the resigning member of judge could braun is is unable to be with us this afternoon and so i am taking his place in the center cheer but he will be listening to the ori commands and  reviewing the matter fully before we reach any decisions on the three cases or scared for argument i understand everyone is here so we'll start right away united states versus van morrison is that the correct pronunciation manning the appropriate sentence for a defendant my client asked this court to ensure that such discretion is exercised here in the case of a sentencing in a manner that comports with the goals of a sentencing guidelines whether there is he's eligible for the sentencing under under freeman and let's put that one aside for the moment and just talk about the discretion the exercise of discretion which is the second point and i guess you're taking some issue with that and i'd like to i'd like to find out more precisely why you think this was an abuse of discretion to turn this to to refuse to account the fact that he had already given him a reduction in the prior and that ultimately i mean after you consider the three five five three factors the judge is then free to to reach was was within the was within the guidelines right well ultimately and the second motion he was subject to the seventy seven to ninety six month range and i think accordance with the plea agreement an additional three years which would get us to one hundred thirty two that it was a surprise both to my client and i think to anyone looking at this case that and this particular proceeding unlike the original sentencing and the decision in which the judge granted his first motion for reduction the judge pointed to his criminal history in particular a conduct that occurred before he had been arrested including a crime for which he had been acquitted and the judge had not in the past made any comment with respect to that particular conduct there while i would argue that it goes against the thrust of the sentencing guidelines which are and that were  enacted for the purpose of rely a billet and consistency in sentencing to avoid surprise obligates the judge to consider all of factors that may form a sentence now i understand that the judge did not reference this factor before hand but i don't understand you to be arguing that it was improper misapply for him to do so so and to the extent that the judge's thirty five fifty three supersede the guidelines the guidelines are only one of the thirty five fifty three factors i'm having trouble understanding what the error is what the abuse of discretion is it's the surprised i believe i cited that your client murdered anyone as you said he was acquitted of that but he he did slike the fact that your client was in a situation that you know even if he managed to succeed on his self defense claim nevertheless resulted in a life being taken and i'm not sure why the judge could not decide that the circumstances of your client's past were such that for the crime he  my client i think should have been able to rely on the prior rulings and this not being the pivotal factor in his dissenting decision was that to your client's history as you yourself have said it was just that the judge did not specifically highlight before but there's no rule of the case on napping we needed rule and say i make this a finding that this is irrelevant he did not make a finding it was relevant but it was not used as a factor to increase that somehow the judge is waived waive the right to do it or somehow is forfeited the right to do it i mean this you know this is that there's no case that you can cite to that regard in that regard is that the one of acquitted crime or a crime that had not been proven on charge crime at the trial level on during trial and then during the sentencing came back and use that as evidence of an enhanced meant i believe it was  consider a criminal history even though he didn't express the state of the first time around under three five five three because he made a host of sense into that section and we presume that he considered all of the requirements section i just think that he should have explained why for the first time this was so pivotal to him my client's going to spend an additional one thousand months i realize less than his original sentence but one thousand months more than he understood himself to be obligated to serve based on the amendment and i may please the court stephen climber from the united states i'll begin by assuming eligibility and addressing the second point in the government's brief the one that the court was just a question my colleague about which is to the district court judge abuses discretion and the defense seems to take what i guess i would characterize as a use it or lose it position with respect to the district court judge's discretion and finds that for some reason if the district court judge doesn't cite to and rely on a particular fact known to it at the time it grants the first reduction motion it's somehow foreclosed from considering relying on that factor the second time around the defendant again goes for a reduction and i think there are at least four reasons why that's wrong one of which i think you've already questioned counsel about which is that it's inconsistent with the obligation of district court judge as under three five five three yeah a to consider all the sentencing factors in addition it's also inconsistent with other federal statute eighteen u s c three six six one which states that no limitation may be placed on the considerations of district judge is allowed to take into account when imposing sentence third it's inconsistent with the sentencing guidelines which specifically obligate the district court in one b one point ten to take public safety concerns into consideration when a sentence from duction motions in front of it finally as we point in our papers it's inconsistent with the decision of this court in wilson where a district court judge did exactly what the district court judge did here which is not mention or rely on information known to it when it first granted every doctrine in that case was prison disciplinary violations that predated the first reduction motion the court granted the reduction motion without saying anything about those violations the second time around when the defendant moved for a second reduction the doing this if she's also in the alternative suggesting that there was some surprise and lack of adequate explanation that would warrant a minimum remain and for the for the defendant to be heard on this specific point in the judge to explain any decision based on it what's your response that i think that's wrong for at least two reasons your honor the first reason is there was no surprise here the government in its papers specifically asked the judge to exercise that the defend it was not eligible and then we said you know if you is eligible you should deny using your discretion because of his criminal history and we cited in detail to the criminal history that the district court later relied on so there was no surprise here even if the government hadn't made that argument however there is no requirement that a district court give advanced notice to a defendant of the factors on which it intends to rely to deny a sentence to me well if if if the government had had not presented those facts and it came out of the blue there might be a question of whether the censure be adjourned because the person may not a prepared for a if the government is going to going to you know advance or get any kind of advance notice i mean there could be i'm not saying surprise would operate to bar consideration but there may be due process considerations i suppose that's possible but i would think the per appropriate thing to do and that situation is for the defendant to notify the court at that time and for ask for permission to argue that was never done