before you before before we begin i want to say at the outset that it is the general policy of this court and certainly my practice to  argument was requested they too would want oral argument and so that the initial notice on the calendar on the docket on the calendar which you should have received should have been a review of the party's briefs in this case makes clear that there are three issues before the courts on which my client needs to prevail in order to obtain a recent scene here first made us district judge rely on state law  deciding what federal what sentence to impose for a federal offense in a similar to crimes case that there's a separate category cases where it's necessary and appropriate to state law but this case is not in that category second there are a lot of assumptions in your framing of that issue because ok so second did judge korman in fact rely on new york state law in imposing the eighty four month sentence that he imposed on a defendant here and third involve the standard of review is the standard view harmless slash harmful error as my side contends or is it only plain error view as as the government contends if if i can start with point one if there were up to me i aware under eighteen u s c three five five three c a federal district judge is required when opposing sentence to give his oral statement of reasons for the sentence and if you were to look to the appendix of pages one hundred nineteen through one hundred twenty two a the sentences imposed beginning on page one hundred nineteen and of course there are many other components of the sentence beyond just its length that take the explanation of what the sentence consists of into page one hundred twenty one it's on page one hundred twenty one where judge korman begins to explain why he decided to impose the sentence and he states that out of curiosity he looked at new york state law and noticed that it did not consider whether the there was consent from the victim or not which is similar to federal law and and then at the conclusion of his reasons on page one hundred classification felonies we explain our reply brief it's not clear that that's the closest state law offense to to the crime as to which my client pleaded guilty but nevertheless it was mentioned twice and because it's there in the statement of reasons we believe that it was a reason unless the judge were to say either that he did not rely upon it in any way or perhaps the actual sentence that the impose indicates itself that he did not rely upon it here the guidelines so the district court says out of curiosity that why doesn't that suggest that he was simply trying to get a sense of how things might be done in the state court to say out of curiosity doesn't necessarily mean i rely on something in fact it seems to suggest arguably something else that i'm just looking at it and  mandatory minimum sentence for rape and only in passing your adversary would would argue how do you how do you respond to that lie and i'm willing to concede that if it was only the out of curiosity reference at the outset of the of the reasons that that would not be enough to require the sentence to be sent back that the case to be sent back from the sentencing but when the judge is referring specifically to the state last sentence and that it's five year mandatory minimum and then he impose a sentence that that in fact is two years above that it's clear under the law of other circuits that we rely upon that the six circuit in the malone case the eighth circuit in  jeremiah this court in two cases that we've cited noted notes that say federal district judge is not required to take state law into account like to draw the honors attention that in the juror in the johnson case of this court from two thousand seven footnote four goes on to say that we're holding that it that a federal judge is not required to take the state law sense into account but we don't need to go so far as to say that the district judge can't do it if he wants to do it and he's and so  this appeal we're asking this court to go further than then and has gone thus far in the two cases over the past twenty four years that have presented this question and actually affirmative back in order for the judge to reconsider what sentence to impose relying only on the permissible reasons so i'm not standing here today arguing that a seven year sentence could not have been imposed by this judge in this case the mandatory that the maximum sentence for this offense is fifteen years so it is possible that the judge can impose the same sentence on remand the difference would be that the reason one of the reasons that he would be giving during the rematch would not include district judge should take state law into account because in many areas state law is less especially in drug cases and perhaps in gun possession usuals why do you want us to reach it maybe in this case it might help you plan it exactly court for example were to side with the government and say that only plain error view applies here for example you don't need to reach the merits of the substantive question but i want to go back to a point that you said before about my position harm other criminal defendants because i think that i fundamentally disagree with that this court has said that in cases where a criminal defendant is arguing that the federal district judge must take the state law sense into account there is no requirement that the federal judge take the state law sense into account so that this court has already done everything it had to do to make this argument unavailable where it helps a federal criminal defendant what we're asking you to do is to make it unavailable where it helps the prosecution the cases that you cite and please correct me if i'm if i'm wrong we could cases that you cite like malone the six circuit yes that predates the supreme court's ruling in kimbrel and isn't that a problem for your argument well there's i don't i don't think so your honor i think that there have been a number of other cases that continue to recognize this principle there after i have to concede that that this is not an argument that the federal government had brought up and it's