on the half of the appellate marcus film and your honors the result in this case is unfair and warrants reversal from this court because but for a plain guideline here resulting in a sentence at least eighteen months about the correctly calculated guidelines mr hill will be released from prison in short order the government has conceded the first three prongs i would direct my argument towards the force prong that is whether this court should exercise its discretion to vacate and right man it would have been his release you know one thing to be moot or something that sometimes happens if we take too long that's good yes your honor i'm currently his release date is march eighteenth of two thousand and nineteen but when would he entered your version of things it's just to me got it god says i mean what's the difference right now i'm as a december sixteenth of this year he would have actually twenty nine months of actual custody and i know the bureau of fourth factor and i don't know what we want from you and obviously we have a very high standard in some cases and do not allow even year a year and a half differences  to make a difference and i don't think this case is going to be one that brings order to our disarray for you're in for sizing to is no doubt more important cases in a way maybe the government's view on this sentences and even those errors were not racing to appeal and were thus subject to the plain error review remand was was merited and it also goes to your honor whenever we look at the guidelines overreaching purpose and in our sentencing going back to read from the supreme court we want to achieve uniformity in the sentences imposed by the district court for similar situated defendants as well as the poor personality and syncing so that of the system appropriately different sentences for criminal conduct with difference of verity and in this case as this court has discussed in john the perception of fairness and hilson and seeing as marred by the fact that district court impose a sentence without understanding that it had in reality chosen above guidelines sentence and without its consideration of the court's guideline and further as laid out in the law no the integrity of the proceedings below are at issue because correctly calculating the guidelines are critical part of the judicial process that is protected by the fourth prong over the past few months panels of this court have encountered similarly situated defendants as such as mr hill in my twenty a j letter i cited to  those cases united states versus crenshaw that was handed down on august seventh united states versus brash that was handed out just a few weeks ago on november sixth in both of those cases the defendants had received often seven hands months for prior convictions of possession with intent to deliver the exact same park conviction as mr hill and crenshaw the discrepancy between the erroneous sentance and the current skyline range was twenty four months and like here are the government had argued that relief was not warranted based a difference in both those cases the court vacated in rimi and this court protected the fairness and integrity of the proceedings below by sending both cases back to the district court to determine the appropriate sentence based upon all of  and the court's guideline before it and that's what this court should do in this case how would you just to distinguish a february case published when terry which is the same mistake  recidivism would be a reason that that you do any kind of comments like that or is there anything president in your clients in the in the senate saying that would be similar to pages one hundred twenty eight to one hundred twenty nine the government's entire argument for a higher sentence for mr hill was entirely based upon his criminal history the district court specifically said that while it did not disagreeing with the government in regards to his criminal history it found that his criminal history was adequately reflected by his criminal history category further the court went on to say that it's found that the guidelines adequately reflected the seriousness of his office conduct as well as yes sure and that is the case that i mentioned a few minutes ago and unite his verses crenshaw it was a very similar taste to this and in fact that the difference in the spirit of the guidelines in this case from the top end of the guidelines we're looking at eighteen months up to twenty one and for the midpoint of the guidelines and why bring up the midpoint of the carets guidelines which is twenty one months which is similar to that in french off of twenty four months is that whenever the government urge for the higher sentence at this at  considering the district court expressly declined to do so and said that he found that the midpoint of the guidelines was more than appropriate in this case and the government of course is again advancing mr hill's criminal history as a reason for the court view that that criminal history and to fully consider it whenever it decided to impose a sentence further correction of this will give the district court an opportunity to properly discharge its amazing role because it's going to allow that sentencing for for the first time to make a discretionary determination necessary to arrive at the appropriate sentence and remain and for recent unsing is going to protect the fairness integrity of the underlying proceedings because it's going to afford that deference  air in this case the eighteen to twenty one months there are there are as you mentioned just southwick we have i am quite a repertoire of cases that we can pull from the same as the government can otherwise but this court has remained in several cases within the similar disparity range as mr hill including crenshaw from august i'm going to butcher the name of this one with cheney from two thousand and eleven there was a disparity of nineteen months united states versus john from two thousand and ten that court