i'd like to focus on the procedural defects at sentencing but before i do that i'd just like to emphasize how far out of line this sentence is the huge variation from the guideline range is one indicator but we also have the sentencing commission's report from two thousand and fifteen which demonstrates that in two thousand and thirteen the year it started the median sentence for illegal re entry offenders with an eight level unhandsome unlike mr singh's was thirteen months only one point two of  were sentenced above the guideline range there's nothing about mr singh that is so unusual that puts him in that one percent in fact the typical offender had a criminal history category of three higher than mr singh's and of those an eight level unhandsome that the average had five point six convictions the median offender had been deported two times like mr singh and the average offender had been deported three point two times sixty one point nine had at least one percent had at least one conviction after their first deportation mr sing was well in the heartland and an upward variance requires a good reason and a major variance like this requires a more significant justification judge forest justifications were mostly factually incorrect legally wrong or surmise first the judge made an apparent factual error about how many times mr singh had reentered what it was twice but the judge all of the judge caught judges comments read together indicate that she through prior reentries that's correct and that that mistake was made in the p s are the p s are falsely stated that this was his third arrest for illegal illegally re entering the us that was indisputably wrong and it was pointed out in the in i believe she did i believe she did adopt without discussion of whether it was two or three prior years there was no discussion of that as a sentence exactly there was no discussion of it and she said serve the findings did she say with the correction that it was only two times and i think she cried oh yeah she did not she did not it was not discussed at all it sentencing and in fact she made comments that indicated that she she had the air and her mind she said he would do it again because he's done it two times before she referred to multiple course of forward looking  to what was needed to go to her as his defendant because yes he has multiple multiple legal ranters that's correct she referred to multiple reentries a word that in the dictionary is just multiple in the webster's dictionary is defined as what the court said much multiple words a multi part said multiple right the court said multiple rehan trees she also said two sentences specific specifically just factually  accurate that reflect this error she referred to the multiple times that he has been arrested and spent time in jail and then deported that only happened once because he was deported the first time after years of litigation not not as a result of being arrested and sitting in jail he was only deported after being arrested and sitting in jail once that was in two thousand and twelve next her mistake was obvious from another factual mistake which was that she asserted that mr singh had spent the majority of his adult life back and forth between guyana and the united states when this was clearly wrong he had first been deported age forty and he was forty four when he was arrested on the current a friend so he'd spent exactly four years out of his twenty four of his adult life back and forth this dave and what have been closer to correct if he had been deported in two thousand and four which must have been the basis for the original p s r error because there was there was an order of deportation in two thousand and four but he wasn't s r i don't i don't believe that specific statement was in the p s r but that was a mistake that she made that the judge made on the record and i listened to focus on even if the record is not absolutely certain that she was she was acting on a mistake about his record if there is confusion or is there is reason to believe that she may have been acting on a mistake about his record re sentencing is required and that is the july case which is cited in my brief where it was it a refusal to accept responsibility his personal letter to the court in which he both expressed remorse for his actions and offered some explanation and asked for mercy this is what a defendant is entitled to do ind it is what he should do explaining that he foolishly followed a bad crowd when he was young and explained that he returned because he had no family in guyana and had been robbed and beaten there and was frightened did not contradict his statements that he was sorry that he had done wrong that he was selfish and stupid and that he had heard his family holding his own explanation against him and concluding that this warranted a huge increase in his sentence violated mr singh's right to speak on his own behalf at sentencing to present any information to mitigate sentence and to plead for mercy this right has been recognized by this court and lead by the supreme court in green and it's codified in federal rule thirty two as a precluded from saying what he said and she just she just re it was three but she but she said she said that she she was getting him that because she didn't want to create an issue for appeal but she was going to consider this and her overall sentence so we should take her at her word that she did consider and her overall sentence  which is also subject to review on appeal and presenting an explanation for at for one's actions is information in mitigation not an avoidance of responsibility when the letter is also loaded with apologies and  admissions of guilt third judge forrest expressed certainty the mr singh would return because of his multiple reentries not only was this based on a factual error he had we entered only once before exactly average but this is the first time he was actually charged he wasn't even charged in his first fancy that was actually his first offense of illegal reentry so deterrence for this crime had not even been tried  force was in a head it had an assumption that somehow he couldn't he couldn't be deterred because he'd come back again when he had never been charged the first time and the in the importance of this conviction is underscored by the new court my name is dina mcleod and i'm an assistant united states attorney in the southern district of new york i represent the government on appeal and i represented the government in the proceedings below i firstly to just clarify one i think factual  the defendant had illegally reenter three times in fact of that particular reference was in the probation department's recommendation section of