus thomas handsome and the five a two point six four departure for the west to sell st shooting and the reason for that your honour's is that if you look at two k two point one and specifically see there's a structure within c which is if the underlying offense that the m r firearm is used in is serious enough you're going to use either the greater of the underlying offense or going to use the typical subsection be enhancements and it's an alternative structure is not a cumulative structure u nder the guidelines and if you end up doing a departure if you give them both a b sixty and you give them a five six you're basically doing an end run around the structure of a two point one c and it's our position that that's impermissible we've but you don't get to do both here and santas explicitly and on ambiguously identified one guideline question and said that she would impose the same sentence we garbles have had that question is resolved feldman has laid out a pretty good roadmap in terms of how this court's going to felt in concert multiple guidelines questions and multiple adjustments here there was a single guideline question and she focused on it she and analyzed it and then without any still going to pose the same sentence and ended up imposing the guideline calculation and feldman was one fifty one to one hundred eighty eight months and imposed a sentence directly on the poll you know directly at one hundred eighty eight months and this circuit said you know despite what the four factors at play that were fluid in that resulted in a range where there was just one question and your argument is based on the answer to one question about whether there was double counting and let me answer to as one is is i'll go back to jasc jass went ahead and had under the guideline calculation either it was going to be three hundred sixty months to life or life and the judge ended up imposing a sentence of sixty five years and so there's no correlation between the error and what the judge went ahead and did and so when the judge said listen i'm going to pose the same sentence anyway that was upheld and jass in feldman understanding that there were four guideline errors those four guideline errors or potential errors added up to a precise sentence of one hundred  eighty eight months the judge imposed a sentence of hundred eighty eight months and the second circuit reversed saying we need unambiguous indication that the sentence would be the scene even absent those errors i want to head inside of the court to the fifth circuit in terms of what does it mean for an un indication and there's two aspects of that one is they would have imposed an outside of their correctly calculated guideline sentence into the sentence was in no way influenced by the incorrect guideline calculation and that's where i think feldman helps us here because it's clear that this sentence one hundred fifteen month sentence was in fuel influenced by the departure because she went ahead and did the departure she didn't calculate the guideline without a departure and so she came up with one hundred fifteen month sentence and the government has to prove that level of harmless error and when you end up having the obviously not mere step and serendipity of imposing a sentence that exact poll of an incorrectly calculated guideline whether it's potentially for errors or one error it's our position that i'm asking the court to not accept the invitation to open the door for harmless error when you're having you know the conclusory sentence at the end saying i would have done the same thing which is effectively what she does but it's hard to say that that's an ambiguous because that  the argument about the structure of the guideline under two k two point one c raised to the district court two point one c was never mentioned to the district court and so the government your honor is asking what was in that plane or are we stuck on the plane or counsel argued at every potential stage you can impose both b six b and five k two point six you can't give you the four and addition and you know did it at every stage  that that's an argument simply double counting i get that but the whole argument with respect to k two point one c requires the kind of analysis that you went through in your impose these two things and he uses the term double counting i use the term of art cumulative at heart i feel that those are the same things in terms i'm saying you can't within the guidelines it would be  level of specificity are you going to go ahead and have to argue more than that beyond putting for the proposition it's unfair to have these two different pieces and so as opposed to really broad argument which is th sentence is improper which you know doesn't tend to raise anything he really got so close to it in terms of saying you can't impose these two and obviously at the appellate level we have the time and energy and motivation to go ahead and try to pull departure is our exercise in discretion and here contrary to defense counsel position the p s r clearly laid out the guideline range without the departure the district court acknowledged that she had read the  idea that she didn't know what the range would have been and i think is not supported by the record so knowing that range she exercised her discretion to depart and she gave an unambiguous indication as required by this court's precedent that if the departure turned out not to be right she would have varied to that same sentence and three times in her explanation of her sentence she made clear that one hundred fifteen months was sufficient but not greater than necessary to serve the purposes of punishment to now say that to say well perhaps you will get a lesser sentence i think you can't square that with what she said explicitly under this exercise of discretion but you does raise the question doesn't it certainly your hon where did one fifteen come from and i think the standard in the circuit is not that the guidelines have to have absolutely no there has to be some kind of hermetic seal and influenced by the guy like i don't think that's what feldman stands for that's the fifth circuit  the guidelines or the guidelines of court is still have required even on the sentencing to consider the guidelines i think and some judges i know will look at the guidelines to decide what variant should be some some judges will will pick a number  you know not using the guidelines but i don't think you have to say that the guys have no influence and now you've kind of rung that bell she's just said on in fifteen months is the right sentence here said it three times i think it's just kind of an unrealistic exercise to return this to say will you give a lower sentence now that we were on technical grounds or saying the departure was was not supported and i think also if the  fifteen months but i just you pointed out you can't really unring that bell right and i think you know