may please the court i'm here i'm a half of mr relenting received a maximum sentence of twenty years for fraud after pleading guilty what i'd like to address with the court this morning is an issue that i think a real likelihood of recurrence and it has to do with the criminal history category scoring and like to talk about this counting of the driving while ability and impaired and i think it's common sense that this is the kind of issue that judges just for courts will repeatedly see a very common to see in a criminal history and the question is does it get scored  not application notified resolve this oh no your honor and actually what i would say in it and part of the contention here today george strongly is that application no five is even important decision and why that decision is also important and still i would say governing this issue is that the first reason why this court in that case said that that version of application no five was not binding was that it was inconsistent with the text and structure of the text of the guideline that it is intended to interpret and here the new application note is i submit entirely inconsistent again with the text and structure in fact more inconsistent with that text and structure and why do i say  this new application note says simply convictions for driving while intoxicated and or under the influence or anything similar to that shall be not be counted at all and if you look at the texan structure of the guard line it separates the either convictions for felonies misdemeanors or petty offenses and including i assume will call violations in the non criminal violations separates them into three groups first group is all felonies are counted it's without qualification now what is it that then this new application note has done custodial solve the problem it did not at all of your honor because this court's first reason i submit a primary reason was the application note at that time was inconsistent with the tax and what i'm submitting to the court here is that this new version application note is likewise inconsistent with the text and and not entitle to controlling weight it is not entitled and just to explain how it's inconsistent well as i was saying one one basis is that if first of all let's look at the text and the tax separates it into three groups the first group are felonies and all felonies are counted it's without qualification second group and this  c one it deals with let's call them more serious mr manners but not they're not all counted and there are certain ones in numerated and what the decision was with the text was to say we're going to look at the sentences imposed for these enumerated mr miller and we're going to say for ones where let's call it they get more serious sentences how how the text says anything jail sentence of thirty days or more or probation one year or more so these are more serious sentences will count those but if they if it's not that in the sentence we're going to look at the punishment then you do not count them and finally this third group are even less than likely minor traffic offenses that sort of thing you just don't count them at all we don't care what the court imposes a sentence so what has a done here is we have now a d w i that is not even a misdemeanor it is a non criminal traffic infraction being made equal to a felony because the y it's equal as it is counted regardless of the sentence imposed so that's number one most misdemeanors are petty violations that count and then the first r they can't unless they don't count well then then we look at again pota and we specifically dealt with the you know the way i and this court said it doesn't get counted all the time and we're remanding it to the district court in the district court said and what now what you do is it's that second category there if it's similar to one of the in numerated offenses there well the issue there for d w a on is is it similar to careless or reckless driving that's one of the in numerated offenses on remand from the district court absolutely said it is in the way you determine whether it's similar or not is categorical categorically less serious and the district court said absolutely categorically less serious primarily based on the fact it's not even a crime whereas careless reckless driving is a crime there are other reasons why there categorically were serious but there's you know it's just less serious judge weinstein in the eastern district with the new application note now the one you're dealing with here is right is that context different i would say i would say that that fact does not control and the reason it does not control is if we look at his reasoning here he had many reasons why for example one i think a driving reason there was it was not a criminal conviction is a non traffic it's a it's a civil law violation due to the way i so it just it it doesn't count the other is he looked at the application note itself and very importantly the application note says conviction for driving while intoxicated or under the influence or something similar and well we're not dealing with  conviction this is a non criminal traffic infraction is not a conviction even if we agree with you let's say we agree with you that application of five shouldn't be given controlling weight let's say we agree with you because we say our earlier decisions seem to hold that the application of five would be inconsistent with the text of the guideline didn't the court below consider all the relevant circumstances and in essence do what you're asking for here it concluded that your client's infractions were morsi and work serious well i would submit if you look at the record here that the court actually did not go through the factors that it was required to go through a eyes and so he didn't learn his lesson and that sort of thing so we had a history here where we look at the factors in post to you know it's it's only actually one factor in there and if you look at the factor it's not what the judge did but in other words what we are really talking about is is it similar because so how do you tell if it's similar is it categorically more serious how do we tell that we look at the factors factors of well say for example here and this is again with the district court did and judge one scene did said wait a minute a huge factor making it categorically less serious is it's a violation it's a traffic infraction but i'll point out to misdemeanor your ability to be impaired it may be impaired to any extent judge weinstein said you don't even need to drive to be guilty of the crime here is the other factor and i think it's very important here is and i think this where this report if  at the factors confuse us and that is factor says if the offense indicates recurring conduct it's punishment for recurring conduct that's the offense well what it what type was it mean that means another conviction that hard and my my view of the record before the court and trying to be as helpful as i can to the court is i think it's conflicting i think that the the probation officer said and it's an ok here that is the record says there was a delay because of ongoing medical issues so that's one that's point for the government on the other side of it what we have is we have the imposition of probation a combination of probation and a jail sentence of sixty days and then you look at a new york statute and that new york statute says a court may impose jail sentence but also may impose probation and then you look at the last line of that statute in the last line of the satch it says and i don't want to hall here the sentence of imprisonment shall be a condition of and run concurrently with the sentence of probation well then you look at the probation officer's report in the pre sentence report and it says it appears that the jail term was run as a condition of probation so i would say there was a point how what was the us and the defense counsel below said he started serving his probation now if it was ongoing medical issues i mean technically what happens is you serve your jail time first and then you go on probation so if he's going straight to probation i just simply decision here and quite frankly i don't understand the claim that the apple the new application of the sa inconsistent the guidelines the guideline itself divides misdemeanor in petty offenses into three categories the default position is that they're counted for purposes of calculating a criminal history score second there's a subset to see one subset that they apply sometimes but not always but in the