here united states versus gary james cocaine and money laundering conspiracy to run consecutively through an eighteen month sentence been previously imposed for his failure to appear for sentencing the issue on appeal is whether failing to give mr james credit for acceptance of responsibility and also for failing to state in open court at the time as and saying the reason it was imposing this the the sense that impose which was ninety months y three one point one also states that in an extraordinary case a person can also get acceptance or responsibility credit even when one has obstructed justice i think i can i can see the case more extraordinary than this one this case is not sufficiently extraordinary i can't imagine any cases  so insignificant that the court the government never asked that his cooperation agreement be deemed to be violated the court never the government never asked that he be remanded within them was assault was the assault there his former fiance clearly had a drinking problem i had a drink driving probably had a drinking while driving problem he had an anger management problem and he had problems with this woman fiance there's no question about that but  the fact that he was arrested while he was awaiting sentence for these things didn't trouble the government or the court take the court let him leave the country to go to guy enter to attend the funeral of the sister when there's no extradition treaty with guyana he could have stayed there he could stay there the evidence of his accepting responsibility was as an immediate cooperation with the government totally truthful telling him everything  even telling the govern better attempt by the brother of a coconspirator to have him continue participating in the drug conspiracy while he was out on bail he told the governor about that you know if i used to hundred fifty kilos of cocaine mr james was involved in recruiting a few mules in connection with three kilos of cocaine he got sense as a sense far greater than the people who were much more culpable than he was and he his i did read the disparities as one of the issues as one of the issues but he did it the district court addressed the disparity in the district i didn't address any of the arguments that were raised for a down two and he's never spent a day in jail which would be a reason to give a lighter sentence the fact he never been to jail before is a reason to give a sense of the united states recently show a reason to get a sense follow the guidelines i was also a little confused and i'll ask the government this is well about what the district court understood and exactly he was doing it looked to me like the everyone agreed that the range was one hundred eight months two hundred thirty or one point the district court says why start at the top of the guidelines one thirty five and the other point he says no i'll start it one seventeen in the middle the judge seemed then he says i'll start at the low end of the guidelines this is on one thirty one thirty one and i mean there is confusion about how to deal with the months that consecutive what was going to concur the judge expressed confusion on several occasions it was clear what the court was supposed to do and remained from from this court following the original sense of what the judge was supposed to do is figure out the total appropriate punishment for the underlying offense and for the failure to appear to appear figure out what the total punishment was and since he had already imposed a sentence of eighteen months on the other failure to appear which was not subject to be appealed then with the total postmen is and then subtract eighteen months from that and impose a sentence on the underlying charge for the difference that's what the judge was supposed to do both sides  agreement that was what the judge was supposed to do the judge was was confused as to what the guidelines work was confused as to whether going to the top of the guard as the bottom of the guidelines he never addressed any of the arguments as to why there should be a v you never addressed your arguing that there should be downward departure based upon the military service mr james it's served on an aircraft carrier and served in iraq the probation recognized that was a grant for downward departure downward variance pursuant to thirty five fifty three and the government conceded that that although he violated the cooperation agreement his cooperation was so significant that the judge might consider that as the basis for a downward variance given given the sentences imposed on other people given the cooperation given the expressions of remorse given the post defense rehabilitation clearly shown by by mr james this recent mr james already been in jail  over five years now he's been in jail for for over six years he's been in jail for almost seventy five months since the since he came back after his of scott he had nothing to do with it with this case had nothing to do with accepting responsibility  may please the court my name is tunisia payne i'm an assistant united states attorney in the eastern district of new york and i represent the united states in this matter the dish of court sentence was procedurally and substantively reasonable both acid the sentence itself and the procedures employed in arriving at the sentence i would first like to draw the court to three main points that i will refer to in my arguments with respect to proceed in a reasonable innes first the plain error standard of review applies to this case because the defendant did not object to the dip to the district's court's alleged failures to explain its reasoning for its sentence and to discuss the section thirty five fifty three a factors second the mandate from this court to the district court was specific on remand the district court was ordered to first determine the total punishment appropriate in both cases and then offset that amount by the eighteen months imprisonment already imposed in the failure to appear case third the proceeding at issue was a recent and saying at which the court heard essentially the same arguments it heard during the initial sentencing hearing this is relevant because at the initial sentencing the court stated that it had heard and considered the arguments as well as the relevant thirty five fifty three factors notably this court applies a robust plain era standard in this context because it would have been easy for counsel in the defendant to object if they were dissatisfied with the court's explanations and reasonings miss payne i'm troubled reading the transcript here about the confusion about what the district court would start what point the district court was starting from and his records lack of any explanation for where the district court was beginning his analysis on the concurrent sentences before taking the eighteen months off as i mentioned to your adversary the defense counsel everyone seems to agree that the range was one hundred eight months to one hundred thirty five months that that was correct  didn't make a recommendation but at page eight one thirty of the hearing the district court says i'm starting at the top of the guidelines as mr gordon points out that he did doctor the eighteen months from one hundred thirty five at the top of the range the following sentence after some of that after that's pointed out he says well actually what i'll do is all start with one hundred seventeen months the low end of the guidelines and then subtract eighteen months will be ninety nine and then i guess you point at that that's the low end of the guidelines but that's the midpoint is what you start to say and then he says well if you're