states versus carter was clear it told district court you must place on the record your particularized reasons for sentencing a defendant as you did and in this case the guideline range of six to twelve months the district court more than sentencing mr fisher to thirty months and providing no reasoning the only reason he stated was i think we've done all we can for mr why didn't it clear why he did it he gave them repeated chances in the guy wouldn't and your client wouldn't follow the rules and get violated in that case here it's not clear your honor and it's not what's required by statute it's not what's required by this court in carter and what was required in thompson and you think that you don't think we can figure out why the judge did it now you may say that he didn't state it on the record as is required but you don't think from this record we know why he did it they need telling why why he did it he did not but but more importantly this court has said we only at the hearing you baby can't go back and look at the course of events just like you are the best rule would be that the court should contain itself to the hearing  find any law this court saying you should only contain yourself to one hearing or you should go back but if this court sets a rule allowing parties to go back into the record and to look for reasons and other hearings when does that stop you can imagine a case in which a party comes to the court and says well he didn't provide any reasons on the record for the supervisor lease violation sentence but look at the record at sentencing and he provided transcript here's why here's why i did it if it's clear now you can argue that it's not clear but if it's clear we can glean from the proceedings even earlier proceedings while the court did that well why wouldn't we look at it the court in this case no no no no i'm you shouldn't is first the district court made no mention he didn't have to go back and read the transcript all he had to say was i told you before three three four words one centeno what you're answering from the facts of this case i'm talking about the general principle of whether or not you just said we shouldn't go back and look at prior proceedings i'm asking why him it is a hypothetical now if everybody agrees that in the prior proceeding the court  do would be to ignore the parties arguments made at the second hearing in everything has to be able to record at the sentencing hearing that's given rise to the appeal that's what that's what you want to be confined to that i would be appropriate is to be confined to we appealed one ruling of the court and that was the sentence imposed as part of the second supervised release by lation hearing thirty bombs correct that's what your feel as you say we should be confined to what form the record in that proceeding when one of the judge said well for all the reasons i've said in the course of the handling of this cited chapter and verse again with the just that kind of adopted early would that be likely it would be enough the burden is not onerous on the district court and that is what is so before i'm doing this it fairly obvious that that's why he's doing it if he says in the earlier hearing i should put you in jail for these five reasons but i'm not going to  would give you a chance but if you don't live up this chance i'm putting you in jail three months later you back in there goes he knows he's been in front of him before that's correct and he says put me in jail while what you say if he just says i'm putting you in jail we can't look bad but if he says i put a new jail because i told you i was going to because i told you i was going to makes a difference in what this court looks at this court does it require no obvious action your question i think it does make a difference because what we're asking the court record why the sentence imposed was particularized to this defendant and even if this court goes back and looks at the first hearing and the second hearing the court didn't satisfy that requirement that's a different argument that's a different argument that's a fair argument i think you could make but you but you start out by saying that we should not for some reason there's a rule that we should not or cannot go back and look over the court earlier that's what you you are i would start with that position if you disagree with that position we can go on and say even if you compare them in total he still doesn't satisfy his burden and one word that i would like to draw the court's attention to in the first hearing is the district court said what i would do in this case normally and i think the fact that he used he said very little in the first hearing but by saying normally indicates to this court that he was not making a particular arised assessment as to mr fisher and the court can consider that statement beyond that he he really doesn't say very much as to the specific sentence why he's imposing it and he certainly doesn't indicate he says i'll send you to jail for a long time isn't it clear that he was not he was he was saying to him i would normally put you in jail but i'm going to give you a chance in that and that what he did in that what he said and is that clear at the first sentencing hearing that's what this judge was doing i don't we put you in jail but i'm a work within give you a chance you don't think that's obvious what this court has said in the past if i may ask you do you think that was obvious at the first sentencing hearing i think it was obvious that if mr fisher came back before him he would give him a longer sentence but it was no indication as to the amount of time and so it's not simply am i going to incarcerate you or release you but how much time specifically  big we talked about looking back did beat two prior record that's right over what period of time well his original sentencing was in two thousand and four your honor right so you'll be going back six years to look at the record of what was the second the second one is was in two thousand and ten and then the second the the first place in hearing was in two thousand and ten and the second was in two thousand and eleven  put him in jail for years but instead be doing he do in your client a tremendous fight for and he's