briefs so i'm not prepared to address it says since it was not some of the government's relying upon i would like to just spend a moment addressing the play nerver says harmless or ition the record makes clear that counsel for the defendant did not raise a contemporaneous objection at the sentencing to the district judges mention of new york state law or the fact that under new york state law five year mandatory minimum sentence would apply to this crime and so there was no contemporaneous objection however there had been no notice given to the parties either by by the government and its arguments through the p s r reports or from the district court itself at the district court would perhaps be considering what the state law sentence would be as as i mentioned this court in the past twenty four years has had two cases that have touched on this issue and as we've discussed have not gone as far as we're arguing the courts needs to go today in this case  for all that and that could that lead to if we accept your line of reasoning does not lead to this problem that you're saying that whenever there hasn't been notice of an error that there should be relaxed and heard and if we if we follow that line then one can imagine any number of errors  where you would expect the possible errors where you would expect the the lawyer to be fully cognizant of what's going on and to raise an objection you're saying under your line of reasoning that's no longer necessary you can almost be a strategic choice i'm not going to to raise this as a as an objection because i know that i can then later say i wasn't given notice of it when that affect a fundamental change in the way that we think about these kinds of proceedings i don't think so your honor i think that this court's holding in the young case and in the villa for take ace clearly cover the situation presented here in villa for today this court looked at whether the error rises frequently or infrequently and and whether the parties had any advance notice of the issue heading into the sentencing and here it's not an issue that arises frequently as shown by the fact that this court's only had to address it twice in the past twenty four years and it's not a question as to which the defendant had notice so we believe that the holding that that harmless or review applies here directly follows be fair there are things that the record does not reflect fully where if you if you look at some of the earlier sentencing proceedings where judge korman says you know talk to the federal public defender who i discussed the case with and he'll give you some advice about what you should do what the federal public defender who supposedly discussed the case which as carmen told defense counsel is not is not in the record today but at the sentencing proceeding itself  judge sent signals that went all different ways the prosecution was trying to get a different sentencing guidelines range that was slightly higher still still below eighty four months and the judge said i'm not going to change the ra for twelve to eighteen months i mean that for a while there are things look to good for the defendant so obviously it didn't end up there and maybe it wasn't always looking good for the defendant throughout the entire sensing proceeding but it wasn't always  make the upper departure starting with the five year mandatory minimum under new york state law thank you it's to be clear your client accepted the factual recitation in the america the issue for this court is whether judge korman erred in sentencing the defendant mr mullings by making passing mention of the minimum for rape under new york state law the answer is unequivocally no at sentencing judge korman considered the party's submissions heard from the victim herself the defendant mr mullings and counsel and then announced the sentence in doing so the district what do you make of the fact that the that that the five year mandatory minimum sentence under new york law does not correlate or correspond with  sentencing hearing that he looked at new york law out of curiosity he was curious he says on the record and he had he makes them two observations one that you know just like federal law there was no consent because you're an inmate and that doesn't affect at all the issue here and at the very end of the sentencing narrative he says in passing he says and i've considered your military service and i've considered you know the arguments and and so you know i've given you a sentence which you know just happens to be greater than the new york sense of rape which is five years but it's appropriate under the circumstances that was a fairly heinous crime and just corpsman mentions the fact that force was used in the narrative and fact it's also mentioned in the written statement of reasons which is also important for the court to consider  because the written statement of reasons refer at all to the new york law no your honor and so what it what relevance does that have to our well i think that it's important for the court to consider that when it came down to writing out the statement of reasons for the for the actual sentence he did not include new york law because he had not considered it he had looked at new york law out of curiosity he considered it but he didn't rely on it that's correct he did not rely on it in the word rely  the district courts are not permitted to consider to consider federal states and see disparities when the term in the senate is to be imposed upon a federal defendant issue under this case and the facts this case do not require  in the district court in that case says disagree with us to the second questions soon the risk what's the answer what's you answer the first question that was that mr bush ministers to consider contrapositive the case here and and so at least the reasoning behind the johnson decision was such that in effect the policy behind the guidelines is to ensure that there is not disparity nationwide among federal courts i think that there is a rational argument to be made that given the wide sentencing disparities between various states within different circuits connecticut new york here for example that you know it would