sponsible for prosecuting mr williams further as this court it's only held in united states against that would that conceded violation of the statute is not harmless and requires remit for how much the that would case should we use as a metric for decision discretion your pete the last project a short question we use discretion if discretion is key to that at would opinion with regard to its applicability to vacate something how much should we employ that here your honor two responses st of all that which is helpful in this case because some of the factors including factor number two i do not rely upon discretional together but even turning to discretion as the ultimate watchword effect case discretion is key here as well because while the sentencing hearing for which is what was that issue and that would involve the judge discretion so too does a trial and numerous courts that have addressed this question of a four thousand five hundred and fifty eight violation going to trial have determined that it poses the exact same risk of a judge's discretion being manifest throughout the course of the proceedings but the trials really different that a sentencing the sentencing is all the judge the judge has complete discretion to impose the sentence the court thinks is appropriate the trial here there was a jury that heard the evidence and made the determination of guilt or innocence now it's some trials leading up to the trial there are significant rulings that may impact that but outcome part of that also goes to the fact that the judge's appearance of bias doesn't need to be manifested in particular rulings throughout the trial after all doing so requiring a defendant to point to particular rulings that might have changed as a result of the trial and evidentiary rulings except truck would certainly be relevant to the court's analysis of the st prong risk of a justice to the parties when the fact that a judge is called upon to make it i certainly important in the for what the actual decisions are wouldn't that be important your honor if a defendant could point to for instance a pattern of objections against him perhaps  that case that might counsel against that but in this case for instance there were certainly objections are ruled against here the government is pointed out and asking a defendant to point to particular rulings that might have been affected as a result the appearance of bias would be asking every defendant to draw a tenuous line between an appearance of byes which in this case was against or for a litigant generally and particular decision is called upon to be made during the course of trial but if you don't have to identify any such oh i'm sorry if we accepted your argument about due process and the recusal statute would that not mean that everyone tried by judge rooms during the relevant time period would be entitled to a new trial or would it be limited to trial involving prosecutors and paralegals with whom we corresponded is there anything about this case in particular that distinguishes it from every other case at that  this particular case mr williams is pointing to the volume of the expert to communications the fact that when you have many of them indeed with two behavior before and during trial the personnel involved and the timing of this case and so on those facts and actually i'm not at be happy to have you follow up what i want to consider after you do that is the nd factor under little bert just briefly on your response to judge her she asked if our ruling essentially apply to all of the cases that judge bruce presided over all the criminal cases and you said no this is different and two of the factors were the number of communications and the timing of the trial wouldn't that apply to every criminal case that was tried by a judge through during the period of the communications during the crude period of communications certainly those factors would affect each of those cases yes during that period and so the question is in this particular case given those facts in the personnel involved the fact that many of the expert to communications were with the paralegal involved this case and the prosecutor involved in this case but you have that type of nexus between the impropriety alleged in this particular case and you agree that none of the communications pertain to this case in particular correct the communications flows and to disappear as we know in my twenty team for this case but i also know that anatomy dischord addressed in any circumstance in which again none of the incentive in cases moving forward for parties and judges to make sure that their communications were proper and nothing about that analysis was tied to the particulars of that case or sentencing and so here at the exact same incentive the exact same rationale exist and we also should be considering the need to have a deterrent effect on property commuters or other attorneys who engage in direct party coverage station year in which a judge was communicating with one of the litigants during the process of the trial and the court determined that of the nd factor remaining to serve as an incentive to both the judge as well as the litigants and so to hear were some of the litigants for the exact same individuals involved with the x partitions and is the analysis mr cancer eight deterrence as to a specific deterrence question or a general deterrence question so in other words deterrence as to the players involved in this case or deterrents as to judges and lawyers in general courts have always treated it as a general terms question and yet states versus smith for instance this court talked about the need generally for courts and judges to examine the basis  enhanced guidelines for age use as a starting in incurring point at sentencing was improper so the only question is whether or not this is one of the rare cases under the supreme court's guidance in leaving martinez and few that doesn't m ranges and so as a result that two hundred and ten to two hundred and forty month range presented her a false choice she thought that she could sentence