making that theory and he does make clear at that sentence but what this court and what the statute says is that you have to consider the arguments of the parties and what happened after that hearing and the court didn't do that we made the the government made arguments and we made arguments as well that the court have given him five years at that time he could judge said at his sentencing if i say you want to revocation i'm sending you to the to jail for the statutory maximum he comes in with a revocation which is simply failure to submit one monthly report and the judge simply says i find you guilty and i sentence you to five years would do it and it might be harmless anyway but if you could look back and they were sufficient and the court could we could find that what the judge was going to do and it was individualized enough at the first sentenc i told you before i was going to send to what i was teasing to a period of incarceration but i was teasing and i wouldn't i didn't really mean that you know he could have simply reference the reference his prior hearing and said well what does he have to reference to this on the try to weed out what the the judge is is thinking the requirement is that the judge state his reasons on the record what it is it is an error why isn't it harmless there it's not harmless there are only two cases that i could find and that  that he had had other positive conduct on supervision and since being released from the first revocation sentence so there had been new conduct which we also referenced what i think is important is that in this court in the two cases in which it found harmless error in both of those cases there those were guidelines sentences and the defendant actually received a lower end of the guideline sentence and in this case which is substantially different the defendant received a sixty percent did apply was hernandez phrase which is in this court and also the case where case but in both of those cases the defendant received a guy sentence which this court has noted is important and it was at the bottom of the sentence and so i think that makes it substantially different in this case than in other cases what we the harmless error doctrine currently is very nar tailored and if this court were to say broaden it as the government ask you to do you're asking the public court to step into the role of the district court basically you're this court will be required to come  through the record to determine whether the judge stated anything on the record this court will be required to consider the arguments of the parties to consider whether or not they are weak but if they are that this is a hypothetical in fact it was clear if it's hearing what you what you just said that i think would be sufficient but that's not what he said i know that but then you didn't you allowed then you think homeless or would apply in the appropriate circumstances in in in this in a revocation this cour is based on your holdings in united states versus credit tennis progeny this court review sentences imposed on revocation supervised release revocations of supervised release to determine if the sentences are plainly unreasonable it plainly unreasonable for the government has the burden to show that the error was somehow harmless like this court is done and all the cases analyzing this issue i'll look at this in a step by step amount of course addressing whether the the sentence was on reasonable if you determine it was unreasonable whether was plainly unreasonable and if it was plainly unreasonable was that error harmless now the brief statement from judge spencer that that is the nub of this argument it was the following mr fisher we have done all we can for you now with that statement looking at that statement in isolation that statement probably is on reasonable but if you look at that statement in the context of this case my argument is that that statement is not unreasonable to think that it's unreasonable to think i unclear and reasonable but saying we've done all we can do for you not that it's unreasonable that we've done all we can for you judge but it doesn't go through a step malices you mean it's not sufficient right right but that's probably about it lay out why are you saying that appeals to look at the context of a seven year record if you look at it in that all that in the record of the seven years everything that happened there there are arguments in the record about what happened your honor yes all of them  all the seven years or records in there the total seven year record is not is not going to matter to me we don't even have a computer but we know there were three here yes yes yes this is what you do know you on a you know that there were three hearings you know what he was convicted on originally you know the senate's that he was received originally you know the fact that he got a fifty five percent reduction for his cooperation you know when he started supervised release you know he violated his super raj release shortly after starting for the use of drugs you know that the district court addressed that he used drugs addressed that he had gotten a significant break address that he probably should put him in jail for a longer time but chose we then come back for this next violation where the defendant gets out and he continues to use controlled substances and he's brought back for using controlled substances and by a lady covered back in two thousand and eleven this come back in two thousand how was that like that is that are you saying you have to go back to you say you can go back which is i guess i'm not saying you're legally required to go back to just to be precise oh well you know you required to go back to understand that but the judges and ten didn't he between the government the defense and the judge they sort of summarized and talked about what had happened previously yes about the break he'd gotten yes and you'd normally go to jail yes so you have to go back to the on two thousand th again you don't have to go back seven let me go back somewhere because you've already said that this what he says is not nuff passed muster we have all we've done all we can for you that's not enough government concedes that so what you're saying is this