our final case for argument today's united states against  walter blackman pled guilty to delivering drugs to a confidential witness he was there after sentenced to one hundred eighty months that stemmed from the court's finding of a guideline range of one hundred sixty eight to two hundred ten months heard many times for the past many julliard i would like to start there are our sure court shows that standard or st distinguish one defendant from another that seems to be the state of things for anybody who is being shut ins for a crack offense so the question is under this circuits war doesn't this snowball the on the stock argument well judge i'm not sure it's the circuit's law under morris but to directly answer your question about a stock argument i don't think so particularly in mr blackman's case because a trial counsel and there were extensive extensive memoranda and argument that were non stock about the guidelines particularly as it applied to mr blackman one of the things that was in the written memoranda and the oral argument was that mr blackman was african american and obviously not all african americans are before courts surprising to me that if you make an argument based on something that both are guidelines and probably the constitution rule out as relevant the judge isn't talking about that either well this was a thirty five fifty three disparity argument so it wasn't a guideline argument it was telling the court for example that in two thousand and six the sentencing commission found that eighty percent if a district judge said i'm giving this man a lower sentence because he's black that would be summarily reversed yes and that that's not what i was asking i was bringing to the court's attention statistics i was also bringing to the court's attention as it applied to my client that the powder guidelines pertaining to my client were much more in line with the ten year mandatory minimum which was the sentence that i believed was fair and that i was arguing this is a man who came before the court pled guilty pled guilty to additional relevant conduct and then tried to express that if he were charged with powder his sentence would have been substantially lower and i judge i i believe morris which is this case is a very recent case here two thousand and fifteen i think the worst case was on all fours with our case and although you're calling it a stock argument it was the same kind of argument that was raised in morris and this court basically said look it's impossible discern from the record whether the court credited morris for principal arguments which were by the way in morris crack powder and sentencing manipulation which ironically were ours those were our arguments we were just addressing the crack crack powder disparity this morning but morris says we have to remain and because we can't could discern from this record the district court judge was silent on the crack cutter disparity although it was raised orally at the sentencing and in multiple memoranda and i would also raise with this court that this isn't a case where you can say that because the district court address the seriousness of the offense which he did and the government argued this in there bruce he does the judge talked about how serious these drug cases were talked about the  therefore implicitly the judge said ok i'm not giving him a modified guideline such sentence but that's exactly what happened the united states versus our bury a two thousand and ten case before th court and the government argued the very exact thing and this court said it doesn't matter the record does not show that our berries crack powder disparity argument was ever considered there is nothing implicit there surely nothing exploits it in the record the government can see that there was nothing exploits that concerning the court's consideration of this matter so i believe the precedent in this court does allow for the consideration of the for the procedural error committed by the district court in not considering that crack powder disparity and going back to morris first second what's interesting about morris also is this court said i understand that that was even a below guideline so implicit in the below guidelines surely has to be that the judge considered crack powder however this court said sorry records blank mr blackman's record below is blank concerning this disparity that applied specifically to him that was address specifically to him regarding his characteristics regarding the statistics concerning african americans those were all the things that please the court i'm assistant u s attorney carol l and i represent the united states the crack cutter disparity argument defendant made is a valid mitigating argument and the district court did not expressly address it however the court imposed an appropriately individuated sentence for this defendant discussing the other arguments the defense counsel presented that were more defendant specific also discussing at length the seriousness of the offense and the defendant's background as a gang leader and serious drug trafficker as well as his significant criminal history including federal and state convictions for attempted murder drugs and guns this was an extremely thoughtful sentence the basis of which the court laid out in great detail after reading the party sentencing memoranda which included the disparity argument the court was undoubtedly  orally at the sentencing there is no way it seems to me to determine on this record whether the judge considered it and if not consider and the argument and found that disparity argument persuasive and one way we can see that is by looking at the fact that the district court here chose a sentence for this defendant that was within the middle of the guideline range and we see on the record how the court articulated why the range and why the sentence it shows were appropriate for this defendant based on his criminal history and characteristics as well as the seriousness of the offense in comparison the the sentence in morse was below the guideline range there and also that argument in more seem to be more tailored to to that particular  defendant being that the argument presented in morrison was that the weight of counterfeit substance combined with the crack powder disparity unfairly drove the guideline range significantly higher in comparison with this case i do believe the argument presented was less focused on this particular defendant and was more of a generic argument asking for the one to one ratio to be applied but i believe the record does show that the court considered it and rejected it i really don't understand your argument how was this not a principle argument in mitigation given that several pages of mr blackman's briefing in briefings certainly and i think i heard in a few minutes ago that judge chang did not address it and address it talking about not what you  about the disparity issue when it at the sentencing but and the the government looking back on this on the sentencing and found there were approximately five or more arguments presented by defense counsel in mitigation certainly the disparity argument was one of those that was raised and discussed at the sentencing hearing but whether it's labeled as a principle argument or not does not seem to necessarily be the end of the question some arguments could be labeled principle but may not merit discussion this argument certainly was more a generic one to one ratio argument and the court by its record by sentence in the middle of the guideline range did not seem to feel any sort of have feeling any sort of feelings of restriction or discomfort with the the guidelines issues relating to drug quantity and the gun possession and the party use to do the extensive breach fame which was considered by this court among the the many filings that the parties made sentencing memorandum before the sentencing at which the cooperator testified the briefing that followed after that january testimony was more focused on the guideline issues which were as as your the government's argument that the fifteen years was an appropriate sentence is not relevant to the issue before the court the issue before we don't get to the reasonable ness of a sentence until we establish that the sentence saying the sentencing was subjected to proceed generally correct was procedurally correct so the government can speak all they want to about their the district judge has to advise or defended over rule eleven so that the district judge will go up with the bench for us and the bench book which i have to mention that i'm with directing the following arguments and then click click click click with that improve the quality of sentencing probably not i'm pretty sure i've done a lot of sentencing set i don't think so but when you have an argument that is so principle and so impacting and maybe in every just be checked off on a list i have considered your timber argument and i'm not persuaded next checkbox i don't think humans are it spawns like that but judges courts make mistake and this court failed to address that the major or the major argument that impacted his sentencing more than any other thirty five fifty three factor there were was tops he was already in his fifty's i understand that this was the principal argument and it was ignored and by the way morris case the judge considered the same things that the judge here considered the seriousness of the offense the history and characteristics of the protection of the community rehabilitated programs and this court excuse me the district court in this case said he had to consider turns generals and specific the sentence how to reflect just punishment and to protect the public pub look as well as to promote