for his conviction for one count of possession with intent to distribute methamphetamine that sentence was at the low end of the career fender guideline range but it was almost six years longer than the sentence that mr br proposed based on what we know the sentence that mr broom proposed which with ten years is sufficient to meet the need to avoid a morning disparity and should protect the public from future crimes of mr b wada mr broom's claim is that he's entitled to be sentenced based on a full account of what the commission has told us and reported to courts and the congress about offenders just like him in the absence of that information the your client within the guidelines right yes so it's it's kind of hard to to say that the court heard in some fashion right well for mr broom it is easy to make that claim if it's cast as a procedural error and the procedural error in this case is that when the court analyzing to the factors that the court analyzes under section three thousand five hundred and fifty three a that would be the need to avoid on morna disparity and the need to protect the public the district court relied on information it appears from its analysis there was in fact i would say factually mistaken not through any fault of the court but the court did not have a full commission it is not entirely clear what the court relied on but for example when we're talking about a more disparity the district court said on a page four or five of the transcripts the district court said that a guideline sentence will address disparity any disparity with respect to similarly situated offenders when in fact three quarters of offenders like mr bruno who are similarly situated to him in the sense that they have a prior violent offense are sentenced on average  sentences below the range are sponsored by the government however even when you remove those departures from the calculus and you look at the sentences that remain and you look at the number of sentences or times in which the district court nevertheless despite the absence of a government departure and perhaps even over the opposition of the government still sentences below the range that happens in sixty percent of the cases that's a majority of the cases so to sentence mr broom within the range is to actually send him to an unusual sense and if given the record here it is not clear why the district court would have concluded that mr broom is an unusual career offender given the many words that he was a career offender right and that was two factors appears to have relied on an incomplete understanding of the actual reality with respect to disparity with career offenders with priors like his and also with the need to protect the made some some reference to the sentencing report but the district judge just when he went through all the thirty five to create factors talked about the extensive history criminal history of the defend know you didn't give your attorney much to work with that you have had all these problems and a lot of these convictions were when you were very young but you had some some criminal issues even in your very late thirty's and you don't  getting much better i mean the judge just went through one factor after another and i didn't see that he relied on specifically or expressly on any of that the commission report information it is true just call that the judge did not explicitly refer to the career and report however at more than one juncture and in the sense in proceedings the government explicitly referenced the commission's report on clear offenders to refu notion that mr mr a career offender sentence would create unworn disparity and with respect to public protection so when the district court got to the point during the analysis the factors when he said talked about disparity the judge specifically said guidelines sentence will address disparity was similarly situated and that although it does not explicitly reference what the government was alluding to it does sound as though the court may have actually been thinking about the things that the government was saying about violent offenders the risk of recidivism and the idea that the commission has said based on sentencing outcomes that these offenders maybe should not be the ones where i think the government said definitely should be career fender's so given the entire context of the of the proceedings and given the due process rights that mr groom has to to know to have the perception that he's been sentenced fairly and based on a full accounting of what this evidence really says it would be it would make sense for us to send it back to the district court just to know for sure that if the district court knew about all this information it would still come to the same conclusion it would explain why mr broom should be the approach should be received the unusual career if i understand it explain it should explain why mr broom even though his prior violent offenses do not actually pre the range of a career offender that it's not that there's no presumption there there is no case that says there's not a presumption of reasonableness when we're talking about whether the sentence is substantively reasonable there is a presumption that in this case he has in fact rebut a difference on sion and his rebut of the presumption because he has shown that there has there is not in fact the double determination that greta says happens when a district court agrees with the guideline range the reason there isn't a double determination is that the sentencing commission itself has put out the most it knows about career offenders like mr broom and has said that in fact a career  than necessary in the mine run case to serve the need to avoid a morning disparity and to protect the public so once he has shown that there isn't that double determination then the proof to the very purpose of the writ pro presumption sort of evaporates and now we're at a place where we're saying well is this sentence too long and in this case because we don't know for sure if the court understood the actual facts about offenders like mr broom and most important fact i guess i'd like to point out that there's a lot of cystic flying around is that taking away the career offender guidelines and just looking at his guideline range as a drug offender his risk of committing crimes in the future is actually already perfectly measured by his criminal history category which is six already so i had a district court known that fact then it might have decided that the full career offender range was not necessary and then in fact the sentence that mr broom proposed which was slightly several months above the bottom of the ordinary range would capture the seriousness the additional seriousness of the fence the judge clearly thought mr president is not that none of those other factors matter or that it might not be weighed a little bit differently it's that the district court was without the full account of what we know as a matter of human knowledge in the criminal justice system but your best case for the six circuit that you're relying upon for your position there are numerous this not legion the very best but it must be a really good thing for you well it's rida which is a supreme court case which says if we're talking about substantive and reason as it says that the reason why we have a presumption is because of the double determination and in this case there is no double determination when it comes to procedure there really are region of six circuit cases that reversed and remanded when the district court relies on information that is either unreliable or mistaken and that would be united states versus adams would be our best case in that regard we're talking about cases you argue that by imposing a within guidelines that is the district court created a sentencing disparity exactly what what's your best case to support that proposition that that the judge created can grow i would say and grow and grow because in timbral the supreme court said that district courts must take into account disparity and then this court in stock said that national statistics are the starting point for deciding whether there is unwarranted disparity by the sentence being imposed and the judge didn't have that information or it appears didn't have the full information about offenders like mr broom who have violent growing trend in district courts is that over the years district courts have been sensing below the guideline range in an increasing number of cases and that is correct or are you saying that every job a