united states brings this appeal because when faced with a guideline it found too severe the district court did not attempt to identify congress and the commission's policy rationales and reasonably justify its disagreement with those policies if the district court hasn't said seven eighths of that which it said and merely said that the end of the opinion i have problems with this you i have a problem with the timeline as used in this case and therefore this is the sentence i'm healing to him with the government appeal if the if the court had provided reasons for it that decision and the reason so are the reasons toward the latter for her opinion with the government have any basis to it i mean if she isn't title to disagree guideline for six reasons each of which are erroneous if it had provided policy reasons for saying i won't consider this guideline it's i'm reasonable in these ways it was congress's intention to do this and congress was wrong it was the commission's intent to do this and the commission was wrong then depending on what those reasons were then the government wouldn't be bringing this appeal to the defendant attempted to identify any place where the court had addressed the government's briefing the government's briefing was congress's and the commissions are now the defendant couldn't do it the three lines in the entire record that the defendant claimed to identify do not represent a court grappling with either the commissions or congress's rationales in deciding to reject this guideline it specifically chose six other reasons to do this and it was nine i thought it was nine reasons or was it  use them as rule every one of them is wrong and we can and i'd like to talk about the three most important i'd like the court i urge the court to find they're all wrong because they're all misleading to just reports but three of them are valuable here one of the problems to the extent we see the typical sentencing appeal was the judge's filler to give reasons for the failure to adequately explain you can't make that argument here you know that i mean there are so there is so much before us maybe the court said too much but certainly this is it if you look at it a forty six page opinion and everything else that went before under a microscope as you've done  but because congress directed portions of that guideline i was an important part of the court's rationale the second one is that congress lacked any right i don't normally see on revulsion and i'm sorry to say that in different words you say the when when congress directs the commission to do something it is acting appropriately under the law the law is that the commission is required to conform its guidelines to congressional directives and that's in stark contrast the kimbro right where congress congress is silenced over the years after it initially established one hundred to one ratio was definite yes this seems to be the inverse of kimber over here congress is repeatedly ratcheting up the penalty saying we've got a real problem here we're not solving it it's getting worse and we're going to keep punishing it more severely that could be misguided with crimes and courts are entitled to disagree with congress's decisions in that way but that's not what the  know it wasn't what she did here she said she said if you read the opinion she found six reasons why she didn't have to address what congress did she doesn't have to address it because congress was involved and directed these guys i don't think so she's reasons the reasons that she had for finding it were wrong she found congress didn't have a rationale for raising the penalties congress had several rationales which it laid out in its legislative history and which the court was provided  and said there weren't any reasons this is very significant every district court who comes back to look at these guidelines thinks they have no reason for being so what would you have us remain and to judge hayden for amplifying to amplify her reasons based now on the october two thousand and nine history issued by the commission and us the dorky judge hayden needs to general a statement you need to give reasons and then the reason she gave to not engage congress is are the commission's reasons why the commission didn't give reasons i assume because congress has had its hand in this issue every step of the way the given reasons will be taken various incremental adjustments but isn't it true though that the commission has been relatively silent in contrast to the crack cocaine guidelines where the commission was extremely active in complaining about the number three and number two is that in finding in adopting the findings of the two district courts and the and the person who testified in finding me couldn't find any rationale for the on the shoulders of congress and the commission they're welcome to disagree with all of the reasoning that congress undertook and to say you went too fast your reasoning doesn't make sense to ask it's illogical but they need to start by identifying the reasons i'm not sure that the supreme court has ever said we can disagree with what congress in congress is the one who passes the rules well that is the reason that courts should be deferential and should consider the reasons the congress especially given that it is their institutional resources and their institutional world to make these findings because the supreme court has never said in any context except in the crack context that there isn't that there is no policy behind us the  disagreements with the guidelines they made but they need to provide substantial justification that's the finding of this board in the supreme court if your point you think you can say you are not arguing substantive reason there's here you're only argue here and that helps whether in the world you would have liked or in the other words did consider what they consider the second circuit considered them in terms of substantive reasonable in this not you are now raising and saying they didn't did not address adequate or addressed at all the second circuit considered under substantive reasonable switch your not if we were to agree that you're really in spite of what you say what you have before us is not a procedural error case but a substantive error case you lose this court now therefore i will do if if if you interpret my arguments to be substantive arguments i would still like the court to please consider them rather than to disregard them this court's precedent i have all the reasons you don't like her reasons she didn't give the right reasons were enough reasons you not adequately explain its rejection of congress and the commission's rationales and penalties that is procedural error we do not accept that as that that the statutory mandatory minimum was the substantively reasonable sentence for