vacated and remained it four and disparity of twenty one months and it specifically said because that error resulted in a significant sentencing disparity and finally united states versus price there additionally there was an eight hundred eighteen months just parity and as justice course that stated in his concurring opinion and hicks who wouldn't hold a rally diminished view of our courts if we allowed individuals to linger longer in prison than the law requires because we are unwilling to correct and that's going towards the precedent that we do have in place in our circuit and perhaps other circuits and that is when there's been no indication that the district court would have selected the sentence regardless of the guideline range that does apply in officials and been deported without having faced any prosecution additionally two of those convictions were for immigration related oftens in this case with mr hill he does not have any recidivism as it really specifically  often says whenever you look at his criminal history on pages one fifty four through one sixty one of the record there is no indication that he's ever had a gun in his possession or in the commission of any has part convictions so when you're looking at the particular facts that's part of the distinction or whenever you're looking to see commits a lot of fences and they say in the in the transcript that he's committing an offense every six months in that right that is that's correct and he's got a lot of victim court to return to that what the supreme court has said in that seminal player decision and pocket the supreme court explain to aspects of the fourth prong that are especially relevant here first when a court is being guided on whether to exercise its discretion its guided by the specific facts of a particular case there is no formula there is no one single criterion like a discrepancy in the guideline range in the sentence that dictates whether to exercise discretion and the second thing that pocket made clear is that when we look at those specific facts that guide discretion we can in some instances see circumstances as were present there where it would actually be counterintuitive where would undermine the fourth prong considerations to exercise discretion that was the case in pocket where justice scalia writing for the seven justices said look as a general matter it would  always call to one to question the integrity of the system when the government breaches a plea agreement that's true in every instance but here when we got are guided by the specific facts of the case as and pocket what the court saw was that there was a defendant who continued to engage in criminal behavior during the pendency of his case so using justice scalia's words that it would be ludicrous and i would doll it back a little bit and say would compromise the the goals of the fourth proem to say in that instance when a defendant continues to engage in criminal behavior to then sind it back to the district court and tell the district court to consider lowering the sentence for of all things acceptance of responsibility did mr hill engage while he was in luck in pocket this is not that situation is it it is your honor there are two things about this big case that when we take the what the court instructed in pocket implied here there are two aspects of this case that make this similar first is that when we look at mr hill's case we see granted at the first and second prongs there was legal error i'm not disputing that that or that did he commit offenses while he was awaiting his trial or his it was not that i'm a writer or during the pendency like you just described in puckett not that i'm aware of on those facts of what i am saying is that what i am saying is that the error there was that the government failed to breach the plea agreement where because it didn't recommend acceptance reduction here when we look at the error the error as thankfully tells us was that mr hill was treated as given an enhanced moment for someone who deals drugs when in fact legally speaking we look at his conviction and that statute of conviction could have theoretically supported a conviction had mr hill simply offered made a bald offer to sell drugs having never possessed them and not genuinely intending to follow through on that offer just made a bold offer theoretically his his conviction would have been supported by that and that was fair or at the first and second prong but again it's the facts that guide the fourth prong of this court's discretion and when we look at the facts as floors and footnote three tells us we do those facts show that mr hill was not a bona fide victim of any error the guideline says that this enhanced man applies for someone who has been previously convicted of dealing drugs mr hill was found in a motel room with more than sixteen grams of cocaine scales and almost a thousand dollars in his pocket he was not convicted under  theoretical application of the texas delivery statute so harkening back to pocket justice scalia would say it would at least compromise the goals of the fourth prong to send it back to the district court and say you sentenced him under an enhancement that applies to drug people who have been convicted of dealing drugs and although we know under the facts that he was convicted for dealing drugs that was still legal error and you have to re many times on the byzantine rules that we have to apply about these hypothetical situations as opposed to the real situations where the always doing that in these cases this court is is always applying the categorical approach and where this where this is a preserved error and i was arguing harmless error to this court i understand that would that would hamper my my effort but on the fourth prong this court is not would be i don't know what the facts were of courage show which is now president but nonetheless you seem to be saying wherever we have this error the fourth our own problem won't be satisfied so