there are a number of issues and maybe a place to start a number of issues with which we are in agreement with our colleagues on the other side of the aisle does include the fact that the court has jurisdiction two securities also another point of agreement is that the district court should consider all of the section thirty five fifty three factors where we are in dispute is that whether there should be a substantial way given the guidelines whether there should be a presumption of reasonable is given to the guidelines and exactly what the section thirty five fifty three c requirements are with respect to what the district court should say on the record or what it must put on the record helpful to the record must be and then finally the importance in clause and i would like to start this morning where the supreme court so often tells all of us we must start and that is with the plain language of the statute section thirty five fifty three priority government here today would ask you to elevate the seventh factor on the list the seventh factor on the list to a super priority status  e as i said earlier any primacy to the guidelines so we're here today counsel let me ask you a question about that you quoted from justice scalia's dissenting opinion or dissenting in part and i wonder why we wouldn't start with justice briar's opinion switch that saves the guidelines he says exercised to specifics that you tory the remainder of the act satisfies the court's constitutional requirements why doesn't that mean that we just change the word shall and thirty five fifty three b two should generally change the standard of review by deleting the controls on that and the rest of what congress did six because the supreme court exercised thirty five fifty three provision that requires the courts to impose the sentence within the guidelines range but i don't see where all of the does that it looks like only that shall in the first sentence those that i would agree as to the reading  thirty five fifty three b but disagree as to the reading a book or book or quite clearly says i don't have the reference immediately to handle that those provisions are thirty seven forty two and thirty five i do have a page sixteen if you want to get a handle ok it looks to me as though you're asking us to delete a whole lot of law that congress wrote and i don't know if we can  the mandatory provisions of the guidelines said justice briar and i would also say that there's quite a lot of back and forth in the opinion which which demonstrates that thirty five fifty three b is out of the picture because there's a lot of discussion both between justice briar and justice scalia and the other dissenters as to the as to what remains with respect to thirty five fifty three a as your honor might remember justice scalia spends a lot of time talking about how much discretion district courts now have under thirty five fifty three but even if it's not a majority opinion that he wrote no it isn't a majority opinion although he was in the constitutional majority i would i would i would  because we can excise the mandatory part and leave the rest alone and that was it and make the guidelines one among the factors and in the other things that justice pryor does say in the opinion and i do have this at hand and page two sixty three  to sixty four is that the district judge shall shall consider the guidelines that gather with all of the other factors in section thirty five fifty three as a that makes no reference your honor to and if all we have a thirty five fifty three i think and when i was a district judge before and after the guidelines and the before with thirty five fifty three you could do anything counsel perhaps you were looking for weight and apply the facts and circumstances to the case to determine in a kind of modified totality of the circumstances to ask how much weight each of those factors should get at the outset they all get equal when there's nothing in the statute that says they should give more remove the guideline sentence from the range of reasonable man i assume you will have done that in the district court and i assume that you would not expect us independently did novo to look at the three five five three eight factors in figure out on our own initiative whether the district court got it right reasonable if i understand your honest question i think those are two sides of the same coin in the sense that the appellate court looks at the thirty five fifty three eight factors independently and determines whether or not those factors look at the thirty five fifty three a factors if the court looks at those factors and the determines that that the the district court sentence falls within the range of reasonableness that's game over counsel visas well in the sense that if the court at the appellate court says that the range of reason are look at thirty five fifty three i indicated the range of reasonableness here could fall anywhere between fifteen years and twenty five years the district judge has sentenced to twenty years was giving the district courts significantly more discretion so how if it is giving them more discretion then once we have a system that's clear as to the procedure that should be replicated in each case by a district judge would we not unique that this for judges application of that for abuse of discretion you know because of the court's independent duty to look at the thirty five fifty three a factors that for over a decade this court has been clear about what thirty five fifty three c simpliciter requires i'm referring to us be conklin's nine f third thirteen seventy seven and from hundred ninety three and the court there said that the district court must and this is pre book or the district court must expressly state in open court without its adequate specificity the reasons for it enough when i look at the thirty five fifty three crackers nature and circumstances vance history and characteristics of the defendant seriousness of the events in her and and so forth those are all the things that the sentencing commissioners are supposed to take into account and that whole sentencing commission remains in place if your book or the whole guidelines formulation process remains in place why isn't that enough of a reason taking into account the thirty five fifty three factors if the district judge says this is in accord with the sentencing guidelines which take into