which is a conspiracy to violate section five thousand and ninety one which is sex trafficking in our case by force fraud or coercion we agree what the guideline is with the government which is to e g one point run the disagreements on what the base pencil is the government thinks thirty four dollars and we think it's fourteen so it's a obviously significant difference of opinion for where alternately a sentence would and i think it's helpful to just go through some of the history of this st at the beginning of the guideline want point one reference in that case rather than commercial sex act reference prostitution cases and in that case the base offense level from the beginning of the guidelines has been fourteen what changed was that in two thousand force threats for force fraud accords and the sentencing guidelines then had to be changed to accommodate the mandatory minimum and the commission did that in amendment seven alone and in that amendment what they said was they're accommodating the mandatory minimum but retains a base offense level of fourteen for other offenses that was in in response to a two thousand and six statutory at in two thousand and eight congress did something else and that's the will of william wil is punishable in the same manner as completed violation and b they said if you have conspiracies for pretty much all of the rip waited offenses it's the same shall be punished in the same matters completed violation and then see specifically took out conspiracies to commit fifty nine to one violations and said in that case it's any a term of yours or wife or both they specifically made sure to axe clued this particular violation from the fifteen year mandatory minimum so you have a situation where congress has set up a scheme statute to make sure that conspiracies don't get a fifteen year mandatory minimum and the sentencing commission in accommodating that mandatory minimum has made sure to say other offenses don't get it but the government is here to say except they actually should i think that's the st thing which should raise a question about their position how they do that is they say well level for conspiracy is the base offense level for the subset of the facts what it says in two acts one point one a is the base offense level from the guideline for the substantive facts you still have to read the guidelines there is part of the commentary which says that that ordinarily will be the basic sense level court up of offense and conspiracy but there's a really notable exception and that exception comes offense characteristic may express to me direct a particular factor be applied only if the defendant was convicted of a particular statute another thing which is interesting about that describe a particular set of circumstances does not require a conviction under the statute an example of this usage which they cite to a three point four and they quote the language of that guideline if inventor offense involved conduct described in such the conduct vs conviction and if you go back to two g one point one interesting thing is there's an example of each one of those in that one gu penalty section right well but the c part is the cross reference if offense involved conduct described in that statute so why would there be a difference within this guideline if you wanted to be the same thing that's the problem if the response was the offense of conviction is the mandatory minimum and it's thirty four dollars we need to raise the base offense level to accommodate the mandatory minimum we didn't mean to raise any other ones just a battle if we wanted to say the conduct described in the mandatory minimum then why didn't they use the same language as they did in c then they did in a way what all of the really guidelines generally look to the conduct underlying the conviction as opposed to the mere fact of conviction as compared to what we end up doing when we look at the approach cross border right that's absolutely true and that's what one hundred and one point three sats enjoy criminal conduct you look at what the person tipped individually and you look at what's reasonable for two people for everybody else except in conduct in common seven if we say you need a specific conviction then this what can this be other then you have to have the mandatory minimum and when you look at the two cases that we have basically what they say is that just so nobody gets an offense level if it's commonsense reading that what we're trying to do is accommodate that fifteen year mandatory minimum the commonsense reading is if you have the fifteen year mandatory minimum use an increase based offense level which will actually accommodate it not well we keep saying we only want to have this for this one crime and specifically took out conspiracies to make everybody understood you don't get fifteen years men dettori minimum for it but do it anyway that's at the crux to their argument and really what it comes down to is their argument ends up being don't read the guideline just apply it but if you read the guideline what it says is you have to have that mandatory minimum well or isn't there i didn't really follow the commentary not the g i think that there are going actually is just up by the guideline rather than read it because if you read it it makes no sense to reference that mandatory minimum and say it doesn't make any difference if you don't have it you should just get it anyway common sense reading is if you have the mandatory minimum then you would need the increased heart otherwise what happens is you don't end up with anything close to what you're going to end up for for the fifteen years the other thing that's interesting to me if you're talking about whether the application here is correct is to look what happened in the actual cases in my client's case she had guideline range  and these are all according to the certain degree of the government filed the cases had a guideline range of two hundred and thirty five thousand two hundred and ninety three months they recommended a variance two hundred and twenty nine million two hundred and twelve thousand one hundred and fifty one months they said they ate do that the recommended