our lawyers are fairly familiar with the process been here on a few occasions so i don't think we have to explain to you our first case of the day is united states of america versus kevin brown was made pre sentence report and stated that the guideline range for imprisonment was fifteen to eighteen months the guideline range for supervised release was five years to life the district court sentenced mr brown to fifteen months imprisonment which was a below guideline sentence and ten years of supervised release on appeal mr brown challenges the ten year term of supervised release because the correct guideline range was a single point of five years not the five years to life times it's not a matter of strategy it's a matter of ignorance or inadvertence i proposed this court recently issued a case and an opinion called putnam a panel of i'm sorry a panel of this court issued an opinion in a case called putnam that case was also out of the western district of texas that individual was sentenced about four months prior to mr brown unfortunately it appears that the western district of texas the pre sentence reports were getting changed to reflect this court's opinion and so gora or the the change in the in the supervisor released commentary for the super guideline it had actually been changed and unfortunately so the pre sentence reports were all coming out wrong and apparently none of the participants in the courtroom were catching it and my attorney afterwards told me that he provided ineffective assistance i know that's not i think it's a combination of the two i think that in this particular instance the attorney missed it i believe that everybody was still operating under the belief that a stone a violation was five to life  prosecutor there's no indication the prosecutor was aware of it as well the district court not in his statement of reasons the district court when it he set out the guideline calculations under guideline calculation for supervised release he said five to life so everybody was operating under the wrong and this court has actually said in some of its plane air cases that one of the things that it looks at in deciding whether to exercise its discretion is significant restriction on freedom they have to report to the probation officer for every month they have mandatory conditions they have standard conditions they have special conditions they have restrictions on where they can live who they can associate with if they travel but what are some of the special conditions against extra burden that have been put on on your client mr brown that we might consider i mean how it's possible there is a supervis of he want the main special condition that he has under supervised release is that he attend mental health treatment and this court has actually recently in a feb twenty sixth seen unpublished opinion recognise that the condition of mental health treatment raises concerns about autonomy and privacy and that it represents real financial costs to the defendant and to the government now i  challenge that condition because it's reasonably related we're talking about five additional years of that condition the other thing was supervised releases its five it's five additional years during which the threat of reincarnat he's already seriously deprived of his freedom for the rest of his life and i would i would actually disagree a little bit that big because that the district court questioned all the parties about what was involved with the sex offender registration and in fact because he was he was surprised that mr brown was living with his wife and two children and so we asked mr brown are there restrictions on you being around children and mr brown said i think there has to be another adult there but we believing together for nine years so i don't really think that i haven't been violating he has i don't know what the exact requirements are but the court said so this is strictly a failure to register issue and the prosecutor dr noted yes your honor he's not under any as far as we know he's not under any type of supervision so he has to register he has to make  the jurisdiction aware of his presence his location if he moves if he changes jobs if he goes to school somewhere he has to notify them that is not the same as as going having to go to the probation officer that it was primarily concerned with what the sentence was going to be and then as regards the supervised release it was as much time as you want yes your honor the focus of the sentencing hearing was in fact on the term imprisonment that's a focus to most sentencing hearings is on the term of imprisonment and the defense attorney was desperately trying to get time served for his client was throwing out a number of possibilities to give him a downward departure give him a downward very given time served as much supervision as you want put him on probation for five years and make this a kid a condition of his probation the time served i mean you know exactly what his lawyer told the court not only did he not object he said i'm suggesting to the court a something now your honor you're not missing something and my my response would be that the defense counsel made this argument based on a misunderstanding of the law he believed it was five to life had he known it was five years he would not have been asking the court to do an upward variance on supervised release for his client so it wasn't it was an error of law and it's not that there's nothing in the record that indicates that the court was influenced by this argument the court didn't give the defendant time served the court didn't say i'm going to going to give them a downward vent their eons on imprisonment and i'm going to give them ten years supervised release because defense counsel suggested that so it's based on an incorrect understanding of the law that everybody was operating under and the record doesn't show that it impacted the district court's decision and well we have disagreed decision and we have the putman decision  they inconsistent can they be distinguished which one applies better in this case or could you kind of clear it up for the court as to where we stand on the law i don't think that the found that it was error for the for the guideline ridgeley five to life and said it's a single point it's five years but into gurjar they said it's not playing because there's no prior fifth circuit and then they said even if it's plain in this case it didn't affect substantial rights because the district court said i believe that a lifetime of supervised release is necessary for mr security because he's had a long criminal history he has had multiple sex offenses involving contact he's had multiple failure to register convictions this is his third one i find he is a clear and present danger to children and in this case we have multiple offenses the first movie and we have them here yes we  district court and what the district court focused on insta gura the district court focused on that criminal history and his concern about that individual as a sexual predator in mr brown's case that is not the tenor of the sentencing miss the district court focused not on that criminal history which is remote the sex offense is twenty five years old his most recent offense is thirteen years old that the court focused on the fact that he had been in compliance the court said you've been in compliance all along three times the court said noted that mr brown had been in compliance with registration twice in sentencing and in the statement of reasons as one of the bases for the below guideline filed out of california which is where this offense original where his original sex offense was out of but he had moved to indiana so the in the present report indicates that in two thousand and seven that charge was dismissed in the interest of justice i can only surmise because he was registered in indiana and reporting but i doubt that that's speculation on my part but it's not if it wasn't on a charge and the district court had all of this information before it court was was actually sympathetic to mr brown and and that's why he got the blow guideline sentence when the court talked about why he wasn't going to give him time sir that was his concern not that mr brown was a danger to the public