the morning morning your honor may please the court for identical criminal conduct left hand received a sentence of ten years in prison crowe eagle three years in prison now left hand received an additional ten years for the burning in this case however that seven year disparity for identical criminal conduct the exact same conduct now your honor when the court failed to consider the need to avoid unwarranted unwarranted sentencing disparity the court failed to do that between two similarly situated parties the court also failed to apply that disparity factor to it to its judgment thus constituting procedural error now the strongest piece of evidence that the court failed to consider consider the disparity factor is the judgement itself ten years versus three years you really harsh those out like that know you're sort of saying well that ten years goes to the one act of the burning and then the other cases the two that in this context and you know comparing disparities you understand what i'm saying yes you or all of the the penalty to count three the burning out the court very specifically apportioned out for left hand five years for the neglect for failing to take the child to the hospital five years for the neglect for failing to nurse the child in five and concurrent five years for the leaving the children home alone unsupervised whereas for crowe eagle the court apportioned out three years on all of those same counts concurrent so there's no case law on it your honor but that's how the court structured sentences that's why i think the judgment is the strongest piece of evidence the court didn't actually consider the disparity factor don't you also though have some difference in that wasn't it go actually went eventually get the child  care well your honor didn't actually get the child some care he went to the hospital to get burnt meant the day that the police were called however that was three or four days after the child had been sitting at home burned additionally left hand actually was applying petroleum jelly and medication to the child in the meantime to try to help the burns and medicate the pain so i don't think that distinguishes the parties now you're on i think you're getting at the idea that the you think you're questioning one of the parties were similarly situated and yes although there are some differences one relating to that is one difference left hand burn the child however when you're looking at the disparity factor the plain language of the statu focuses the court on some way situated parties who have similar records or been can who have been convicted of similar conduct in this case we have two parents who engage in a pattern of neglect and abuse against the same victims their own children under the same house during the same period of time the two months little less than two months they had custody of these children the burning doesn't mean that they're not similarly situated it just means that at a certain point your honor there was going to be a disparate sentence it was going to be a warranty disparity disparity that would account for the burning however seventeen year difference specifically a seven year difference and identical criminal looking at that element of of the sentence you also have to consider whether if the court weighed out the thirty five fifty three a factors for crowe eagle it's critical and determined except for the disparity factor in determining three years was ted both change of pleas extensively questioning both defendants the court had the guideline arrange for both the phone it's had the statutory maximums and then left hands before left hand sentencing her pre sentence report is very similar to it contains all of the same factual information as to the conduct for both parties additionally when you look at the government's sentencing memorandum for both parties it's nearly identical in content and exhibits the only exhibit and the meyer the court appreciate your willingness to accept the c j appointment thank you your honor may it please the court my name is mark my i represent calvin crowe equal in this  appeal by both defendants there's three issues that i wish to address most of my focus this morning will be on the motion to dismiss there is also an appeal we filed arguing that there was an improper upward departure and that the restitution was excessive and there was no proof my client harz the rest to sion or let's talk about your motion to dismiss just for a second  my understanding from the motion is the to the government and you know in your client of reach some sort of an agreement to change the restitution amount is that right that's correct your honor how can you effect your weight that that's my concern if if the appeals dismissed how can that be effectuated what's the procedural mechanism how would the court the district court have jurisdiction to do that well once this court no longer has jurisdiction then it's back in the district court and this was brought up unless there's a remake of some sort well i think the parties can go back to the district court at any time for any reason and well i should say for any reason but they can go back if they want to want something remedied a procedural mechanism to do that i don't think you need to remain on to do that and i think motions can be brought to the district court years later i mean i've seen it happen where  well the only possibility i'm aware of is rule thirty five which allows the correcting of a clear air within fourteen days after sentencing or arithmetical technical or other clear  reducing for substantial assistance under rule thirty five i'm not aware of any other mechanism that would give a court jurisdiction that's that's my concern the only response i have to that is that the district court would have inherent power to do that you know i'd like a case that says that i don't have a case that says hat i just i did we've brought this up to judge holland and he said of the parties brought that motion before him he would grant the motion and is it your view that fundamentally different because it's the restitution order as opposed to the term of imprisonment and could you go back and modify the term of imprison i suppose that it's you know the severity level is different i mean imprisonment in a sentence are one thing but a term of restitution is almost a collateral issue you could we could argue i suppose but that would be my argument to the district court is we would just make the motion of the judge would go ahead and do that i've seen i've seen district judges do that in state court all the time and i think what happens here is is it's just kind of a handshake deal where the the judge says well if you both want it all do it and nobody's going to appeal anyway and i think this is fine so i'm going to go ahead with it and you know and i'll go back to i'll just state this is that if this court dismisses the appeal then then what the district court does is what the district court does and and so i guess we're ok with that and it's you know i i just maybe maybe i'm being a purist but it seems to me there's a jurisdictional question there that i guess i guess of nobody challenges it maybe it never comes back but it i don't know there's some the doesn't sit well with me that i can understand where you're coming from on that and it's it's just kind of maybe a fashion way of doing what everybody thinks is the right thing to do i don't know why and i think if you read the transcript and i don't have the transcript but you know i think judge haven't even says well he's not going to pay restitution anyways and i think probably what he's thinking and i'm not a mind reader but he's think and again one less court one last case that i might get reversed on versus