thank you your honor may please toward i am john tompkins here representing oliver hamilton mr hamilton contends that the district court of used discretion but it imposed a sense of sixteen months of incarceration one hundred fifty percent more than what the high end of his guidelines for level fifteen criminal history category one offense warrants and double what the government asked for in their over guideline thirty months request now are you arguing that the provision in thirty five fifty three and i that permits the district court judge to take general deterrence into account is invalid it's not invalid but it does not apply to mr hamilton's case mean both the individual characteristics of the individual and the individual characteristics of the offense well here recently is there to think the judge didn't do all of that here when you're out on the courts memorandum in the district court's memorandum  the court's twenty eight pages discussed several topics that are not consistent with developing a general deterrence theory but he said said page twenty seven of this memorandum the court against is that it is in no way tripping all the evils outlined in this memorandum solely to hamilton using the information to get perspective invites a response he's not just sort of slapping on the table and saying lied to agents when confronted with his wrongdoing in the johnson case word an employee of the department lied to agents and also like to a grand jury or inciting needing to send a message of general turks using hamilton's individual characteristics in the characteristics of this defense to send a message to that type of potential defend in the future is inappropriate hamilton accepted responsibility immediately never lied to the agents waved being indicted cooperated and set up restitution if you if a district court wants to send a message to cases and defendants like graft and johnson it shouldn't be sentencing someone like hamilton who fully cooperate swades indictment provides information  from restitution saying we're going to give this defendant hamilton and increase sentence lower than what people who lied agents and lied a grand juries get they should be getting a message from hamilton's case that if they had lied to agents and if they hadn't lied to the grand jury they wouldn't have been treated as nearly as he cuts hamilton some breaks to he's not probing into the nine hotel rooms into cars he's he's not really probing the charges on this public credit card which apparently amount to several hundred thousand dollars and yet they're just sticking with forty thousand and one so let's not get the sense of a district court looking at the particular years of this man deciding that a longer sentence is necessary he knows that the guidelines are advisory everybody's had that drummed into their head for a long time now and he thinks sixty months is the right sentence where are to address directly this question about hundreds of thousands of dollars that's really not a valid argument by the industry first of all this is a defendant who fully cooperated the individual characteristics of this offense it's a credit card and reseated series of transactions this is not a hard audit to conduct if you think that there is additional money that hasn't been discovered by the agents there could have been or for special master to do an audit there could have been a request that the agents provide further information to the district court but simply saying when the government says with the full cooperation mr hamilton and all the records of these transactions available to them that they cannot meet a preponderance standard that is a strong piece of evidence that that hundred to two hundred thousand dollars that the court is speculating about should not be used and is an abuse of discretion to use to add to the top of the twenty four month high end of his sentencing range so we dispute whether that hundred thousand dollars is properly used by the district court or is speculation part of his abuse of discretion we believe it's speculation part of his abuse of discretion especially given the tools available to answer those  questions i would point out along the lines that same question on page five of the court's excuse me sensing memorandum that the court said that the extent of hamilton's thievery will never be calculated accurately again the nature of this fraud the individual characteristics of this crime documented in credit card receipts the record reflects use of receipts from the township to known pa clearly not a correct statement within the memorandum provided by the the district court but what the judge also says is looking at hamilton's crime he says it overshadows the good things that he's done you know their letters and stuff because it's the judge put it he chose corruption and greed while hoodwinking the community into believing that he was helping them and he really sees this is a it's a betrayal he may see it as a betrayal your honor and in fact it is a it's reflected in the nature of the offense and in the guidelines themselves hamilton received a six level increase because of the amount of loss hamilton and judges saying he doesn't see i mean i guess in some ways maybe the questions i'm trying to ask here all the district court judges made these determinations he's come up with this sentence you know if the three of us were to sit down and do it all over again i don't know whether we would come up with sixteen months or something different but that's not our role when you are in part of the making these determinations