mending the significant variance jitter of victimization by kleiman and personal background of abuse and the court found the guideline was an act inadequate to cover was thirty to thirty seven months and they're recommending the severe significant variance to the nature and circumstances of this particular offense defendant's own actions and roll up of culpability compared to other  relative culpability comparative codefendant center personal background significant abuse in each one of these three cases what the government's saying is this is a reasonable interpretation of the guidelines which comes out to a totally unreasonable result and then we just pick a number of having a right line system is that you don't just pick numbers that there's some rational basis behind how you do the rational basis is read the guideline as written that will give you the offense level which by the way in each of those cases is substantially below their recommendation and then go from there to us that makes perfect sense as to what happened that's why the th circuit agreed with it that's why the district court in south carolina agreed with that and we think that's why this court should agree with the two and remand i think your honor angela campbell on behalf of mr carter we raised several issues regarding mr carter sentencing that differ from the other defendants we we argue that the court appl for under the influence improperly the two levels for commercial sex act improperly improperly grouped counts of conviction as if he had multiple counts of conviction when he did not and that the entire sentencing process and sentence was procedur substantive only unreasonable i want to start with the grouping argument because that's the argument where there's clearly no authority for the government position in order to group counts of conviction you either have to have a conviction multiple convictions or you have to have under one b one point to a plea agreement with an explicit stipulation or you have to have a guideline that says that you're able to  count these multiple counts of conviction as convictions even if they're not we have none of those we have one plea to one count we have a plea agreement that does not include any sort of counts if you have multiple minors we didn't have multiple minors in this case what was added were adult alleged victims it's victims one and two yes that minors are by by letter in the adults were by number they presented evidence that they offered grand jury testimony that they had a live witness to try to prove up that those facts none of that even matters even if they did which we say they didn't but even if they did you can't go in and make an argument for grouping purposes as to other crimes that should be added as if the defendant was convicted of them he simply wasn't convicted of them and didn't appeal it to having committed those crimes and therefore the grouping was included everything from everybody's contact and so what we did is we have ject id to anything that didn't have anything to do with mr carter or that we felt was factually inaccurate that when that happens the prosecutor if they want to rely on those facts has to prove up those facts and if they want to realize specifically on a fact for a guideline purpose what they stated at that at the sensing hearing was that they weren't going to try to prove up any of the facts other than what was in attachment a and attachment as it related to undue influence was only that there was one physical altercation between mr carter and minor victim a that is simply not enough the court just adopted attachment a without making any specific factual findings which plays into argument about procedural a substantive and reasonability in this case but as it applies to undue influence that fact is the only fact then that was found by the court in trying to find undue influence there was no other finding of fact there was not a ten year age difference between mr carter and minor victim a because of that the government had the burden of proving that the under the influence applied they had to prove that the conduct compromise the voluntar of her behavior simply stating that at one point there was a physical altercation is not sufficient for their burden there was no evidence that this altercation was related to prostitution that involved trying to get her  to be involved in prostitution there was no evidence that she hadn't been a prostitute prior to meeting mr carter there is no evidence about anything that was produced as it relates to overcoming her voluntariness and so we submit that that was improperly added also the entire sentencing process was completely procedurally and substantively unreasonable we made many report the government didn't try to prove them the court didn't rule on them there was no factual findings the pre sentence report was not amended he's now in prison with all of these facts that we objected to that they didn't even try to prove as if they were found and the court clearly relied on these facts without making any factual findings even though they were directed to a not proven in you can tell that by the very short sentences that he uses and in and pronouncing the reasons for his sentence and that includes that there were repeated actions that they were deprived actions and that there were multiple women he also compares the culpability of mr carter to the other defendants no other defendants pled to this count and pled to this minor victim a he's convicting mr carter as if he's been convicted of conspiracy for the counts even though those counts were dismissed and even though there were no factual findings that he committed these other offenses that is procedural error and warrants reversal for the entire  substantive air because the judge is giving improper weight to improper facts in fact we don't know what facts he's giving way to but we know that it has to include the improper facts based on his his commentary what he reserve the remaining time for rebuttal thank you thank you four even though the government at sentencing took three hours to work to lay out the reasons why they think he should have gotten the five level increase certainly