not be consistent with a policy of the guidelines for the courts to rely or use the most important factor in point the second call was a discussion as to whether or not the fact the hearing was going to have occur and then just corpsman noted at that sentencing that you know i don't know if the guidelines are going to be relevant here just letting upper departure and i think even actually disclosed that probation had recommended upper departure for thirty six months so i think there was notice here that just corpsman was not going to fall of the guidelines in this case guidelines range based on obstruction i would also note that there was notice because the government itself in its submission asked for an up or departure and that was of course provided defense counsel prior does not say what it was happened was is mr mullings had given an interview with the probation department in that interview he stated that he did not use force then subsequently he then stated no he was going acknowledge that he had used force and waive his right to afford a court hearing therefore probation issued a third of a dent him to the p s r the same day as the sentencing hearing where the probation department th recommended that mr mullings receive two point enhanced been for affection and justice and no longer received three points that he would receive for acceptance of responsibility increasing his guidelines by five points at sentencing hearing the government concurred with the recommendation of the peroration department which been issued that morning just corpsman disagreed and said that he did not think that it was appropriate for probation and the government this late in the game to make this recommendation to him and therefore did not include those five points on the guidelines however in denying the government's information's motion for an enhanced guideline sentence he stated i don't believe the guidelines  relevant here anyway this is an up or departure case just make sure that i completely understand what you're arguing with respect to whether playing their lies in the context of notice circumstances that we don't ordinarily see in the criminal sentencing context then the defendant ought to have defense counsel i have noticed that the government ought to have notice so that they can air out whatever the issues might exist whatever issues might exist in connection with the unusual circumstances and the fact that you fact defense counsel right there and then  because in long you had to remarks at issue one remark involving some possible racial issues of tones and the first remark involved not american citizens and the acknowledges there are situations where lack of notice and in a sort of more sort of difficult situation like the long case where harmless error would apply even absent objection but not in this why isn't that problematic for your if your argument because in that circumstance the lawyers hearing it for the first time it seems to me that that you makes a compelling point theoretical point and how do you i'm still not clear as to your response is why i think two points on to answer that question first of course the government submitted that just corpsman not rely here and so you don't need to reach this question but if you assume the hypothetical i was given earlier which is that if judge korman had said i hereby am relying on the minimum for rape in new york which is five years and that's going to be the you know main the most important factor in my decision you know i think at that point you're given such express what if he said what if he gave a host of reasons and that was one of them in other words he doesn't say i expressly rely but give the host the reasons and you know reason number five for a reason number six is in new york law we want to you know i  lines and so that theory which the question so i think it sort of like if you're at the hypothetical where you say i express you a lie in new york state law it's an important factor my position then i think you have to object because it's you have newt you know it's right there in front of you if you're at the facts of our case it's doesn't matter because we don't even get there somewhere in the middle you know that's something that you know i think the court has to consider you know in a different case something for today thank you about the oral statement of reasons is the portion of the transcript which the mention of new york law and the fact of the five year mandatory minimum sentence comes up the written statement of reasons which is a document is under seal and that you know to the extent any one of the public is behind me no one has access to in fact i barely had access to it myself thankfully judge harmon's assistant provided me with the day before my brief was due here  t i've never seen a decision from this court that says that the nonpublic written statement of reasons that like i say is under seal somehow overrides a district judges mandatory oral statement of reasons under the statute that i say to earlier eighteen u s c three five five three see and and the written statement of reason certainly does not disclaim reliance upon new york state law just doesn't mention it we submit that given the oral statement of reasons it's impossible to say that new york state law was not relied upon and under those circumstances the appropriate remedy is sending the case back so that a proper sentencing proceeding can occur when improper things will not be relied upon we would you concede though that your argument would be even stronger if in the written statement of reasons new york law was referred to yes yes i do i do can see that and it's very possible that foreman it may have occurred to judge korman in between his oral statement of reasons and his written statement of reasons that it was not proper to rely upon new york state law however that was an oral reason that he gave immediately after argument it would be necessary to have recessing to make sure that it didn't enter into the calculus and is the circuit will consider correct correct unless there's any further questions thank you thank you thank you thank you both for your thoughtful arguments the final case