non reporting supervise release which violation actually constituted the subject of the legal or illegal reentry conviction mr floors martinez was denied the opportunity to have a concurrent sentence the sentencing judge did not appreciate its discretion  did say that he is directed by the policy statement in the guidelines seventy one dollars to run the supervised release sentence and consecutive to the underlying but also again after i in context your honor when we look at that with the the rest of the sentence when he said and until the sentencing commission changes their stance that's how i'm going to sentence essentially he's treating that got that part that guideline policy as is mandatory well he otherwise in another part of the transcript he states that the guidelines are not mandatory right understanding that he's not around by the god much i agree that he did acknowledge that the guidelines are advisory and that he's not and that and he acknowledged that however i think specifically when it came to sentencing mr flores martinez on the supervised rel and his thoughts on running whether or not he had the discretion to run that sentence concurrent or consecutive it's clear that that he's looking at seventy one dollars as something that he's going to adhere to no matter what he's not going to exercise his judicial  tion when it comes to when it comes to whether or not he's going to follow that policy guideline in that sense he treated it as mandatory wolf it was that clear why wasn't there an objection and your honor i objected to the sentence being being unreasonable and not to do that he thought the guidelines were mandatory and didn't exercise discretion and while the objection didley was not specific to that exact point i think it was enough to put the court on notice that we disagreed with with the court sentence as far as running those two terms of imprisonment consecutive and i would point out that at the time the objection made the sentencing judge had already made a statement i don't believe in to for ones which again goes to argument that came to running whether or not he should run these two sentences concurrently or consecutively he clearly from the get go was predisposed to to not to not give mr flores martinez the chance to have to make so well he says he's been warned time and time again and he hasn't received that warning and i don't believe in two for ones a term of supervised release will not be reimposed in this matter and he's saying the reason i'm making it to run consecutively rather than concurrently is that this is a repeat reentry defendant and we've already tried giving him supervise conditions of rel addition to a sentence and we are now trying to find somewhere some other way to impress upon him to stop illegally re entering the united states i mean it sounds to me like that's considering the that his statement i don't believe in two for ones is sort of a stand alone argument he's he's explaining yes he's been more time and time again he has see that warning however separate in a fact in a separate apart from that this judge doesn't believe in to for once meaning that he doesn't believe that that can that concurrent sentences are appropriate an appropriate sentence in this case they defied two departures one in mr flores martinez criminal history category and another under the reentry guideline itself which merited a departure in the office level discussed in mr flores martinez sentencing memorandum again during sentencing during his allocution that supported a sentence no longer than forty six months and so it's our position that that sentencing mr ford martinez outside that recommended range was on reasonable mr flores martina's is someone who at one point in time did reside legally in the united states unfortunately his legal permanent residency was revoked  when he was convicted of burglary in the unit one hundred and eighty and while we recognize that the mr flores martinez does have a significant criminal history i think it's very important to point out that the district court judge found  probation found that not only was criminal history category six significantly over representative of of who he is and what his criminal history looks like but also that there was that the district court judge found that there was  not not a reasonable likelihood that he was going to commit crimes in the future because any significant criminal history largely dates back to when he was in his late teens and early twenty's any recent criminal history was the majority of constitutes  immigration offenses but the district court did depart downward on his sentence for the new violation the district court judge did depart down where the district court judge found that the a possible guideline range was forty six to fifty seven months and again we would submit that that's on reasonable because had mr flores martinez not been in criminal history history category so had he not received a twenty five year sentence when he was in his early twenty's for having been found at a flea market in possession of items that were stolen from a home which the core and probation recognized is a is a sentence that doesn't reflect the seriousness of that offense he would have been a criminal history or a category five and he would have been eligible for the fast track plea agreement which would have been entitle him to another decrease in the off chance level which then would've put him in the in the range that probation recommended which was thirty six dollars to forty dollars earth excuse me thirty seven to forty six months and so i think that the reason that the that the senate's a subject substantively and reasonable is that fifty six months is not necessary isn't as an unreasonable sentence given that he's not someone who is