at the intention is to sentence at the low end of the guidelines that would start at one hundred eight and then he changes again his starting point  and you know these are significant seventeen months difference this is a lot of time in jail that that is he's he's moving around in his calculus without offering any explanation about why and so he ends up at the low end of the guidelines where there's been an argument still that he should have very low given some of these arguments about the reasons that he gave  transcript without any x a nation all to the defendant who needs to spend this time in jail why is that procedurally correct or why doesn't he raise questions even about substantive reasonableness well your honor i agree that the court  in my opinion did evidence confusion as to the math that it was to apply as far as the the this court's mandate i do think that the court understood just the math if i could you know when he says starting at the high end of the guidelines then he starts in the middle and then he starts at the bottom i think that the court's confusion was asked to the mandate not specifically as to the applicable guidelines range each case though he's subtracting eighteen months as was directed by that remain and it's the starting point that changes very significantly over the course of this brief colloquy and being before him my understanding of his confusion was the fact that he needed to first make a decision as to the appropriate total punishment and i think that's where he initially had computer when i pointed out to the court that if your intention which is what he said was to is to sentence the defendant to the low end of the guidelines then i said that that we would be starting at the want to wait so i do think that it was more so when he starts out by saying i'm starting at the top of the guidelines correct but i think that think the slight issue is that i think the confusion from the court was that he was supposed to first determine the the not first do the subtraction but to first determine the appropriate punishment for both cases he ends up going from one hundred seventeen months to send him to ninety without any explanation that's obviously in defendant's favor but i'm troubled i see no explanation for it and he doesn't address i mean i t you're arguing that he doesn't have to address more because this was a real sentencing and the fact that it was established and he doesn't really have to say anything further but i mean he has an affirmative obligation to explain his consideration of  thirty five fifty three factors and i don't see that in the record here how can i be comforted about his thought process here while your honor at the initial hearing in two thousand and fourteen the district court did state on the record although he did cooperate he did violate the cooperation agreement i have read the submissions heard oral argument i've considered the factors and thirty five fifty three a just want to remind the court that these factors and these arguments were the same arguments that the defendant argued at the two thousand and fourteen sentence hearing in its sentence admissions in the numerous objections to the pre sentence report and again at the march two thousand and eighteen hearing so the court heard again these arguments acknowledge that the court had again heard the defendant and then proceeded to adopt the guidelines range recommended by the department of probation which was the one again this was continuing to to argue the acceptance of responsibility where he said i've heard your point and then adopted the guidelines range proposed by the probation so he did acknowledge that he was this is appendix one thirty when the court says ok you had your say this is line eleven and then says that i find that the guidelines is one hundred eight to one thirty five and that's what the guidelines is the first sentence was one hundred eighty six months no one hundred eight to one thirty first time i'm sorry sir the first time around two thousand and fourteen the sentence was one hundred eighty six months i think that's correct total so he went down to one hundred from one eighty six to one only yes and that was based on extensive again arguments changes in the revised pre sentence report where the defendant argued for that that the court consider a lower quantity of narcotics to attribute to the defendant the government did not object and the other defendants who were minor participants who were less culpable than this defendant i also want to bring up that in the court statement of reasons  because so my note suggests that five defendants including two receive time served that's correct is that correct yes and then one who arranged for drug couriers to be sent to jamaica also received time served and one who worked as a driver received seventy months correct that's what my notes does that seem correct yes thank you and i read that if the original sentenc and the judge thought that he was responsible and was held accountable for at least five kilos of cocaine but on the government you will plead that he should be responsible for only three point one right so that also accounts in some part for the change in the sentence and the guidelines range right wrecked thank you and in addition the dishes district court statement a reason established that the pre sentence report was adopted without change and specifically the court indicated in his statement of reasons that the factors under eighteen us c thirty five fifty three a submissions an argument by counsel and the defendant defendants extensive criminal record their seriousness of the offense deterrence to criminal conduct to protect the public from future crimes by this defendant and the need for the sentence to be sufficient but not greater than necessary to achieve the aims of the statute his record included harassment of criminal contempt driving under the influence and i don't believe that i believe that he served and i apologize i don't have the specific time that the surge but it could have been between a day but definitely less than a year i do know that had not really fulfilled the requirement of the statement in open court of the reasons for the sentencing because it was specifically that the court had not it wasn't clear that the court had calculated the guidelines range that there was confusion as to the guidelines range not that he had not stayed in open court his recent i c and so your approach here you think is consistent with that you you believe everyone understood that what the court was aiming at despite that what i pointed out in the transcript yes standing before him in the courtroom it appeared that the court did understand the apple guideline guidelines range the only confusion was as to how this court had mandated that he carried that out as far as subtracting the eighteen months even though he went basically from one hundred seventeen months to ninety months and my impression of that was not that he was starting the year at his sentence but that he was starting there with the subtraction of the eighteen months and then it was going to you know from the reminded him of that he started out saying the highest he started out saying that that's ok i think i am ok thank you thank you thank you sentencing that's not true the usual sensing there was a lower offense level there were different guidelines the defense lawyer the initial sense he never made an argument about acceptance of responsibility  looking fifty kilos he was got a three level hence me as a manager or supervisor he lord seventy one thousand five hundred dollars intended to pay for the purchase of drugs not calculated in the