something we're not going to collect anyway so i'm just going to be practical here and and if nobody complains or appeals and then we're all done and so i found judge to be very practical and as i said i've seen  district judges do this numerous times at that doesn't mean technically it complies with the rules but it seems like perhaps these judges are ok with stretching that a little bit and i'm going to sit down all because my does the government have a position on the motion to dismiss mr meyer approached the trial prosecutor in this case with a proposal to resolve the appeal on the restitution question and they worked out a deal they brought a judge  for that motion based on the agreement that he reached with the trial prosecutor to resolve the outstanding issue of this case ok so can you give me a procedural mechanism by which that can be affected i do not have a case and he would enter an amended judgment on the restitution amount that is the procedure that was contemplated by the district court and agreed to i'm not sure any role or case that would allow that there would have just i've not seen a  this particular posture judge and i agree that rule thirty five does not cover this situation if first assume we're not willing to go along with that or the government concede that that crow eagles restitution was not subject to the mandatory victim restitution act united states is not defending the judgement on that basis so you concede that yes your ok so if we decided not to grant the motion to dismiss you would agree that we should remain on that issue well i've laid out a number of procedural hurdles to get through before you get to the merits of restitution but this court has a case the dooring case which is on the merits the citation to that is this court remounted for consideration under the victim witness protection act thirty sixty three in this case we asked for the man because the basis of the restitution order isn't clear from the record that haven't been there to kill it under what statute at the hearing or in the judgment procedural arguments that i have i've laid out in our brief but if you get through those arguments on the merits yes although i would note that we have we either concede or abandon those procedural arguments if not tell me what they are the procedur are well supported by the distinctions in their culpability in the record we would do you agree that the conduct we're looking at for the sentences that you've just described is the conduct that occurred after the initial burning of the child respect to two of the counts yes count five i don't recall the date of that account but it was it was not related to the burning of the child they it was both defendants left children locked immediately these were what did the record show as to mr crow eagles knowledge it sounded as if a bench while while it was denied initially that i thought the government had to have proven up that he knew as soon as he got back from work we i i wouldn't say proven there is some indication in the record that left hand in her proffer stated that when he came home from work that wednesday morning that she told him what had happened but she extent of the injury to the district court make a finding on the timing of mr co equals knowledge no i would not say he made a finding he and the curly go got into a discussion and than he had said but aside from that single concession mr crimes or mr crowley go on aside from that that concession at his change of plea hearing he has been clear that he didn't find out until much later that's been his consistent position with the exception of a concession during his change of plea hearing during a back and forth with judge and so you've described the difference between a five and a three based on the failure to get the medical attention what about the additional five that miss lefthand got and then he got a concurrent through and i have a couple more things to add on on count one for the court's consideration she also knew that the child was barely eating and consistently made conscious decisions not to seek medical attention by comparison mr crow he goes working a number of overnight shifts during these five days and he was sleeping during the day when he was home and that the record shows a limited interaction with his son during this period so primary care for her give her six count to really to mount nourishment during this period and for many of the same reasons there's a difference in their culpability with respect to the child malnourishment and that happened for locking the children in the house there's some indication of the record that it was to go and buy drugs but i do recall seeing something about whether it's go to the grocery store i don't recall specifically but it was another admission a principle basis in the record for treating the two differently as judge hogan chose to hear what other factors in the record warranted this disparity we've talked about the facts and circumstances of offense and the comparative culpability what about the characteristics of the individual defendants other other thirty five thirty eight three a factors that might have weighed in that that the district court actually articulated at sentencing  i just don't have a lot of time and i appreciate i appreciate your argument and i understand that from the briefs and that that the facts and circumstances of the offense and the charges themselves and i understand that that the district court made clear your you've you've explained how you think that was what about other factors for example the factors that were specific to the individual defendants and their the what they brought to the table were there other factors that you think that the district court relied on to committed on behalf of him and he presented all this mitigating evidence to show that this was to argue that this was an aberration and in his behavior on this left hand had none of that there was no letters of support no character witnesses the record at sentencing shows that mr costello reached out and tried to find people to stand up for her but no one was willing to do so there was a fair court parchin portion of the sentencing hearing was related to hearing mitigating evidence with respect to mr crow eagle i think also the letter that ms left him sent saying that mr coequal did nothing wrong with respect to this and she did not want to testify against him i think also shows a difference regards the primary caregiver exception our distinction came home every day he went to work he came home he was in the home with his son the entire two month period he was they had the children he wasn't working for a lot of it so he would have been home during the other counter time which they did not when they left children home alone unsupervised or any other feelings to nourish on top of it he could see his child he interacted with his child he could see the fact the child was not eating he would see the child needed to go to the hospital edition of the court did make a finding as to when crowe eagle knew in taking the factual basis your honor the court asked for legal when he knew he admitted he knew the day of the burning the court incorporated that into the factual basis for pleading guilty to count one the failure to take the child at the hospital the date the facts in the indictment list the five days the child was at home later recantations would be nothing but failure to accept responsibility for that fact furthermore left had a much more substantial history of trauma and abuse penalty scheme the government noted about this the plain language of the statute doesn't focus on similar penalty schemes focuses on similar conduct in lazenby what did the district submitted and decided in due course