obliged even though he was a convicted felon and business possessing a gun but he did locate one and then sell it to his friend who owned the notes to mr simms was actually working as a confidential informant for the government helping them to identify drug and gun sellers now almost a full two years later mr simms was confronted by a t f agents and he immediately acknowledged his wrongdoing and told law enforcement from whom he had obtained the gun a few months later he was indicted and he promptly pleaded guilty without a plea agreement his sentencing range was twenty seven to thirty three months he asked for a sentence at the low end of the range and the and that had not convinced him to not possess guns again a top of the guidelines range of thirty three months was unlikely to fare any better and so on this basis the district court believed that he needed a fifteen month upward variance to properly deter him from committing this criminal act in the future now we have no objection to the district court taking into account that mr simms was a twice convicted felon in possession that that was a reasonable thing to do nonetheless the district court made two errors here that make this one of the rare cases of substantive and reasonableness that requires this court's intervention the st is that the district court gave an unreasonable amount of weight to the bare fact of mr sims as recidivism it's critically important in this case and usual that there was a two year time gap between the commission of the offense and the indictment and the record over that to your in which he did not know he was being watched or or was subject to charge i think that's exactly right your honor and there seems to be some speculation by the district judge to the effect that well maybe he did know he had come under federal scrutiny during that two year period but that is really nothing in the record is nothing in the record to support that no in the reason there's nothing in the record is because the the government conceded that it wanted to get the maximum use out of its confidential informant which it couldn't do if it's informants identity had been compromised so the logical inference is of course that mr sims didn't know that his friend was working in this capacity now going back to what the record shows about that two year period mr sims was living  ordinary law abiding life and he showed substantial signs of having made real progress toward rehabilitation he was working his employer praised his work ethic in his work performance he was involved in the lives of each of  three sons including one young man who'd been adopted by another family he had married and he was involved in raising helping to raise his  violations were not new law violations he didn't possess a gun again while on supervised release or one of the tests that he play over that's true he believed there were two marijuana tests he failed and it also appears that there were one or more occasions on which he did not report into probation and he served a ten month revocation sentence in connection with that now the district judge did rely on that in part in sentencing him above the guidelines but i don't think that either of those considerations reasonably take this case outside of the heartlands we've seen a sea change in marijuana regulation in this country mr simms clearly has a marijuana problem but he's never been a dealer he's not a manufacturer he's had a few state court possession charges but i don't think that that really thrust this into above guidelines territory  in this case well that's a very good question a very difficult one to answer certainly no mathematical formulae here there could certainly be cases in which recidivism would justify an upward variance but on the unique facts of this case it i think it really doesn't for the reasons i just stated in here i think a fair reading of that sentencing transcript is that the court really treated the recidivism issue as dispositive it was the linchpin of this above guideline sentence it what is it like a proper thing what is the two year in the world how do we do we do with that in terms of our cases like of we say we have seems like a unique kind of situation they wait so long to charge him but he's not in custody if you were in custody then his rehabilitation efforts would be relevant right i mean is that what it is or it's candidly this is not a situation i've seen before me i think this is an unusually and absolutely a long period of time for a defendant to have been left out in the community after commission of the offense but at sentencing the district judges job is to consider the totality of the circumstances and if i'm a sentencing judge i'm trying to assess what's the likelihood that this person is going to re offend what's going to properly deter them i would think that the preceding two years prior to the indictment the conduct the person has manifested during that period is at more but i'm convinced by some of your arguments on going to give you forty eight yes and i think we're certainly grateful that he didn't very upward at twenty seven dollars the way he indicated he was initially inclined but that doesn't make the fifteen month upward variance guidelines and again the government agreed that that was appropriate i believe the probation report also did so you had a variety of actors in the system here except for the district judge who thought it within guidelines sentence was appropriate  that a sentence that departs from the advisory range in a mine run case warrants closer review your argument is that this is a hard line yes i'm on one case so what does close to reveal me for us i think closer review means that you have to satisfy yourself that the district court took reasonable consideration of all of the available factors in here i don't think one can read the sentencing transcript and come to that conclusion because so much weight again i think virtually dispositive weight was put on this one characteristic that he was a two time