lawless we've raised a lot of procedural challenges in this case but this morning what i really wanted to do is get to what i think is the heart of the matter which is i think the substantive unreasonable  to be clear about something from the outset and that's that we aren't here just because the district court imposed and we're very it's now it's true that in the district court we asked for the guidelines sentence of five years but if the district court had imposed an upwards variance of six years or even eight years we wouldn't be here the reason that we are here is that the district court more than doubled the guideline sentence going from the sixteen month guideline sentence all the way up to one hundred and forty four months and what makes mr lawless ascendance substantively unreasonable is not the fact that there was a variance but the dramatic extent that and the extent of the variance was an abuse of discretion in light of all the three thousand five hundred and fifty three a factors now a key reason that this up were very tense to this extent was unreasonable was that there were truly compelling mitigating circumstances in this case and i think that the government's brief actually puts it the best when it comes to one of those which is that when mr lawless committed these offenses he was not himself it's undisputed that at the time of the offense mr lawless was suffering from a mixed bipolar state which is the excruciating condition of being both suicidally depressed and manic at the same time it's also indisputed that this condition was induced by contra indicated medications that were described to him by his psychiatry what mr lawless needed were mood stabilising medications and what he got actually made his problem worse now that in itself might be a pretty good case in mitigation but we all know d that mental health evidence sometimes has a double edge sword to it what really puts this case over the top is the evidence of rehabilitation that mr lawless has had nine years in custody without a single disciplinary infraction and you know haven't represented criminal is in it's a long time that's extraordinary and behaving in that way in prison requires the same self control the behaving on the outside requires it's also the case that he completed more than four thousand hours of voluntary self directed rehabilitative programming that he who pleaded to drug treatment programs and not counted within the four thousand hours is his medications and that these mood stabilizer medications were also made a relapse of the substance abuse less likely to occur and considering all the circumstances and especially mr wallace's own  commitment to his rehabilitation the psychiatrist said that it's extremely unlikely that the circumstances that produced this offense were we also have in mitigation  sincere expressions of remorse he admitted to this as soon as he sobered up from the offense and he's been remorseful throughout the district court found that he made a sincere an authentic expression of remorse the final mitigating factor is one that i don't think that you necessarily have to reach but it's also that he cooperated with the government in two thousand and two up the district court found that there an reasonable in the sense that it gave on reasonably inadequate weight to the guidelines and to the necessity of warding warranted sentencing to spare now this court has said  that what you're looking for when you see a large a large variance are genuinely distinguishing factors and i'm not sure that we have that here and to the extent that we do we don't have it to more than doubl the guideline range we have several arms that replying they were planted in places that were someone could have been hurt he could have been charged several times and he was not and the court noted that if you or the it came out in the connection  suggest that this was a reasonable sentence because the equipment charged with all of so if he had been charged with all of them and if he had pleaded guilty to all of them you would have gone to the grouping rules in the guidelines and you still would have gotten half of what he got here so that's that's the problem is d you know if you're comparing mr lawless to somebody who was charged with and pled guilty to all of them you go to the three d one dollar and you get a couple extra levels and you still don't get to half of one hundred and forty four months the district courts of the district court cited that the district court also cited and i think that your honor mentioned this that this created a serious risk and there's no doubt that it did it the problem with relying on them is that the guidelines gave him eight offense levels for creating a substantial risk of death and so what you have here is you have the district court relying on circumstances that are already covered by the guidelines such that that if mr lawless had been in a different district in front of a different judge you would have apply the grouping rules in three d one dollar you still get half of what the district court get so yes if you account for he's charged and convicted with all of them and each one gets the eight level  adjustment you still get half of what the district court i think that it's useful to compare this case to the one that i cited in my twenty eight j letter which is the tourists case  in that case you had a defendant who was placing package bombs and apparently terrified the city of beaumont one package bomb was left out on a patio on star at starbucks apparently an unsuspecting person to open and explode on and then another one was placed outside the church and did blow up and cause property damage to the church the defendant that case like mr lawless had a guideline range of sixty to sixty three months and he was sentenced to the guidelines now that if this defendant torres's setting the bombs expecting that somebody is going to open him up and explode it seems to me that that involves even more risk than what happened here and it's definitely strikes me as unreasonable to say that what mr lawless it is more than double is a two hundred and forty percent of what mr tourist i unreasonable athey that's what you should do here my concern is that you know mr lawless is scheduled to be released in less than a year and that if the court does not reach the substantive reasonable is issue i'm concerned that he will have to serve out the entirety of this substantively and reasonable sentence before we could get a reasonable sentence impose but that being said i do think that you can reverse on  procedural grounds as well i'm happy to talk about any of those but if there are specific questions on those i think i'll reserve the remainder of my time for  you say they please the court i'm carl shock representing the united states the district court in this case sentenced that defendant twelve years in prison for placing five bombs in three public places including importantly and this is  that anything less than the sense it gave was not sufficient to satisfy those factors in particular the seriousness of the effects the court considered all of the mitigating factors that the defendant cites on appeal and it gave a thorough and reasonable explanation for it sentence which this court