arching rationale it seems to me and that was that when you consider all of these enhanced once the guidelines range is above the statutory max well that raises a question in my mind i'd like to hear from you on your from mr goldberg also does it make sense to look at two g two point two is one integral whole or should we look at these various so important because these very subtle courts have tremendous ramifications as the host for down the guidelines we go yes i understand what you're saying that that if you actually pile on every single enhancement and you only are charged with one count in that rare instance then you'll go above the statutory mandatory statutory maximum for that single count and so you can consider whether you think all of those together archie grates as a matter of policy or whether individually they're too great accumulated together what you what you can't do the third error that the court made was to say that looking at who is charged federally in this crime is it is a portrait of who is the typical offender the syncing commission and congress take a long look at who's committing this crime and then after gathering that empirical information make a normative assessment of how serious the crime is but it's an error to say that the typical offender is someone who charts at the met because those are the people the federal government is if if it is possible to say that this guy's mind was not properly formulated because the plea agreement or because of plea agreements the other reasons would still be wrong they would still be procedurally erroneous reasons and there's one that you can't affirm that the district court for making and that is for not identifying congress as in the commission's rationale that's that's at the core of what it was supposed to be doing when it's undertaking  the application of the computer and hence went on that basis analogized the fact that the commission had completely rejected the crack cocaine guidelines that this tiny disagreement over this massive fifteen year working together out of policy and you may have answered this that's very may have missed this but i'm not sure i understand your answer and just does the government believe that the child pornography guidelines are so of her recent yes and that's procedural error yes it's her failure to justify her disagreement with what congress and the commission said were its reasons for its penalt this is the curlew of judges engaging in a policy disagreement it's the reason we have put congress and the commission in charge of making policy is that we consider them to have the institutional resources to do this well is it congress or the commission as i understood it it was supposed to be that originally congress said we're going to give this to the commission because the commission can make the interior determination sentencing trying to compare between areas of the law whether sudden scenes are proportional and fair to say that's what it should be it gave them a category of things to work on but it didn't remove from itself the all the much larger category of considerations  congress and ten used to make normative assessments and to disagree with the commission to take it to the chain the role of saying to the commission so review the commission's work to give the commission directives to say here's what we think are the proper which is that because congress talked to the commission and disagreed with it then the skyline is bad because congress didn't tap didn't agree with the most talk to the commission on this bill to refuse to the commission congress's job congress stablished the commission and in establishing the commission reserved for itself the role of reviewing the guidelines rejecting them when it didn't agree with them adjusting them when it did agree with them because congress has separate institutional then you're taking back that's why i ask you the very beginning you're taking back what you said when i said in the district courts disagree with congress's no i don't take the they can't i'm saying they need to i mean with respect well you know that's what's before us but mitch said it's sad that if you are going to engage in a policy disagreement with congress you do it on the basis of the thirty five fifty three a factor is respect to that prophecy you say i want to talk about the seriousness of the offense i'm going to talk about disparities i'm going to talk about protecting the public and you think about you have to address the reasons of congress and why you disagree with them with respect to each of these things and congress did not she was very clear but for some reason we did the we can't get  if i may i'd like to take the first few minutes to talk about my cross appeal we have two arguments one is pure statutory argument section thirty five fifty one is the unless another law specifically provides otherwise some spec sheets passed by congress creating what we think of as mandatory minimums specifically provide otherwise those are laws which say in words or substance notwithstanding any other provision of the law the judge shall the judge must the judge must not the sentence statute under which mr grover was sentenced to twenty to fifty to eight sub be made fifty to capital a sub he does not specifically provide that other provisions of law shall not apply it simply says the judge shall impose at least a five year sentence if that constitutes pacifically otherwise providing then the word specific has no meaning which is of course not having construed statutes congress knows how to specifically otherwise provide there are mandatory minimums like mention one or two that do say notwithstanding any other provision of law but when congress we form sentencing law it created a set a rule that said this rational system prevails over rigid and mechanical systems and over purely discretionary systems unless another law unless we encountered congress provide specifically otherwise in other words congress itself a duty to think about the effect it was having on the general sentencing system for lack of such a provision and it doesn't have to be any particular words  anything that could be fairly described as specifically otherwise provide a language in twenty to fifty two pathway so the does not create a mandatory and the second argument is a double jeopardy article under us versus miller it was plain er under the plane earth standard that error had to seriously affect the fairness and reputation of the judicial process if gruber had raised this issue before the district court the government would have had the opportunity to clarify which images were charged in which count so how can you how can you or gue that this result that you that you see w images charged in counts one through five which are quite specific i mean there's no question what five each