good morning then counsel good morning on morning it continue ation of our virtual oral argument maybe one day we can meet in new orleans d again but i wouldn't put it on your calendar quite yet we have thanks your honor may i please the court counsel my name's cody co for i represent appellant wiley when phillips because the district court treated the methamphetamine importation enhancement as mandatory the court should reverse in remand this case from use it as again mr phillips and the government primarily disagree as to whether d one the dish of court was unaware of its authority to have a policy disagreement and disregard the guideline or to the district court intentionally disregarded kimberlin spears and treated the guideline as mandatory in either instance it does not pass constitutional muster address the merits of mr phillips variance argument well quote these some of the dish accord hybrid the sentencing hearing and i don't recall one where he said i'm not able to out i'm unaware of my ability or authority  to vary from the guidelines which which exact statement of upon which exact statement are you relying i'm relying on several statements but one of the most explicit was the court saying it is not his role to disagree with d the gods and that's actually when mr phillips starts his various argument the district court says who am i to question the united states since commission mr  to answer that question in earnest directs the court to booker camera and all explains you have to calculate the guidelines but you can disagree with them make a finding of their foolish and assess the sentence that's appropriate in your own judgment and then the dis court expressed reservations it would be reverse if it took such a course to address those concerns mr philips used the example of a commonly applied variance in the foreword to vision methamphetamine purity variance and the district court recommit and says that he does not view it as his role to disprove the guidelines and asked rhetorically isn't that stepping outside of my life because when you talk about  commonly applied variance in that district is that what the reference to carry means is about i'm not sure we interpret what the court meant by referring to judge means position and maybe you know we could read that  say he's not fully embracing it i think that's clear enough whether he's rejecting it i'm not so clear but when we make of that heart of what judge him said that is a reference to judge means in his practice to give a several d variants based on the disparity between actual methamphetamine and a mixture and we can accept that interpretation because that was the discussion right ahead of this in the transmission well there  themself from judge means on that occasion and another ok move on well all said and so your honor i would ask the court in consideration of mr philips and mitigating factors and i understand the court is not inclined to take away the levels of the importation understand the court is not inclined to take away the levels for the importation when i read that i thought well you recognize he knows he has the authority to do that but he's just not inclined to do that adi explained your statement the war s lined it well your honor may be my hope up until or what's expressed on the record up until the very end of sentencing you know one of the last things that mr phillips objects to is the district court's treatment of the guideline mandatory and that you know up until that last opportunity the hope is that the court will recognize its error and correct it or you don't say that you don't say judge these are not mandatory you have the authority to do this d you said i understand you're or i understand what you're saying your honor and there's also the statement where i say that i acknowledge the court's philosophy of you you know as a trial attorney you're trying to persuade the judge and miss i'm sorry judge hitmen had made it very clear that he was done with the argument at the beginning of the nd day of the sentencing hearing he instructed counsel not to push his luck  and so you know if i usually language i think that's a response to the very clear communication d from the dish court although i agree that my my language was not all that day letter the government file moment twenty eight october the government surprised me by making a statement referring to our decision in madrid thirty september sa and like philips madrid did not object or raise his argument in the district court that prompted the court to apply a plane air review in madrid and if nothing else i read this hearing transcript to note your objection which is not i just read among others that you certainly did raise your objection in district court of course i'll ask the government to respond that but i noted you apparently i don't have any response by you to the all i can think the initial standard of review paragraph that was used in the government's brief in this case was copied and pasted from madrid and my expectation is that that letter is a form used in several cases raising the same issue clear but after the court of spoke about just means your response was and i appreciate the court's view and philosophy and i think it is appropriate but if you mean by that well i can tell you what i what i meant but you can you can also see from the record i'm acknowledging the district court's aversion to judicial activism and i but i go on to explain immediately after in the same guidelines or step away from the directive of congress you know it's it really is a reflection of my understanding that the just court did not fully understand the power to vary under kimb spears whereas i think in truth the dish of court based on its statements about judge means in the purity i think the dish court generally has an idea that the guidelines are advisory and that it has to consider sentencing arguments but what was clear on this record is the district court did not understand that a policy disagreement could be the basis d of setting aside a guideline and granting a variance either into kimber or spears and those are the two arguments that mr philips was trying to get the court to consider and never reached the merits of those arguments because they do support kept throwing up the road block that i don't see it as my job to disagree with congress or the united states a commission and we know that the district court didn't give consideration to the policy disagreement because it never addressed the merits of the argument mr phillips had  his st argument which was a kimber zero variance where as a policy disagreement as it applies to biscay said mr phillips in the nd argument he had was a sphere's argument that in general this guideline should not be applied the government never addressed the merits that issue or never address the merits it just kept doubling down on i don't think that's my place to consider and so the government has but it's one thing to say it's not my place another to say i can't i'm not allowed to do that he never said i'm not allowed to do