a i don't believe that history basically he was qualified criminal history category five in this case because he had three convictions and even the court in its sentencing findings made a comment that it's unusual for a defendant or to be clear from history category five only having three convictions in his lifetime so in this particular situation it's mr coleman's position that that the court erred by failing to  i'd like to start off where we began with the base from publisher fourteen versus thirty four i want to address one argument that was made about well at the end of the day the government moved for do conspiring to commit will be this same as that for the substantive offense so you have to look at what were they conspiring to do and then we go to two g one point one because we know that that's where we go for trafficking offenses for fifty nine ninety one a one and b one and a one and b one lived together you cannot pull them apart part of the reason i think why  day and so if you're trying so then be one and be two step it does include the pound a provision but it also does so based off of what they were doing rather trafficking a minor who's under the age of fourteen or an adult by force for to commit that offense so again you cannot read the offense of conviction alone you have to refer back to two x one point one so you really are asking the court to fix a draft when you're in the guidelines i don't think it's a because of the straightforward reading of it and again it's a policy argument it just doesn't make sense something i was referring to about well the argument is well you know it's sort of the argument sort of conspiracy is not as bad so the government ended up getting a dollar variance in their sentences ended up being lower that's not that's not the right argument that's not what's happening here that's not what's happening in these pieces if there is a provision for reducing that base offense level by three levels if the conspiracy hadn't sort of gone to fruition it's under two x one point one two none of the defendants here qualified  because what they did because there were completed commercial sex acts because people were trafficked they got the benefit of pleading to a statute that didn't have the mandatory minimum and another thing about two g one point one which is i think interesting is is no explicit enhancement for how long someone has been trafficked by the defendant there is no enhancement for whether that defendant is the one that used for shark origin or if they were the driver that took them to the hotel and reckless disregard of the do what was the offense that they were conspiring to do and that is a violation of five hundred and ninety one being one that is what they were conspiring to do and that works the same way in drug conspiracy cases and other kinds of conspirac conflict here between the guidelines in the coverage because today one point one itself when you look at in isolation is not telling you what a sex trafficking conspiracy is what the guidelines for sex trafficking conspiracy that's not what t g one to two x one point one and i will know that as set out more completely in the brief this is what the commission is telling probation officer this is what they're training their officers on this is the advice that they're giving as to how this should be applied so to the extent there's a question as to what is the commission me and i think the commission has said it has been amended also hasn't had a quorum to me in the last couple years but  but there they are at least informally saying that this is how this should be applied and just really that's what the commission is doing all sorts of things that the issues that have arisen that ordinarily they have made the comment carry on rather than many commentary which they can't do the commission is just sending out such guidance saying we don't have a quorum but this is how we think it applies right yes your honor and i think in this case there is not yet there may be saying that they're sick at least there is not yet  outset the way that issue is at least initially briefed i think by both parties well well it's not in my plea agreement i didn't agree to it so you can't hold me responsible for under the guidelines and that's not how the guidelines work if that was how the and i think that then when you're looking at well should these additional victims count should we hold somebody responsible on the guidelines for trafficking a number of people we look at there was no argument there were arguments that the government's facts are true that this didn't happen but there were no fact there was no argument that may carter trafficking my or victim and using that victim to track the victim to that then victim to is not really conduct of course these were this is a case where all these victims were trafficked around the same time in connection with each other by the same group of people sometimes in conspiracies so they are relevant conduct so then carter is more or a little bit more interesting a little bit more nuance and that was brought up as far as i'm aware the st time in mr carter's reply brief so that actually was i didn't have the opportunity to be briefed in from the district the commission but they're not listed in three d one point two d they're not listed as being covered so that the victims should be grouped or not so you can go to below that it's accused by case determination as to whether they're separately grouped or or not or how that grouping works and i think that two g one point one is informative because that's telling us if it's an adult they should be their own separate group so i so that's one thing to look at and then if you is to do one dollar talks about more than one victim but then what else are we to do so if you have a defendant who has trafficked a seventeen and eighteen year old both by four spark origin and they plead to trafficking the eighteen year old by force for a correction because the word minor is included then that other minor does get included as a separate group that doesn't make sense and it just leads to  results so in my view that that was an oversight to say minor in d y and i think