him to that or to the not against range and so in her discretion she picks something in the middle as a result this pulled his range relied upon the fact that he had career offender predicate since background in the discussion of his criminal history she notes you have to serious offenses and i know that because they are career offender predicates and so while the judge is intitled to sentence a defendant under and fifty three dollars in their discretion they must do so independent of the career offender designation otherwise it's tied to that care and so because you have that type of timing or twenty minutes in this case particularly here where the judge thought she was sentencing  is not a clear offender it may go to whether or not this would be a pointless step if in fact neither of his predicate offenses were in fact predicates and is perhaps even more reasonably probable that a remain and in light of these changes to the dozen nations  good morning your honors and may please the court greg walters on behalf united states as i expect this my friend gets to spend most my time on the judicial refusal issue i would like to make some brief points about sentencing in case i don't get there with enough time it's interesting that judge darrow did say these are serious offenses they were career fender predicates the reason that they're not is not because they're not serious offenses are really violent offenses it's because we are under this very technical categorical approach which takes something of what is a serious offense such as aggravated criminal sexual assault and it's now not because it doesn't necessarily involve the use of force or a drug trafficking offense that arguably arguably hypothetically is not because of per hour perhaps and a loser e type of isomer positional isomer in defining cocaine by the state of illinois he traffic drugs he sexually assaulted someone those are serious offenses and so we have this judge doing precisely chief judge darryl what this court has instructed judges to do which is when the levels  we agree with that as a matter status he is not but i think a judge and it's especially in today's day and age when in this difficulty of applying the categorical approach that all of a sudden we get to the court of appeals and he's not a clear fender and some cases because of a very difficult categorical approach argument and so it's i think it's clear that she didn't just rely on quote his status but t the crimes that underlie that status which were the criminal sexual assault and the drug trafficking trying and then taking into account and whether technically crimes of violence or drug trafficking crime then taking into account the other th factors and come into a very thorough explanation of her sentence and sane i would impose the same sentence even if you were not a career finder so it's not the status per se driving it is the defendant and his characteristics and that is not contrary to what my friend said that's that's just not a last minute afterthought by the judge after explanation and that as in preparing for the argument and rhetorical argument is often the worst one but i i was sitting here asking myself how would this court frame remain an instruction judge paralysed what she did wrong the supreme court  said the guidelines are the starting point asked me according to the supreme court but if you miscalculate but then still give a thorough explanation and say i would have posed the same sentence and the alternative range is too low the range i calculated is too high and here is where i'm going to end up somewhere in the middle by the way is what she said on page script not choosing something exactly in the issue i don't plan to spend much time on the due process issue since my my friend didn't dwell there but instead on on the appearance issue and as we can see that there is issue we took a cue we believe from the judicial counsel's order and saying that it appears that judges conduct or the appearance may have waned and so we have conceded  this is not a one size fits all work attwood controls we look at the circumstances of this of this case in applying the will to birth factors and so of rulings the judge made what was he asked to rule upon to see that if we agree that he does not have to demonstrate actual bias to get past the st little jab or factor that would make no sense but you'd least take need to point to the record to say where is there an indication of where is there an appearance of potential bias in these rulings and when we have three pretrial motions two wer looted the other one the judge had to grant because they did not identify an alibi witness and then we look at all of these alleged largely discretionary rulings objection excuse me your honor i'm sorry i cough oh ok about relevance leading argumentative and we see that this is going rulings are going for the defendant against the defendant for the government against the government and very basic objections and what we what the defendant is arguing with this is largely discretionary it's just sure there's going to be discretion every trial but how did the judge exercised in this particular trial and let  me give you an example of where discretionary ruling could could have much more impact let's take a daughter here where the judge determined should this expert testify or not and it's a close call and he were to exercise discretion one way versus another that could very well be affirmed on appeal but then if you take into account where there's appearance of bias overall from this judge and so is there a potential that that appeared that that appeared to be your indication of bias within the context of that particular trial we had a while just how should we analyze the fact that the paralegal involved in this case in appears that she was at trial most of the time that she is one of the individuals who judge bruce had a close friendship with and had quite regular communications when during the time in question he did and it's because of those communications largely that we have said there is an appearance so how should