the morning may have pleased the court my name is jeff johnson i represent the appellant patricia sullivan and i have requested to reserve three minutes of my time or a bottle subsection d namely acceptance of responsibility and role in the offense those are clearly prohibited grounds the district judge said that she was imposing an upward departure quoted the language of five k two point zero verbatim and listed as among the reasons for the departure the idea that she thought miss solvent had not accept the district judge did say on the record was let me say i don't think that i've made in the senate saying guideline mistakes but have a have i would have imposed the same sentence  defendants and upon entering the united states on their previous intrigues they committed heinous crimes mr savion the two molested a seven year old girl rivera santana had murdered his pregnant wife and also select sexually molested a child and they were each given sentences that were significantly above guidelines and a point in those cases was well even if the guidelines issue had been resolved in the defendant's favor there is this additional reason that made the senate's reasonable quite apart from anything that was considered under the guidelines in this case the rationale for a variance was the same rationale that the court used for to guidelines which were grounds that number one didn't have an adequate factual basis in the record but it's of it would be a variance in lieu of a departure rather than a variance in addition to because of some other reason so the same problem that you have with the departure would be the same problem that you have with the variance i don't think that that can this illegal i do and the reason that i argue that is because what makes it inappropriate under five k two point zero zero would make it inappropriate as variance because what the sentencing commission has said is if you've got a defendant that you feel like has not accepted responsibility or has accepted responsibility the proper place to deal with it is under section three  and you make the findings on your record same thing with a role in the offense and the problem is if you jump over that step in the process and you don't want we in a v  troubled by the fact that these were people who in ordinary life she should treat better than she did they were family rather sisters cousins and the fact that she continued to  anion said if the district judge indicated that if it was an error it would still impose the same sentence and that is the basis not the underlying factual basis in the cases it's  basis that determining whether the district court would do the same thing if we sent it back and i gather the court would based on what the court said maybe i'm wrong problem and that sentence in there's no question about it well the buckets i just just name are not it's a fair point that you're making that in the in the two cases that the government sites you've got this additional reason and that reason is good enough to impose very and so the government basically argues ok well here even if she made an error look at what was done to her family members that was agreed just that would be enough to justify a variance to government argues look at the fact that she says we could have made it work that would be enough to justify variance and i doubt if you don't you think the district judge did say that she was troubled especially because these are family members not like her to respond to that go ahead yeah i don't without question mr sullivan conduct is not something and i'm in any way prepared to defend for this court and she pled guilty she admitted it was wrong it's inexcusable but what i would say is the government cannot identify in any type of conduct that must sullivan engaged in that her codefendant mr johnson did not also engage in and this was the government's point throughout these proceedings the government argued this is an argument on the disparity of the senate says it's on the disparity but i think it also goes to your point as to whether she had sufficient grounds quite apart from the guidelines to impose variance where the variance i don't relate no three five five three is where the disparity comes up at three five three what a six or whatever it is correct and so my argument is that disparity cannot render the error harmless because when you look ok if you say ok let's let's just look at it as a variance the reason that the variance can't be harmless is because of the disparity that you have well except she considered distinguished this defendant from its johnson on various factors but i mean she thought she was the brains behind it she was just she used her polish and she's the one that really went after her family and these types of things so that i think there are distinctions now there's a question about is it too much of variance and in the case and that gets hard because it's so discretionary that we have to say that the the underlying fact that there was no factual basis to distinguish the conduct of the soul of britain from the conduct of ms johnson that would justify the variance on good acceptance of responsibility she states for the record and i don't have my finger on the pedo as to what the range would have been the senate i know this i want to say that the senate said it would have been without except responsibility the senate's that she received and i can address this on or above i want to look it up is still higher than what it would have been however i disagree that she would have been justified in denying except it's the responsibility one thing that i would point out is that from the very beginning of this case and you can go back to page seventeen of the joint appendix all the way back at the police hearing the assistant united states attorney put on the record that while there was no written  understood you're on your correct however throughout this case the government never asserted to the court that the sullivan was being untruthful in the play you very much stayed at sentencing hearing stage  for a within guidelines sentence when the court specifically asked the usa what do you think as she accepted responsibility mr watkins said well i can tell you that she's answered all of our questions truthfully as far as we can tell and that she's helped us identify assets there was no factual basis in the record for the district court to find that she had not accepted responsibility well i think the court explained it pretty well i and as a matter of fact the court linked it all to three five five three i'm looking at two o five in the transcript he said the court finds that the sentence of forty eight months more closely represents the defendant's criminal actions her lack of remorse to the very numerous victims the financial and psychological harm to the numerous victims and the likelihood that she will commit other crimes having so calculated and considered the advisory guidelines and having also considered the relevant statutory factors under three five five three  it is a judgement the court cetera so there is a blur because earlier to be fair to your position earlier on the previous page she talks about the guidelines and quotes the guidelines but then she moves over into the variance reasons and i think her argument about the acceptance of responsibility is based on the fact that when ms sullivan stood before her she apologized for a bad