morning your honour's may please the court i mean baron evans and i represent the appellant glenn camper and i'd like to reserve two minutes for rebuttal right the district court said in this case that the supreme court had authorized kimbrough and spears to reject a drug acquittal in c ratio and adopt a different ratio but it held that it quote cannot exercise that authority because to follow these supreme court decisions would force it to violate the separation of powers it also how that the authority is best limited to crack cases contrary to a number of this court's decisions and to decisions of the supreme court and even if it had the power to what it called legislate or deputize itself as a sentencing commission or it would not do so do so for institutional reasons each of which has been rejected by the supreme court in this court which are mainly district courts are not well equipped to decide such matters district court should defer to congress in the sentencing commission who are well equipped to decide such matters and if different judges adopt different ratios it would cause unwarranted disparity there certainly is some difficulty in figuring out what exactly the district judge did here but at some point didn't the district judge say that he would factor in this issue in the thirty five fifty three  factors and he basically says i'm not going to make any changes and the sentences accordingly and i get in your client got a below sentencing guidelines anyway now of course was factoring in various factors but why should we send this case back to the district judge if given this a move a ray of comments he does framework in place which is probably obvious to everyone but you know there are four different kinds of guidelines sentences and each one is broader than the one before there's the departure power there's the gall variance power which is individualized facts not a policy based variance that's broader than the departure power in the district court said twice or you know actually three times in his written opinion that that's what he was doing on page six hundred six hundred five he cited golf and said i'm doing an individualized assessment of each m d m a defendant the next proudest of course is kimbrough where the district court imposed a variance based on a policy disagreement but didn't specify a ratio judge jackson just varied down from two hundred some months to enderton eighteen months then the court decided spears to make clear that there's a there is yet another broader power and that is the power to determine the extent of the ratio based on the extent of the variance based on a separate ratio we know for sure that the judge rejected his power to do that last most broad type of variance and that he did so not on the merits but for reasons that are totally well that are legally wrong under more vazquez this court's decisions in johnson in by there are a lot of johnsons but i that it would be plain if the court held or even intimated that it could not vary from a guideline range based on a policy disagreement i'm not saying this were subject to play in a review but that's what the sims court said that it would violate the more line of cases so the district court there are a lot of things were said one thing that i want to point out is the government notes that there's a long discussion on the record about this issue this motion you will look in vain for any discussion of the merits throughout those fifty eight pages the district court's discussion is all about but that camper was asking the district court to actually promulgated a new set of guidelines used to there's no discussion of the merits you mean of the merits of whether ecstasy should be treated the way it was treated  judge addressed the motion on the merits and in this case the judge refused to address the motion on the merits for all of these you know for the reason that the supreme court had violated the separation of powers in issuing kimber and spears and also for all of these institutional reasons it looks and that you there's some question the government has  that not quite said but suggested and maybe your question judge moore also is getting at the same thing did the judge in this case grant a kimb variance and not a golf err variance the way he said did he take it into account the way the judge did in canberra but just not pick a different ratio and i think there are some pretty strong indications in the record that he did not do that he said in the written opinion under cameron spears if i disagree with the current ratio i must know he said i must not only disagree with the current ratio but must adopt a new one so it's very based on that you would think that the judge doesn't believe that he can do what we think of as a camera variance without adopting a different video he does say at some point that he can do at thirty five fifty three a variance so are you saying that we have to say that he has to a kimber of spears recalculation of a ratio or what's wrong with what he did i understand that his explanations are confusing at b but assume that what he did was to say under thirty five fifty three i think x c guidelines are a bit high and i'm going to go down a little bit and this is what i'm doing do we have to say that that is improper under the published jurisprudence that binds us know as long as the judge rejects or makes that decision on the merits in other words something something like that happened in town of on how the validity of how they did the calculation i mean how could he have done what he said he did with the words if i wanted to say i'm going to take into account in my overall sentence the fact that the guard wanted to heart he has to make doesn't he have to make some judgment about the validity of the guidelines i do you take it into our do you say that through arguments you make some rational judgment about the way their formula is completely mysterious and what makes it even more mysterious in this case is that the judge went on a great length about how he was concerned the doing this type of variance would might depend on how competent the lawyer was or whether the lawyer presented the argument or not and then he went ahead and sentenced every codefendant without regard to this argument whether they were raised it or not in made no explanation of why it purportedly made a seven month