is harmless error because we can go back and look at the prior records or whatever and ascertain that what he did in the context the whole record was reasonable yes sean i that the statement by itself i see how it could give the court some problems but if you encompass the two thousand and ten hearing and what happened in two thousand and eleven i think that tells that informs the court what that statement manes that mr fisher we've done all we ca would be a better situation that would be the best way what we have here that would be the best way but that's not what i mean if you've got to hand it your rebel right right exactly so i excepted you where dad have been might that have been a little bit better approach of that your position that that would have been a better approach than to have done that i did try to lay out on the record in my argument the various reasons why an above the times a defendant can and maybe should be sinister greatest sentence by the district judge for any number of reasons decides to give the person a break oftentimes it doesn't happen but in this case it happened this district judge completely warned him was more time i'm giving you a break but you want to stand you understand if it doesn't work if the probation officer brings you back in here i won't have any choice but to send you to jail and for a long time so i'm giving you some trying to say is this your honor and i think i'm agreeing with you in that if you just look at that statement by itself without anything else so you don't look at which state the statement mr fisher we've done all we can for you if you look at that statement and don't look at anything else on the stand how that could not be sufficient so that's what i'm trying to say just like you're saying if you look at the two thousand and ten hearing and put that sentence into context is the predicate for this for the state in it yes yes i agree with you if you put that statement into context with the two thousand and ten cents in hearing it is sufficient so with respect to judge king i got away you do have to appear at at here to your prior prior lawyer on but what i'm saying is that even if for some reason you find that this was procedural error i still think it's harmless for this reason and the reason is is that the district court it's plain that the district court considered both arguments for two reasons one both the government and the defendant asked that the defendant after being sentence be removed from release which the judge did the second reason is that in considering the arguments of counsel the judge didn't do everything the government wanted to do or didn't do everything the defense wanted to do but slice the baby down the middle and sentence the defendant to thirty months so from that reason for for harmlessness the government must prove that the error did not have substantial andrus of fact or influence the result and it's harmless that the district court can say with fair assurance that the district court's explicit consideration of the defendant's argument would not affect the senate's while thank the judge considered both arguments because he didn't do everything that the government asked he didn't do everything he  consideration of the argument he just said there needs to be explicit consideration of arguments where is the right he it's not he doesn't say that explicitly that he doesn't go through  think it is clear that he considered both of the decision both of the arguments in crafting his his thirty month sentence so for that reason your honor so i think it's harmless so if there are no other questions for me for the back and that's what happened he he he said normally he says normally what that means is i'm going to put you in jail for five years but i'm going to give you a break but if but if you don't take advantage of this break you come back you understand i'm putting you in jail for a long time that's exactly what he of the court was serious about that of the court was not serious and that i think the court was serious about the well i think the court was serious about that and i think that's what that statement means when he says mr gracewood or did just what the court said it was going to do yes after considering because the person could not abide by the rules and follow those restriction exactly after considering  james argument he reduced that some but but he still gave them a significant amount of time off so i'll finish however if for some reason when you all deliberate you conclude that the senate is not point only reasonable the government  what's most important when we look at harmlessness is that look at the sentence that this individual received the guideline range was six to twelve months and the sentence that he received was thirty months a sixty percent higher than the highest guideline range this court has only held harmlessness in two occasions and in both of those cases the individual received a low and guideline range and that makes this case remarkably different mission you know is it a guy is that a guideline range those cases the defendants received low end guideline ranges and the judge king pointed to the real problem with expanding the harmlessness doctrine is that it requires this court to step into the role of the district court to go back and look at the entire record in the case to consider the parties arguments to determine whether they have merit and i don't think that that's a efficient use of judicial resources when the district court says something on the record it is government says look you can look at all these arguments that the parties made and assume what the judge did that's what carter said you can't do are you surprised are you surprised that the district court put your client in jail  that a surprise to you your honor i wasn't surprised but for example when the court gives their statements on the record then the defendant hears it or you are surprised by that were you surprised by the length of the sentence your hon that's what the statute requires us not what carter requires so although i'm not surprised certainly that it doesn't mean that he's fulfilled his statutory obligations and obligations that this court places upon him and that's the real issue here thank you