restitution in the criminal history category the court and it points which increase the criminal history from a criminal history category three to criminal history category four in doing so the court found that the state do you agree that we can consider the actual conduct of mr valenti in connection with the interlock and the word categorically turns up in one of our cases but it seems to me that every subsequent case quotes that man says oh that doesn't mean the categorical approach as we've come to learn about it in most criminal history settings but it's as you use this common sense totality of the circumstances approach applied to the conduct that the person engaged in not to the label on the offense with the elements of the offense do you agree do you agree with that characterization of arkansas i agree that there is a case that talks about  looking at the offense category there are several of there are several and they actually they do it exactly but in doing so they're ignoring the entire common sense approach that's outlined within the guidelines and specifically conduct can be can be considered but it's not the driving force of the application of the guideline if you read the guideline and the amendment as it was introduced in two thousand and seven in the background of it it was to take a universal approach to a number of factors to be considered in the application that may be so but if one of those factors is the actual conduct now what we're talking about is really a question of did the district court views its discretion or reach a clearly erroneous assessment of various other factors that should be taken into account now that our premise is that the court actually ignored the commonsense approach that was outlined in for a one point two c in the application and instead applied what was what had been previously used in courts prior to two thousand and seven and in doing so actually actually committed an error that was one of the reasons for who as a consequence of a conviction is under a court order only to use the a car that has an interlock device and in defiance of that he goes out on the road and we're asking the question that something like is this more serious than the listed offenses one of which is contempt of court one of which is careless driving then he gets pulled over because he is texting or something by the police officer then he gives a false name to the police officer to try to avoid being detected as the person who has this obligation not to be driving that kind of car why doesn't that combine offenses of careless driving contempt of court and obstructing an officer each of which individual lee is on the list of things that don't count but why isn't more serious to do all three of those at once why isn't that a commonsense reasonable assessment by the district court that a list and he says look if you look at the totality of the circumstances here this offense is more serious than those things on the list why would we say that's a clearly erroneous determine if that were the case then the prior conviction w about which she is that actually scores for the criminal history would become completely irrelevant so it wouldn't be what that criminal history his prior to his actual prior criminal history and what he had been convicted of was is actually what's so it's a combination of all of those things and application no twelve deal with this in its last consideration which is the degree to which the commission of offense indicates a likelihood of recurring criminal conduct why wouldn't that take within one of the judge lectures just mention with his history all the factors of his committing this offense of the license swipes car he you know and the court wasn't relying on africa application no one are in that we don't know that the district court made the findings that we're suggesting to you would be adequate to to warrant the application of this point is that the argument that it needs a rematch so we can be sure that's what the district court was thinking but as part of the argument is that i mean why would we don't require the district judges in applying the guidelines to go through any rote formula as when it's when it seems apparent and you're even conceding that by reference to the application notes that this enhanced mn is appropriate why why would we just  even though their statement isn't required about the actual application of the guidelines there is the record should reflect some thoughtful process in the application guideline that what allow for to eighty six the judge says the court finds that mr valenti's culpability in the offense including during the relevant incident not only failing to use an interlock device as required but driving recklessly by using a cellular till telephone repeatedly lying to the police about his identity and driving without a valid license and then goes on to say that indicates a high likelihood of recurring criminal conduct because he was on probation had four prior convictions and cetera et cetera why isn't that exactly the thoughtful consideration that you just said the judge should have given making all the findings of what the mr valente did because there was no discussion about the other elements within the commonsense approach that's outlined under the four zero four one point two c application the elements of the offense the level of culpability differing between the offenses reckless reckless driving requires a high level of mental state  contempt of court this is actually installed as a condition of probation and it was a monitoring device it wasn't that he had been in the revocation of license he still being harmless error is the fact that it may change the judge's discretion within that guideline range so without that actual point he may have been more susceptible to maybe sentencing lower within the range long standing investment house in albany york and instead of making instead of being receptive to that comparison the judge just basically ran off to it being a different sentence whom had participated in a fraud scheme with losses over three hundred million involving over eight hundred individual eight hundred victims and had also subsequently resulted in a leaven additional investment brokers being brought affirmed as being reasonable sentences for the government appeal loz the sentence those sentences were appealed by mr smith and again they thought they were too low yeah and the court said they're fine but what about the government didn't challenge the length of the sentence the never said sentences are not unreasonably low no the court did not but the argument was is that what i'm concerned about in other words and i really want to address this in a substantive way is isn't this kind of argument about disparity problematic to the extent that it creates effectively a one way down would wreck shit on sentences that as soon as the judge gives a median sentence in what may seem like an  egregious case then anyone who has a less egregious case gets to say my sentence has to be lower than those people because they're worse than i am but without but that's all based on the fact that  sentially the government almost never appeals sentences as unreasonably low i would i would say that instead of it being a downward ratchet that it's more of a reflection of what