long as it's a technical defect on a tank fleet and not a real what with the public think defect is that in my clumsy way a fair characterization of how you see it it's part of it it's not that there is not one thing that influences  so the what the court and crane saw said was his extensive criminal history which they considered but still in light of the extensive criminal history stilson it down to the district court for recent unsing that extensive criminal history had a chance to last night to actually look at it four criminal convictions including one assault that was twenty years before that instant offense to drug crimes and one misdemeanor evading arrest that pales in comparison to the criminal history that mr hill has amassed over a period of those twenty years he has amassed fourteen criminal convictions half of them assaults and at least six of those brutal assaults against four different women in his life t concerned about an injustice of the system but the district judge already was aware of that and said he thought that the improperly calculated guidelines sufficiently took into account is accurate that's that's accurate based on the is something that may very well deem that argument but we're again in plain error in an in a world where the puck at the court said meeting all four prongs is difficult as it should be  stringent standard to satisfy and it's proof that the district court's comments even tying to a mid range sentence don't insulate the error against fourth prong is that it's flora's i would submit that this court's decision in flora cited in my brief and from twenty fifteen is the best analogy the most analogous case to these where in that case the district judge explicitly found that a sense at the bottom of the guideline range should be applied a sin it's a fifty six months slightly higher than the one present here the discrepancy between the low end of the guideline range there in the sentence imposed was much greater than here thirty two months in the court there looked at the very same two things that i'm asking the court to look at here one which is there was a guideline  r because the defendant had a prior assault and the court said look even if his assault as a legal matter didn't qualify as a crime of violence didn't require the use of force we look at the facts of his case and we see that he actually did use force he punched a woman in the in the head that coupled with the second issue which is his history of recidivism in the court was persuaded that there was no need to acquit the fairness or integrity or or public reputation of judicial proceedings in that case because after all he had a second domestic violence conviction so on his two domestic violence as assaults this court and given the fact that there really he was not truly the victim of a legal error under the guideline as a factual matter setting aside the first and second prongs as a legal matter because he had he was recidivist into twice committing a domestic battery this court declined to require the district court to to fix even a larger error that appeared to be the thing that s in flores there was error as well and the error was the treatment of a prior conviction i think the court assumed it but the treatment of a prior conviction is a crime of violence when they assumed it was not a crime of violence and even in that situation here it would be treating a prior delivery conviction as a subset controlled substance offense even though as a factual matter it was legally it could not be treated in that but it changed the guidelines it did change the political law but in ruiz domingo's there was an error from the beginning the error was using the wrong guidelines range that error resulted in a different guideline range and even there again in fact comparable to here where there was even a higher sentence and even larger discrepancy between the guideline range and the sentence imposed in a comparable criminal history persuaded this court  asking the court to consider first that yes there was a plot guideline error but the facts of the case which again we are not blind to the fourth fourth prong in fact not only are we not blind to it the supreme court has told us that those facts are what control the court's discretion when we look at those facts we see that the guideline although at the first and second prong could not be imposed what that guideline intended to sweepin to capture is exactly what th defendant did in herrera and that that alone was enough to persuade the herrera court not to exercise its discretion in ruiz demeaning as there was error but it was his criminal recidivism that persuaded the court it's serious and brutal history and as i think your honor pointed out when we look at those facts when we drill down we verify that the periods in which he wasn't committing crime a lot of that is accounted for because he was serving one hundred eighty days three hundred days in jail and that i think explains why a large part of why he wasn't picking up additional offenses we're not talking much of his many cases to discuss i'm not faulting that we not talk much  facts and decided he really was guilty of intent to deliberate but he could not be given the handprint is a different in some way i don't i don't think so but when we put all that it is the facts of it of any case are going to be unique and when we take the totality of the facts here according to what the supreme court has told us and pocket and in henderson about the fourth prong being a protection against opening the floodgates to plain error corrections what we see is that we have cases that are and that are truly analogous and just as i was saying where they're not just one but two things that push in favor of affirming the fact that the way the guideline was applied was legally now we know from thankfully incorrect but the facts of the case show that that the guideline enhanced behavior that as a factual matter we know to be true and coupling with that which