it he just said i don't want to get outside my lady is not my place that in effect shells implied consideration that this is one i'm not will marry from well i would i would disagree that those states i believe those statements show more a presumption of reasonableness applied by the district court and the statements of who am i and outside of my lane i understand but then then the dish of court expresses reservations about being reverse if it were to take a course of action and the district court relies on sarah has to support the decision not to consider the variance and surface is of course whether the guideline should apply in the calculation and that's that's not a dispute that the guideline  the government has asked for d limited remain and in this case in this case i believe that to be the inappropriate remedy the government has cited several cases  explanations for limited remained and they in all the cases were limited to remain and have been appropriate d the matter was fully litigated in the dish court and mr phillips did not have the benefit of fully litigating the various arguments in the district court because the disher judge communicated d that he would not consider this species of variance and so twice in the record mr  philips indicates that ok judge i fear what you're saying i'm going to move on you've made your intention clear and moves on to other sentencing matters and so they if mr phillips is not made a part of the the government has pointed to no indication that the dish court would assess the same sentence for the same reasons if the case were remained it the dish court does make reference to the criminal history of barksdale had pointed out the twenty eight dollars day letter was submitted the day after madrid was was decided on a wish i'd taken more time to review the record but i would formally withdraw it if that clarifies things but i think that regardless of the standard review affirm and is appropriate here that the parties have put forward two different interpretations of the district court statements at sentencing either the district court was aware of it authority that it could impose a sentence that didn't include the end importation and hence meant but yet it thought that the sentencing commission was in a better position to state whether an importation enhancement was appropriate or not or the district court was saying that it felt bound that it was mandated by congress to impose a sentence that was higher because of the important quality of the methamphetamine and i think there are two aspects of this record in particular that show the former interpretation is the only reasonable one and is the correct one as the court has pointed out there is nothing in this record no point did the court say reasons and in the p s r which it adopted that it understood that the guidelines were or are advisory only and to mr phillips's argument that the court implied that it would be could be reversed if it didn't apply the enhancement that is not what the district court said and i would refer the court back to pages sixty eight dollars sixty nine cents of the record to be precise about what occurred there when mr phillips began advocating a variance on this reason for disagreement with the guideline enhancement in particular at that point the court did step in and express its reluctance to do so  and it was at that point that defense counsel moved the conversation from this particular enhanced moment to the guidelines generally and holistically assuring the court that it could it could about that statement and i think that skepticism is absolutely reasonable and appropriate to my knowledge this court hasn't been confronted by a case where a district court said look in my court as a general matter i think the guidelines are foolish i men were saying it is a presumption a reasonable mission guideline range and not an individualized assessment what do you mean it's not the right way to view certainly your honor i think that the more reasonable way to read it is the court is saying congress compels that i consider the guidelines not that off all of them but that i consider them and so i'm considering them in a way that the th circuit has told me that the guideline range is higher than necessary to serve the goals of sentencing but the court is simply it's at it's not saying i can't i have to mechanically follow these guidelines and give a sentence that is within the guidelines i don't believe it's saying that at all it's as the court had said earlier i think the court is talking about its choice and its view of its own role its choice to show restraint in that respect and i think that leads to the nd point in this particular record because i'm not the only one who believed it was that what the court was saying was reasonable and appropriate in saying i can't just totally jettison  the the guidelines because as the court pointed out once once the district court had explained what it perceived to be its role figs or via the the sentencing guidelines that was met with explicit approval from defense counsel who said it  you counsel to tell us we said some stupid and so maybe there's a way to move into convincing a judge he said some stupid without actually saying so so i bet i will give mr coe for some benefit of the doubt that what followed his court to understand him to be saying i understand and i appreciate what you're saying about your role and how you exercise your authority but i am assuring you that you do have this authority and the court i think the record as a whole is showing that the court is simply saying i'm not going to use my thord in that manner and i would note that i think it's you know fair enough that counsel will get to have an opportunity to provide further meaning or explanation to what it said at sentencing and i think that in fairness it just strikes me as a little bit perhaps unfair to have to allow him the opportunity to provide that at the same time he's advocating against giving l some of these complications perhaps and if it was evident that the district court had misunderstood if the if the district court made those statements and i'm contrasting against something like gomes or clay or burns where the court said look i perhaps might be willing to give you that relief but i am i don't think i can that's not what the court was saying what the court was saying as i hear your arguments i understand the argument you're making i just don't believe it is my role as i perceive my role as a judge to override the sentencing commission which is in a better position to say whether a particular unhandsome it should or should not be made so if if the district court had clearly manifested a misunderstanding maybe there was a role for the for the usa to play there but i don't think that's what this record's just supports and you're really i'm so limited your grades are limited to remain  what i would sit say is that if the court finds that there is something unclear in this record that prevents appellate review that appeal that limited remained with it be the