held in cookson is relevant to the substantive reason in this analysis and in particular the court explained that it was doing so in this case because the facts of the case were truly disturbing this wasn't some momentary lapse the defendant here researched how to make bombs he purchased materials on line and after setting off one bomb the st night and setting fire to what are you then went back out the very next night and set off for more bombs again including that bomb outside an occupied hotel where people were sitting on an outdoor patio fifteen feet from where it was intended to go off and when the defendant was arrested he had more bomb making components in his home  his car also although that event didn't have an extensive criminal history she did have a prior conviction for an explosive device possession or setting off an explosive device for my me please how many did go off yes the one they all went off to very well for went off to varying degrees i think only one didn't go off at all but one that was set up in that bar it seems to have gone off extensively the only record we have of the damage that was done is actually in the transcript that's in the supplemental record where the defendant's lawyer said that there was seventy four thousand dollars in damage others appear to have barely gone off and the record explains why he did it wasn't because he didn't intend them to it was because he made various miscalculations about the way that the gas was going to be transferred in the weight of the gas perceive the weight of the air i'd like to address th issue of the weight that the court gave to the guidelines and the prior sentence and if it is made this procedural argument that the court relied on the prior sentence and in order to take that view we would have to disbelieve what the court said because the court take it took into consideration it took into consideration before imposing the one hundred and forty four months sentence that a sentence of two hundred and forty months is the same as the sentence originally agreed to my both the defendant and the government now the court again saying nothing factually has changed in terms of the underlying facts offense offense conduct but the sentence the government requested was the same one as originally imposed and that was the government's position that where we are recommending a sentence the same one that was originally imposed this is a sentencing judge you should consider that and the judge said i'm going to take that into consideration so whether he took it into consideration whether it's in the back of his mind it seems like he was basically conceding i do think it has some relevance that originally this defendant was got two hundred and forty months and then when he sends that a penny said the you want to feel real good about that because gee it's a lot better than what you originally got it seems like maybe this judge was a bit of excitement on the government's position that hey we're just recommending what he originally got but the sentence he originally got turns out to be unconstitutional and why isn't that procedur problematic well st of all i'm not sure i'd agree with the way that with your characterization of what the court said what the court said is it was going to summarize the government's arguments some of which it believes has merit it then explained as the government had that the government's request with the same as the sentence before i thought it been worded so in incineration i got it and it didn't yet it didn't specifically say it took that into consideration it said that it was taking some think it's problematic that perhaps a court seemed to have that on its mind and that was the government's i think what the clearance recommending on it got even though that wasn't constitutional sentence yeah i think that what the court was agreeing with because if you look at the government sentencing papers it's reply after the defendant raised this issue what the government said is that clarified no we are we are speaking the same sentence but that sentence is because the facts are so severe and so i think that what the court is saying here when it's talking about the government's argument is it's agreeing with the government about the facts of this case being extremely severe because it was a direct lead in to its next statement which is the government argues and i agree that these facts are not facts are very disturbing i think it's important to note that when the defendant made the same argument below that he makes now about the government unreasonably relying on the prior sentence the court actually ruled on that objection and  said i agree that the sentence in analysis must of course begin with the guidelines and so the court was aware that the government or the defendant was making this objection and although he began that the portion of the ruling on the motion for variance   as to the prior sentence you can you use the term his cooperation had been useful in the past tense and yet we get to the current sentence and you say oh in hindsight it didn't turn out to be useful i don't i don't  understand that it was useful in the past tense several years ago but now it's not useful at all in hindsight you know that sort of inconsistent it obviously is a different a change in position so to the extent that that means it's inconsistent if it clearly is before the government said that there was substantial assistance now is saying there is not but i think that affair with angela and senate was significant and useful in the investigation meaning it had already been useful in the investigation the government kind of condition that but it did so and it's already been useful that's a few years ago and now the government says well now in hindsight it was useful after all i guess i have a hard time understanding it and i think the important thing to remember there is that the sentencing happens at a particular point in time and the sentencing in two thousand and twelve happened and the government was required to take a position on substantial assistance out to a point in time of that sentencing under the plea agreement the government had agreed that if you had provided substantial assistance they would make this motion and so the government at that point in time said what it believed to be the case based on the information i had no doubt at least influence as a practical matter by the fact that he was facing a thirty year mandatory minimum otherwise but made the effort but i mean the representation based on the information at hand and at that point believe that information you had  useful now it turned out that it wasn't and it turned out five and it wasn't because the government's position changed it was because they got a more complete picture of the information as it conducted that investigation and it was now able to look with a more complete picture at the time of two thousand and twenty and say you know what when we believe the defendant about some of the things that he said at the time alternately did not bear out and so yes the government changed positions i think that certainly the court could have found otherwise  the court could have held the government to its initial position at the time of two thousand and