reduction in the defendant's sentence upon me sentencing or a re man for further research and conceive our principal arguments are two full one dead insufficient weight was accorded to the defendant's post and mischel sentencing rehabilitative conduct and second that there is the sentence is substantively unreasonable based on unwarranted sentencing disparity with the co defendants and with other similarly situated defendants whose cases we cite in the reply brief and whose cases were brought to the attention disparity argument as to why it was so strikes me as an entirely new argument save for require but aren't understanding thank you the type of post sentencing rehabilitative conduct  in this particular case is different than some of the other cases we believe this case the take conduct is closer to the conduct in pepper which court recognized as grounds for possible relief and reese sentencing this isn't a case unlike the recent case of robert goyer bridge which was recently decided last week this isn't a case where we just presented letters from fellow prisoners although we did do that and we didn't just talk about our educational in vocational programs that defendant did although we did do that we cited nine of them to the district see in this case the defendant took it well there was some dispute in the record whether he was asked to become a cannonball to an informant within the federal correction institution in ohio and then it at the m c c or whether he volunteered and the tight so that type of close sentencing conduct i think distinguishes this case from other cases where relief has not been granted he had to spend twenty one days in solitary confinement because his name based on the seizures that his information led to his name was included in a report in that other case which  to the government to take some action against other inmates who provided information for he received a letter from a fugitive which and his own accord he turned over to prison officials and this information was borne out by f b i reports which we presented to the district court it recent and see they want one of the reports referenced him as currently the only confidential informant  the m c c he provided information which led to seizures of synthetic k two marijuana alcohol and this information was presented to the district court every sentencing this is all post conviction what's that got to do with what he did in the first place it doesn't change the seriousness of the offense what it does changes his prospect for rehabilitation the prospect for second guessing th sense again and again and again and you come back to the court of appeals as but lawyers did and if you're doing well the reason we think it's relevant as we cite the language and pepper which says that the post sentencing conduct is highly was issued in the under lying case in this case the sentence was ninety six months look the co defendants guidelines were the same they started off at the bottom is ninety seven months their government made a five k one motion which would have brought the guidelines down to fifty seven off she received one day time considered cert we're not suggesting that it is now when something should be anywhere near that but even  the codefendant prior to the thirty five fifty three application the sentence was looking at fifty seven months now somewhere between there and the ninety six month sentence that was imposed we thinks is sufficient but not greater yes your honor i don't see how you could predict how you could have how you could assume that that had anything to do with how he would behave after being released from prison for that proposition then nothing else to do in prison by as well you know be a good boy try to make a good impression and but you know why that should have any effect on us he went beyond being just a model prisoner but boy if it was a model prisoner which i think the district court in that case referenced that is decent behavior kind of expected of a model prisoner but by peak becom other prisoners although he wasn't no one was not the recipient of a five k one departure at any point it's in the same vein there cooperators like him have a higher likelihood of rehabilitative potential  move on that issue could you address that of telephone calls that were of considerable interest to the district court yes on this notion of remorse acceptance  we believe and i see we're in our my rebuttal time but i believe that they're best characterized as posturing the district court used isn't that really up to the district judge to evaluate him and she did evaluate it and i'm not we're not quarreling with the fact that she considered it our position is that the positive conduct while he was a prisoner far outweight back and it didn't negate is rebuild again second guessing the district judges decisions as to the sense you're asking us to make it well we if we were sensing we would certainly give him time for that right now and not just that not just whether to reach it is a she said you're trying to game the system that's what she said about his telephone conversation our position is that what somebody says to their family and we should say no you're wrong he wasn't trying to game a system that's correct i think that what the family are asking us to then take the judge's discretion and cut it apart piecemeal apart and said she had no discretion in making that determination we believe she had the discussion we believe it was an abuse of discretion in the in this case was the period over which it was self how long it was from his sentence seen it was throughout it was over six months before he became you came back before that just ripped george bush to into a joint rematch if there's no furthe the court good morning i'm jacqueline stern on behalf of the united states the sentence in this case should be affirmed the district court carefully consider and address