the morning your honors may please the court carolyn awaken from the federal defender's office for mr t s on and i will try to reserve two minutes for rebuttal i want to start by thanking the court for accepting my brief yesterday and i'd like to jump into the issues covered in the supplemental briefs your honour's we believe that under this court's recent decision and simon it's clear that the district court in this case should have done the guidelines calculations under two x one point one and not to him five point three you assume you're right ok the government says my calculation set up about the same way that that probably would have made the guideline d departure the judge said something like this boy these numbers are so high i'm going to use the maximum effect as the guideline and then gave your client twelve years rather than the  fifteen why would it make any difference to this district judge if the the guideline calculation were thirty four over twice the maximum as opposed to thirty seven a little more than over twice the maximum well the so why wasn't the air why why is it in the air all right well what the district what the probation office and district judge decided was that the guideline range was three hundred sixty months to life and when the parties got to the point of the sentencing hearing when they were arguing for down were very high and the judge said what difference does it make of it these numbers are so high that i'm going to start with the notion think you've know what he said i'm going to start with the notion that the maximum is the guideline fifteen year statute right next and which remains the same even after simon of course so the question is why wouldn't the judge when confronted with assuming two x one applies i think it does and the judge calculates the new the new guideline and it's thirty four rather than thirty seven why wouldn't he go through exactly the same jack with the same sort of analysis that he did last time this is so high i'm going to use the max as the guideline and i'm going to part downward from it for three years well your honor when the defense was arguing listen treating him as a criminal history category six is unreasonable he has no criminal history he was very ineffectual the district judge specifically states well i don't agree with that he went from no crimes at all to influencing him it's very unusual but that's not what the judge said here's what the trial court judge said as a matter of law the fifteen year maximum sentence becomes the guideline range in the court so finds with respect to the guideline calculation this is the starting point for the sentencing hearing so that would have occurred that finding is a matter of off fifteen years is the guideline range whether you had prevailed on your two x one point one argument or know i'm not looking at a life sentence that i'm very i mean although he did acknowledge fifteen years is that max becomes the guidelines i don't deny that but still when thinking about the variance it was  his analysis this young man went from no crimes to a three sixty to life crime i think the district judge would have wanted to know under our noses it becomes a two tended to  under even the government's analysis it becomes a like three twenty something that's quite different when you're asking to go to nine years and a life sentence and i think that was important to why he thought i am going to treat this as a criminal history category so your argument is just that notion of life anchored the judge such that his application of thirty five fifty three became skewed yes that's going to judge should mention to be fair for once or twice that i do have to consider the guideline for then he went and said something like i consider it so high so i'm just going to start with a max let me ask you a different question if the judge had given your client the maximum and said that guideline is so much guideline i'm supposed to pay attention to the guideline and it's so much more than a maximum i'm going to give you the maximum would would you then have a harmless or we would still be arguing the sentences substantively reasonable and we w go you know you got to separate substantive unreasonable or for that let's assume for a second that twelve years is substantively reasonable so we're only trying to figure out whether whether the use of two m b three rather than two x one point one was  guideline is more than twice the maximum i'm going to give you the maximum and under two x one it would have been more than twice the maximum also well under two x one point one i think we come out at tend to  gotten i don't think there was any question on anyone's mind that he deserved an acceptance of responsibility for entering an open plea the one thing he was charged with so i don't think that would have been so what you do credit you give yourself in your your client i know is that and what other credit i give him the three level reduction for an attempt that was not right and i give him a two level reduction for not getting to him five point three b to love add on when you're in to x one point one land say it has actually occurred or been specific taking off track a little bit you know under your most optimistic calculation in your two x one point one what's the good morning your honour's and jason here for the united states the court all three judges have accurately pointed out this judge's sentence was thoughtful careful rational and grounded in the section thirty five fifty three factors as judgment shane mentioned and there's a there's another quote that i think points this out the judge said the sentencing guideline itself is again a factor but as the system federal defender mr galloway pointed out it really does not come into play as much in this case in terms of a thirty year to life sentence is not available only a fifteen year sentence is available to the court in reading the sentencing transcript in the court's decision to vary to twelve years the court was very impressed by the need to protect the public the adequate deterrence that needed to be imposed by this sentence and i think as this court has pointed out in the opening argument the court's decision and sentence would not change if i went with guessing are we i mean there certainly applies and the judge did say once or twice i have looked at the guidelines and informed my decision but really i'm working off the max why not just in an excess