difference in campers case but made no difference in the others cases i mean i can't explain maybe i'm not answering your question the judge clearly said i do not i'm not recognizing my authority obviously made errors right why isn't the bottom line here thirty five to one ratio would it would result in a sixty three to seventy eight guidelines set of speech this is disregards the guidelines this judge repeatedly said on the record and in the written opinion that he was following mcelhaney he give me a quick answer why this is not harmless or it's not harmless error because this court does not uphold sentencing errors unless it's certain that the was harmless the judge actually sad if anything he said positive things about the substance of the argument and told the government in sort of brushed off the government's few arguments  in support of the ratio but he said i can't do that i won't do that and i can't do that thank you very much you are you can i know you have you're not arguing that he was required to do that too if he was going to reject what the commission of done any other set of the ratio and so he believed that's what kimberly spears said but what was mistakenly your argument you w were arguing for a one to one we argued she argued for one to one or thirty five to one and there was no statement that the court must do this or nothing nothing of that kind so much there would be in there much of what the judge said was irrelevant mean he said that on policy even of kimbrough and spears permitted district judge to reject an equivalency ratio in the guidelines on policy grounds and substitute a new ratio for objective one the court would not exercise that power here but then the arguments that he makes afterward s says i think he's using the written opinion to explain as he said on the record to expand upon the reasons he gave in in open court and the reasons for  good morning and may it please the court allison ellard on behalf of defending joe head i'd like to reserve two minutes of time for rebuttal i might mr head is presently serving ten years in federal custody in connection with his role in this m d m a conspiracy and he raises a number of challenges to his sentence and i'd like to focus on two of those this morning the aggravated role and handsome and the procedural reasonable miss of his sentence turning first to the rule and handsome and the district court added three points to mr headspace offense level what amounted to a minimum of three years to a sentence based on its finding that he was a supervisor or manager in this conspiracy now the problem with that was the record applied the wrong legal standard to enhance mr head sentence the text of the political sentencing guideline three b one point one as well as the circuit's case law requires a finding that the defendant supervised or managed another participant in the criminal venture and here instead the district court concluded that mr head along with his coconspirators mr camp are the ringleader of the conspiracy and mr st all jointly co manage the entire enterprise which is distinct from a finding of having supervisor managed another participant so that your client was the chemist is that right the one who knew how to do the chemical procedures that is what st identified him the role that he played in the conspiracy yes so wasn't there evidence that occasionally mr head would but would would have the others doing the sort of conspiracy and he did say that on the two or three times he was present for the making of m d m a he performed these menial tasks which she described as providing an extra hand to hold heavy things and cutting up little pieces of aluminum foil so why isn't that enough to provide some basis for the district judge saying that mr had managed mr same as now i know the district judge didn't say that explicitly the way i just said it but is that enough evidence to support the conclusion of three points increase here i don't think it is one of these three reasons first mr never testified that mr had directed or instructed him to perform these menial tasks st was essentially mr heads coequal manager in the conspiracy for lack of a better word they occupy the same position on the criminal flow chart so to speak so it seems inconsistent to me with that finding to then say that mr head was in a position to supervise or manage his peer his colleague in this undertaking and the third i would argue to the court that it's important to consider the nature of these menial tasks that st testified to again this was a three point and hansen and sends it amounted to three additional years to mr heads period of incarceration and i don't think it's at all clear that the guideline was intended to be triggered under the circumstances of holding things that are heavy and cutting up little pieces of aluminum foil when you see the guideline enhancement arise in the case law it really comes up in circumstances in which the defendant recruited others to criminal activities in drug cases you see it where the defendant provides instructions to participants and to whom and on what terms they should sell drugs or instructs them to obtain precursor chemicals and the like so i think there's a real question here as to whether what mr se non church testifies to having done really crosses that threshold to support the enhancement of mr had sentence in this because he was the one who knew how to make it and not everybody knows how to make a mess and more culpable than say someone who was the money person is as i do would quickly they both got obstruction of justice they both neither of them got two points off set things of responsibility and they both got the same role in terms of leadership or management whatever it is so essentially there's no basis they basically got it in terms of the guidelines that was the same guard more in range and  it does seem most of there's a disparity argument there i think that really goes to the substantive reasonable miss of the sentence and here certainly the the trial record in the sentencing record indicate that mr camper was the ringleader of this conspiracy he brought the other participants m done anything more than that is certainly what the district court found in our view of that is that the district court really excessively focused on mr head's technical abilities here to the exclusion of other relevant