appropriate next step i don't think what would be the purpose of the limited we may to direct the court to clarify and explain whether at the time of sentencing it understood that it could impose a sentence in particular a variance sentence that had not been increased based on an importation enhancement or the imported quality of methamphetamine involved in this crime but i don't think i would not say that i'm proposing that eliminate a reman has to occur here because as i mentioned i think the the  record is sufficiently clear in showing that the court didn't misunderstand its authority but you're saying that at most the relief to defendant would be a limited remand you don't agree with a limited remand but that articulated its belief about its authority re sentencing at this point wouldn't be appropriate st because there's nothing in this record that suggests that the district court would have gone any lower on the senate's and to the contrary i would remind the court that mr phillips was in criminal history category four and that was even without twelve of his sixteen adult criminal convictions contributing a single point to his criminal history score and i would note that pointed out the serious risk of harm that he posed to his children by storing things like scales and needles and a jug of g h b in his children's bedrooms so it was against that edition quote senate fellows  a minimum of the guidelines right yes your honor it it had adjusted the sentence down by ten months because of a sentence he had served for relevant conduct but even then the court said then that mr phillips should expect to go any lower because using the the court's language there was a good argument to be made that is that his criminal history was under represented and that a higher sentence would be justified more likely than a lower sentence and i would also remind the court that when when mr phillips began to advocate for a downward variance sentence at the outset at the st announcing hearing the court at least it warned him hey i'm going to have a hard time justifying a downward sentence a downward variance for this defendant and the court was unclear at all as to why the court said i would have a hard time justifying a downward sentence because of two things the nature of the offense and this defendant's extensive criminal history so that in the river the reminder at the nd at the continuation of the hearing when the court heard his additional arguments for a lower lower sentence but said you know the ten months is as far as i'm willing to go my paraphrase the ten months is as far as i'm willing to go because there's a good argument to be made for a higher sentence the court here can be satisfied that the district court's sentence would not have been any lower if it had either better understood or better articulated it understanding of its sentencing authority here and again if the court remains uncertain on that as i mentioned i think a limited reman would be permissible and the most reasonable  next step here i think appellant is reply brief even acknowledges that where something is unclear in the record and i think this court's practice has acknowledged that when appellate review simply isn't practically  possible because of an ambiguity and a limited remain and is an appropriate tool here i think it's reasonable in any circumstance but especially in current times i think that would be preferable in enabling a review and getting clarity rather than instituting recent unseen proceedings when it's unclear whether there was even error in the st place but as i said i don't think the court even needs to reach that point here  the court didn't say that it believed it couldn't vary from the guidelines it was simply saying that it couldn't didn't think it could jettison the guidelines in toto but with respect to the guideline  hand enhanced meant based on importation it was showing restraint and didn't consider itself in a better position than the sentencing commission to say whether that enhancement was or was not as a general matter the government says that the district court believed this since a commission was in a better position to evaluate the it's like ability of this specific guideline and that's just contrary to the dis and if the court if a district court is going to give a presumption that the sense of commission is reasonable well we're missing we're missing a giant part of sentencing and it also undermines the appellate presumption of reasonable but the language of the district court references its lame its role and disagreement with counsel's characterization of its authority to disagree and disregard a guideline that they understand you can ascribe different meanings to language but because the district court repeated in recommitted to this idea the record is clear also the district court like i said earlier that makes record clear because it references being reversed and it references surface in trying to wrestle with this idea of a policy disagreement in that shows that the district court never moved beyond the  st of appropriately calculating the guidelines once again the government has tried to shift the burden for a harmless error telling the court that nothing in the record suggests that the court would give a different sentence but  as pointed out the sentence was at the bottom of the guidelines and then there was a departure for d the discharged sentence we don't know because the merits of the variance argument were not addressed the dish court did not wrestle with the merits of the variance argument so the representation even if the dish court said i would not give a different senates it had not considered that the merits of the various arguments we can't know what the dish court would have done with the merits of the argument and presumably i mean if the argument is well founded in the in the district court agrees with the argument after reaching the merits it would make the appropriate variance but as it were with a limited because the district court made its position clear and in the merits were not addressed the district court never made any kind of findings with regard to the merits of the variance argument and that's required by rita and  down that if a particular guideline is objected to by way of variance in this challenge the district court should make the appropriate findings and address this challenge to the guideline that wasn't done here because the dish court short circuited the argument so mr phillips was not able to object to those findings or ask for clarification or try to convince the district court that those findings were appropriate in your honor with regard to the cases such as burns in burns that is the court actually said it did say that i don't believe i have the discretion but the dish of court also said if i had the discretion i would not apply it to give a lower sentence in this case in that case was was reversed remanded because a defendant is entitled to be sentenced by a judge that knows the if the word he under kimber o to vary based on a policy disagreement