account the thirty five fifty three factors the most direct response and  to reserve my time for rebuttal and respect my co counsels time but the most direct response is that that would render the other provisions of thirty five fifty three a superb fals which one of the thirty five fifty three a factors is not taken into account in the formulation of the guidelines the the history and circumstances of the defendant and the specific circumstances in seriousness of the defense of the office i'm sorry she is i remember those are the main things one it's the very first one  remember that's exactly what the guidelines do they have that graph with the history on the x axis and the fence characteristics on the y axis and i would refer you then to chapter one  of the guidelines where the commission itself explains in setting forth the guidelines that although it was mandated to do that it was unable because of the complexity of that to consider all of those factors and as your honor has doubtfully heard or read there are numerous factors that that would pertain to the history and circumstances of the defendant that the guidelines themselves discourage is so she's just mean that district judge could say i don't believe in sentencing any people in this class to prison time or i think that everybody who commits this offense should be maxed out because of the seriousness of the offense no  good morning dennis charlie representing a appellant zavala a sentence within the guidelines range should not be presumptively reasonable because a presumption that a guideline sentence is reasonable is no different than treating founded in a three five five three a factor because a guideline sentence is itself the factor is one of the fit is a factor then it's factors and at least weighed them independent if those factors are called to the district court's attention in some way that either party said as should create a sentence that is that is consistent with the parsimony press this is true but what we talk about when we talk about these issues of a presumption and we compare a presumption that the government wants this court to adopt versus the mandate the booker has rejected we know and we can see that when we have the issue of a presumption we have a requirement that the defendant engage in some type of courtroom activity to change the mind of the individual with whom the presumption exists so pardons and tell me why i that is true which i think is again placing inordinate weight on the guidelines you know in the in the hump decision i don't know if that was the eleventh circuit one of the other circuits and a transcript of a district judge correct and the problem we have in this case and what the government is attempting to get this court to hold is that the guideline sentence should be presumptively reasonable on review and should be the presumptive sentence to be imposed by the district court and a presumption in a mandate are basically the same thing just wearing different clothing it is in fact that de facto mandate de facto sentencing guideline obligation and just the school even commented on in his dissent why a presumption survivable a mandate isn't  actually the mandate that the set that the guidelines should be followed pre book are still authorized some exceptions when you could get out of the mandate and the presumption that the government wants you to adopt at this point time also still requires the defendant or the government if it wants to go upward out of the departure out of the guideline range to rebut the presumption that the guidelines that is the appropriate sentence and that is to the disparity of the parsimony provision which says that each one as long as long as the district court has also considered the other thirty five fifty three factors i think that that would not be an inappropriate conclusion for the district court to reach because sometimes the thirty five fifty three if that will have far more significance then another  you know is a factual question is a legal question is it a question of of discretion i don't think that this court in reviewing capacity should be looking into all of the history behind each and every one of the particular guidelines that have come into standards if we don't give some significant weight to the guidelines your client was facing as i calculate it zero to life in prison if judge windmill had gone through all  factors and and given a reason why he thought that a sentence of fifty years would be appropriate based on your argument that should be sufficient and essentially untouchable on  he's done what the statute requires him to do so long as he has not treated the guidelines as mandatory which it appears that from the review of the transcript in total is what occurred in that case but you wouldn't like it if the guideline range had a maximum top of twenty seven years and he chose fifty but carefully articulated each of the other factors in a as to why he thought fifty years was appropriate and that is the razor's edge in this argument from both sides the point is that the government is also under the construction of a presumption under judge windmill's decision in this particular case and it is neither the government nor criminal defendants who should be operating under strictures the government and defendants together should be able to come into court and fully explore all of the thirty five fifty three factors without the court having particular emphasis on one before we even go into court and making those types of decisions and that why don't i mean i think that that's a good and made it please the court my name is michael drippin and i represent the united states and it's an appropriate point of departure in trying to figure out what weight the guidelines get in the advisory guidelines process to look at four critical features of justice briar's remedial opinion for the court in booker first justice prior said and i think all members of the court agreed with the congress the us report second justice prior said that although congress his goal cannot be achieved to the extent that congress desired it since mandatory guidelines were no longer an option there were medial solution that the court adopted would continue to move the system in congress his preferred direction that's at page two sixty four third justice pryor explained again it to p two sixty four that the reason that there were legal system would