sentencing factors so you're certainly correct that that's what the district court found and we think that's problematic as a matter of the substantive reasonableness of the sentence because there were all these other aspects of something to reasonable ness of the sentence would be reviewed under an abuse of discretion standard whether it's a supervisor or purpose but i think after this court's decision i believe just a few months ago in the washington case that that it that it is a clearly erroneous standard review but i would argue here it really doesn't make a difference because the district court didn't make the necessary factual finding in the first place to support the enhancement and so i think on that basis alone it would have to go back to the dis make the necessary finding explicit it's not explicit keep based on mr head's management of the conspiracy rather than any other participant and even if i mean he can look at the evidence and  reasonable inferences from the evidence he absolutely can have direct evidence to support he absolutely can and you could come to the conclusion that one reasonable inference here is that mr had given his technical ability must have been the person who was even even though you could have drawn it the other way i think in this case it is because there's a competing alternative inference that mr camper was the person who was directing others to call the stones and judges them i think when you went on record reveals two competing alternative inferences then it is clear error for a judge to go with one of those inferences when we're talking about a three level enhanced meant to some one sentence when the judge go with one of the inference that if the judge says i'm going that inference because in other words the judge says i think that had deserves the three points because he was managing same but the problem is that you know that we don't know right now that the judge actually applied the right standard because the judge says instead i'm giving had three points because he was a manager of the conspiracy that's right that's exactly what the district said he never makes a finding that he manage there's a certain amount of confusion here as to what the district judge was was thinking at times but i think if you actually read through it in its entirety particularly the sentencing transcript combined with the judgment it's very clear that what was going on here is that the judge understood his authority under kimbrough and spears and the judge was looking at the situation the way that i think any district judge should look at the situation in trying to assess the appropriate sentence under th factors and i want to point out that the defense has suggested there's like four different types of variances there really is only one type of variance you said four different types of considerations one of which you started off with to purchase that we really something that occurs within the context of the guideline so it actually is a guideline sentence but it's a a lower than otherwise would be a political part of the guy so to cut to the chase my question for you is this district judge gave so many different and apparently to me conflicting reasons if i am not sure what this district judge was doing why shouldn't i send this back with clear instructions to the district judge about how to deal with m d m a cases i think it is clear what the district court judge and i think that the clearest place that you can find in the record is if you look at page id ten twenty seven and ten twenty eight the district judge was explicit in explaining what was what is what's happening is that his this is in the sentencing transcript and if you look at that were you he says that the court explicitly he recognizes he says the quote recognizes that it has the authority to impose a sentence outside of the guidelines the court also specifically recognizes that it has the authority to impose a sentence outside of the guidelines based upon the conversation and with that this is in the court recognizes it has the authority to adopt a ratio different from the ratio that in the guidelines the court then goes on and says even though i have the authority to do that i could also consider this argument in a different way what i could also do instead of adopting a new ratio what i can do is consider the challenge to the legitimacy of this guidelines range as part of my overall calculus of whether this specific how do we know that he did it in his written opinion he says i'm reading from page six eight sixty six zero seven eight it may well be a scamper argues and there's a thick binder of scientific articles camper submitted suggests that the current science is largely displaced these commission's findings on m d m a made in two thousand and one but the uncontroversial fact that scientific thinking on a given subject evolves does not render the commission's reliance on them current science in two thousand and one devoid of empirical support the sciences change the commission should review the science of the term and whether or not it continues to support to provide the empirical support i mean i don't know if you ever judge or really believes that how does he take it into account in here is his statements at the time or when he sat down to in effect write an opinion in eight of our appellant jurisdiction i think both govern and i think both are consistent in this case i think if you read his opinion carefully what you see going on exercise the authority to adopt a new ratio and instead when he says that the court in stump will exercise its authority to use not a different ratio but to determine that the guidelines based upon the ratio may result in a sentence that is greater than necessary to comply with the he suggests that someone who has the money supplies the money as a camper was a little less culpable them but where does the where does that where does he say that he's the seven months the parcher whatever you want to ten forty two peter d ten forty two of the transcript where the court is talking about the reasons for imposing sentence he says the court has concluded that the guideline in your case based upon the drug quantity is such that the court will determine another sentence is appropriate however than the court goes on to note but the court also takes into account that your involvement with