him and sentenced to eighty seven months in prison because two years of the advisory guideline range i'd like to focus first this afternoon if i may on the district court's decision to vary upward by two years from the guidelines that decision was infected by error at the time it was made in open court by its substantive surprise to mr mooney ham the prejudicial nature of which was both confirmed and compounded by the district court's later written memorandum the surprise first came in the form of the just your court's decision at sentencing for the first time to ask the parties to discuss whether he should very upward there was nothing in the p s r to suggest to mr many hand that the court was considering an award the court might consider an up or departure or upper variance the government had not asked for an up or variance and at the time that the court suggest dialogue with counsel for mr mooney him that was not a garden variety dialogue about someone having a significant number of criminal history points just on that point you mentioned a moment ago that the court have an obligation to warn you in advance so it i mean it didn't have to tell you in advance i'm thinking about an upward departure and be ready to talk about that no the court does not have you know mr manning ham did not stated concerns and as the discussion ensued those stated concerns became involved relevant to a particularly sophisticated relationship between the sensing commission criminal history rules its decision to remove burglary from the definition of crime of violence and also says larger questions about whether burglars are more likely to recidivate once they're released and once that happened was time to research the questions that the court was asking especially as it got further into court mentioned a study that she had read it was asking questions about what the commission's reasons were for deleting berkery from the definition and it was apparent from her valiant efforts to respond to those concerns that the court might have been mistaken about the commission's reasons for deleting burglary from the crime of violence she asked twice for an opportunity to have a continuance in research and come back with the answers to these question  that were was committed and we should reverse as of that point or remain and as of that point well actually the case law does not say that at that point necessarily the court should reverse and remained however in the circumstances of this case because the court actually went on to rely on its mistaken understanding of the commission's decision then we understand and this is shown further by the ensuing proceedings that the council was in fact prejudiced by the correct that is not correct no the answer to that question is that yes the counsel for mr meaning hand filed a motion to reconsider in which she presented the the precise research that she was trying to think of during the sentencing hearing in which she demonstrated to the court that it might have been mistaken about some of its understand is about burglars every citizen in the purpose of the criminal history rules all of the things that came up at the sentencing hearing at that point yes she did attempt to address those concerns but in its response to those concerns the district court in fact confirmed that it had been mistaken at the sentencing hearing and then compounded that error by going on to say well i wasn't really relying simply on this general idea  and burglars so i'm setting that aside for a moment in fact i was lying only on you were it not just his recent ism risk which of course is not supported by anything in the commission in any of the information that was presented or that it was  right my defendant right here right seventeen felonies of age thirty three that's right but even the commission tells us that the number of felonies does not necessarily indicate that he has a greater risk of committing particular crimes in the future not greater than what criminal history credit category six already accounts for the commission stops at i think thirteen point even and it's just to stickle analyses it doesn't tell us anything about anything over fifteen points which strongly suggest that that doesn't actually someone with more than fifteen points just by numbers alone doesn't tell us that the person is going to be more likely or sedate and in fact the departure provision for under represented criminal history category when it tells judges that they might want to depart it is and it talks about the seriousness of the problem or offending and mr munoz are departures not very that is true but this this is that is exactly right but it tells us what this information actually means which is more criminal history points do not necessarily tell us a longer sentence is required if it did the commission would surely give us a criminal history category seven because the i mean isn't that i guess i had an opinion a few years ago we tried to extrapolate all the way to nine or ten but you know when when after booker we've got variances and isn't the whole point of variances that you're not as tied to the specific kinds of ideas that are in departures and a lot of times you know people like it when the judge is very downward kind of based on a guess and by gosh and sometimes a very awkward i'm categorizing it but i'm kind of a guess and by gosh this guy you know if he if he committed a crime seventeen after he had only sixteen there's a chance that he'll commit eighteen after he's had seventeen so the answer to that question of course is yes we're not bound by the guidelines the departure provisions in the guidelines and that after booker judges are in fact permitted to make decisions that are not bound by the guidelines but they are bound by the statute and the statute tells the court that it's to consider the for purposes of sensing and in this with the judge is still required to consider that factor based on what we know and what we know is that someone with twenty two criminal history points is not more likely to receive aid than someone with seventeen criminal history points or sixteen criminal history points and once we get to criminal history category sex we've we've accounted for that person's risk of percent of ism and in this case the risk is not even of the kinds of offenses that we would consider to be so serious that the commission it's you know would say ok judges think about the seriousness of the offense which is tied to the defendant's culpability and the need for just punishment i mean the fact that he commits seventeen by age thirty three i mean it might be one thing if he's fifty and he's hit category six but i mean he's committing crimes basically you know as soon as he's