business plan and missing the fact that she deceived all these people and the fraud had them out of this money which is was the charge and the and and and the evidence so i'm not kind of your arguments are well taken and they're not on persuasive but the district court may have covered herself well and in this i don't know if i were to government that's what i would argue i would say listen she got it from the judge and say you know what if we just had a little bit more time and could have ripped off a few more people we could have made this work i don't think that that's what she was trying to say i think she was trying to say we could have found a legitimate way to pay these people back but i would say that what the court my own and said that's clearly apologize that's the first time i mean the victims testified that she never apologized she never called them and all this it was very emotional testimony these people game it was and six of them were related directly to contacts to her and so when she gets up in court that's the first time she apologizes but then she apologizes for not having plan b and apologized that the plan failed but hasn't asked for it the in the first time she apologized to the victims i can tell you that as a defense attorney alvah got a client and we're still the case is still pending sentencing has app and yet i want to tell my client you're not have contact with the victims you're not to make statements to them anything you say or do is going to be used against you but there will be an appropriate time for you to apologize which was that allocution at sentencing yeah but the allocation sentence was totally unsatisfying i mean she didn't apologize for mr leading them in misrepresenting to them the state of affairs they they were they were to see into giving up their money and she did not i found that i think that really turned the court off in terms and if that doesn't fit the guidelines it does fit by three five three five five three but i understand your question i disagree that the court had a factual basis to say that she didn't express remorse to me that's a specific fact finding one that the government latched on to this phrase and i would direct the court to pages one hundred ninety three hundred ninety four of the joint appendix i think the a u s a said something that had a big influence on the judge in reaching the state's attorney said something that was was incorrect not intentionally so i don't believe but i do believe that it had an effect on her and this is beginning at the bottom of page one ninety three in the top of pa one ninety four he said think of her the quote think of her own words your honor when you were german court she said well i'm sorry for some of these people not all of them only some of them she expressed some regret and i remember her words that senate saying they went into this with open eyes if you go back to what she said at the original senate saying that's clearly incorrect she never said that that the victims went into this with open eyes she never said anything to that effect and she did not say that she was only expressing regret as to some of them she said i'm sorry for a couple people then she listed everybody that spoke against her at the sentencing hearing with the exception of one person which i think was an oversight and then she said if there's anybody else that got caught i apologize to them too not this is what she said she says i apologize i completely own it because i had a plan to get ahead and make it work but i didn't have a plan for failure and it failed so i'm going to have to pay it back another way and that is my life's goal is to pay their money back i had a plan that failed i'm beyond my unreasonably believe that if they could publicize this book enough if they could promote these conferences and they would either they would find a way to make money legitimately to pay the people back i don't think that she's denying she's never denied that she lied to them and took their money well what she wrote pollock eyes blind in other words these people didn't give up their money knowingly they thought there was any one million dollar contract and they needed the bridge and so it's like investing in a broadway play their business risks on that but the remorse problem isn't she was didn't recognize that even at her she didn't mention it once and her  allocution as a matter of fact to the opposite she said i had a bad plan and i didn't have plan b as a backup if it failed and you're probably right she probably had in her mind that i could have made money this way but that plan should not include deception and that's these other people didn't make their judgment based on well we don't know what they may say but they clearly were deceived they she's persisting in the conduct that hurt these people so badly in her mind she's saying i didn't really do anything wrong except adopt a bad plan and not have plan b i'm sorry it failed and i own that i'm going to have to pay it back another way and anyway i do understand your argument but i'm trying to point out we have a discretionary standard and the district court is the one that looked at  imposed the same sentence absent the guideline determination with the departure clearly yes she says so on the record and second was the ultimate sentence reasonable absolutely your hono s judgment and you like you were sorry i misinterpreted you you know i want to point out this was not a casual decision we held two senate saying hearings in this case judge court relied on in a proper improper calculations under the guidelines that you can't create a departure based on things that are addressed in other parts of the guidelines as the second by kate talks about upward and in the alternative impose a variance she was trying to do both and we do see the state in a breeze and she goes back and forth between those i agree i think mr johnson is correct if we just had a departure here we would have had prohibited grounds there but your honor there is no law whatsoever that if the guidelines say take into account for departure purposes a certain factor like role in the a fan's or something like that that you cannot consider that under thirty five fifty three a analysis you are up printed out this is a list of departure provisions or in the very back of your guideline manual on page six seventeen there are two if that pages here if you bought what mr johnson is trying to sell on behalf of his client for example a judge because i say the money amount under to be one point one is taken into account and the guidelines a judge couldn't find that well in light of the extensive loss to the victims in this case i'm going to vary upward or because there's a victim enhancement and to be one point one that the judge couldn't take into account the number of victims that's just not the law and there's no cases been cited for that proposition you can obviously consider those matters and a variance request how often do defense lawyers bring up those matters  minor player and this court and a number of cases up killed going up or down based on role so i don't think there is any law to support that fact and judge absolutely when i went into court you know i'm a white collar prosecutor you know a lot of people don't go to prison i was simply asking for a guideline sentence and was gone make the best presentation i could to get that and this case when asked if i were