appropriate sentence sentences may be in those cases depending upon the facts in each how do we know that because we never reviewed the sentence from the standpoint of is it reasonably low we only said it was  a reasonably high and aren't we now in exactly the same position the judge sharp was in of this panel doesn't have before with all of those details are you suggesting that we need to go back and analyze  look at what the cause offense conduct and the a fine are in front of you and the presentation of the cereals under thirty five fifty three and one of those considerations also being whether this is contributing to a disparity in sentencing and if the bulk of sentences that are being imposed by different court judges is that they are becoming lower beneath guideline ranges we have a book  if there are amount of an amount of sentences that as counsel had indicated were below guideline sentences for various reasons that is one of those considerations is those individuals for example in the the other key for using the name but it's been cited to me so many times in different contexts by now this this big brokerage house for those people have a history of prior civil regulatory penalties they did not have a history not that i'm aware of but what i have a history of criminal convictions that puts them perhaps excessively in criminal history category fo this as far as we know they were first offenders in the securities industry well your client has a history of civil regulatory violations one of the reasons he was doing this scheme the way he was doing it is that he was already banned from being associated with any broker dealer right he did have a history of that so why doesn't that isn't that relevant rather than just saying the number of victims the amount of money was bigger in the other case well those are relevant considerations and should have been relevant to judge sharp in making that determination so not only was the disparity not considered but the argument at that criminality as a result of his substance addiction that is if it's a matter of fact this crime for an extended period of time i don't think that the he was drunk is going to take imposed was not one that as a matter of law was a vailable to the judge because it was just so so far outside the wide range of sentences available is substantively reasonable i don't  pornography sentence means you looked at sentences that have been sentenced at the top of the range or have involved some other time not talking about the guideline range i'm talking about what we've talked about in cases like jones and compare that substan there's a broad range of cases available sentences available to a district judge this not just one substantively reasonable sentance now in in the cases you cited we have found that the range to be even narrower than the guidelines but i'm not sure you can make that argument with respect to your client's crime well if judge sharp were to have considered the disparity with the the fact that he was him consideration for that fact when this was a crime perpetrated over an extended period of time but he was obliged to look at the parsimony clause and to turton to determine that this sentence was harmless error arguments one with respect to the increase in criminal history score for the interlock device we make a separate harmless error argument on pages forty seven and forty eight with respect to the second point for the whether the sentence was served or not the second harmless error argument is wrong i can explain it to you here today and i well i mean it's a little complicated in if i'm not comprehensible i'll send the court a letter explaining why but the second harmless arrogance wrong because of some features of the guidelines and if i can i'll explain that there were five convictions that resulted in sentences that added points to mr valenti's criminal history fourth point for the interlock device of france those all applied under section four a one point one c that section has a four point cap so if you move in our favor on the interlock device we're at the cap and if you were to rule against us i'm not suggesting you do but if on the substance you were to rule against us on the other guidelines argument mr valenti makes regarding the second point it's an all or that will still leave actually if you will get us on both then we would still be in category six or category three because we'd lose two points rather than one point zero if we leave it confused but if we agree with you on the interlock device yes but don't agree with you whether actually serve the sixty days yes what happens is he still he would roast you'd have to take two points off the score you take one off for not serving the sentence that would drop that he actually serve that says i that's why i was going to begin the the district courts determination was based on two factual findings that are clearly correct the first factual finding is that the sentence imposed included a component of sixty days incarceration and there's no doubt about that that the pre sentence report says that the judge got a judgment of conviction from the state court that says exactly the same thing the second thing is that the reason that wasn't served was because of mr vo it was the lade not ever taken off with the land because mr valenti's medical condition alternately is never served because you end up going to federal prison in this case while he was other reason you should consider it as the sentence was served in one case there was just negligence they never picked that this was not the leading case i think the name was telling but i don't remember right now it's out of the eight circuits in our brief he just was never picked up on a fairly significant case never serve the sentence on another one of the cases he was already serving a sentence in another case that was very lengthy while he was in prison he committed a drug crime the new sentence was consecutive so he never served a day in this consecutive sense but yes i realize the application note here says he has to actually serve there is no question about what it says is no dispute the question really for this court is whether you should read that anyway to lead to absurd results and it's an absurd result for example in one of the eighth circuit cases where it's a consecutive sentence he's going to serve eventually just hasn't started serving yet do we give him a windfall and have him not get the criminal history point here mr valenti's not entitle to a windfall because a facility gave him consideration because his medical condition and allowed him to delay service of his sixty days set clear on the record that that's the reason he didn't serve and yes it is you know what happened was in the district court the defense argued that the reason he didn't serv it was because he got rob a couple disposition which was a fact of lay some sort of suspended sentence and the probation office went back and checked and then they contacted the facility and said that the so he said no that is not the case the reason he didn't servant was it was delayed because of his medical condition would we find that in practice it's in the free sense and in the pre ok but you're saying that's where we would find that it was based on his h ok and so i need to it's a fairly clear