continue to have this effect of moving in the preferred direction of uniformity is that the commission would continue to sit writing guidelines encouraging the better practices reviewing the work of the courts of appeals and thereby disseminating to all federal judges its views on those matters and second appellate review would for an reasonable ness would provide an additional check and the fourth point that the remedial opinion made that i think is critical here is that justice prior said appellate review would tend to quote iron out sentencing differences that's on page two considering the guidelines together with all of the other factors which would undermine giving them any sort of substantial weight over the other factors and even see that is inconsistent also don't think that it's inconsistent with giving the guidelines weight as what i would describe as an organizing principle for sentencing courts and appellate courts and the reason i say this is because one of the mandates in section parity five fifty three also important and it's important if we're going to consider this not just half of the object that's right chadron hard and i think that the only way that those two objectives can be achieved and the harmonized if i all actors in the system are at least beginning from the same starting point and that is the sentencing guidelines range i'd like to stop right where you said starting point isn't that really what the guidelines are intended to be reform act not only the process for sentencing but also a commission which was empowered to consult with all actors in the federal criminal justice system where you have sentences have been imposed historically consider the statute that would give us or him to one of these factors namely the fourth one is to be given special particular way but i think there are several features of the statute that lead to that conclusion critically the court is obligated to consult and take the guidelines into account critically the guidelines are the product of the process that i previously described which drew upon the commission's experience and expertise eighteen years of refinement of the guidelines and critically one of the goals and i think everyone agrees that it was the crucial goal of the sentencing reform act was to move the sentencing process away from the area where every sitting federal district judge plenary discretion to decide sentencing policy and move to a system in which federal judges were operating on more of the same script and that's reflected textually in thirty five fifty three eighty six which requires judges to focus on the be achieved that gives some weight to the need to avoid unwarranted disparities well individual izing the sentences judge reinhart pointed out in light of the particular characteristics of the defendant and i think the way that that is achieved players especially to the extent that a judge not only consults them but recognizes that they have a special force what you know when you start out a certain thing the district court judge and counsel have the pre sentence report in front of them that the guideline calculation becomes the presumption of up to the defendant or the government for that matter to push way the district court judge to either give you whatever terms you can to use the part and sounds like you're back to where we were before booker you know it's not back to where we were before booker because the judge not only has an obligation to consider all of the thirty five fifty three eighth's actors but the judge is not limited forty well i don't have it in front of me at the moment first time so i'll defer to you if you do but the guidelines include both guidelines and policy statements and for court not to look at them i all of the policy statements are important and relevant to the application of all of the guidelines and the departure guidelines and the departure policy statements have to be read as an integral matter because the commission when it designed the guidelines recognized that they particular reason for the sentence there are greater burdens of explanation if the judge goes outside the guidelines range under thirty five fifty three c but that's not what happened in cardiff by see them and trying to read this  to give the specific reason for sentencing outside the range if that's what he does but there is that obligation in the second obligation is an obligation to consulting consider all of the factors and thirty five fifty three a the statute does not say that the judge has to do that not the guidelines it's based upon and i can't remember them all but in effect based on age and family circumstances and some other things that  so why isn't that even if you don't have to have a checklist approach are sufficient to require reversed judge driver let me say first why i think that the court can affirm and then explain what i think the court should do if it believes that more needs of a minor situation denying his guilt continuing up to the time of sentencing to deny his guilt he offered a variety of mitigating factors which primarily had to do with his disadvantage upbringing as mental capacity and the fact that his family depended on him and he brought a lot of family members in and the judge got there and listened to all of this and he said he considered all of the papers that he had been filed he considered the p s r which had recommended a sentence at the top of the guideline range two hundred ninety three months and at the bottom of it two hundred thirty five months i think the court can infer from the process of reasoning and the two things that he did say which is number one the jury's verdict binds me and number two the family support that you have is unusual to see and it's going to help you that he concluded that the severity of the offense conduct properly put the defendant within the guidelines range where he had enhancements for example having somebody under his care and custody but that the defendant's family support was a mitigating factor that should negate what the probation office had recommended now that's what i think the court can infer if the court concludes that either as a matter of section thirty five fifty three c or as a matter of fact supervisory powers more is required induced any particular fact that matches on to one of them and i think it should also avoid requiring district courts to have to respond to every argument