released i mean it's a remarkable rate of felony convictions for someone that age the guidelines don't account for that do they the guidelines do not account for that but there's a reason for that the reason they don't count for that is because the fact that he has that many criminal history points by age thirty three does not and does not predict that he's more likely than the eighty percent that he's already likely to receive aid it doesn't change his likeliness at that i mean i don't follow the why and what's the word that well if you look at for a one point three well the authority is first of all th all of the syncing commission studies tell us the criminal history category and in particular the points correlate with risk averse so they stop counting after fifteen when the committee did he have twenty two i mean he's well above the ca again in age thirty three he is but his prior offenses are not what the commission would consider the kind of serious offenses that would warrant an upward a sentence of people at this rate up front and the simple risk of recidivism exactly that's more about the in the court i think you're correct the court was focused on the risk of recidivism it seems it was and it seems like judge collier has done this many times did take into account sort of the rate of convictions i mean he thought it was pretty amazing that mr running out had seventeen felonies by age thirty three and that was something not of not reflected in the guideline range i mean is that why can't a district court think about that i would say that the district court can think about that but it should be cabined by the purpose that it's stating it's concerned about and if it's about recidivism then the fact that he has that many criminal history points does not  predict any more likelihood of crim of free citizen than than thirteen points or twenty points for if that's where i just don't understand well that's that that actually is what the studies say which is why this kind of conversation probably shouldn't take place without those studies being from sent it to the court i think that the just the fact that the district judge caller in his written memorandum sort of set aside a little bit that discussion and said it wasn't really what i was thinking about not in terms of studies or what the commission did i'm just in fact at sentencing several times the court and the parties agree that there was no violence at all in his history as i understand it and correct me if i'm wrong at best from the judge's point of view there's one of them where when he is arrested a month later he has a gun that's the most i could find either p s r but the judge himself did not actually point to that so i'm not going to any one he just said generically and he said many of them and so he said more than one well ok i'm sorry we're more than more than one through of zero is the right answer more than what is the wrong exactly so we sprite there we have now in checked into this substantive basis of the opinion excuse me of  sentence is a fact that does not have support in the record the judge color also went on to say that mr manning hamish on a repeated willingness to endanger the public by recklessly evading police but in but yes it's true thirteen fourteen years earlier when he was in his twenty's he did actually leave the scene by recklessly driving a vehicle but here we have situation where in this very case he stopped he got out he did not endanger the public by running away with his vehicle he did a different way attempt to evade arrest but on foot that's right like he did one other time i think it is in the the time when he had the gun he had he had fled on foot also well i don't think that i agree that he had a gun at that time it was dismissed but the charge was that he had a gun and then it was dismissed that was actually later that when he was found yes that's what i started out with it was a month later ok and if i think i probably covered everything here but i just want to sort of recap that the substantive basis of the decision of the sentence was already based on some mistaken views of the commission's studies and reset of his own that happened at sentencing and then that i mean i don't want to be the first red light violator but just real quick and some you just said when you talk about the studies the commission studies are you talking about judge colliers reference on page forty if you happen to remember on the transcript where he he talks about i think it's pretty much a given that burglars have a higher tendency to sort of date it's been some time since i've looked at this but there were one point there were there were some studies showing that burglars are the to the actual study by the sentencing commission of i'm just trying to understand your argument you said he had some improper consideration of studies is that right right that is miss what you're by someone named ad war with rule with percentages of property offenders and violent offenders so that study is actually an art and that article is really referring to a study by the bureau of justice statistics that  doesn't fact look at burglars state burglar offenders and it concludes that they have a recidivism risk somewhere around i think i might have said i eighty eighty something percent but that's not different from the risk of recidivism that have already has in criminal history category six the study that i am referring to is the commission study of federal offenders who have been previously convicted of burglary at the sentencing hearing there was some discussion about what that study actually said and trial counsel for mr manning ham was able to say i think that's that the commission also deleted burglary because burglars rarely commit burglary when they get out federal burglary people who have prior federal fingers with prior burg convictions only commit burglary when they get out a five percent so that is what was incorrect about the judge's views about the risk of recidivism so you know there are times ok thank you you have your bottle here from the government good afternoon i'm terrible with the u s attorney's office in chattanooga and as this panel's already discussed we have a thirty three year old man with thirty three prior convictions seventeen of those felonies over the course of fourteen years leading up to his arrest for the present office and there are a lot of talk about numbers of convictions and and how significant the numbers are but the district court made it very clear that it wasn't just the number of convictions but also the frequency of those convictions mr mooning ham had been had his parole or probation revoked four different times in that fourteen year span and in two thousand and