felon in possession offender and it entirely minimized other pertinent information as to what was a just inappropriate sentence for this particular defendant the other issue i would go to is disparity the district judge here made a passing reference to the fact that the sentence might indeed be disparate to that of other similarly situated defendants but it didn't delve into our analyze that question and it had an obligation to do so now we've put before the court what i think is substantial  ten cases in total from the circuit and felon in possession cases that show that the common thread for when the felon in possession defendants receive upward variances is a history of  variances this is but yes it's not the case but it is also not that kind of upward variance either right or it doesn't those cases that put you in that box don't necessarily establish the opposite proposition that this upward variance was was right it could just be a continuum in this case is somewhere in that continuum well yes i mean i do think i say at least three or four cases in which the upward variance was lower but you're never going to have a wonder one comparison i mean every case has its own facts its own defendants with their unique history the unique details of each crime but i do think it's relevant and i didn't cite to the court just one or two cases i give you at least ten and suggests to me that there is now a collective wisdom among federal judges about when an upward variance is appropriate and a felon in possession case and again the throughline in that case law is a history of violence and it makes perfect sense because we approve something doesn't mean we disapprove other we don't know what would be disapproved we know that we've approved certain things right it doesn't stand for the other proposition it only stands for we've approved the then maybe they all look so maybe they look alike but this is sentencing you have different factors different things are taken into consideration by the district judge so i'm not sure that they necessarily stablish the proposition that this one is you know inappropriate think that's a fair point but i do think if there was a contrary body of case law that show that that nonviolent offenders like mr sims also commonly received above guideline sentences we would have seen that case law from the government and we don't they didn't point to any contrary case law to that effect so i think it is meaningful you know what what these cases are telling us about when it's appropriate to sentence above the guidelines that make a difference if the usually go well i mean i think it's probably true that that selling is worse than say stashing it somewhere in your home but again i would look to the particular facts of this case there's no dispute that mr sims isn't a gun trafficker he didn't go out and obtain this gun in aid of any other criminal activity the way we so often see and say drug dealers obtaining guns to protect their drug trade about selling every nation in the go well that too is probably worse i mean it did make the gun effective but even then i don't think that the that factor in light of the totality of the circumstances here catapults this case and the above guidelines territory and in fact we cited to the court cases in which felons who sold guns and ammunition still received within guidelines sentences you'll have your time when your honor's my name is matthew simcoe representing the government in this argument counsel may please the court district judges are given great discretion when imposing a sentence and the failure to consider quired factor or the consideration of impermissible one this court reviews that sentence as an abuse of discretion counsel has indicated that the district court here relied only on one factor when it determined its sentence in this case this court has held that you know a district court can consider or put great weight on one factor and that is not err in and of itself to consider just that one factor but in this case the court considered a variety of factors much more than counsel represented here want to impose its sentence it started out with considering the defendant's record or appellants record in this matter which included  an aggravated assault with a firearm adjudication as a juvenile three adult state burglary convictions and then the felon in possession of a firearm conviction as  a in federal court i'm struggling with here is this kind of distinction between the mine ron heartland if we use pre book or lying case and why and when you are in the heartland and you very helpful have you screwed hell the court is just scrutinize that and what i'm struggling with particularly in this case is that is that the thing that this court kept coming back to is already inherently considered nine hundred and twenty two is about someone who is committing the same crime who is having possession again the guidelines account for his criminal history why is this idea that he is a or sid have this is not an improper placement of white on a singular factor in this case i mean the guidelines do take into account prior convictions will not necessarily what those convictions are they can give weight to crimes of violence or drug trafficking but not beyond that so the mere fact the fact that it was a prior felony possession conviction to this court was significant because obviously he knew just what happens when you do possess a firearm in this case and to so kind of quickly do the same thing over again it seemed to be that this defendant just wasn't centrally getting the message being terminated two years the two years between there's two years after he alleged after he did this that and there's nothing else well it's another there's nothing else she it's true that he did not have another felony conviction in that time frame he has a couple traffic a conviction traffic convictions in that time frame but also as he admits he continues to use drugs he was a sort of sparsely drug user earlier in his life he excel