these defendants is much more serious than typical leader or organizer so i think that combined with the whole discussion and i do want to directly respond to point the defense counsel made there that they say that there is no discussion whatsoever of the quote unquote merits if you actually looked at the transcript there's some extensive discussion about the scientific validity the continuing scientific validity of this m d m a to marijuana ratio and it's clear from the sentencing treasure that the judge was in fact very skeptical of some of the government's argument so i think when you look at that the judge's like if the judge is skeptical of the government's arguments why would the judge go down only seven months the judge went down only seven months because of that that second sentence that you see there on ph ten forty two because the judge said even though the guideline in this case may be a little bit higher because of the drug plenty there are other things about this case that that suggest a higher sense so you know maybe if you weren't if we didn't have these other things present i'm line of gone down a little bit further but this is a case where i'm particularly concerned that you is an educated individual as somebody who could have been leading men on these of these young men on a proper path instead you chose to use your energy in your time your talent to create this drug conspiracy and the court found that a particular significant factor is in your view that the judge wasn't influenced by the guidelines i think the judge during the sentence that he gave i think the judge was influenced in the way the judge is supposed to be influenced he considered the guidelines as part of a thirty five fifty three analysis maybe and maybe i should ask the broader question on this record where he is even acknowledging that the current science has largely displaced the science and the empirical evidence that the guidelines are based on and where the government has at least acquiesced to cases where judges have come up with different ratios and not even appeal  wasn't he obligated to do more than say i'm taking this these guidelines into account you know he's not going to be use almost almost comes down to an abus discretion to rely on what is what is essentially being recognized as irrational guideline no it's not he's saying that i mean it's not an abuse of discretion to say you know i think that  someone that that this guy like me not appropriately reflect the proper sentence for this defendant but i'm not i don't have enough evidence in front of me to figure out what an appropriate new ratio would be one of the things he said he didn't have which is apparently available and may have been available to him although he may not have known it was the extent of empirical evidence regarding the extent to which these guidelines are now have not been follow nationally and the purple evidence that cited i guess in the briefs suggests why a large number seventy two percent don't hold me to the number of cases in which they were down with departures in this area what i think the court did not have access to that information and that is clear from the record but the other one is that we're from the record that he couldn't have called up the sentencing commission and got it but that's neither here nor there we now know what it is i'm and it seems to me that what you have is a judge taking into account and imposing sentence a guideline range that's that's totally unsupported and i'm justified and that the department of justice by the way in two cases an hour for reading the letters there's judge police case which is not in the way it was and there's a twenty a j letter which suggests another case where the government has has essentially acquiesced in judges setting new ratios i mean isn't it time for the department of justice again this is one agency to take a position on this instead of allowing judges to do what they want based on the premise that seems to be not disputed by the department but one case they quote no matter where they quote department saying that it had no had nothing to dispute the evidence supplied by the defendant that these guidelines totally totally unjustified your honor i'm i'm not defending the positions that other u s attorney's offices have taken in different cases around the country the issue in this case is not whether the guidelines are flawed about was if he said a different ratio and judges all over the place said that for ratios that you wouldn't have uniformity which is gone down the drain on time ago but but i don't understand this is a this is you know you're not the u s attorney's office operate independently but you're still the department of justice still makes an overall policy and it's in that time where the department to make some policy about exactly how this guideline should be applied if it can't if it has no evidence to justify and rebut the evidence that's been offered regarding the soundness of the commission's determination but there's multiple questions and they're just going to try and address all of them first of all i'm not authorized to  i did ask your honor i did not receive i'm not through judge corbin's question as best you can and then i have a related question so please go ahead i am i think the issue here is not whether this guideline is flawed or not and i disagree that it's undisputed that this guideline is in fact flawed i think there's you know reasonable argument to be had over whether the this guy nine continues to be in a reflect appropriately the range that you know that should be applied in these type of cases i don't i don't agree that it's clear and that everyone agrees that this guidelines in fact flawed and i don't think that you refresh my recollection that you put in they  put in essentially the record before do it poorly yes and we we countered that with criticism of that record in criticism of those studies i mean there was there was the issue in this case though is whether the district court defend the ratio we also said that the judge we acknowledge the judge had the discretion to adopt a new ratio if the judge wanted but that the judge could also exercise its discretion by simply considering all of this evidence as part of the over all thirty five fifty three eight analysis and saying does this guidelines range for this defendant