made a number of mistakes at sentencing with regard to especially revolving around the issue of rehabilitation and what mr martinez needs the most legal istic mistake i think i this misapprehension of mr martinez's eligibility for a reduced sentence should he continue to comply and continue to seek rehabilitation in the bureau of prisons i think everybody agrees that was a mistake but what the government has argued that the district judge by the time he made that mistake had already done everything he had pronounced the sentence he'd given his reasons there's no reason to believe that his misapprehension about the our d s p program had anything to do with sentence well i think that it does show what the judge was considering a big piece of the consideration of sentencing was on rehabilitation was about drug abuse was about mental health was about whether we can fix these sorts of issues in the federal bureau of prisons because illinois didn't or whether you know we just need to incarcerate this person for for as long as we can and so certainly the comment comes after the pronouncement of sentence illustrates what was released in the back of the judge's mind as to mr martinez eligibility for this program but is it your position is much better if if judge chain had said something like look i think that i think one hundred five is a good number here that's a fair number to achieve all the abstractions of sentencing and i'm actually going to leave twelve months of the you know up to you mr martinez and i leave it in your hands get into the drug program and continue these steps along the path of rehabilitation we don't have anything like that here you have a transcript where is the government points out the drug or d p a is very much an afterthought you just pointed out it turns out erroneous li there's a drug program to get it through and you might be able to cut twelve months off this no that isn't courage from and to rehabilitation well it's certainly an incentive that the district court points out you're right that this isn't this isn't a clear cut record where you know the judge basically puts it in the terms that would easily be reversible error but i still think that there's an element of reliance on it because this the judge clearly is struggling with  know defense itself your criminal history are so bad that you know i can't think about you know not meeting that statutory maximum but i had a pretty bad actually mr henderson and he mr martinez to him no favors i understand that you know a lot of things were wrong but it's not a great record yeah well and that is not included in the conduct in this very case is is mighty serious it certainly is and one of the primary arguments in mitigation had to do with why was mr martinez in that situation why didn't he learned his lesson after twenty five years in prison and we feel like the district court didn't address that concern well nobody knows why he wouldn't have learned his lesson shooting twice the same circumstances that we thought it was a rival gang of police cars i mean this is that it's unbelievable that he thinks he could get a reduced sentence in this case well i don't think it's unbelievable i mean certainly you have to consider the nature of the offense that's just that's assuming you want to buy into  off right that john instead of giving him that one twenty getting one seventeen that that's right and the signal i think maybe there's something redeemable in you yeah and i suppose i should clarify we're not attacking the substance of the sentence here  what word bothered by is we feel at least there were two solid arguments in mitigation about one why why he's in the situation to begin with why he hasn't learned his lesson and know i well i think that if the if the district judge had construed the argument that way that might be an adequate response to say look i understand what you're saying tampa is terrible for you but it did you know about the deterrence arguments for a minute i mean there's a huge academic literature on this and probably some pretty good data that people pay attention to the certainty of being caught in the certainty of some kind of sentence more than a very bad discount functions for for time and so on but it strikes me that these are fundamentally arguments for number one congress number two the people who draw the sentencing guidelines should just figure out you know where are we going to hit that point where we are in fact engaging in some punishment where gauges and specific deterrents and at least in the federal system general deterrence is still accepted is something that can be done there's also an academic literature about that that says there actually should never be general deterrence is that it's like i'm punishing you mr henderson for something the judge got or did you know and that seems out of line  but at the moment these are our rules and structure tell me why this isn't fundamentally legislative well so this is a lot like an argument in mitigation before the crack laws were changed where you would make an argument in mitigation and say look the hundred to one ratio is just unfair and the response would be ok i can consider that argument but you also might want to persuade congress so it's both it can both be a argument in mitigation and a request to congress to  versus academic opinion and i think i'll go along many times with what the sensing judges do rather than what some academic writing might say about you know no and that's and that's your right as as that's is right in this case right but what he also needs to do is to actually respond to the argument in a way that's based on what the argument that was made and the evidence and in support of that argument if there was evidence contrary then he could say look i you know i see this is a debate you know as i look at defendants who come before me i think the general deterrence does play a role i see people who come and say i know this guy got ten years on a gun case so i you know wanted to abstain from that to but instead he just discounts the evidence without any basis for doing so and that's why we feel that that this argument in mitigation was i think arguing i think he's just saying that general deterrence remains a factor and thirty five fifty three notwithstanding the academic studies judge weinstein's point in that i just can't categorically ignore a consideration of general deterrence and here with this particular individual and this course of conduct over over the years he considered it i think it is you know the observation that you hear in appear right now mike my reading the record is as he was saying in this case i think general the terms applies not that it's a factor i have to go through  and give great weight to or no way to but that in this case i think it applies and we think that the evidence that was presented to him about the literature and in particular deterrence in the felon in possession cases not just generally  merited more of a response but i'm running out of time  not sure there has to but he he doesn't display any real knowledge about the structure of the study and so on and i don't think academic studies are worthless but on the other hand under thirty five point three a the district judge is under no obligation to decide that he's going to go with a study as opposed to the guidelines as opposed to you know legislative guidance and so forth so so he makes kind of offhand comment about the studies which i think is not particularly accurate although it may not matter i think that's fair your honor but he does just by some reason an academic debate that alone shows that he made the district or made some effort to address it and frankly because the district court is not obligated to do a extensive analysis with fresh pretty clear here when the district went below the guidelines the fact that he addressed it is sufficient in this case but a the academic debate didn't agree with it and ultimately believe that general deterrence should be considered in this particular sense and as a whole even with respect to the efficacy of tams the district court again he addressed the defendant minute if you like it's all right thank you very much then the case will be taken under advisement