that we would rely back on this case by case determination that is listed in three d one point two to get to that place so we don't have i think if there's no other questions about that i just want to touch on a couple other issues for undue influence there was an extensive record here where there were an objected to  paragraphs in the p s r that the government relied on and then the government did in order to sort of try and sort through the mass as a were did have laid out factual findings for attachment a that were then that would then  two for which the district court judge is in the best position to weigh and the factual allegations that mr carter makes in his brief are just not supported by the record to it the evidence that the government put forward between the victim's testimony grand jury testimony phone calls jail calls different records show that mr carter and i are victim a that they were arguing all the time they talked about how he would grab her the issue with the car they were fighting because she wasn't dressed for the date the way that he wanted her to be and he told her to get out of the car and she opens the current step out and he takes off so that she gets hurt there was testimony in a partial admission by mr carter that that there were photographs of bruises going to cut lip a minor victim's face i'm he made it to having an argument with her and that there were photographs  separate witnesses talked about that she was described as being emotionally abusive they came to testified that she had that minor victim i had to beg for money from him she was nine years younger there's not a presumption because she wasn't ten years younger but it's pretty close and that's a factor that the court could consider there was also testimony by multiple people including victim two at the senate saying about mr carter having a gun and that that wasn't something he hid and that he carried around arguments about well there was no evidence that might affect him a was involved in prostitution before mr carter it's a relevant it's irrelevant under the case law that has nothing to do under the to and so i think if your honour's look at the testimony of the victim in the exhibits that we put forward and it shows that certainly was not clear error for the district court to find influence there amusing how difficult the sentencing guidelines are here she talks about parsing the guidelines about the commercial sex act and so is all the time we spent on that is nearly a waste of time because we're talking about the behavior here not some parsing of the sentencing guideline we do this too often where we get so deep into the sentencing guidelines that we forget about what the behavior is and for that reason the sentence of the court imposes here is not driven by the sentencing guidelines it's driven by the behavior and that's what he did for each and every defendant and that's why each and every defendant has a different that he looked at the conduct all of the conduct and weighed it and put them in a different position and for those a pound to the word so i think certainly the court considered the guidelines but he made a record for each defendant that he was not he was not giving them a sentence based on the guidelines craig kind of run down the list here first of all the government mentioned and wailin the th circuit ignored the conspiracy guideline everybody agrees that conspiracy in this case gets you to g g one point one circuit discussed that guideline so they didn't ignore it they basically went to  what do we do with it once we get it and what they did is they read the guideline and said the plain language as such if you didn't get the mandatory minimum and we're not going to apply it so it isn't that they ignored the guidelines they just went and did what they were supposed to do the government also mentioned the number of cases they cited that's gone through my reply brief none of them apply is the problem there are two cases here which i and i both adverse  they mention that this works same way in drug cases except the controlled substances act as unified a statute which specifically says conspiracies have mandatory minimums and they also mention that there's a commission guidance which isn't commentary there's a reason they have a quote there's a reason the congress gets to go through this stuff and congress remember specifically said no mandatory minimum so in that case  i don't think you can rely on guidance and finally in the st last four seconds my total offense level was forty six to fifty seven months with a downward departure going to finish my s the court would have to say in my case she was a victim she was a subject to coercion or directs but i'm going to give no more than double the sentence in an upward where she didn't commit any acts of violence or anything like that if the court wants to do that on a recent thing they can when they will be back here on a subject of reasonable us argument on the riot  the government's conflating relevant conduct and sentencing under three thousand five hundred and fifty three a with a clear rules of grouping as if there was another conviction there are different rules just because they even if they came in and proved another offense occurred that does not mean they get to add points for grouping they could argue that as part of relevant conduct and part of a three thousand five hundred and fifty three dollars and factor if he could not add another offense for grouping  the court is she's relying on all of these objected to facts he's relying on all of these facts that were not proven by the government we have no indication what facts is relying upon but we know he's relying upon facts that were proven based on his comments in addition he's grouping mr carter as if he was convicted of all these counts with all these defendants the fact that all the sentences were on the same day perhaps that's the reason he's he's pulling facts from transcripts and they submitted all these things that is not sufficient to prove a burden of showing that he committed a more serious crime than what he pled to not his plea agreement allowed him to plead to he says he's sentencing him for his