the equal partners so sure they're equal partners in this venture however i also distinguish but without  education that she brought to this conspiracy it i have never gone as far as it did that would be for example ah could be equal partners judge tra retired i know he's taken senior status when he retired and want to be law partners with me we could be equal partners but people who are called come to that firm because he's will be draxler he served on the force circuit he's a long time prosecutor before he ever was on the fourth circuit or equal partners but without his pedigree our firm is not going to go that far and i think that's what i'm getting at there as well broach the subject with him don't don't answer i have not your honor i'm happy with my civil servants salary here so and again it doesn't really matter what i think came and they are thinking they're equal partners or not is what judge hendricks all and it was reasonable judges i'll tell you the best piece of evidence i put up and probably what got us to the departure variance language nothing i did it was patricia s n's own allocution and judges i will tell you you've got the cold hard record here and judge niemeyer you've read from it and some of the outrageous statements but it's off that chair right there as  i thought to myself and she's dagon herself a whole this is the best thing that's happened in my case today and i'm literally waiting for the federal public defender who is a friend of mine to give the old f p d karate chop just a woman please stop talking because the just contempt for her family and the victims you've sent some of it own the paper but i will tell you as a judge hendrick said that she noticed this attitude about miss sullivan obviously credibility determinations and those sorts of matters the district judge isn't the best place to see even on the paper you tell me you've seen that but i tell  you i would ask you to give her great deference own that point because this was one of the most appalling allocution that i've ever seen with the courtroom packed full of victims there so judges i believe that judge hendricks had ample reasons to vary off word she does differentiate between the defendants as to why she wanted to go upward those reasons are amply laid out from the targeting of family members to her polish her skill in short this is what this court won't judges to do i've been involved and cases it was argued lynn for the government start the failure to explain line of cases and i understand what this court wants what the next planation this judge did it this was a full explanation there's no one who's read this record and there's no one in the courtroom that had any doubt why she did what she did she properly evaluated the case made extensive findings as i've pointed out in my brief they're all supported in the record they're not clearly employable and your honors i would ask that you affirm the sentence unless you have any particular questions for me i will sit down and rest on my brief and mr watkin ward have been an up or variance based on what she actually received not quite as much but it still would have been above that of mr watkins and the district court talk about the sullivans polish to fight  scheme could not have succeeded without her the problem that i see with that in this a big problem is there's nothing in the record that supports that you don't have witnesses who come up and say well they came in and pitch scheme to me but you know what if it didn't have the postmaster general of green will there are one of invested in it it's an assumption that may well because you have a postmaster and because you have a woman that's been in and out of  system on two of the one i'm said because of her position and chief ends and the other one said because she was postmaster these people test during the hearing that they trusted  because i disagree that there's anyone who said that they trusted her because she was postmaster barry blackwell did testify that he trusted her based on her accomplishments he didn't specify what those were barry blackwell was a personal friend in the sullivans that's what these two defendants did they did the same thing to government argued that they did the same thing they went around to their family and friends and asked them for money sullivan went to her family johnson went to earth so the individual victims were harmed egregiously you look at the people that are listed on that restitution table at in the district court's judgment most of those faults are not people who testified against sullivan the majority a jackpot i'd come back and pay it back but what she didn't appreciate and what she showed no appreciation for the fact that she put the risk only he's an innocent people and she's  she's talking like she's the victim not no show and no room empathy for the people she's defrauded and that's what i pick up that i thought the judge was focusing on th issues it was all i didn't really do anything wrong because my intent was to win back the money and then the they would get  question well taken judge moon well what i would say is that she never blamed the victims and certainly looking back had i been given her the blame and she just she just didn't appreciate the position she put them in when she made her initial decision to lie to i understand your honor but there was a specific finding by the district judge based on the statement that the usa had made that she had blamed the victims and he specifically said she told us in the initial senate seeing hearing that they went into this eyes wide open implying that they knew what was going on the problem is miss all of the never made that statement at either of these sentencing hearings never blame the victims i think that incorrect representation to the court from going up or down and it happens all the time because then that say except it's a response or responsibilities extraordinary and therefore deserve a lower sentence fair enough but what the district court cannot do i skip over the factual findings in three or three b or make findings that are inconsistent with the variance that's ultimately reached which is what happened in this case and i would ask you to consider the situation that what if you had a district court i wonder three isas i find this defendant has a lot to me in this courtroom there continuing to go online and make disparaging comments about the victims on social media has shown absolutely no remorse i'm going to give you zero levels for acceptance of responsibility and then later in discussing the thirty five fifty three factors says i think this defend that really understands that what he did was wrong therefore i'm going to give him a downward variance certainly the government would object and would would rightfully appeal that that's essentially what you have when she accepts the findings and the representations of the government we were always going to give  acceptance to p s are recommends that she receives acceptance she's answered all of our questions correctly the judge finds that as a matter of fact not a doubt in the past or and then says well it could have denied you acceptance but rather than doing that i'm going to give you an upward variance is simply inconsistent with what the judge had done before and has no factual basis and record and i think you understand my arguments and so on the basis of those and others that are contain