has shown a likelihood to commit crimes in the future other than the potential for immigration crimes now as far as the procedural and reasonable miss of the sentence and we have discussed that a little bit already but i want to just go back and reiterate that when when the sentencing judge indicated that he was predisposed not to give a concurrent sent not to give a concurrent sentence and then when he later claimed and seventy one point three basically says that i have to run these two sentences concurrently that was an error and it was a procedural  and again i believe that preservation we did preserve the objection here we preserve the error and i think that the standard is one of reasonableness however if the court were inclined to find that mr flores martina's did not preserve i think that we also can meet the standard under plain error review and the reason and the reason for that your honor is that the error that took place here which is that the district court judge failed to exercise discretion  is that it that is an error it's an obvious error when he said he doesn't believe in to for ones until a sentencing commission changes their policies he's not going to change the way he sentences in that sense there was playing the rd prong requires that mr flores martinez show that that this affected have so his substantive rights you know number one he had the right to be sentenced in front of a judge who was prepared to exercise his discretion and not a judge who who was predisposed to do treat a guideline policy statement is mandatory but also are you arguing your honor i think that miss that this said that the sentencing judge  did events a predisposition to not grant to for one's are essentially not grant the possibility for concurrent sentences and so i think that is a form of bias but i think that ties in to his treating this seventy one point three guideline policy as is mandatory and so i think that the two both predisposition to not impose concurrent sentences and his treating and the way he looks at this guideline need to be looked at in tandem seems like they're a little inconsistent the bias argument because the bias argument presumes that he knows that he can't that he could choose to impose concurrent sentences but his person will leave is i don't believe in to for ones aren't those arguments inconsistent and i do recognize the inconsistency there your honor but i think that the sentencing judge invited that inconsistency and we can't get it what do you mean he invited he there newry didn't know which is your argument is he didn't even understand that he could impose them concurrently well i think and then but you're also arguing that he had a personal view that they shouldn't be imposed concurrently and if it's mandatory he doesn't really need to have a view one way or the other why would he even express a view and i think to answer that question it seems that his interpretation of seventy one dollars maybe that's the basis for his his personal view  either way he whether or not he is biased and doesn't believe in concurrent sentences and maybe is justifying that by saying and there's a guideline policy out there that says i have to do it anyways i don't think that they're inconsistent or irreconcilable in that sense and if the court has no further questions i would like to reserve the remainder of my time thank you thank you good morning again and may it please the court counsel when mr flores martinez was on supervised release for his rd illegal re entry offense he committed his th illegal re entry offense and that was a violation of the terms of his supervised release and for that every respect now st mr furze martinez raises two procedural objections to his sentence those are both reviewed for plain error because nothing he said to the district court conveyed the substance of the complaints that he's now raising on appeal so after his st argument the district court here did not treat the guidelines as mandatory which i submit is an error that is very unlikely to have occurred in two thousand and nineteen as judge briscoe mentioned a few arguments back booker was a long time ago beyond that judges are presumed to know the law there's nothing on this record there were that would rebut that presumption but flores martinez points to is the district court's comments  end that the sentencing commission or that the guidelines recommend and directs that the sentence be run consecutively and that is a reference to the very strong language that the guidelines use the guidelines and usually they shout in this in this situation is not an indication that the court thinks that the guidelines are guideline that was never mandatory are mandatory and mr florissant use of the guideline be amended remove the word shelved because often when we read the word shell we think we have to do it i don't think that the guideline needs to be amended again this guideline was never mandatory so there was never a concern that a district judge would reach shall and think i have no discretion i think that that's the sentencing commission's way of saying we really mean it if we don't have consecutive sentences for supervised release revocation then there is no there's no did he mean by directed i think directed in the sentencing commission is directing district court right i mean he means he means matter of semantics which the language says directed but that doesn't mean that he believes that the sentencing commission constrains his authority i think it's a recognition of of the strength of the sentencing commission's recommendation perhaps but doesn't that put you in a worst situation then or your argument is weaker then with respect to the personal bias argument he understands that it's recommended buddy but he says but it still directed the