defendant camp or provide a sentence that is sufficient but no greater than necessary and that's what the judge did in and i think the point is that the judge was free to make that choice just because cameron spears gave the judge the authority to adopt a new guidelines or if you did not mean that the judge had to adopt a new guidelines ratio the judge here said the judge collyer considered this and said look  i don't feel like i have enough information in front of me to adopt a new specific number but what i am going to do because i do can want to consider this is i'm going to consider this is part of the thirty five fifty three analysis i think the judge how they are did here exactly what a district judge should do when he's not in situation where he feels comfortable or feels like it's appropriate to adopt a new specific ratio number the judge i mean that i think we have here is a situation where the district court didn't exercise its discretion in the persuasive manner that the defendants wanted that's not an abuse of discretion the district judge exercises discretion you know discussions thing that me exercise differently to you know  one judge is going to view an argument be persuaded by another judge might not in what we have here is the judge had two different courses of action you could take in response to this argument and it chose one and that was a reasonable course for it to take just where you indicated had a question along  concerned about what the department of justice its position was in this case at the district court level what the department of justice is and is in this case now on appeal given that there are cases where it appears of your peers that assistant u s attorneys in other cases are not defending this ratio and in fact are acquiescing if not enthusiastically agreeing that there should be a much lower ratio and so i obviously am not inquiring in terms of attorney client privilege matter but i am left totally unsure that the department of justice is acting consistently or appropriately here well let me explain our position in this case to help you understand why it's consistent our position below is that we defended this guideline and i peel our position is that the validity of the guidelines is not at issue the issue is how did the dist did the district court exercises discretion properly when considering this argument so we are not taking any specific position with regard to the validity of the guidelines on appeal because we don't believe that that is an issue in front of this court the issue in front of this court is how did the district court respond to this argument considered an invalid guideline invalid in the sense that it was unsupported how can that sentence be justified i mean you say you take no position on its validity here but if it's not valid how how he obviously that was that was the guiding star that guided him in imposing sentence which is the commissions the ratio fixed by the commission from which he departed only only only by seven months if if it's not valid then how the basis for your saying that when because of the standard of review that this court is reviewing whether the district court abuse this discretion in considering this argument in our position is that  in fact appropriate now the district court has discretion to consider other evidence in the court has discretion to disagree with the government's position and if the dish report disagrees of the government's position we accept that because that's the district court's authority it's within its authority to do so our position is you know the purpose of this litigation is the big on line is valid i have not been i understand your concern judge moore and it i do appreciate that it is difficult when different u s attorney's offices adopt different positions  i have certain structures with regard to this case and i'm not you know authorized apart from those i understand your your concern i'm trying to do my best job to respond to it we place our would be you free to tell us what those instructions  are i'm defending a position that we advocated for in the district court this crime line continues to remain valid however we do think that the district judge if it felt that the guideline was improper and we felt that the range of the comments produced in this case was not appropriate for this defendant it had the authority to disagree with that in fact it did it said here i think that the range provided by the guidelines here is a little bit too high and so i'm going to go down and we're defending the district court's decision to do that because that to support had the authority it had the discretion to do that and just because it didn't exercise its discretion in the perceives manner that the defendants wanted it to does not mean that it abused its discretion but why try to a different way why should we as an appellate court not require the district court to explain how much it's going to go down based on its disagreement with the extent of  m d a sentencing guidelines versus how much it's going to go up because of the special involvement that you point out ten forty two so we have this one key paragraph and ten forty two where the court concludes that the guideline based on the drug quantity is such that the district court's going to determine and others that it is appropriate but because the involvement with it's much more serious than the it doesn't have to give you know the specific reasons why it didn't select a further greater departure it just has to give enough reasons for the court to understand why it did what it did and and here the court says look i think that this guideline range here because of what all the things you said it probably based on just the drug stuff provide some things a little bit too high but there are other factors at play here and these other factors still justify a fairly lengthy sentence and and i district court in considering this argument to say you know what i don't think that you're you know i know you raise all these arguments against the validity of the drug violence but there are other things at play here in this case besides just the drug issues and those things  justify the kind of sentence here and that's exactly what the courts will see two hundred thirty two zero zero i understand what you're saying but how do you make a judgment about what sentence is