rated that used to daily use up until the time of his arrest and so earlier it was these this drug use that sent him back to prison before that didn't seem to deter him he continued to use and abuse drugs up until the time of his arrest so it's not exactly that he was a crime free during this period of time he just didn't have the smoking of marijuana this is know at that point even if he was wasn't a felon correct under federal or state law but i think it was to the court what it was important to them was just how much he was not being deterred he went back to prison for this very  conduct the drug use the possession of felafel and possession of fire and he just wasn't being deterred and it was i think that it wasn't necessarily the drug abuse in and of itself but the mere fact that it just nothing seems to be working with this forever he gets out finally begins to get his life back together he marries a parent he keeps up a relationship with the child that god with his child that was adopted by someone else that parent  comes and says this is a guy who's making a positive difference in the v b that we adopted you know the school people say this man comes in for to supposed in the school the kids love to see him  that to me is somebody who's attention you've got and who's making the real effort to change his life and i'm i'm struggling to see somebody who comes from this poor this guy and makes the changes he makes in his life and it seems like ever getting away from the errors of his youth and the basis of his life is an impossibility and that i find that problematic well in and during this period of time when he supposedly crime free i mean this is the period of time where he's continued abuse drugs i understand that's marijuana but it is not as if he is just you know what i absolutely gone straight now i continue to go out and purchase an illegal substance and abuse it and i get a legal substance where he is maybe not in other places i'm i don't dispute your argument i just of senate saying is is to convey to the public the fairness of the sentence and the propriety of the sentence in that one case and i'm struggling with that concept here particularly our closer review because of how much over the guidelines this way at it it feels to me a lie the guys caught in the system that he can never get a h it it might be you know india is i think a major change in this guy's life to do the things that he is doing and avoiding the things that he's avoiding it might not seem like much to us but where he comes from it's a whole lot so i'm i'm struggling with the idea that on closer review this is not perhaps oh so far a simple heartland case it's being punished as if it was beyond the heartland well and two points to that one i think and these past two years prior to his actual arrest you know he did not have a felony conviction but as far as this sort of period of his life and he started out with the aggravated assault adjudication and then the two burglary convictions in ohio early on in life he then went through a period of time when he wasn't committing crimes but starting in about two thousand and eight it started to accelerate actually he gets a burglary conviction in georgia he then gets the felon in possession of firearms two years after that he then gets that supervised release violation sent him back to prison and then he gets the new film in possession commission of that crime so over the six year period he's actually accelerating in his crimes not decelerating as far as the actual variance in this concert this case is concerned is fifteen months and as not an extreme variance i think this court actually do have a go up or do you know i don't your honor and i mean it's forty percent i think case of said you know try not to do a mathematical you know determination of this but one point to consider as to that is if you consider you know his prior sense was thirty four months he hadn't had to go back for an additional ten months if you consider that as being forty four months is really just four months beyond the time he could serve serve when relation to the early past between when he got out and then when this sale him and why and that has to do with the confidential informant is right he was a working confidential informant he continued to make other cases and essentially to arrest the defendant early on would essentially terminate his efforts in those other cases he had and barbara the drug cases are far better both in a case in the record both your honor and i don't know the particulars of the other cases that he was working on but it was related to sentencing that he continued to work other cases and the reason essentially his cover would have been blown had the fact that they had arrested him earlier and it is not unusual for the government to do stuff like that we run wires for long periods of time we do long term investigations and so it's not entirely accurate to say that this is unusual to that we're not essentially you know arresting someone immediately if they informant or cases continued to develop and bring other cases in seems unusual in a case where this particular defendant is supposedly dangerous or he can't be reformed or you know why are you not getting him off the street right away i mean that that seems strange of this this would be a person subject to an upward variance and yet he's the one who's left on the street for two years after the event occurs and i guess it doesn't matter of the other cases he was working if the you know those were such that you know they were in every case where you don't need to arrest the defendant you hold your breath you know that something bad won't happen but there could have been these other cases that were causing them to not arrest him immediately but in this case i guess they they they didn't arrest him immediately and they did approach him later on i mean was it in the beginning but they did inform him and in this two year period that they had happened they asked him if he would you know work