it was his concern that mr brown didn't have a place to live and so he would end up being homeless staying at the homeless shelter so he wanted to give mr brown's family time to get the arrangements together for up to mr brown to have some place to live when he was released from imprisonment the district court in this case one who did this was a very thoughtful sentencing the district court in this case one had to get it right the district court said to mr brown i've read your letter it was a long one because there are mental health issues here i've read your letter i get you're just i'm somewhat persuaded by it and you've been complying all along did you mess up this time by not registering yes you did no reason i'm not going to let you out light now is because you don't know about your living arrangements so the tenor of his sentencing was very different from the tenor of the sentencing in cigarettes and i believe that this court should exercise its discretion to allow the district court judge in the first twenty five years ago he has no prior he has no other sex offenses and also and i'm not trying to diminish the severity of it at all but it is interesting that he got three hundred sixty five days in jail and three years morning please the court well i'd like to begin i have i guess by discussing the fourth prong because i think this comes down to the exercise of discretion whether to correct the error and it is occurs to me that that defense counsel basically makes an offer to the court i'd like a downward variance and give him as much time as you want and maybe he misunderstood what the range was maybe he didn't maybe it was ineffective assistance maybe that's something that comes up in a twenty two fifty five but he got his downward variance and now they're complaining well wait a minute he got ten years instead of five admittedly  the range is a single point five years but when it gets down to whether this shocks the conscience and we look at the factors outlined insecure and we look at the factors outlined  i say this case doesn't one of the key distinctions between them and this case is that parsecs offense is a contact case this isn't one of the other types of cases that and i think that it of the factors that i was going to discuss the reasons why i think you shouldn't correct the error are that number one if you read the transcript the sentencing court doesn't mention the pre sentence report at any time during the imposition of the sentence adopted at the beginning and that's it doesn't mention it again goes through and says quote up the guidelines recommend but do not require let me see that i may have changed my page but in any event he basically says i've looked at the thirty five fifty three factors and i'm going to go ahead and give you fifteen instead of eighteen a downward variance and in the same sentence basically imposes ten years there so there's no linkage direct linkage at the time it's imposed that's one of the factors identified in cigarette secondly i think this court is focused on the idea of how significant the  was and in light of the range of five to life statutorily five being the guideline sentence recommended it strikes me that that this compared to girl which was a life sentence is not significant in comparison to that putnam was fifteen years this is ten all of these factors are slightly we had life in severe of fifteen  putnam ten here it seems to my reading of the record as a district court picked ten years five years was the base life was the maximum an picked ten years now whether that was linked to the pre sentence report or not it seems to me that under this rubric of plain airing his judging about them points out that we are very close to saying that all errors are going to be corrected regardless of whether they're plain unless we draw the line somewhere which is what the fourth problem is about and to some extent the substantial rights problem as well and here  i other words i'm inclined to go down on the sentence but i'm going to replace that with a long period of supervised probation is that appropriate to consider absolutely it's part of the amalgam of sentencing factors a district court can consider i think the district court can fashion a sentence of a lot more to what the defense lawyer asked for the lawyer basically made that suggestion said i want my downward variance and give him as much time as supervision as you  want and so recognizing that imprisonment of course is a much greater deprivation of liberty and that supervision ultimately has great societal interest as well it is a burden on the defendant no doubt but as judging about them pointing out he is a registered sex offender he is going to have to comply and the fact is is that given the nature of the serious nature of his prior sexual conviction  contact conviction that supervision does serve as important purposes and it may very well be that in this case for these sorts of reasons that this court would exercise its discretion  you know this doesn't shock the conscience of a of an ordinary citizen and doesn't undermine confidence in the system and we're not going to correct this and in the end the defendant still has the opportunity if you want to file a twenty to fifty five and make this case the other thing about supervision is that it's always subject to being amended to being altered and if the circumstances change any if he completes his five years he can go back into district court under thirty five eighty three i believe and ask for a modification this is certainly not set in stone the same way the new rule thirty five a sentence would and so the defendant still has options even if he shows over a long period of time that he in fact is compliant and so looking at all of the factors i do not believe that this case is one in which  the ten year term should be noticed and doesn't shock the conscience of an ordinary citizen or undermine the integrity of the judicial system supervision is always subject to being lot of five that is of course true the same argument was made before the pick and panel and they they rejected as a basis for not exercising their discretion counsel number of times said it doesn't shock the conscience doesn't shock the conscience but the standard is that it seriously affects the fairness integrity and judith and public reputation the judicial proceedings obviously that's a squishy standard that's the difficult thing that the court house that but i would i would say that where the entire all the participants in the courtroom are operating under a misunderstanding of what the range of punishment and the arguments are being made based on that misunderstanding when was it that undermines the integrity that when was this error this discovered i mean was it when you started reviewing the records did the probation office that loops were been messing up or who or when was this discovered completely outside the record but if you i guess have already spoken a couple of times outside the record we have our trial attorneys fill out the public what she gets when a client appeals and in that w nobody mentioned it and i appreciate everything that the that the court has said about that i represent mr brown will and i know that the five years of extra supervised release is of great concern to him it's difficult mr brown is indigent he applied for social security disability so actually going to the probation officer every month i mean for my clients many times this is difficult it's in catching the bus because they don't own cars so what may seem like not much of a burden to those of us who don't experience poverty is actually a significant burden to indigent defense and many of our clients will say i just don't want to be on paper which is the term for you know being under supervision and it's it's because of that so i understand the court's concerns i don't believe in this situation that it was a bait and switch on the part of the of the trial attorney but i can understand the court's concern about that i ask on behalf of mr brown and actually on the behalf of the district court who was who was doing a very thoughtful sentencing that he be allowed to reconsider  knowing that the correct ranges as a point of five years and then less or any other questions i think you