that a defendant makes no matter how weak or no matter how implausible in a particular context a rule of reason should apply something along the sliding scale if the defendant offers reasons that appear to the appellate court on their face to be particularly powerful then an explanation would seem appropriate if the reasons are very customary and typical that are offered in a particular kind of than a judge or passes over them in silence should no more be faulted then this court would be if it affirms by memorandum opinion or without addressing every argument that a defendant make thirty five fifty three i don't see why any of the congressional goals that you mentioned require that a presumption of the liberty be given  labels like presumption which i think can be a little bit distracting what i mean by that is the judge should start and i think as judge rymer described it the guidelines have been constructed with an effort not a perfect effort but an effort to take into account standard sentencing practices as modified by policy concerns and they provide a basis that all federal courts can use to my understand that and that's my end cantrell i wrote an opinion saying they should be a starting point that term is distracting what i think that the judge should do is recognize that the further away the judge goes from the guidelines range based on consideration of history in characteristics of the defendant for example the more risk there is of unwarranted disparity in the system which would contradict one of the goals of the statute and so what the judge should be to bear in mind is that the farther away that the judge is considering sentencing from the range the more compelling the reasons that the same statute would encompass the very worst defendant as well as the one whose culpability was very least and unless there is some rational effort to stratify defendants within that range according to reasonable their culpability the sentencing system would literally be chaotic it would require and i think this is really when the end what the defendant's position reduces to in these cases it would require either every district court to act was designed to address it would put all federal judges in the position of making their own best judgment about how the various abstract sentencing policies there on a particular individual i think it's highly abstract judge wardlaw to say how much punishment is just punishment for offense if that took a poll of each of us in this room we would each have a different view about how severe a particular economy is you m the other factors clearly just as prior in vision that the guidelines were going to continue to play a central role in meeting congress's critical goal of let me ask you an overly simplistic placed on a scale of one to simple is that the prescription of simply taking the statute having the sentencing judge look at all of it and do what the judge thinks best is basically a recipe help to move the sentencing system in the preferred direction but i don't know how the mildly i guess gets to the question of whether we're talking on chichen shredders scale of a two or a seven and i think that the fact that the court in joined the appellate courts when it gave them the mandate to systemic wide view of the criminal justice process not just the lens that you get looking at one individual why are we backed into a constitutional problem that we start giving him any special way you may answer the question then we'll have to thank you i think i'll try to answer the question by closing where i started which is talking about the book or opinion and to answer judge berg's on constitutional question on page two thirty four i believe of the book or opinion court describes why the departure mechanism was not adequate to save the guidelines and the reason it was not adequate is that departures under the mandatory system were not available in many or most cases they were rarely available they were usually legally precluded that's reason number one because that's no longer true in most cases a judge could look at the history and characteristics of the defendant has been unreasonable in sentencing outside the guidelines is left to the appellate courts it's not mandated by statute it's not a legally enforceable rule that's provided by congress it is the article three branch itself giving a second system that poker would be violated again we would maintain that there is no difference between a presumption of reasonable ness on the one hand and a presumption of reasonable not fall within guidelines sentences and presumption reasonableness for outside guideline sentences take a simple example you tell me that the presumptively reasonable cab fare a cab is ten dollars that says something about nine dollars and eleven dollars and if the question comes in and well why is nine dollars unreasonable or why is ten dollars reasonable the answer is the same there's a burden on the defendant to respond there's a higher higher at the denture a burden that the that the defense must hurdle at that point ye court can look at it and how it is that that sentencing is not unfounded in the way you describe judge reimer you raised an excellent point about plain error on review and i would not be honest if i didn't come here and say to you that that is actually an consideration did you apply point eric to that standard we would maintain in thinking about this question in advance here today the answer is no and the answer is no for an important reason the sentence in colloquy is exactly like a rule eleven  should be reviewed for harmless error we will maintain that that would be the proper standard that it would be harmless fair because it is an independent duty of the judge to apply these factors that's it's it's not whether this is he need a presumption why is there a why is a mechanical presumption necessary to demonstrate that the guidelines have some virtue that they are the the the pronouncement of of a wise commission with with to i think by looking at the thirty five fifty three factors and determining the court has to do its independent review doing an independent view looking at the thirty five fifty three a factors and determining whether that sentence falls within range of reasonableness reasons can be attacked and reasons are not in advance of the current question funny very briefly reasons are not the same thing as conclusions thank you