sentence that's received or if they're similar to the instant offense and finally there's a category c to the never applies it's clear from the lists that we get in that guideline provision that the commission may determinations about the relative severity of crimes and then the categorical decisions decisions on these particular crimes are always going to be treated in this particular way the application though is simply an extension of that think it's a determination by the sentencing commission that whatever you categorize these dwi convictions as whatever you may call them a person who gets behind the wheel of an automobile after they've been drinking to the extent that imperious their ability to drive should be treated more seriously than reckless driving and the other  inconsistent that's entirely consistent it's simply a judgment decision by the sensing commission and as we say in our brief there's ample support for that judgment decision given the carnage that driving while under the influence of alcohol causes nationwide we said in places because steel that the government's reading of that section and he specifically said was inconsistent with the text of the guidelines section of the application no it isn't isn't it the same as the government's readings and has in a prior panel how to read that provision and how to meld it with the rest of the guidelines but when the commission amended application of five they cleaned up that problem and if one looks at the t but that it applies in this case it says convictions for driving while intoxicated or under the influence and similar offenses by whatever name they are known are always counted without it has made exactly the same kinds of decisions with other offenses too by not including them in one and so it's as if the commission simply meant the guideline itself instead they did in the commentary now council may not like that judgment call but there's there's no logical argument that it's somehow inconsistent with the guidelines it could you interest the interlock device certainly on the end in order to do that i'd like to keep one step back in terms of the multi factor task that this court has endorsed for using in making this more serious words it's a similar to a determination that this provision of the guidelines requires the court set in martina's santos and since then that the district court is entitle to consider quote any factor the district court reasonably finds relevant to the similar to consideration so here the district court had a decision to make with respect to the interlock of lies and whether it was similar by the time he got to that interlock device violation he had been arrested and convicted four times for offenses regarding getting behind the wheel of a car and operate in a while drunk he had a long history of violations traffic violations committed when that happened here a long history of violating probation violating his conditional discharges and the district court was entitled to consider that whole history the multiple violations and consider the fact that the interlock device was there or would that that provision the the condition was put on him for the very purpose of avoiding additional recurrence of this violation and considering as this court has said any factor relevant the district court fought that was that that was a reasonable exercise of the discretion that this court in many cases has given the district courts when conducting the similar to in this court has made very clear it's a wide open to foreign engine inquiry and that was not criminal history points instead of eight he remains in category four for purposes of counties guidelines and let of what if we see some difficulty with the sixty day term because your adversary point also address that because looking at these records you rely on language from the p s r that language also says albany city court records do not indicate that jail time has been officially suspended or stated appears the sixty days jail time was imposed as a condition of probation do we really have enough here to conclude the sixty days was the back that that was as a result of a medical condition and that is the equivalent of a suspended sentence i believe the district court had enough to make that decision as the core recalls the way the guidelines work is that you get that extra point when you see trial of imprisonment and the guideline itself says a sentence that's quote totally suspended or clearly is not a public company so the thing that we're left with is that this was done for medical reasons now the guideline application no doesn't talk about medical reasons as an exception to the general actually serve requirement in the application  but it's clear from the decisions from the fifth circuit the eighth circuit in the eleventh circuit that you should not read that application note literally and formalistic lee you should read it sensibly so for example in situations where a person  actually served his sentence because it's running consecutive to some other sentence that hasn't yet been just discharged completely it would not make sense to give that defendant a windfall it's our position the same is true here here we have a defendant who the only evidence we have in the record did not serve the sixty day sentence because of his own medical issues he should not therefore get a win for any more than a defendant who's got a consecutive sentences hasn't started serving this was not done because of a determination is not dangerous or is not culpable all or some other determination that he's not deserving of serving the sentence this was done and the record is clear on this and is the only evidence we have done for his medical issues that's going to the question what's at stake certainly like  sentence like this where there's a challenge to a substantive reasonable as there was a lot of discussion of the thirty five fifty three a factors at the sentencing district judge or even a mention of the statute i recall what your reaction here's my reaction you the guidelines it's incumbent on him to establish some fairly compelling circumstances why the judge was obligated not had discretion to what was obligated to the very bottom of the guidelines because essentially that's the claim he's making this judge committed be versatile error by not very down the defendant here presented no such mitigating circumstances in fact to the extent there are circumstances there aggravating here because this defendant abused the trust of people who  family members and longtime family friends and essentially destroyed their lives economically in another way and the harm that he caused those people is going to last a long time it might be true your honor that this judge didn't s refer to the three five five three eight factors by name on the and i'm sure you're aware there's no obligation to do so this was an extremely thorough discussion of the fact in this case the many many claims guideline claims the defense attorney case and this court went through very thoroughly and clearly had an understanding of this record and an understanding of the relevant circumstances i'd suggest to the court this is not a case in guideline sentence was substantive reason i judge livingston you asked about the inconsistent with inconsistency with the text and i did make an argument as to one reason which is equating a de to the way i with felony that first category but let me submit to you a second reason why it is  new application as driving while intoxicated were under the influence or any similar offense by whatever name it also says some paragraph c one and c due to do not apply well what is not inconsistent with them it's absolutely inconsistent with this court's decision in rivera judge weinstein in pondering paris and the reason it is inconsistent what is similar and what's been found to be similar is careless and reckless driving so here's the application note saying if we wouldn't have the application we would be saying that yes it is a is similar to careless and reckless driving in category two this is just looking at the text itself the application so no it says no i don't care if that if that is true under the text the application we say now you know so that is inconsistent submit careless and reckless driving is more serious because it's the actual driving here we have he did not and he were talking about actual conduct no he did not didn't he there's no record of consumption of alcohol he violated that d it's not considered serious it was to brian thank you very much thank you both will reserve decision and