appropriate given when you've talked about the other factors he provided commission originally made a judgment about that they they came up with a thirty five to one and sentencing guideline range or forget what your adversary said sixty month range  and then congress says go up higher so they are way high and there is the department of justice of the very least acquiescing in this strip judges essentially throwing over the the the commission's guideline range based on the fact that it no longer has any scientific validity i mean how do you make a judgment that one forty four is appropriate in light of all of the factors without making some assessment of how harmful the conduct and how harmful the conduct is the pen's on the on the scientific and empirical evidence being the same he wouldn't say that he's imposing a hundred forty four months it's because he was making meth and because of the judges and because the judge was essentially looking to the to the guideline range that the commission adopted as a measure of the seriousness of the offense just when i think the problem that you're articulating i mean this is something that happens all the time district judges all the time look and say i think this guidelines range too high i'm just going to come out with this number and they give various rather amorphous reason sometimes for why they think an offense is not particularly serious this court is never required district courts in the past to say well you know here all the specific reasons why i think you know seven months down as opposed to ten months down as opposed to twenty months now that you know that's because in you you know these are not you know working with a computer here and you're coming up with seven months or eight months and snot necessary in the ordinary case with a judge to to give every every reason and most of these cases i don't even appealed but this this case is is really different because there's a specific argument that's being made that the guideline itself as it stands today is totally irrational who may be going overboard in mind which and the department has acquiesced districts the u s attorneys or rather the u s attorneys presumably with the permission of the department has acquiesced in that very judgment made by other judges so how can you how can you say that he shouldn't at least the judge should and the judge seems to be accepting it it may well be as camber argues that the current science has largely displaced what the commissioner relies on he's obviously just reluctant to second guess the commission it's not it's not it's for congress and the commission to change it those there's a clear reluctance on his part t to recognize the deficiencies in the current guidelines range but that reluctance is within the district court's discretion the district court does not have to agree with this court as to the the validity over the the lack of validity of a particular guideline that's the whole point that the government's trying to make an appeal here is that this is an issue within the district court's discretion the district court just the record shows the dishware consider this argument at length struggled with it in fact and after valuing all of the thirty five fifty eight factors not just the guidelines not just the empirical stuff but all of these unique characteristics of this specific defendant came up with a sentence that he believed was sufficient but no greater than necessary your argument is that that this trip just the district judge is free to take into account sentencing guidelines range that is no longer scientifically or perfectly supported no that's not my position because we don't concede that the guidelines rangers are going after scientists only assuming the premise of my question it's i guess it's hard to assume that premise here because there's not i think a situation where it's been this one it is well no less you unless you do just that thirty five to one is not enough so they go to five hundred to one and they go through a whole exercise to justify it and now it turns during the sentencing hearing about this kind of line was not just incorporating empirical evidence it was not just about the science but there was also policy judgments behind congress decisions suggest look we think we want this guy line to be higher so it's not just about the science of m d m a compared to other drugs it's about broader societal effects wasn't based on certain assumptions about the seriousness of map here but the seriousness is not a is not solely determined by scientific evidence the seriousness of a drug also you have to take into account the effect on the community that your mental effects yeah i did and those are those go beyond just the science is not just about is this drug particularly harmful t individuals who are using it but what kinds of effects does the distribution of this drug have an communities and that can be different based on the different kinds of drugs and in those differences may have nothing to do with science they may have to do with the nature of the market for those drugs and these are all relevant considerations beyond just the empirical scientific evidence and i think that's that's the point here is that that there's there's more play here than just in pure evil scientific evidence there are value judgments and i think the underlying what struggled with all these arguments and consider all of them which is what it was obligated to do and it exercises discretion in a certain way and just because it exercises question in a way that the defendants didn't don't like or the way that this court might disagree with doesn't mean that it abused its discretion simply because it exercise discretion in one particular way that it was authorized to do like of us or other questions feel free will free will yes if there are other crimes certainly happy entertain any other questions the bench had action of on the obstruction of justice and handsome and which defendant or i believe it's camper yes the one with the letter yes and  was going to be a witness at sentencing i mean he'd already testified at trial to everything he knew about this conspiracy i'm i don't know that there's anything specific in the record that he was planning to testify and i don't think it happened time and what i'm getting to is how did this obstruct justice well this was may