wasn't present crenshaw certainly wasn't present in brass brass and it was another case that that is relied on there the discrepancy was one hundred months the discrepancy was two thirds of the sentence imposed which is precisely not what we have there and that i suspect that's why the government ceded in in saying that the fourth prong weight in his cringe was a good data point and we don't have to do it doesn't have to be good data point because in a published case but if it's a good data point we have to figure out if the criminal history is similar in criminal charge to the criminal history here because they have the other two that since a similar link difference and then the issue the legal issues the same presumably the legal presumably the facts of crenshaw presumably crenshaw was also actually engaged in in drug dealing it's not clear from crenshaw or the i don't know that but assuming that to be the case then yes and one of the things that distinguishes crenshaw is that  it withstood that there was no need to remain and they knowledge that was extensive criminal history and as a mention of the court to call that extensive that the holy pales in comparison to what mr hill has been able to accomplish over twenty years of brutally brutalizing the women in his life and we know from the facts at least four of those in particular i'm talking about in paragraphs thirty five thirty seven thirty nine forty from the just the objective facts of the piece or four of those should have been felony offenses because he acknowledged the essential elements of the oftens of of actually committing the assault and we know from the p s r that those he committed those offenses after he had been finally convicted of a prior assault so it should be undisputed that four of those should have been resolved this felonies he had the benefit i don't know if it was lenient bargaining or whether the the victims of the multiple victims he had simply were unwilling to cooperate and testify against him but he had the benefit of that and that is proven by the objective facts in the p s or what mr crean saw what he was able to accomplish with his two felony and two misdemeanor convictions wholly comparables in comparison and i've yet to see a case involving such serious violent recidivism and public safety risk where court the district court would be free to consider that all and be open to whatever since the district court believed was appropriate considering the appropriate factors are that which would be one of absolutely your honor i would ask that the court send it back for the district court consideration instead of for the judgment thinking in front of him be able to make a fresh determination based upon all of the factors including mr hill's criminal history whether once again that particular guideline sentence is warranted and we would just reiterate the fact that in this the criminal history category will not change whatever goes on below the district court said even in light of all of the convictions that mr hope does have that according to the district court his criminal history was adequately reflected by the criminal history that means that the court could do a variance and get right back to the same sentence if the court believes that's really where he belongs the quote based upon his criminal history yes your honor the court could do could do so however in its statements down below it did say that at the time it felt that the criminal history category and their criminal history for the guidelines were in fact adequate and saw no reason to very good it was adequate at that level and that's the lower level it may see a reason to vary and i'm not suggesting what the court should do the one that doesn't mean that it's not as severe criminal history though does it no it is not your honor  so the question is are you aware of any of our cases where we have had someone with this kind of criminal history get prong for relief i don't know and in regards to the specifics a to the exact convictions that that mr hall has had in his past and however i will just note that whenever you're looking at the correctly calculated guidelines and their central role in that play into sentencing means that  the court an opportunity to correct that air and exercise its deference because the district court does have the breadth of experience incidence ing individuals and it doesn't see these cases all the time and has the opportunity to observe the defendant to hear the defendant's allocution see the character witnesses present and on behalf of the defendant to decide under all of the sentencing factors what is an appropriate sentence for that defendant it would again say that yes he does have a criminal history many individuals that do appear in front of this court do so as well that it's been argued is that he has a particularly violent criminal history and is not it would not offend our sense of justice or to to allow the synods to remain that's the argument about the other side your honor his criminal history is but one of the factors to be considered by this court in determining whether or not for the district court to determine if i'm as he said before it was adequately reflected his the situation in the circumstances that led to his criminal history score and let him in front of the court have been considered before and will do so again and we have a lot more of these cases pending in there that are going to come down the pipeline i don't have a number for your honor as far as what may be pending on appeal  silly but hopefully since the case was decided in january these guidelines are now currently being applied in the district court and we will say that does go towards the uniformity of applying the sentencing guidelines or the sentencing is that hill will not be afforded the same uniformity that is intended by the sentencing guidelines because his case was decided before tanks that came out in january and it's an attack he should be afforded the opportunity