you not act our analysis of the factors and we don't believe that it should in this case thankfully given that that was not and they were inappropriate e mails in the sense they were largely scheduling but there was no inappropriate relationship at the council found and we have and judges are allowed to have friends it's just there was poor judgment but not bias or even but as you said you don't they don't have to show actual by you know but even so what's the indication of bias towards the government still even though m clare participated as a paralegal she's not shine with advocating for the government this case she's doing really details of that was she in the courtroom out of the courtroom i have to presume yes based on my experience and having a paralegal that i say would you put up that the risk of injustice to mr williams i think the analysis is exactly the same look at the judge's discretionary rulings in this particular case and where is there an indication of bias when continuances for in retry where we have a sentencing judge she said this is the worst nightmare for these victims to have to come back in and re experience an experience this admittedly we have cooperated defendants that we will need to bring back   cost of the public here at the retrial when the public and understanding observer who is informed of all the facts the public will know that this was a jury trial that there was a buffer here between this appearance of bias and the verdict and so that factors well we think is in our favor and then the nd factor i don't know if i can give you an example of where  while it was certainly a well published i'm sorry did not catch all of your question is is there is there a risk of of deprecating the respect of the judiciary as a result of this conduct is that i think that's that's the that's the case in any four hundred and fifty five a violation where there's an appearance of partiality there has to be a weighing of those factors in the context of this of that particular case that has been with the again the fact that the paralegal who he had a lot of these communications with w the paralegal for this case be relevant to that factor to the to the public or to the public fact i think again this is i think we need to be looking at a reasonable observer who is informed of all the facts to understand that and and if that were explained again to a reasonable of server who was informed of all the facts understanding the role of a paralegal i think then they would be a as a matter of public  have that appearance as you're linking her involvement in the case to get to substantive rulings of the problem for the purpose of undermining the public's confidence is that something that we need to look at it doesn't need to be linked to substantive rulings or is there a concern about undermining the public confidence because of her communications with because of their as of as a calmly but was he having e mail communications of phone phone communications with them about cases going on in the office and that's the distinct effect you're right but these i'm not saying just a friendship being there i'm over my time  and this is i think we really need to look at miss clare's communications and i am not defending her and these are unprofessional and ultimately there was an adult in the room who was the judge that we didn't quite work out but a lot of these deal with scheduling and it was friendly i think it's out there saying i'm guessing after this claire we're standing here she would tell you that she too is embarrassed but she communicated in that way with someone who is a dear friend was a dear friend but it looked unprofessional but they were largely scheduling e mails between those two and gossip things that friends do and pod there you will have no argument against from me that it should never occur but we have a handful there are potentially merits related email for email strings post judgment regarding appeals i'm not defending the content and the other one in nixon itself which i think in reading the next e mail judge wrote there is again completely unprofessional poor judgment i have a lot of adjectives against the government could use for it but it is it is equally critical of my colleague ellie pearson as well as ms nixon and then also talking about another colleague of mine in the judge's view from his experience i guess as a prosecutor as to what a good cross examination with i mean this is the judge  keep and its remedy is instructive there it ordered that for a total of a year period judge bruce could not preside in any criminal case involving the u s attorney's office that included trials and syncing hearings alike and it involved cases even when rails had been constructed against this type of behavior happening in the future and the digital council did that because it found it necessary to restore public confidence in the judiciary so the question is whether or not given that benchmark a case that immediately preceded communications that remained was required further there was no allegation at with that there was any impropriety it was even hair in the discretionary proceeding but the judge sentenced a defendant to the middle of the guidelines range there was no allegation beyond the sentencing question again the governor's mid that there was a violation insofar as mr williams went under the incorrect career offender guidelines range the supreme court has made clear that in most all cases such a guidelines range calculation requires dream and this is not the rare case to the contrary in the evidence in the transcript demonstrates that even despite the sentencing judge's proclamation that she was attempting to sentence him under three thousand five hundred and fifty three dollars factors in her discretion she was  undoubtedly anchored by that two hundred and ten to two hundred and forty months range both in she's an ultimate sex have selection of the sentence and in her analysis of his criminal history and so as a result she ended up instead of a two and a half year below guideline sentence with a two and a half