the statutory sentencing factors the district court also carefully considered and addressed the evidence and the arguments made by the defendant in mitigation the court imposed a sentence of ninety six months which is within the guidelines range the guidelines were calculated properly there were no procedural errors and the defendant is not arguing that there were procedural errors there were no unwarranted sentencing disparities and the district court did not abused its discretion sentences substantively reason should be affirmed in terms of the period of time that he was in jail it was ten months the initial sentencing was in august twenty fifteen and the district court imposed a sentence of ninety six months at that time the case was remanded for reset and saying based on issues relating soley to supervised release and now it was on an agreed motion the resentencing was in june twenty sixth and the district court thought she got it right the first time the defendant was in jail for ten months after the first sentencing and the defendant's conduct while he was in jail was the primary focus of the reset and then in and sixteen the defendant presented evidence of good conduct the government presented evidence of bad conduct and after considering all of the evidence the judge came out exactly where she was before on appeal the defendant is arguing the district court ga too much weight to the bad conduct and too little weight to the good conduct but that's exactly what the court should be doing is determining the appropriate way it was not a an abuse of discretion in the recent case the port stated a district court has discretion in terms of the issue of post conviction rehabilitation and even though a court could rule in favor of the defendant the court is not compelled to do so it's a matter within the discretionary authority of the district court and in this case the judge simply was not persuaded by the defendant's arguments concerning rehabilitation the court specifically pointed to the need for deterrence and a very serious nature offense the judge said that she looked at the factors of deterrence as a major factor that the court had to rely on to make sure that the defendant understood and didn't come back and do this on a level to anyone else and that there was a need to protect the public these ten new sentencing guidelines themselves are the spirity of an anti the spirity formula that if the court imposes a sentence within the guidelines range it means the court has been given has given adequate consideration to the on the basis of the facts and in this case judge her reasoning was analytically sound given the evidence that she had concerning the very severe nature of the fraud the extensive nature of the fraud and then the statements that the defendant made while he was incarcerated on the m c c tapes where he lied about his own conduct a two people he said he was not responsible for the credit card fraud although he had pled guilty to that he said that he was in jail because of other people's conduct which was untrue he said that if the court ordered him not to have a business he'd simply end run that and he go overseas and have a business he said that everything that he did while he was in jail the religious things the university things and his cooperation he did all of that because he wanted to get out of jail and he said that he believed that the judge had given him essentially a wink and a nod imposed ninety six months to show that she was tough to reporters and that in fact she was going to possibly let him out immediately but give him a much lower  addition to that judge threw out the time period while he was on bond he continued to use other people's names and he continued to do that while he was in jail it was a very very serious crime two point eight million dollars and half fraud so she did do a reasonable analysis it was substantively reasonable there were not unreasonable the spirit is unwarranted disparities in terms of the codefend of employment would be bar the court didn't bar any employment involving a company she started up she barred in and pointed out the company where the defender would have access to personal information or taking out lines of credit so the fact that the defendant says on the call i'd like to start a company overseas if i'm not permitted to there doesn't mean he's trying to skirt that judge's ruling that was a narrow ruling about what type of employment would you know the rehabilitation that cut very much the other way and our position is actions speak louder than words he not only did against our cooperate in late he actually did cooperate in the overcome the current words right you said that anyone who demonstrated the rehabilitation spector's that  he did would be a good candidate for permanent rehabilitation when it was released from prison do you have some basis for that belief in our opening brief that those who cooperate even if they're not the recipients of a formal five one motion have a higher propensity for rehabilitation we also  as based on reliable as based on the court other courts conducting studies in those cases or are set out in our opening brief we also say other courts conduct in studies where the roof apparently i'm i'm referencing to the cases we cited in our brief i believe it was also an analysis of the statistics of those who received five k one relief but there's any of this evidence discussed people say the sorts of things that he said that the government relies on as evidence of an likelihood of rehabilitation that i don't know all our position is that those words are not a reliable indicator because everything he did in his actual life when he wasn't posturing  views that's correct we did so to an illinois appellate court case of course none binding that talks about the difference of an affirmative lack of remorse versus someone who's posturing or insisting on innocence