there are clears and other for instance where the district court characterized hamilton's fraud as staggering it's forty thousand dollars now that is a bad thing but that is reflected by a six level increase already in the last table in the guidelines it works out to be six hundred six dollars a month on average for the sixty six months the fact that it took sixty six months to accumulate it means the duration of the offense is partially reflected in the guideline addition and we cannot forget he also received an increase in offense level because of the abuse of trust the district court does not in any way analyze how those increases in offense level are inadequate all they say is this is a staggering offense we disagree the individual character characteristics of this particular offense do not appear to be staggering it does not appear to be there were no false books created there were no cash payment all weekend we understand that if you want to save a minute for a thought oh maybe this would be certainly not the time to do that thank you very much thank you mr smith was over hamilton did not cooperate he agreed to plead guilty at no time to cooperate at no time to go into detail with agents or myself as to how much he took or how  took we be in a different posture with that and that's why i wrote those dollars at no time did it walk those part you refused to cooperate now with that so let me give you the backdrop to the oliver hamilton reagan has been there for seventeen years here in winter uses here knowing numerous public corruption cases that is the backdrop that he takes to this when he sees the notes in his sentencing memorandum during those seventeen years the increase in crime the increase in poverty the exodus of people from the st louis now why the several see that's why i asked about general deterrence up i do not read what judge reagan talking about as a specific deterrence argument you know mr hamilton's done what he's done you know maybe he's not going to do it again maybe he won't be in a position to do it again but there's this concept of general deterrence and there's actually an interesting debate about the extent to which one person should get a longer prison sentence just to quote send a message you know to the community at large so it sounds to me like you're saying that that's exactly what chief judge reagan was doing sending a message to the east st louis community cut out the corruption cut out the crime the graft etc i think you seriously but in part because he also noted if you'll note that at the time  hamilton was committing his offenses for over five years five and a half years he noted that the people out of the metro east were being prosecuted at the same time for public corruption it served  deterrent daalder him a at the same time is committing the offenses numerous public officials who are serving their federal prison sentence is served as no deterrence dollar hamilton what was significant to judge reagan is at the same time that he was committing these offenses however hamilton was in charge of as elected township supervisor providing services to the poor and disadvantaged now we can say that the money he stole caused the disruption of those services but in the backdrop at the same time he was stealing they stopped giving medical care they stopped giving dental pharmaceutical care two hundred bucks came from there's no evidence he ever did anything except go to conferences with his rooms received so why didn't the government pursue this you know i mean nine hotel rooms and two cars just sounds like quite a bit to me and this sort of idea that maybe that was more questionable on the charge card it seems like you could've put evidence in the record that would have been a guidelines level support for a higher sentence but this doesn't happen which is maybe a question correct you know there are two factors going on with with some of the money being spent whether it's for construction material or gasoline or car washes it becomes hard to say if it was for the township or for him personally so we tried to make a very clean fair bit if you will in move quickly and that's exactly what we did rather than spend years trying to pick an investigation with the knowledge or him of that wasn't cooperated and the people in the township for the most part purposes of the guidelines but so certainly victims considering the nature and circumstances of the offense under thirty five fifty three he's got a wealth of knowledge and experience on the issue  common defended a sentence that's higher than the one that that person recommended i mean that does happen sometimes district judges see it differently yes so i think you are right thank you very much anything further m you very much your honor very briefly i'll return to the theory of general deterrence you point out that nowhere in the twenty eight page memorandum or in the court's colloquy did the court thoroughly examined the theory of general deterrence although the national institute for justice recently published one of their five points bulletins about general deterrence and two of those five points number one being the certainty of being caught is that's really more powerful as a deterrent than the punishment and the second being sending individuals to prison isn't a very effective way to deter crime generally it may deter specifically which was not an issue here the district court said it was an issue but does not effectively deter general if there  further questions thank you very much all right thank you very much bill take the case hundred