at the very least i do think we are under playing planner standard here and so her statements i think also under cut the ability of that the defendant here to show any harm to substantial rights from the departure as as opposed to the variance and plainer applies i think for two reasons as pointed out there was  no actually no brit mention of the cross reference because it provision no mention of kuhn these are these are different this is a different type of claim this is the undercurrent of the principle recognize there was a guideline provision already addresses a factor and that factor clearly cannot be used as a ground for departure because it already already has been taken into account in consideration of the governing guidelines provision his own argument  appeal he even you know acknowledges that double counting claim is an independent basis to find eric so i think that clearly shows that there are two distinct claims here and that the purpose of rule fifty two is to allow the district  error here or abuse of discretion in the district court's departure decision and i think it's you know we talk of there's a lot of issues floating around in our brief but i think that it comes down to something very simple neither to k two point one nor the cross reference guideline and the aggravated assault guideline have any take any account of the number of potential victims here and i was really what motivated the district court's decision point out advise that when the underlying guideline does not take into the number of account the number of victims a departure may be warranted and gives the example of robbery because of the robbery guideline does not deal with the with injury to more than one victim departure may be warranted if several persons were injured thankfully people are not injured here but there is not numerous victims then more precisely five k two point six as when you're considering whether  depart the dangerous of the dangerousness of the weapons the matter in which it is used and the extent to which is its use endangered others is a relevant consideration to the extent of departure so it's clear that when you're looking at a factor that has not been taken to a into account by two k two point one or the perhaps the cross reference opposed by defendant the number of victims and the severity of the conduct here is important and i think it doesn't get much more severe than opening fire on a group of people sitting on a porch before they've had a chance even to get in through the door using a weapon that is extremely powerful that pierce the outside of the building went into an inside wall almost killing  woman with her child those that is extremely heinous conduct and i think that there is actually no abuse or discussion in the court's decision to find that the guideline as it stands did not take that into account i want to quickly address a couple of points that were made in the reply brief and i think we go back and forth about the application of fourteen d and i think what that shows is that the commission itself recognized that a departure could be imposed along with the six b guideline now counsels suggest that the two thousand and six amendments are relevant here and i would agree but in the two thousand and six amendments what the commission did was get rid of the language that had been used before to limit the definition of another felony offense to any because some courts had interpreted language as not allowing that at the same time it kept in the commentary that eventually was it moved to a separate note fourteen b which said that where the defendant the hands meant it necessarily will take into account the severity of the underlying offense if it's offense level is higher than the cross reference and speaking of the cross reference cross reference counsel is absolutely right that i may have made mistakenly suggested in my brief that attempted murder can be proven by a mens rea that did not involve a tent and intent to kill nevertheless i think the district courts the district court could have found here based on the facts they laid out that mr thomas had such an intent and i think other circuits have found that the appropriate cross reference here was attempted was the attempted murder and again and i have to take a or some of the cases i cite i'd miss cited the guideline but in those cases they were definitely citing the attempted murder as a holding the attempted murder guideline as appropriate cross reference for this in a two point one and the point here is not necessarily that that mr thomas engaged in what could be attempted murder but the point is that the assault guideline the aggravated assault on line may not necessarily take into account the full severity of the conduct here that if it lies somewhere in between that still means that the general principle that is being advanced by the defendant that the cross reference necessarily captures all the harm is just not borne out by the record in this case and departures are intensely fact driven and the court here carefully considered the facts and found that they as the guidelines existed they did not take into account the heinousness of the crime including the number of victims and the and the way they  in thank you your honor just briefly on the on the harmless error i asked the court to be very reluctant to open the doors to the one sentence incantations saying and by the way i would have done the same thing you have to be suspicious of  correct number that we just you're asking us to be skeptical about it in terms of the government's burden of proving harmless error if it's error send it back and don't say well this is unambiguous when it happens to fall on the exact poll and  discuss at some length the nature of this crime and also the defendant's extensive history correct and which brings up the fact that when i make the representation that the court never calculated the guidelines what i'm saying is that she used to bases of departure here is a departure partly based on inadequacy of criminal history and on the five k two point six and so she calculated with no departures she calculated with both departures she never calculated it without the five k two point six in the other one she didn't do that calculation so we don't know what it would have been if the record at least not on the record thank your honor in terms of playing our your honor this circuit and soft ski which i cite in my reply brief has noted that the notion of pla position to go ahead and find errors and that's one of the rationales behind relaxing plainer in the context of sentencing our position substantively is not that there can't be a five k two point six that's in tension and no decision the second circuit has gone ahead and allowed that and that's what the council is impermissible double counting and i hope your honour's find that it was the source of the correct argument thank you very much