and maybe you may be right that writing a letter like that may have some implications for whether he gets two points o intimidation what i was describing what he did in the in the letter he describes that you know he you know he said in all this stuff we're going to make life hard for this guy because he in effect was responsible for his conviction and that's why i say that it may be that actually have to testify the sentencing hearing because one of the issues that was disputed at sentencing was this managerial role and hands made and provided a lot of the evidence supporting this managerial role and he has met with regard to both head in and also with regard to  and so the fact that say no and didn't end up having to testify doesn't mean that you know the defendant should get off the hook here recent report been removed i i actually don't recall off the top of my head i'd have to look at the date of the pre sentence report but i think there's that the point is the enhanced one applies when there's a you know potential you don't have to actually be successful in your efforts to obstruct justice it's whether this has the potential to obstruct justice and then also want to point out that this is you know reviewed under a a somewhat deferential standard for the for the dish court here and i think that you know given given the evidence here think it's really clear that what camp or wanted to do was to harass this individual  respect to head my understanding is there's an argument that the district judge failed to make findings regarding perjury which are required under the case law is that what is your position our position is well it first of all we think that the finding is sufficient the the divinity makes a lot of this this macias faria case the recent case but they didn't really change anything with regard to the law that the specific facts of the case the problem in that case was that there was like this whole of things that the government said that the defendant did at trial or said at trial that were problematic in this record said yeah he just made one big lie and didn't identify with any specificity yes you made this statement this statement was perjury and here we have a specific finding you made this statement this day because your perjury in it were at the subsequent requirements not identified by the district judge so the materiality in the third i think the materiality in the and made with and but i think by holding it out to provide the balls to it i think by him calling it perjury he's implicitly saying it has all these elements in it and i'll agree to the judge if if you're if you are concerned that he didn't actually go through the proper he didn't state on the record ok well this is willful in this material we submit that that's harmless error in this case because it's it's obvious i mean in again this is being reviewed under a plain air standard because the defendant didn't raise this issue below didn't object and say hey you didn't make their findings on the record so this is being reviewed for plane air and the last two prongs open air standard that affects the fin and substantial rights and impacts of fairness integrity of the public reputation the judicial proceedings i that there was a violation of the procedural requirements we would submit that it is harmless error and does not satisfy the plainer standard in this case sir i for one thing i want to just urge caution about this word value judgments that is being that mr mclaren brought up each of the factors that congress told the commission to look at each of the factors that the commission said it looked at are verifiable statistical medical they are either scientistic a scientific or statistical value judgment should not be allowed to cover that that up i also want to point out that mister mr mclaren said that the judge did and said that he didn't have enough information actually what the judge said of pages six hundred seven and zero eight was that he didn't have the only kind of information that he would accept which would be either data showing that more than fifty percent of cases were below the guideline range or a study from the commission or in a footnote he said some suggested alternative ratios from the commission i would you distinguish this case from i would distinguish this case from fan of in that the judge  then of the judge said these policy considerations are relevant another words he didn't write a written opinion announcing to the world that he thought the judges don't have authority or competence to do these things he said i believe these considerations are relevant i've considered them but given the aggravated nature of this offense which it was much more aggravated than this one there were about  thirty six thousand m d m a pills where in this case it amounted to three or four thousand there were also a few hundred kilograms of marijuana i think in a lot of weapons and money but he said given these super aggravated may but arguably that page ten forty two i think it is where the district judge here yeah i would take these factors into account about the m d m a ratio being too high but camper you're a bad guy i mean it sends you because you're a bad well again you know he had already given him a four level enhanced meant for all when he also found that ms that he  camper had an equal role with well i won't get into that record but he did not play a particularly aggravated role but besides that the judge did not disagree with this guideline he stated in his in his written opinion congress isn't an infinitely better position to make such determinations the court will defer to the guidelines and declined to impose not guidelines sentence based upon arguments as to the seriousness of one drug relative to another that's pretty clear that is announcing that it's improper thank you moment to address the government's argument on the two point obstruction and handsome and i don't think that this is subject to plane air review mr had clearly objected at all relevant times in his sentencing memorandum and at the sentencing proceeding itself to the two points and expressly and specifically found by the district court to see as fry a says plainly it cannot be presumed they cannot merely be implicit so i think that that two point announcement does need to be reversed to go back to the disk record for those findings