court doesn't do that then it's an  i'm not saying that i'm saying in these particular circumstances given the entire context of the proceedings and the indication of the career from the report the district courts analysis in that regard was incomplete how the district court understood what the actual facts are about clear offenders today and could and in particular career offenders with violent predicates like mr broom if it had understood that only a quarter of a quarter of those offenders actually get a sense within the range good morning i'm terribly united states and the district court did not abuse its discretion and sentencing mr broom to one hundred and ninety months imprisonment based on the seriousness of his office conduct and based on his personal history and characteristics and cleaning an extensive criminal history that involved at least that involved twelve often says that could have   st degree attempted murders it's by greater robberies three felony drug trafficking often says he had violated his parole he had violated is probation he had extremely dangerous drug he had to loaded firearms he can see he's conducted some of his drug deals in places where children would be likely pratt likely three presidents all of these factors the district court considered and in determining an appropriate individualized sentence for mr brown the district court did not that did not rely on any misleading or false statements what the problem was the prosecutor said was that the crew founder directive is best focused on those often says those offenders who have violent histories which includes the defendant existence council wants to you to believe that the district from that report it wasn't it wasn't false and it wasn't taken out of context to the point where it's misleading it simply said that offenders like the percent who is a career offender with prior to filing drug there is a presumption of reason this reason alone is that's based partially on and agreements between the sentencing commission and the guidelines and the district courts determination that this individual  fallacy is that this defendant is a run of the mill typical career offender he's not he's far from being a typical curse and or it's not just that he had prior violent felonies nineteen years ago and then lived a law abiding life the last twenty years and then got into trouble some trouble it's not just he just but he got addicted to drugs late in life and had a series of drug selling convictions right just right up to the time where he was arrested and this softens this man with barely held a job approval last for most of his adult life he's he's been arrested in custody or under supervision for just about all of his murders nineteen but also that he was he had an assault when he was twenty nine years old and i saw a condition when he's thirty seven a so on a police officer and resisting arrest when he was thirty eight and so the district court noted that this is in it is not learned he's not he's not suffering from the mistakes of his youth he is he is unfortunately has a district court said the definition of a career offender the defendant also argues that statistics should support his argument that it's engines of ten years protect the public the logic on that is i believe a bit stra seventy five percent the recidivism rate for a career offender with violent priors is about seventy five percent and so the defendant argues because he is very likely to reoffend anyways we might as well give him the lower sentence but really what we ought to do is give him the higher sentence because at least it is it incarcerates the nd it is a competitive ten and protects the computer the from him for that for another five or six years or whatever the difference would be the bottom line is that this  the judge accurately calculated the guidelines in this case the judge considered all of the relevant factors both of the defendant's personal history his criminal history his characteristics his terrible drug abuse it considered the he did not consider any impermissible factors the district court did not give too much weight to any particular factor he didn't just say look i would otherwise since it's been something far less well because he's a i'm going to have to sentence him within the range in fact with the district court judge was please tell me something good about your client tell me why i should give him a blow guideline sentance give me some reason to believe that this individual is not  danger that i believe him to be and unfortunately the defense counsel did her best but there wasn't much in this case about mr broom to give the judge any assurances that he would not continue to be a danger to the the defendant talks about offenders like him and that the statistics of outside the guideline sentences are necessary for just a court to consider and i would disagree i think that the statistics the stars within and outside a guideline of sentences are appropriate for the commission to consider and congress in revising or creating guidelines but th records judge the district court's job and what it has the institutional knowledge and the experience to do is the sentence an individual based on his or her criminal conduct and his or her history and characteristics and the district or certainly did that in this case he did not abuse of discretion and he would have to sit  i'd like to make a couple points the st is that every single fact that the government resign and about the supreme sister e the circumstances of the offense the type of drugs involved the fact that they were guns and his criminal history are all fully reflected in the ordinary guideline range under the drug guidelines each of those facts is reflected by that guideline range so there's nothing specific nothing special about those facts that make it necessary that the court must impose a career under sentence not based on the facts and not under the factors that you consider under three thousand five hundred and fifty three including his risk of  future the government suggests that if you have to garling ranges each of which correlate to proximity the same risk every citizen you should pick a longer one that's the opposite of everything we know about how we treat criminal defendants and it's the opposite of the parks money caught right there in thirty five dollars which it says that we are to impose a sentence that is sufficient but not greater than necessary if government has not explained why the longer stand is necessary to serve the purpose of protecting the public when the risks are the same whether the courts estimate the bottom of the hatch guidelines right at the end of too much difference so that what it was it was it was at the low information that came to for the judge could definitely consider then take into account so that is definitely a risk that he's taking but in the circumstance of this case and given what we know about mr broom we feel that it is unlikely that would happen and in fact if the judge understood everything that we actually know about offenders like him then it might come to a different conclusion in this court has said repeatedly that when we talk about unwarranted disparity we talk about national disparity are supposed to be taking that into account when they address that factor so it's simply not the case that it's irrelevant it only have to do with what the commission does for its work the statistics are the starting point as this court said in stock for determining whether sentence creates  morning disparity i also just want to turn to one other small thing which is that mr broom does not suggest that the government said anything false or untrue at the sentencing hearing it's that the summary that it quotes in the commission's report on page three doesn't tell the story about offenders in criminal history category six like mr broom most career centers or non criminal as your category six already and when what the commission actually does is that it's clear offenders who have committed a violent incident cent and generally have a more serious or citizen criminal history recidivate and a higher rate than other drug trafficking offenders but what that means is just if we look at everything all together that's how it looks but when you go and look at people in criminal history category six already the unusual type of career offender their risk of committing crimes in the future and the seriousness of their fence is not different for that reason we ask that this course remand the case so that mr  you may call the next case