of caution send this back to the judge if the judge now wants to give twelve years again he's perfectly entitled to if he wants to give you a recommendation of nine denise he might well do so why not just send it back to the judge and say now that you know that time and other simon is this is the law recalculate and do whatever you want to do i think the the answers that because this court has held that if the sentencing error is harmless there's no need to send it back right but if i can't be sure that it's harmless if i merely think it's likely that it's harmless and try to think of systemically what's the what's the harm in sending this back to the district judge where to dispense incarcerated the judge can make a very quick decision he can impose a new sentence or not systemic lay why don't we why are we why are we fighting about this issue i think the in this particular case i'm not sure it's the stomach really i can address that but in this particular case if the court had less of a sentencing transcript of the district court had not gone to such great pains to explain the rationale for his sentence to very carefully weigh each of the thirty five fifty three factors then perhaps the recent thing would make sense given the change in law but here you have a very thoughtful thorough and rational district court judge working through the factors having considered all of the evidence presented in arguments by the parties i also want to point out i i apologize for not being more clear in my supplemental brief the government didn't intend to concede that the three level discount for attemp applies i was simply providing the best case i understood that but i think it's quite likely that given this this you know he couldn't the judge couldn't give the three level for attempt under two m b three right correct but interestingly if you take the findings that he made and the way that simon interprets two x one point one if that three level discount isn't applied you actually end up back at three sixty right life so so again i'm interested in the government's argument i'm not sure it makes a difference in this case do you really think that koenig survives side i do because it stays within the guidelines approach that simon requires coning kerning have you say indicates that when you look within the guidelines themselves if the commentary expressly incorporates or index as an offense then there's not exactly isn't that exactly the case in simon isn't the offense indexed in simon also i don't think so i think the problem with the hop sack i'd learned in simon was that the court found that it was an it had no intro guideline indexing whereas i thought i thought the court said a nice bright line and simon which is that you know guidelines for statute and we just do it that way if it wasn't it wasn't now you're complicating simon for me your sakes i mean requires a second level i'm second i'm not sure it matters in this case but i was surprised at the government's position but i  don't mean to complicate it but i think if you take the the various specific things simon directs district courts to look at the four final factor relevant intra guidelines context i think that fits with counting when it says simon says a guideline other than two x one expressly covers any code offense only if the guidelines themselves so indicate that what you're saying is the guidelines themselves so indicate as long as it's a listed offense well what it says complements that rule by saying within the guideline provision commentary if it expressly sets forth the statute of conviction then you don't go to too right but that was a report in time when we were following the now and i forget the guidelines and then could you point to any place in the guidelines where it says and attempt under two three three time be is is accounted for can you point to that language in the  sentencing transcript this particular judge was so thoughtful and so careful that there isn't really a concern as i read the earlier quote and as as you mentioned your honor he was very thoughtful in the factors whether it was twenty five years or thirty to life he understood fifteen was the top and he decided to go down from fifty this was a no doubt thoughtful judge and i thought full transcript with the judge at least under my analysis was receding under the wrong guideline and again i my question is it was not like we have to send this back for a new trial and we thought for judge who knows his basis and we tell him was the wrong guideline go back and tell us if you would arrive at the same sentence why this is one of those ones where it's sort of strikes me is  always send it back just automatically i don't think so and that would require overruling this court's precedent that i cited that that harmless error does apply in the sentencing context and there's judicial efficiency but i also think more than that given the liberty stakes for th defendant if you had a sentencing transcript and a judge who didn't do all the work this judge did then it would perhaps make sense but it doesn't in this case and even if attempt applies i think there's a very good chance with the findings already made it ends up three sixty to life on a two x one point one sentencing fifteen year the guideline isn't really available here are fifteen years is the stop max that was actually judge mendez the sentencing judge that said so and that's on page thirty nine of the sentencing transcript it seems to me that worked to your advantage your client's advantage the judge said well if i applied the guidelines i'd end up with a max so i'm not going to do that i'm going to start with a max and deport down so well he had to start with the stat max but he believes my client is already getting a more than a fifty percent discount under that because he believes the true guideline is three sixty to life he was very thoughtful he carefully worked through the guidelines hernandez franco was good law at that time but now the law has changed and i think this judge would want to know oh i'm not dealing with a guideline of three sixty to life where he's already getting a fifty percent more than fifty percent discount i'm dealing with a lower range and i want to know that as i'm considering the variance the courts have said keep the guidelines in mind throughout the sentencing process i think judgment us would want to do that thank you thank you they appreciate your arguments the case