with them so he was aware at discussion did they say oh by the way we know that you so well that was the we go in there and yeah and that was why they approached and they approach and say basically we are this charge we are coming back for you some day would you like to work with us instead so this period of time which he is crime free you know aside from the drug use he was aware that the government had this case but that was two years it was two years until his arrest in this case but there was a period of time prior to that they did approach him and  say and it wasn't like necessarily it suitably long period of time but prior to indicting him they did approach him and say hey we're where this this event happened we're aware of it that's where within this to you know that's correct where within this two year period and he said i can't be an informant correct and then he was indicted and then it's not to see if he you know perhaps your opposing counsel knows the answer to that but i understood that there is this two year bracket they come to him and say we've got to be an informant he says i can't be an informant by indicting they do is not the next day i understand there's a period of time he's aware this is coming and it's not going and i'm not soon and i want to suggest that like this entire two two year period he's i notice i can't screw up because i know that it's not a year it's not in the middle or something right it's it's i think it's right in the last twenty five percent of this period of time so i think it's something more like five months or four months something like that  him to less for committing a century the same crime or more crimes didn't you agree that he should be within the guidelines the government did recommend a guideline sentence so the government thought of guidelines and it was appropriate so the question is not what the government via because the government agrees he ought to be within the guidelines the question is whether it's procedure substantively unreasonable for the judge to have decided that a forty five percent increase in this particular case is appropriate right and that was before us that's correct and but to say that the the last sentence was thirty four months or one month less are one month more than the prior think sends the wrong message essentially and that's what the judge felt and articulated that all over the record that century like if i'm going to sense into less time than he got the st time what message is that sending to this the friend it certainly is not going to tour by all this other stuff and now i'm reducing the sentence that i will give you for the exact an additional conduct would seem not to be owned not only unreasonable in and of itself but illogical as far as a criminal senses are to address the court's question about precisely when he was approached by law enforcement agents recalled that he the gun sale occurred in january th two thousand and sixteen he was approached four of the sentencing transcript so that is almost a full two years after his commission of the offense and before he was indicted in march of two thousand and eighteen as to counsel's representation that in fact his criminal conduct was accelerating at that simply and in my view was is not true if you look at his offenses since his release from prison in connection with his st felon in possession case there almost all these minor driving offenses related to an invalid driver's license or invalid license plates he did have to possession marijuana possession charges both of which he received fines for and he had a disorderly conduct charge for wh probation so i think what we're seeing with this defendant is someone who did have he does have a number of convictions but the severity occurred in his teenage years in his twenty's we're seeing someone who's maturing who's figuring out how to get his life together and who's beginning to age out of crime and i think to affirm this sentence really is sending the wrong message it's telling defendants even if you do is we urge you to do and try and develop meaningful relationships get employment do the things that will help you lead a productive life it's not going to matter because not only are you going to be punished and mr simms has never sought to evade punishment here but it says to him and others not only will you be punished but we're going to punish you even more harshly and so what's the point of having undertaken will that after grange i mean even more harshly than what i mean he ended up spending getting forty four months for the st conviction so thirty three months would be or whatever in the in the range would be us punishment well less punishment than he received the connection with the st conviction yes but the the but what message does it send  you know you get what we're so sorry i would agree with your honor if what happened here is he was released from prison in connection with the st felon in possession offense and shortly thereafter he goes out and does it again i think then we say well wait a minute you really are not getting the message but to go there now is to really entirely ignore this two year period that is a completely different period in his life in which i think as your honor said judge strength he's being much more thoughtful about his choices he's trying to do the right things and he ought to get some credit for that in this incremental fifteen month additional punishment isn't serving any purpose for someone like that it's just burdening the taxpayers with fifteen more months of incarceration time for him and it's it makes it all that much harder for him once he's released from prison to get back on track the longer he spends there isn't going to help him and it's not going to help his family members  questions our view is the sentence is disproportionate to the they sure of the fence and the make sure of mr simpson background we would ask the court to reverse and remand for a fresh sensing pursuit thank you both for your arguments and your briefing