exceeds the decades old machine gun possession guideline a guideline formulated in reformulated to suit the heartland of typical possession cases before hearing the last argument i was about to mention that this and following the steps of it goes i'd like to st discuss why the conduct here precludes the court's upward variance which essentially  went unexplained in the colloquy then i'd like to address why carlos garcia's personal characteristics if anything warranted consideration of a sentence within or below the heartland guideline range zooming out because the re was great detail in the in the last argument since the guidelines are meant to cover the mind run of crimes and up really variance sentence cannot endure unless the judge identifies and explain some special characteristic that it can use to build an upward stairway to carry the case away from the guideline range built by the commission for specific offenses fortunately last years we had a better us decision analyzing remarkably similar circumstances establishes that when a person is caught having it forbid an automatic handgun the case generally falls within the mind run of machine gun possession cases as to the conduct there was no meaningful difference between this case any better ventidius both young men had to have been guns the same gun even the courts focus was not on case specific facts but on discussion of what every machine gun is and as it's defined in case law a dangerous and unusual instrument like in regret of any of the courts focused on a defining feature of automatic guns was universal in nature and not aggravating in this case the sentences goal which effectively was to punish a term of art not a specific act is not an this case apart the defining feature of a machine gun that it can shoot more than one shot with a singer trigger with a single trigger point is what makes possession of such an outlaw gun illegal not aggravating every making that after the sentencing judge was reading that statement from the pre sentence report and those are that's a recitation of the of the facts from the factual point they were they were a very similar number of rounds as we identified in the reply brief there were not only the thirty some rounds that revenge or videos had but there were also rounds that his companion had and evaluating various cases that the court has decided even as recently as d s look there were co defendant guns and ammo that were included in that in that c so there and and in spite of that rebuttal video still said that was typical of a garden variety machine gun offense and leave we have cited in the opening brief authority noting what typical machine guns can carry in terms of ammo now the court does have some cases where an amount of ammunition is doing more work there are cases like  dot on the airbus where there were three hundred and seventy dollars rounds and the court sanctioned a nine month variance there but even there there were other significant facts doing most of the work usually  if the additional they dish no magazine not only was not only was it but not only were they similarly present because there were two additional magazines in preventive n e o s in addition to the to the one that was in the gun and the one that was in the defendant's pocket but even if that could do some work it couldn't do the work that the courts it couldn't do a year above the sentencing range maybe it could alter it within the range but to as a as a factor that would take this court up an above the range especially considering the amount of areas it can't do that that level of work and not only that the court circuit rejected those specific arguments that that the court just mentioned in revenge or very yes because there was a passing reference to the number of rounds it if the district court failed to enter the above the guideline sentence in read of any of it for sure abused its discretion here where all the courts call it we did was focus again on the dangerous and unusual language and say some of the facts of the conviction are moving briefly to characteristics carlos garcia circumstances generated compelling arguments that is youth related brain development in true st time offender warranted serious consideration for either within guidelines sentence or below guideline those factors went on considered in light of what the courts focus was finally just before you get to your final point that the the judge did mention the least made a reference to the community based factors i think in and if the guidelines are advisory why wouldn't that be enough to allow a variance sentence to some degree they it wouldn't be enough to allow a variance sentence because there isn't be justification called for to apply that end and is far is the reference i would we have many cases in which we have said that it is not unit propre it to take into consideration these this particular regional distinction that seems to the least the judges and some of the judges in puerto rico seem to think that applies there why isn't that enough to allow for a variance sentence of some degree since the guidelines are advisory be it's not enough because there's no case pacific reference to it here there's there's there's not a respectfully there's not a reference to community characteristics in in the reports transcript  or anywhere else and it still wouldn't it still wouldn't fight because that's it would have to be present to some degree that's not already incorporated and especially here where it's the  case centers on possession and only possession and there's no there's not even a hint to some other aggravating factor in there's no criminal history it wouldn't be wanted here final excuse me judge mcauliffe i believe has just in passing are you arguing there are no other aggravating circumstances in this case unlike rivera areas but are you arguing there may be aggravating factors but they're just not enough to justify the variance i'm arguing that there that this case is so much like anybody else that there aren't aggravating factors in this case if there is is far as the look in the record i would note even though it's not directly responsive to the court's question that whether there are factors in the record i believe has more to do with the scope of the guidelines there's not it there's not a chance at a do over to find an explanation that goes above the guidelines thank you and as a final note i'd like to respectfully ask the court remember the case to another district court judge because it would be too difficult at this point for the district judge to reconsider on appeal we have an ongoing litigation you have your argument in your brief on that we thank you and we'll hear from mr connor if you would move your audio and video all right good morning your honour's and man please the court greg conner on behalf of the united states this is a case about precedent and specifically how this court should resolve tensions within it circuit precedent as you've noticed garcia his hat pretty much exclusively on this court's decision in rivera barrios but the overwhelming weight of authority supported both what the district court factored in its decision and how the district court did so so this court should  and the nd reason is that roadmap calls for an individualized assessment so this undermines the idea that there weren't case specific facts of course there were the dream was  case and i agree with garcia his presentation and argument and to correct the record judge howard this is not a case where the just record factored into into account the community consideration but that works against garcia that means revere barrios is even less applicable and as far as the crime itself the district court it had reason to be concerned this was a recipe for violen i'm forgetting that as well it was much less ammunition i believe