cut question from the court do you want to apply the language of the application note in such a way to lead to what i would argue is absurd resolve or do you not want to do well maybe the question for me might be not so much was it based on his health what was it in other words was this simply a delay and adjournment of his surrender date such that he has not yet served the sixty days but everyone agrees or at least the state seems to think that he owes them sixty days that's exactly the way the pre sentence report reached that it was a delay based on himself but i think the  should we construe the application in a way that leads to the service out in the first instance is that something that the district court should consider it has to do it has the discretion to depart from the guidelines were to vary from them is it is this in our interest to be made to the district court that the language says this clearly that has to be served but we're asking you to exercise your discretion not to follow that i mean that's not what you're asking us to do you're asking us to say you know as that is a matter of law we're not of finding it applicable in this case that's quite a different matter i think it's safe to say you run of the district court did consider the very issue we're talking about recall what happened was this case went up to this court once already and it was remanded this claim for the district court to make specific findings the application note and these arguments were before the district court i think it was well aware in the district court i don't make may not have explicitly addressed that application but i don't think it was any question about but i mean what i'm saying is this may be you know asking for something percent equity if that's the right word the district court calculated this guidelines with the two points correct it didn't say you know under the guidelines he may not warrant these two points but the facts are such that i think that it still is as egregious a criminal history and i'm treating it is the equivalent there are we don't have that you're it's actually served and he says there's been no modifications to the senate since the original sentencing in this case there's no evidence that the fed has been relieved of his obligation to serve this sentence and as such he finds that he gets that extra point right so there was a factual at least a determination by the court it wasn't like you had said in your brief and i ask you about whether it doesn't matter because he's still a criminal history for he said i'm making a conclusion here after what the circuit said i needed to do that it applies even though he hasn't showed up yet it's still hanging over his head that that's correct and that's my concern about you're asking us to say well even if that's wrong under the application no you should find that following the application note is absurd i mean you can't you just start to as the district court departed from the application no the district court somehow got it wrong under the guidelines correctly interpreted but we should say the sentence is right anyway you are saying the guidelines correctly interpreted allow for these two points and your argument about of certainty is in effect a kind of holy trinity church argument that while the literal language of the application says he has to serve at least a day in order to implicate the guideline that says it counts for the length of the sentence that he was was imposed not the amount of time he served but that he has to at least serve a day that that sentence is followed up by something that then says suspended sentences are in one category and i can understand that because many states have systems as the federal government did before nine hundred eighty seven where a judge would say your sentences five years in prison but that's suspended and you go on probation and that's the only way somebody gets put on probation and the sentencing commission is clear that that counts as a sentence of probation right not as a five year jail sentence on the other hand if somebody gets sentenced to five years and is due to report on a given date and instead he got flies to brazil and never comes back or doesn't come back until some later point when he's sentenced for this new crime in that case even though he never served a day it does count and what you're saying is this is more likely that not in the culpability of the defendant he didn't do something illegal to escape but he escaped due to for to it a circumstances from serving a sentence that he still owes and that is still a legal sentence and we should therefore interpret the guideline as giving him the was the authority for increasing the restitution this remained in the johnson case your honor i mean the judge in johnson that replied that relies on that this kind of restitution is mandatory of it's mandatory it's got to be the right amount and here there's no dispute that there was a clear and i was doubting that the correct restitution mount is the line judge sharp imposed on re sentencing in johnson the court had just not imposed restitution at all the first time here the court did but the dollar amount was wrong because an error in the government made it fail to back out the amounts that some of the few lucky investors made because that mountain is not available for us to do shit and so lost them out and the restitution of our slightly different in the practical consequence of this is that if mr valenti uses a dollar from his prison commissary account assuming this is allowed to buy a lottery ticket and he hits the lottery we don't want him to escape that extra four hundred thousand dollars in restitution because for as i can see that's about the only scenario under which mr valenti is going to pay more than a pittance towards the eight point two little on the eight point proposition that that application no that requires actual imprisonment means what it says i would argue that the three cases the government is relying on  don't talk about the add in for they add information and add a requirement to that location note an affirmative act by a court to intercede being required before an sent sent sent prison term or i'm sorry term of imprisonment will be an count count counted that's not within that application no there is this another application note that talks about suspended sentences and stays  that application itself also does not include active participation of a court in suspending or staying the sentence in this case what we're arguing is that his health condition acted as a de facto stay or suspension of that sentence and it was treated that way and is reflected in the language of the p s r the p s r that says that he was not mandated to serve that sentence so as far as that circumstance the application would apply literally and he would it would not count it would not count and your point is does it matter that the state was effectively issued by the eur imposition are suspended as to execution and this was suspended as to execution because of his health issues as far as the restitution issue is concerned if this court does find that there was clear error and there were in compelling reasons for disregarding the law of the case in this case we have no objection to the restitution order being reimposed will reserve