twelve but i do think this is a factual finding it's not one that's clearly wrong yes and it was proper for the just to defer to the government's current assessment based on the full there is that the the information proved to self serving to be useful  i'd like to address this issue about the guidelines and what the guidelines would have done for a sentence that for grouping counts and taking everything to into consideration yes the guidelines take into account knowingly creating a substantial risk but that doesn't mean that the court can't vary upward from that where there is an extraordinary degree of risk and i do think that a thing that the defendant is missing here and ignoring is in particular these bombs outside of an occupied hotel where people are sitting fifteen feet away and i think that the defendant says something in the briefs about the people weren't there when the bombs went off  but if you look at the p s r what it says it says witnesses who were sitting on a next to your patio reported that an explosion occurred followed by a fire fifteen feet from where they were sitting that's all it says i think  when the explosion happened now they didn't see the defendant but they were there also the defendant himself said that this bomb outside the hotel didn't explode as he had hoped now if a bomb goes off outside of an occupied hotel it's not just those people who are fifteen feet away who knows what would have happened if this bomb would have gone off as intended and so again we don't the comparison is not somebody who sets off by on in completely isolated places with nobody around in the middle of the night as the defendant wants it be the comparison is somebody who does all of that including a outside of a hotel and i would add that that if somebody had gotten hurt or if somebody had gotten killed which the defendant talks about the statutory maximum is somebody's gotten hurt the statutory maximum would have doubled if somebody would have gotten killed the statutory maximum would have gone up to life imprisonment and there's no doubt based on the way that that it ever had where somebody put more members of the public at harm in this particular case considering the risks is one thing but when it will have been appropriate for the court to say that you know if somebody you die you could have got x near where i'm going to give you my answer is that really no that's not what i'm saying that defendant is trying to say that well if somebody would have died this that and still would have been even less and what i'm saying is that's not true if somebody would have died i think the sentence would have been even higher i'm not using that to justify the court's sentence neither did the court and using it to respond to the government's argument that a more severe crime would have gotten a lesser sentence and i just think that they would not have any guidelines sentence in that particular situation because because the defendant submitted a supplemental authority the tourist case i do feel compelled to at least as refly respond to it most obviously that sentence came four months after lawless w certainly can't render his sentence substantively on reason what the time but i do want to draw out a couple of differences between those cases st of all the defendant that case was criminal history category one apparently no criminal history criminal history spirity and then i just want to reference again in response to the long list of mitigating factors i understand and the court understood that there were many many getting factors i am not discounting neither did the court the mental history the mental health challenges that this defendant had the court went through all of that as the court found this to be a very difficult case if you look i think the court said that for the rest of it's the rest of the court's career she's going to describe this as what makes is just so hard so this isn't it isn't a situation where he blew off those mitigating factors he considered them he said there were significant aggravating factors significant mitigating factors and the court walked through all of them and ultimately came to the conclusion that the appropriate sentence w hundred and forty four months i don't think that given that thorough explanation and given all of the things that we've talked about today that that decision exceeded the bounds of permissible choice now could the court of recent lower sentence certainly and perhaps another  i but that's not the question there's a range of possible sentences and the sentence here twelve years for setting off i bonds in three places over two nights including outside of a hotel for a defendant who already had an explosive device conviction the judge really did think about this mitigating evidence and i think that that's true but that just shows that he dealt with that procedural what this court has to ask is was it reasonable  some serious that finally is clearly erroneous that he intended to do it or that he intended to maximize the risk and i want to talk about this hotel incident that mr shock spoke a lot of  i think mr shock said you know that there's on one hand there's risk but then there's risk but you really have to look at what this device was this was a plastic bottle with some this this is not something that's going to take down a hotel it's not something to where even someone fifteen feet away is going to be harmed by the explosion now cause the fire and that's dangerous or that if you you take a model talk to the building and that building is still standing you're looking at a thirty year mandatory member i mean that so what does that tell us i mean our right viney used a bottle i mean so what i mean of it still could have hurt people and it still could have caused the panic there result in people being hurt it certainly could happen and that's why he got the eight level increase that i'm speaking about the question i think is if you take the category of offenses where all right let's think about all the offenses where the defendant substantially risk caused him death to other people if you limit yourself to that category of offenses was this  so outrageous in comparison to the other substantial risk of death offenses that it requires a one hundred and forty percent upward variance and i just don't see how you get there it was risky for sure but that much more risky than other offenses that cause a substantial risk of death i don't i don't see it now i want to talk a little bit about this considering the prior sentence the twenty year prior sentence and i just want to this is one of our procedural respon challenges quote what the district court said he said let me recap some of the arguments of the government which i believe have merit and that i have taken into consideration in deciding the sentence to impose and then the next thing he talks about is how the court in this prior sentence it so he didn't say some of the government's arguments have merit he said i'm about to tell you which ones i think have merit and which ones are taken into consideration and the st one he mentions is that the substantial importance of this prior sentence which that makes the sentence procedurally unreasonable if not substantively thank you thank you counsel