the honorable the judges of the united states court of appeals for the force oh yea oh yea oh yea all persons having any manner or form of business before the honorable united states court of appeals for the force admonish to draw nigh and get their attention for the court is no be happy to hear from you e thirty two year sentence nevertheless the court then sentence mr fowler to forty years in prison eight years longer than what the court itself believed was sufficient but not greater than necessary to serve the purposes of sentencing by doing so the court erred in or the court your honor did not say that mr fowler will receive this good time credit but assumed that he would and use that assumption to determine what the censure and the supreme court in the barber case says that good time is  determination not the district court and that's and that's because whether someone earns good time credit or not hands on behavior that happens after sentencing so a district court as the court as the screen courts and pepper has to  defend and based on how he stands before the court on the day of sentencing and based on the information you had at that time you determine what the proper sentence is whether someone earns good time credits or not obviously depends on what happens after sentencing and so it's impossible for the court to know whether someone will earn good time credit or not and the supreme court in barbour talked about the good time statute and compared it to the old time statutes and it said that language this new language found its way into the statute by accident we agree that the textual differences between the two statutes reveal a purpose to move from a system of prospective entitlement to a system of retrospective award and in this case the court was treating good time cut him a bright and ultimately he made a judgment call which is what we really want good district judges to do during  recommended and in addition the government was looking for fifty years for all of them forty years and even more so there were not just honor and so in the abstract a forty year sentence you know in theory would be totally reasonable when you when the court gets to that forty and forty year number has to do it based on permissible factors and in this case it saying is you know we can set up these tripwires for district courts which says no you can't mention this you can't mention that and i'm wondering if we lose the forest for the trees  thirty eight years more than a life sentence but taking into account the time credit it's just under a life sentence and we said that it doesn't violate the statute to consider good time credit when thinking about the age at which someone will be released which is what happened here right so a couple points about your honor so presented a different question from the question in this case the question in this case is what sentence is sufficient but not greater than necessary to serve the purposes of sentencing and the sensing reform are not available in this case but they were they were not statutorily excluded in that case but in three thousand five hundred and fifty three a prohibit the court from looking at the time that the fact that it's something that hasn't even happened yet so good time credit consider these factors well if a court considers that factor then it necessarily the court lets it affects the length of the sentence i mean i don't think there's any way to say i'm very upward to account for good time credit and not have that effect the length of the sentence and that's absolutely what happened in this case the courts and you're three thousand five hundred and fifty three a sentence is sixty and sixty which is thirty two years i'm going to add eight years the good time credit is absolutely affecting the length of the sentence and it's changing the very terms of imprisonment which the court  detention for the senses imposed and the supreme court said in the wilson case that the computation of that credit belongs to the opi not the court because the sense in court cannot know in every case how much time there will be morning thank your honor may please this court damn well going on behalf of the united states judge bennett rendered a sentence of forty years incarceration in this case sensing fower to that term of incarceration because of the heinous acts that he committed which included child rape and sexual abuse of two young girls age seven or eight judge bennett did not care what he considered good time credit and he certainly didn't commit plainer judge bennett considered good time right rather in the context of all the section and fifty three of factors and in particular the factor of the need to protect the public from future crimes of the defendant what i think is also important here is to put that consideration in the context of the defendant's argument in this case the defense argument at sentencing which was quite effective was that a life equivalent sentence was inappropriate that phrase as judge rushing mentioned comes up in this court's opinion and the sentencing court not missing the forest through the trees engage directly with defense counsel credited that argument said on the record i agree that a life equivalent of this is for district you're mentioning that testimony and the victim's mother said that her daughter wakes up that age twelve and that all the night she was dead because of what happened to her a family was torn apart and that wasn't the only thing judge bennett made a record of this the scar that was left by the defendant on the victim was a permanent one and judge bennett said that the defendant had effectively sentenced jane doe to a life sentence i want to turn to another piece of the record if i may your hon with with all due respect to my counsel are the judge here did not very often words based on good time credit and the judge did not assume that good time credit would be in place i'd direct the court's attention to page seventy five of the join judge bennett literally says who know whether get a good time credit that's up to the bureau of prisons where the judge was trying to do here was fashion a sentence that van downwards from the life time range that was appropriate in this judge rushing the mentioned it shows exactly why i judge bennett was doing what he was judged and