you know sensual language in shell and by the way i don't believe in two  so i personally kind of agree with the direction that that the commission is telling me to go it's kind of how you might interpret that and that's improper isn't it plainly you know it's not a pretty personally in his personal view of not believing in to for one's no that's not improper at all district courts are free to take policy disagreements with the guidelines those are personal disagreements but the guidelines if that's not improper how can it be improper to agree with the guidelines how can it be improper to say i think the sentencing commission has done a good job here and i agree with the personal policy or i personally know it's not really what he said i i don't i'm sorry to find i think that's exactly what i would imply for him i don't i don't believe in to for once it sounds more like a personal opinion i don't believe in giving him the benefit judge had said instead of i don't believe in two for once if the judge had removed i from it and said if he gets a two for one that means that he's not having any additional the times from the condition of his supergrass least that would be different but we don't have that i think that those are really a semantic difference and it's simply not impermissible for the district court to have a policy agree policy agreement with the guidelines this court has held that is that a district court is free to determine the any guideline is reasonable and inter and to determine to and entitle to considerable weight that was and that was and wireman it is simply not the case that when the district court has a personal feeling about sentencing a policy position even that the district court has to recuse from sentencing essentially every time a defendant asked a district court to discard a guideline on policy reasons or asking the court to  take a personal policy stance against a guideline and to take a personal policy stance in favor of one is no more and permissible than it would be in the reverse but i think you're the district court actually has expressed yes i agree with this policy of the guidelines but then actually expresses even goes further said if the guidelines were to change its stance i might change mine too and that indicates that the court actually places the policy of the guidelines above whatever personal feelings it may have it supports the guideline policy on consecutive sentences but even more than that it's a port for guidelines and there are plenty of reasons that a district court may believe that following the guidelines has a salutary effect whatever flaws the guidelines may have a district court is free to believe in the overarching purpose and goals of the guidelines  that ambiguity cannot favor florist martinez on clean air review it was his burden to speak up and say your honor i think you may have just explained that you think that the policy statement is mandatory on you and i want to make sure that you know that's not correct and you would have still made that decision so so this ambiguity does not help forrest martina's if we were to move to other prompted plain error here he can't show any harm under the rd prong there's no indication that this district court wanted to be more lenient than it was if the court wanted to give him a lesser sentence but thought that it was found by the sentencing commission's policy statement to impose a mandatory consecutive sentence then it would have given  sentence in the middle of the guideline range it would have done what it could to minimize the effect of this mandatory policy that the district court clearly did not have that inclination and then on the th private plane there are a few fl review if the court is interested in the government's plane air arguments on the on the st prong on the bias question i would say on the nd prong we don't have any plein air here because there's no case that says that this kind of comment is an error he hasn't met the rd prong either because even a judge with absolutely no personal views on the subject would still have to consider and weigh the guidelines policy and on the th pronk this district court then gave him the low end of that guideline at forty six months no one could observe this record on the whole and come away with the impression of this district court subjected florists martina's to a manifest injustice or it anyway was biased would just like to reiterate that we are not trying to make the claim that this judge was under the impression that booker wasn't in effect he wasn't aware that the guidelines are advisory however i don't think that that's inconsistent with him then saying and treating this policy guideline statement as mandatory not only did he say was he recommended a directed but he said until the sentencing commission changes its stance that's how i'm going to sentence now with respect to preservation would like to draw the court's attention to the transcript and look at the exact wording that was used by by myself and also by the by the sentencing judge at the time that i objected i said and i would submit your honor that the that the senat a i've read this transcript repeatedly and it sure not apparent to me that that's what the argument was and your honor i think even if we have other arguments and principally that being that the sentence outside the recommend a guideline range was substantively unreasonable because it was too long and so soon were under plain air what do you do about the fact that this is a non constitutional booker or well your honor i think that the the th prong requires us to to look and see whether or not this undermines the integrity of the judicial system and so when a judge refuses to exercise the discretion that he has there is an error there and it's reversible