case number forty three nine four eight united states of america versus nancy saddler oral argument not to exceed fifteen minutes per side even braga supervising attorney for arguing law student jude you may proce others as director of the appellate litigation clinic at the university of virginia school of law i'd like to introduce to the court this morning third year law student jude alawi which satisfies the requirements for practice before this court and has the consent of our client to argue this appeal may please the court my name is to have the appearing on behalf of the public you speak up a little bit please sir my name is judy appearing on behalf of the palin nancy saddler i'd like to please reserve three minutes of my time for about a year thank you your hon entitled to deference but not when the sentence was determined and he substantively and reasonable are you are you suggesting though that the judge has to be civically mention each one of those things that order t constitute a review of all of those factors it seems to me that in looking at the case the judge took note of her medical condition did not go down each one of those points but how how does why doesn't that  state that the record leaves unclear whether or not she considered her medical arguments there's simply no way to tell from the record whether or not she in fact did evaluate her arguments well i mean she did  she asked about her surgeries and if you look if a closer look at the record reveals yet she didn't inquire about some of her medical status but in so doing the record demonstrates that her increase was logistical in nature she was trying to tell us a timeline for the two different surgeries because she was not aware of the fact that she suffered she had a few cars both back and xor tree well so for this argument you would agree that our review was playing here yes  r nobody objected to the district judge that she had done more than she did and i guess i mean are don't you have a problem with the fact that her counsel at sentencing hearing devoted one sentence for this issue namely medical situation is such that perhaps the time she's serving is harder more difficult than the time which would be served by someone without that whole i mean so we have this you know this sentencing hearing that goes on for a decent amount of time just one sentence in there to make an argument you know your honor therefore under this standard you should do this and i'm just having a hard time seeing that you know actual argument here which means i'm having a hard time review let me ask you another question if defense counsel as the judge imposed sentence said objection your honor you have not considered all the section three thirty five fifty three factors and the judge said oh didn't i phrase it that way well let me say then i have carefully and run through the factors considered all of these excuse me then you would not be here this is an appeal that is avoidable by counsel defense counsel at the time of sentencing if defense counsel is dissatisfied with how the court has reviewed the elements considered the three thirty five fifty three elements by making an objection then and counsel could have if counsel doesn't and the court could cure the problem immediately and we would sitting here on an appeal so if counsel does not make that argument the result is that you come here on a plane air review basis and you have to consider that defense counsel failure to make the objection in a timely manner has caused the whole appeal to come about and so should we not th look as the court has suggested in the plain error mode to see if really the health issues were brought up and that the court having heard all of this in the in the decision process had to have taken into account what was testified and placed on the record before the court in discussing the sentence it's a long question indeed it is an elevated standard that we must satisfy and i'd also like to point to the fact that in your hypothetical had that been the case we still might be on the procedural error and the fact that the record simply does not reveal whether or not the judge understood the mitigation argument or gave it proper consideration well it doesn't read us a bit and our court i mean don't they say that we don't require that you have to give sort of an express refutation of every argument when it makes sense especially simple ones i mean this is a very simple argument as compared to you know some super in i think you're on your friends to the consumption simple argument first the first i want to point out about the consumption simple argument is that it's sharply limited to those arguments that are so simple and so obvious that any explanation is absolutely unnecessary now  medical an argument for mitigation due to medical problems can be a concentric simpering but in this case it is not and it should be distinguished from those cases like lam were in lam the the defendant simply argued that he suffers from heart problems he suffered a heart attack at the age of forty and he was arguing that she's more likely to serve a more stressful time in prison but you know i understand that that might be considered conceptual simple but don't we have to look at all of this in context here the judge summarized her medical conditions and whatever those medical conditions were there was no showing that those medical conditions could serving because of that kind of reinforce the conceptually simple argument i think you know if you if you look at specifically what she testified to and what she's suffering from it is far from a conceptually simple argument she first of all she suffers from nobody made that argument to the court that these things were not capable of being treated with them but your presence as judge kessler said there was one line sort of devoted to this the judge summarized all of this and saw nothing to take this outside or nothing that was shown to make this so severe medically complex that it couldn't be dealt with and i think that reinforces the conceptually simple and i would ask why you why you see at that a different result justifications for leaving a consensual simple is that it was simply a legal argument that the judge had heard many times before in our case it's very complex and factually based she's dealing with multiple diseases that are complex the interrelated out she's suffering from these on a daily basis and the argument itself might be a simple might be a just a health based medication but the sentencing guidelines and section thirty five fifty three certainly don't present this as a  simple argument they are in multiple parts numerous parts they offer ways and avenues for the defendant to receive a mitigated sentence so they certainly don't think that this is just simply a one shot medic it's a geisha ok well you'll have reasonableness claim and abuse of discretion on the substantive reasonable this claim and in the government's view those standards certainly dictate the outcome here just a few brief points first turning to the procedural unreasonableness claim  the district court's failure to actually spell out why it rejected the medical mitigation argument if it even is an argument was not an error and it certainly was not plain air under this court's decision in  note my colleagues argument that sadler has many medical conditions that does not mean that the argument is complicated the government did not dispute that these medical conditions existed and so the court was really left with a very simple straightforward question does the fact that sadler suffers from medical conditions warrant a reduced sentence and the district court answered no also is judge donald pointed out there was no argument that the bureau prisons could not treat saddler she's designated at the care two level which means that she's a stable outpatient she requires quarterly evaluations so again under this court's decision in wagner there's there's no plainer turning than to the substantive reasonableness claim the district court appropriately considered and weighed the thirty five fifty three eight factors that were relevant in light of the vacated wire fraud conviction  the district court found that the vacated conviction really didn't change the serious nature of the offense and that's because it didn't change the fact that sadler had operated a series of illegal pill mills and illegally distributed the technical requirements of the wire fraud statute and it's had to do with the fact that sadler did not actually deprive anyone of property although she purchased drugs under false pretenses this court found that that wrong that's exactly right your honor yes but back to the substantive reason when this point the the judge it was entirely within the district court's discretion to find that that didn't change anything at all because really the crux of this case the crux of the case concerned the defendant's operation of these  the bottom line or one of the most important things to understand about the waterfront count being it was that it was vacated and that's certainly not a trick he went from being convicted of four counts to three counts but yet the sentence remained the same and as i mentioned earlier this is entitled to deference but we contest the way the sentence was reached and we say oh substantively and reasonable and if you look at what one of the things the judge said in the sentencing transcript is quote the court remains convinced that the factors were addressed in the prior judgment this indicates that she did not review it to novo she was just doing the factors and how the vacated count affected it without going to without expressly excuse me without analyzing the other factors well that because she was not convicted of it so that in our opinion that certainly should have an impact but she said it's relevant and and she said it's relevant conduct because notwithstanding the maker of the wire fraud conviction i mean what's what's wrong with that you know and again i go back to the fact that it is relevant conduct in it may have been dismissed on a technicality but she also really was twenty five percent of the counts and the reason that she was sent to chose is just gone and briefly just before my going to answer i would like to just make a quick comment on foreigner i think in that case you can you distinguish functional basis because there the argument is was that it's not going to enough