six two thousand and eight  thirteen and two thousand and sixteen that also and the fact that he was in custody or on probation for nearly all of the fourteen years leading up to his arrest for the present oftens were also very concerning to the district court because the district or dead in his order after the motion for reconsideration he did as was previously discussed mention that more than one of the occasions defendant did have a firearm and in paragraph being a film have a firearm but that charge was later dismissed and the thirty one was one of the arresting or resisting arrest or fleeing are often says where he was also charged with resisting arrest with a with a weapon involving a weapon use your opposing counsel said a little bit about violence and a mom can bring this correctly this is the guy who did things like jumped that with some of the basis of the court's decision when you read through media for can dispute a boy a ridiculous number of crimes but the type of crime is also remarkable for it whack of an appropriate criminal goal if you're trying to tell you a lot of stuff that's worth a lot of money on and destroy going with a very odd record she argued several times that bookie has a lot of chemistry but it's not violent and judge collier said a few times i'm not suggesting that he is violent i'm saying that he is a danger to the community because of the content of the continuous nature of his crimes and when he's resisting arrest when he's driving recklessly he is putting it in the community a danger that with where related to the driving recklessly  me understand why it's not perceived early on reasonable for the court to give one reason when he orally announces and then a different reason when he or she enters  written order subsequently so i don't believe that that's what happened in this case at the sentencing hearing judge you would then concede that that would be inappropriate wouldn't it well i guess i would depend on what the two  two reasonings work or the two just occasions work and how separate they work but in this case judge collier said at the sentencing hearing what i find most concerning was the frequency number and nature of the defendants convictions and in his order besides he is violent and has possessed weapons how can you how can we review that kind of moving rationale but how can that ever satisfy thirty five fifty three requirement that the defendant stand before a judge and be told who bags of the sin that was given what they thought the that what the district court was saying and his order was even if i was wrong about the prior burglary studies even if i had that and in that it said as you transcript that the judge says that i would believe there's some older studies i don't recall exactly how when they were what they said but i think in an order where the judge is saying look even if i was mistaken on whether those studies applies to defending or not i am basing my sentence i base my sentence on his  and i and that's pretty much what this what this court has said and adams was harmless there what's the name of the case it's adams it was cited and least one of the briefs but i have a constitutional rights of the defendant to be told the reason for his or her sentence bob the judge i mean we know if you have a written order and you have a verbal pernot down pronouncement what she said from the bench and fantasy by procedural reasonable well i would say that if if it would not be perceived only reasonable if the judge  d in a subsequent order mentioned something that was entirely different from what was said at the sentencing colloquy but at the sentencing call colloquy the judge is was very specific was very sick certain that he was very much concerned about this defendants criminal history and the rape and the frequency and the number and the kind of criminal history and what he said  order is the same thing the judge said in a different way but with no work because he says he said i've looked at these studies i know burglary is a crime greater than other crimes and i'm worried about to sit about eating because you have all the time and then he enters a written order that says i really wasn't worried about the studies out wrong you  right but i was worried about the number of crimes and i was worried about his dangerousness in weapon possession but we know that the record doesn't support that so how is that lot different reasons and what what does a review panel of judges look to do with a judge just get to say what ignore that or as we would say if we were trying case it was not a different reason so much as it was a maybe a more thoroughly explained reason because i did argue at the sentencing that the defendant was also a danger to the community because of his resisting of nine convictions for those types of often since that if the judge doesn't pick up on your argument and use that as a basis then it's not a basis for the sentence was articulated from the and he mentioned the thirty five fifty three a factors and specifically those regarding turns and protection of the public if the judge may not have said i also find that you are a danger  because of the because of the argument was made and that i think we can assume that the core consider that well if if a defendant makes a different argument or a new argument in a motion to reconsider the defendant's going to get a new response it might not have been discussed at the hearing you were at the hearing i mean would you argue that the motion to reconsider to some extent had arguments that hadn't been made before and made the same way before that prompted some kind of different response i don't know that i would necessarily say that i think the defense counsel did a very good job of pointing out as as a judge france has that there is a whole lot of convictions here but most of them were you know pretty juvenile and i mean he had a handgun when he jumped up on the counter for the lottery tickets yes that could have gotten real fast yes it absolutely true breaking into houses i mean right really playing roulette in our country and that that is not right that he had it when he jumped the counter that's your paragraph twenty seven and as i read it the he was charged with unlawful possession but that was when he was arrested i didn't read that as that he nessa mean it's conceivably ambiguous but i read it that he had the handgun when he was arrested a month later is there anything that helps us either way on that i don't believe i mean because it is right it was a month after the the stealing that he was arrested yeah are that doesn't make clear that he did have a handgun when he jumped on the counter paragraph thirty one says it just refers to a weapon yes so we don't