here now there's nobody ever came back to the porn side we didn't understand that that was at issue here obviously because it wasn't issue the government put it issue but it seems to me that would be the appropriate response if the court is inclined to entertain i'll jump into the call freeman quagmire at this point and make some observations are why i believe mr van hosen was not eligible in the first place for sentencing reduction and that's an alternate ground for this court to decide this case obviously the first step in the freeman analysis is would be to ask the question what is the controlling law after freeman a question this court left open after the latter case and i don't believe the court has to answer that question here because i think under any approach attacks mr van hoosen was not eligible a sentencing reduction but i'll just say that obviously that would be a first step in the analysis so you're saying the district court did not air in granting reduction the district court did the right thing but i believe it was wrong in saying that mr freeman i'm sorry mr van hosen was eligible i don't believe he was eligible let's suppose for example one option is to say after freeman there's no controlling authority to take the minority positions taken by the d circuit and the ninth circuit and say that the justice so to my horse concurrence is not the logical subset of the plurality decision then i think that discord has to ask whether it's preexisting authority in maine and green control center because then there's no supreme court decision overruling at and at most freeman would govern under the facts present there and in freeman of course it involved the within guidelines sentence that everybody agreed was determined based on calculating the guidelines facts we do not have here our facts are much more similar to man so if maine applies he defended you nose and clearly was ineligible if maine doesn't apply either because this court for some reason believes freeman abrogates it or if this court decides that either the freeman concurring opinion controls or the freeman plurality can quote controls i think the outcome is exactly the same if the concurrence  applies and we look to the agreement itself as just a sort of my are rock a man's i believe it's clear if you agree men in this case did not base this sentence by looking at the guidelines it based  sentence on something else would it reach that conclusion from something else the agreement never identifies a sentencing range it never identified an often slab while it never identifies any specific coffin's characteristics or adjustments never talks about a criminal history category never mentions a departure never mentions a variable in the words of the first circuit it never identifies any entered your one would need in order to make a guidelines calculation so basically just sort of mayor said was that if a guideline range is specified in the agreement and that that is at the sentence ought to be within that range or there is a specific sentence recommended that is a result of applying the guidelines and that's specified in the agreement and those are those are her two exceptions exactly and what i don't believe are anywhere close to either one of those two exceptions in this case so the plurality that would go the other way is simply  guest saying that the if the agreement if you if the agreement is a guidelines case and could arise as a result of of here people would think about the guidelines before they enter into agreement that that's enough my understanding of the plurality decision freeman your honor is the question it asks is did the district court judge rely on the guidelines when it accepted the agreement i see my  is is controls and two circuits the d c circuit and the ninth circuit have said that it is not a controlling opinion and this court i believe is the only circuit that has not yet resolved the issue and as i say i don't believe you have to resolve here because i think even plurality in the four in dissent right yes and no i believe you're white they disagree there's a justices who disagree with justice summers decision but judge chief justice roberts in the second characterize just three different opinions and capable of being read lots of different races let me ask you this why i want what i want why should we address it at this point or any reason for us to do that i'm not there is no need your honor i don't believe there is so and if the says there's nothing to your complaint about not getting notice because the government specifically argued for a denial based on the criminal history in its letter what's your response to that that they did do that with respect to reduction they also did it with it but they also did it with respect to his first motion for a sentence reduction so is squarely before the court and the court did not comment on it and they  argument so it's not like you didn't know that the government was going to press this but it hadn't been and hadn't had an impact with the judge to date had it resonated with him and had a resentment that you could be before the court i wouldn't say it's a lack of notice as much as it just goes to the reliability and consistency of decision making with respect to sentencing we envision a system in this country that has consistent uniform and reliable results and this  this it does i mean there is the surprise factor from the perspective of the client you could have been surprised because the government made the argument well i did represent him below but i'm not speaking on behalf of the client for him it's hard for him to understand why this after all of these years after all of these decisions is suddenly central and pivotal to the court's decision and that is to me runs against the holdings of the pair holdings in this case the goals of a then all of a sudden he's the defendant is now down to a lower amount and so the the prior if prior conduct becomes more relevant than that it would have before it's easy for me to see how a judge would take it into account the second time and and maybe let it pass the first time think about it but but maybe not be so concerned about it and given the first reduction but then consider it more deeply i want to come to the second one and i think if you'd given an explanation as to why that would be a different situation but here we're unable or guessing all of us are essentially guessing at why he made the decision that he did and i think that that renders appellate review difficult and that's one of the issues with this particular session  i have about forty five seconds i wanted to address the issues with respect to freeman i believe that my client is eligible under the plurality opinion the district judge himself said that he took the guidelines into account in making the decision as to whether or not to reduce the sentence and in the original sentence the plea agreement itself mentions the guidelines four times on page one sixty eight and then indirectly on page one sixty seven and one sixty eight of the record my client was asked at both the plea and the sentencing if you understood the guidelines and if you knew that the judge was required to consider them and he did so with respect the record i think he did he found that the defendant was in the range of one hundred thirty five to one hundred sixty eight months with a bass oftens of thirty and a criminal history of four that was on the record at the sentencing at  page fifty nine and at page sixty the judge stated that he had reasons based on the submissions of the parties to depart from that particular range and to go higher which he did ultimately up to two hundred four months so on the record i believe he qualifies under freeman i would encourage this court to rule along the same lines as the d c circuit and the ninth circuit on bonk that the freeman that there is no particular controlling opinion from