the p s r it was not in the factual part of the p s r in fact t court and to which neither the government nor defense counsel had objection so just to clarify that point that in fact of the p s r and the factual findings adopted by the district court on that point were accurate and and i think the the the the numerous references by the district court are clear that she understood of that at the time of sentencing the defendant hide illegally reentered the country two times at the time of sentenc range there were particular circumstances here that could justify this sort of variance i think first is the clear and undisputed record that would be a poet had strong incentives to return to the united states because his entire family including a minor child lived in the united states and they were either lawful permanent residents or citizens of the opera patients far in hansing us a sentence it's a problem one house  family and therefore there's an incentive to return it is your honor and i think even defense counsel at the sentencing noted that the presence of family is a double edged sword because it's both a sympathetic factor for the defendant but it also demonstrates a need for specific deterrence which is one of the section thirty five fifty three and factors that the court had to consider and the court looking at the record and the clear ties to the united states the fact that that there was no woman have any quarrel with the category and the sentence is sixty months and i'm just trying to understand why right and i think aside from the clear record as to the strong and sentence incentives of this particular defendant to return and the fact that in a relatively short  time he had been deported twice and returned to the united states the defendant has a lengthy history of criminal activity which continued even when the defendant was under orders of removal and that was something that the district court h strongly in her mind that even when the defendant returned to the united states he continued to commit crimes which negatively affected people and businesses and in the united states and so even for example and in two thousand and fourteen he was arrested and eventually convicted of this patent larceny charge the concern there was a charge it was a i believe a patent larceny charge and the concern there was that the defendant is forty four years old it does not appear that he is out so to speak of his crimes and there's a concern that he is he needs more for violent trying to prior crime that's right and i don't think there is any dispute that this there is no evidence that this is the defendant was a violent person but there are certainly evidence in the record and i don't think defense counsel disputed that these crimes faffed larceny postal faffed use of other people's credit cards to do harm specifically harm individuals  that was something that clearly was something the district court took into account that there was a direct harm to particular individuals and businesses and so i think the combination of the strong the intention of the district court was certainly to impress upon the defendant the need to upon his removal and he was not given a term of supervised release to follow upon his removal to stay to stay in ghana and under essentially understand that he could not cannot return without a period of incarceration and certainly certainly that that was the justification and i'm given by the district court and so with maximum is twenty years for this particular crime which i think demonstrates at least what congress's view is of the seriousness of this crime potentially this is costing nowhere near the statutory max in this case range top twenty one months right that's right your honor but it's certainly a given the particular circumstances of this case there are their word other illegal reentry cases and in some ways it's not it's not necessarily typical that a defendant has his entire family new united states and that the entire family has legal status in the united should receive a higher sentence because he has more family it's court felt that there was a need for protection of the public from these particular crimes so unless the court as i say have a yellow unless the court has any additional questions the government can't rely on crimes that haven't been even charged never mind not admitted or proven and just so you know the the medicare fraud alleged was not making money it was about the fact that he'd gotten investigated which was never charged never ch was about the fact that he had gotten gastric bypass surgery because he was obese and maybe wasn't entitled to medicaid for that it wasn't that he was somehow committing some cover procedure i don't know what i don't know what i don't know what even the bas investigation was but nothing came of it and i think judge chin hit it right on the head that you know it doesn't really make any sense to punish someone more because they have a lot of family here it she the judge was going  on this family here and her mistake about his his other illegal re entries and in terms of his record would i just like to focus on his record for a minute he was an absolutely typical offender in every way including his record if we look at his record it shows sporadic involvement with petty theft mostly misdemeanors with long periods of law abiding us it wasn't as judge for a seem to have in mind a case of a compulsive criminal who couldn't stop just as clearly harsh based on incorrect facts that's that's in dispute i mean the problem arm wrestling with right now is we say look it's not clear to us that you understood the say yes but that sentence is substantively unreasonable so how do we say that what's the measure we put on that given the deference that we almost invariably show to a trial judge  on reasonable it doesn't have to shock the conscience although i submit that this one does and here we have no justification as we've said he is an absolutely typical heartland garden variety offender there is no there is nothing about his circumstances that takes him even out of the guideline range let alone tripling the guideline range that is substantive and reasonableness right there and his record he had a long period seven and eight year periods with no criminal activity this man is he's a depressed man he has he has crises of depression and when his record shows is clusters here in the air of criminal activity probably a result of acute depression the latest offenses let me just know where shoplifting to shoplifting has more serious if the most serious offense he committed was when he was twenty two twenty two years ago since then the claim the small clusters of activity have been lesser and lesser offens