credited the argument that a life sentence was inappropriate here despite the heinous conduct and was varying downwards and was trying to find something in between credit it would not adequately protect the victims in this case from future crimes from the defendant at the same time judge bennett didn't think that feller needed to be incarcerated for age seventy or beyond which is what the government was arguing for its fifty  because at that point the risk of recidivism had decreased which is a point that the opposing side makes in their opening brief reset isn't decreases with age i think that that supports the judge's reasoning here and i don't know how a sentencing court can fully consider recidivism decreasing with age unless the court considers the potential age range of a defendant's release from prison i also let's just briefly draw this court's attention to the roberts case a published opinion from the six circuit that was decided just after briefing was submitted in this case the roberts case of decided this exact issue and said that there was no error under an abuse of discretion review so long as the sentencing court did not consider good time credit as a standalone factor this case letter was she was submitted some time ago just after oral argument was scheduled and i would submit to this court the fouler sentencing is a much easier case in the roberts case for at least three reasons st we're under the plane or standard of review as the other side can seize robbers apply the of discretion or view nd or in the context of the defense making an effective argument about a life equivalent sentence which then puts us into the gulf of pain that we talked about and rd the roberts case involved a serious crime of course but involves the theft of military equipment they need to protect the public from future crimes of the defendant from the theft of military equipment case is nothing as compared to the need to protect our publics children from future acts of child rape and child exploitation and so i think this case falls squarely within what the th circuit ruled in the roberts opinion i also just want to briefly address the pepper opinion which the appellate cites for the proposition that some time on how consideration of good time credit is inappropriate pepper is does not stand for that proposition it's very clear what the supreme court is protecting in the opinion and that's the province of the sentencing consort court to consider the fullest possible information concerning the defendant's history and characteristics pepper involved a case where and this  actually involved four times going up and down to the th circuit involved a case involving methamphetamine trafficking where the sentencing core departed downward further than what the government recommended under five motion and found that a twenty four month sentence was appropriate despite guidelines that were much higher than that the u s attorney's office appealed it went up to the th circuit and went back down but at that time peppered actually been released from prison and pepper had done quite well since he was released from prison he had point that you make with respect to the roberts case i think it's a question of whether the understand whether the district court mentions good time credits conditional or whatever in salaries background including his participation in the children needs of assistance program for rehabilitation program is awesome diagnosis all sorts of things and when it rendered the sentence it was doing so in the context of the whole three thousand five hundred and fifty three factors but specifically a page seventy four and seventy five it was using good time credit as a way of crediting the defense argument about the about how a life of one sentence shouldn't be rendered and also as a way of figuring out a how to protect the community adequately from future crimes the defendant the judge said releasing him at age forty or some time in his forty's would not adequately protect the community at the same time the judge felt that seventy or older was was not was more than what was needed so the judge sentence sentenced fower to a range that would allow him to be released somewhere in the synergy of his th birthday closer to that than his th birthday when you factor in good time credit that's what the judge said and so i think it's clear from the record this was not a stand alone factor i think also that good time ready that mentioning something isn't enough to overturn what judge should do it sentencing was engaging directly with each and every defense argument factoring that all land and coming up with a sentence that wasn't greater than necessary to fill all of the three thousand five hundred and fifty three dollars factors and part of that was a consideration of good time credit and i would submit to your honor that the plain text a section three thousand five hundred and fifty three factors are very broad the plain text supports the consideration of good time credit not just in the cat  the we've talked a lot about the context of the need to protect the public from future crimes but also the history and characteristics of the defendant the need for the sentence to promote respect for the rule of law and reflect the seriousness of the conduct the types in time credit but the barber opinion dealt with an issue where the bureau of prisons was arguably calculating time incorrectly and the court ultimately found that it was it has no bearing here instead i think this case falls within the realm of this court thank you ron or just briefly a couple points so the i think it's important to think about what the purpose of the good time statute is and the good the purpose of that statute is for the defendant to be able to earn fifteen percent off whatever is three clear from the record that good time was a stand alone factor the court said you know he listed all the thirty five factors and said what did she have that is keeping you in prison until you're sixty and then i said but because of good time i'm going to make the sentence fo years and not thirty two if that's not a standalone factor i don't know i don't know what is the factor and allowing the court as i said to you know inflate the sentence as he did here simply prevents them from getting what he's supposed to be