because there was some discussion about the magazines i think one met there were two extra magazines in rivera barrios it was there an extra magazine in the there there was one there were two in this case but i want to be very clear because it was a one so just so i understand just what i'm trying to get the sense of what how come this case it's not like it's there's one extra magazine yes and there may have been a distinction based on load but we're not sure it was loaded with eighteen rounds so each is loaded so the difference here is that there's an extra forty bullets in the not does not hinge on the number of rounds my argument for rivera barriers is twofold one it is distinguishable there were a lot more rounds and as the panel has noted there are aggravating circumstances where there weren't in in that case but more importantly that sole paragraph of rivera barrios which is which has no citation to legal authority whatsoever that so paragraph is outweighed by fifteen but that might be fine in your view as a panel we have to follow it well and to be clear i don't think this is a law of the circuit case because that's not really a hold it looks a lot like dictum without and extra bill yes and i want to add judge baron that both before and after rivera barrios whatever effect that case has on this case it has to be viewed alongside this court's other cases and not in isolation and this court has said time and again that extra ammunition takes the keys outside of the heartland and i think the most recent decision is is pretty damning for garcia just this court said quote ammunition was those were well founded concerns that sufficed to remove this case from the heartland of the relevant guidelines that reno compost from october and i think it's significant that those cases happened both before and after rivera barrios it's like i said the overwhelming weight of the precedent is against him and by the way just parents if i'm wrong about that let's say there is not this fifteen to one split in the case law and that no easy answer emerges one of the ways this court can resolve this issue is just by looking at the guidelines does do the guidelines contemplate anything other then the machine gun and the answer is no it doesn't and that this that's why this court has said as much figure that would be fine if it were very various didn't say that the guidelines have to be read with an understanding about what the amount of ammunition that goes with such a weapon which it specifically did and so i think we're back to there's an extra magazine and there's extra bullets and that results in a doubling of the sentence even though a very very us rejected that unless i'm missing something i do want to make a few points st as far as the doubling of the sentence this court actually the supreme court has cautioned against that sort of math mat mathematical equation considering the percentage of the variance versus the the need for justification but to your point if you are concerned that rivera barrios is a holding and again i don't i think it looks a lot more like victim because it's certainly not the core holding of rivera barrios but the sixty five dollars rounds in this case looks a lot more like the seventy two  in the gun walker than it does is which this court called many are still that it does the thirty seven it's almost double what the defendant in rivera various chat with him and  elaborate on the point that this panel made i don't think this should come down to to remain on but there are aggravating circumstances in this case and there weren't any in rivera various so garcia took his loaded machine gun his two baca magazines sixty five rounds of ammunition to a downtown plaza ponce on a weekend night he specifically admitted that he was with quote the wrong acquaintances for not for protection in these feuds that he had with the men of the women that he had had relationships with i think that makes this much more volatile that he specifically thought he needed the gun for and and his backup friends  court focuses on the the ammunition but judge baron that's consistent with what this court said was sufficient of the judges it was just judge baron for a while but they all they all reappeared ok i'll step back ok now as as much as i start with the merits and i do think the  merits alone should suffice if this court disagreed with me and thought that this was a close case i think garcia has a serious it's preservation issue in fact what's interesting is he specifically acknowledged that there were aggravating circumstances in this case in his objection he said that the district court place too much weight on aggravating circumstances and obviously if it was just weighing if this appeal was only about the weighing of sensing considerations that's just about an automatic loss for garcia on appeal this court has said it won't jump in to disturb a sentencing court's decision to assign weight to a sentencing consideration so that it is not a winning argument on appeal and if it's anything else how is the district court going to know that at no point does garcia object to its object to its explanation in fact the objection indicates that there was an explanation and garcia just did not like in that explanation how much emphasis the district court put on the aggravating factors so it the amount of actually nation in this case was consistent with the absolute go and again i don't think that's preserved if it's not preserved it's plain air which garcia way now i think i that was not an issue in this case that's right there it's not in the record right that community considerations did not factor into this this court's does the district court's decision it was the answer  the st time in a reply brief so that obviously should not be considered and unless there are other questions from the pair and all i refer you to to my brief well i guess i'm just maybe just you could  in the cases that you were mentioning lugo and the like where there was the references to the ammunition was there also reference to community standards off the top of my head i don't remember i not in compost for d s luke though that i provided a pretty long body you have case law so it might have been a part of one of those decisions but off the top my head i don't remember if that was the case all right thank you mr connor thank you mr lerma i believe you have two minutes a combination of factors that the court mentions along with along with ammunition but in a compass for example the court's main focus was the fact that the defendant in that case with a passenger was was focused on the fact that the defend was focusing if it lee on criminal history on the commission of the offense while on supervision and the community factors and were walker the court was focused on the defendant's criminal history and reached the conclusion that potential criminal motivations along with that history were aggravating factors this case is significantly different from those cases mentioned i think to talk briefly about aggravating circumstances those those factors  mentioned significantly different from the pre sentence report as the government portrays it we have an issue because inferring facts is completely different than inferring the court's reasons and on appeal the government asked this court to infer facts factual circumstances which are not relevant conduct what was described as arguments in the background which were verbal in nature have nothing to do with the conduct in this case and we encourage the court to reject that recommendation that the court consider very briefly preservations as the court mentioned  did not weigh aggravating factors and those are listed the court list the statutory language the court actually doesn't apply any of the statutory language to the facts of the case so in objection that the court