know if that's a firearm that's correct but if the judge i mean what if the mistake of fact that that influenced the judge's decision i mean it does seem to be mistaken based on the p s r then it was yes i mean i guess one versus more than one it you know would be  take it back to thirty one took me a while to figure this out but here he had he got like these fourteen charges but these were in lincoln county circuit court yeah and then the part about the resisting arrest involving a weapon is kind of thrown in at the bottom and that's in lincoln county general sessions court is that a lower level court as opposed to the circuit court so i'm not licensed in tennessee but i have been  something called resisting arrest involving a weapon but we don't know what became of it is that fair that is that is fair to say you would have known if it had gone to circuit court because that's a quarter record and i we didn't really would have known had there been a conviction and that would have that would have been in the pea origin story so it's that's correct and it is clear i think in the p s r that that what that charge however however it was was dismissed you know prior to our sentencing date so so the district court was aware of those facts when the court have an obligation to notify the defendant before the sentencing hearing that it was it would be referring to the commission report about burglary after the court has to consider if determine what the guidelines range are is and then look at the thirty five fifty three a factors and can sentence the defendant anywhere from zero to ten have said so that sounds but what about word was there an obligation to say you know i want to talk about this commission report because i have some views about how it factors in here parley very i think in that situation there would be concern that the that the defendant was caught unawares but when the judge as the course knows judge has been on the bench for more than twenty years he's got that institutional  sorry i forgot my word that i have since national knowledge and i don't think the defense the court is tied to a particular study he considers a defendant in all of his history and all of his affective resolution right right and when he writings the question of whether there should be an increase over the guidelines and then the government did not ask for an increase  that that's correct i did not ask i asked for is have a guideline sentence but i don't but my the judge very rarely isn't bound by my request and the question before the court is whether the court sent it while the district court sentence was reasonable and not whether it went along with what i thought would be appropriate in the case already thank you very much we'll hear from this  let me ask you about your views about this reconsideration procedure because if you take the strict view that's been put in some of the questions wouldn't the judge kind of be in danger of saying anything no to reconsideration other than denied i mean we see this all the time in employment cases i fire you because you're a bad person and then you come back and i say well you're also you know an ugly person here what should a judge do  confronted with a reconsideration motion other than say you lose well you get in trouble otherwise just like this judge may have i recognize that this question does is implicated by the circumstance in this case like what actually can happen in a rule thirty five perceiving it's obviously very limited the answer is no the judge does not always have to just say you lose what is what's happening is it's giving the judge the opportunity to correct the sentence if it was based on incorrect information which is what happened here when you doesn't want to do that can he say anything other than you lose so assuming the judge feels that there was nothing wrong and there was nothing to be said the judge can say you lose and we're in the same position that we would be if we were simply appealing the sense says stated in open court so it's it's in this particular case the motion to reconsider did ask the court to correct the sentence and in denying that request and actually made another error i know i don't have a whole lot of time and i don't want to talk about something that ms bay doesn't really have an opportunity to respond to under the circumstances here but i would like to mention standard is not high to show that defendant possessed a firearm in connection with drug trafficking when there is evidence of drug trafficking the situation has changed somewhat when there's only evidence of possession and i just want  highlight here that there's nothing about this case that suggests that mr mooney him or the passengers in his car ever had anything to do with drug trafficking and in that way this case is different from the cases that the government cites different from many if not almost all of the cases that have come out from this court and although the quantity of drugs is higher than in mackenzie i would say that this case is more like mackenzie because of the particular circumstances here but just a quick factual it looks to me like defense counsels the first one to refer to the sentencing commission study about burglary recidivism and in she references  in connection with why they took burglary off the violent felony that's correct so i mean that's not the district judge this fall she was responding to the district court's expression of concern about burglars and  particular well he wasn't he wasn't taught he didn't he wasn't talking about studies he just pointed out that mr mooney m as for burglaries and he was worried about that which is completely fair to be to say in the sense of hearing well in fact judge i mean i guess i'll go back i mean we'll go back and look but it seems certainly possible that council is the one who starts this dialogue about the commission's thoughts about burglaries and then you know they go from there obviously any defense attorney who knows about burglary and anything to do with create you know thirty five fifty three is going to say oh but these burglaries are not violent and we don't have to worry about them and that's what started the conversation so i'm not sure that it's really can it's just you know it's it's hard to sort of circumscribed you know a free flowing dialogue that ok it's ok to talk about this but you know i mean obviously they have to be able to talk to each other but oh if you refer to some study somewhere now you know stop everything it's going to be vacated i mean that is a concern where you may be right about the order of this but that her indication of the study was in response to what the judge had said so it was a normal there's an organic conversation but