of them involves one or a group of images that were attached to a particular e mails we know exactly what images those were the only thing it could have done is may i interject before you go to the the merits could you address this standard of review because yes i think both sides correctly point out that it was dictum that talked about closer review y we seem to adopt that approach in light shock when we said that to justify a policy disagreement involving the same guideline is the one that issue here that the court had to provide a quote sufficiently compelling reason for the disagreement so i'm interested in what you think the standard of review is yeah that would not be the same suggestion that the supreme court made in kimbrough and if i could start under start with in kimbra you're referring to the passage where the supreme court said after saying the courts are free to disagree with guidelines that do not reflect congress's traditional excuse me the commission's traditional institutional role that if the sentencing court wishes to disagree on policy grounds with a guideline which doesn't reflect the traditional institutional role of commission then perhaps the supreme court said a closer review of that policy decision would be warranted like chalk was a child pornography case sentenced under this same provision g two point two a guideline which does not reflect congress's traditional institution excuses the commission is traditional institutional role that is it is what the that is it does not reflect the role the supreme court was talking about part of the fourth branch of government exercising its traditional well why would we give that more deference then congress itself i think this is explained in the at in the very passage in our lives here that you to the courts what it says is binding on the courts when congress and congress but when congress chooses to address itself to the commission what congress says to the commission is not done and what the commission has done is in response to what congress has told the commission congress is relating to the commission not congress that's what our list yes is and therefore it is not  say that if it involves more than six hundred images instead of masochistic images it's a twelve year mandatory minimum if it's specifically provided that the sentencing reform act of not apply and any other condition on and didn't violate their supposed act of clause and it wasn't under leave agan everything else that makes a statute valid short so congress could do all that and that seems to be what the commission has done yet showing the will of congress so what's the what's the distinction the distinction is that when the commission does it it's advisory and when and advised of the courts don't have to follow that advice they are no more obligated to follow that so called advice than any other advice the commission gives and in fact the supreme court strongly suggested in kimbrough that the what the commission's advice is entitle to more weight if ever when it exercises it is characteristic institutional role that is its non one ratio was too extreme then we have the inverse situation here no the commission when congress fails to veto a guideline which has been laid before it the way the rules of procedure district court's decision was largely based on the belief that those who possess and receive child pornography are less than those who another time that's a theory that some people agree with and many people don't and judges do not have to agree with congress seems to have adopted that theory behind what it's done and what it's done is said i believe in the opinion that there's going to be less difference given to the two g two point two i don't see any difference the three g two point two is where as i can tell it was it was cast the side and i think even the point heading the opinion said something like so now that i've i'm not going to consider this now might be my frame of reference or the thirty five fifty three a factors and the statutory minimum what about the statutory maximum why isn't that a frame of reference shouldn't trial judge one sensible i think it's a well look my brain just five to twenty and now we need to figure out s where this defendant fits on that rather large scale and we've got it there was an admission defendant had a variety of these enhanced once he earned a variety of these and hansen's well then how can someone who's earned a variety of these a hanson's be at the very bottom of the statutory range other than if the trial judge thought well my frame percent of the cases i'm not going to put any weight on that the two point bump for under the age of twelve ninety percent of the cases i'm not going to put any weight on that but it's simply a fact that these other issues about the videos the violence it's over six hundred images those are not remotely applicable in ninety percent of the cases so how can those just be cast aside not to mention having them all together applicable in this particular yes well actually they are egregious instance that i can imagine of the commission of this offense by a defendant who exhibits no mitigating circumstances as an individual with that they use the defendant with the worst c you know the most highly i have a good case we've seen cases like that i mean i think of the king case where you're on a road a few months ago where the man create you know creates child pornography of his own sexual contact with his daughter and distributes of for money when you can't get hardly any worse putting aside whether he had personal psychological mitigating circumstances the offense a very it's just it's not in the same universe so to say that that mr grover could say differently but she was far from unreasonable in reaching the conclusion that this guide which sends you to a one count statutory maximum long before you are in that we just pass was not a quiet one from which she child pornography which would have been a far less serious offense with consequent sentencing and then a couple of weeks significantly turned it down and started to review the record for a trial looked at all the images that he had all the trading that he'd done and sort of parse through everything that happened as we were preparing for trial look at the extent of his trading of the content of the e mails the nature of his buddy list how deeply involved he was in bartering once when we were preparing for trial the trust and set down of the charges and looked at how she could rattle which whether she could readily prove all the elements of each of was offered it wasn't the reason that that isn't reasonable is because it extrapolated from that to say that every time there's a harsh sentence and a lenient plea that's a sign that this guideline range is too high as opposed to saying in this individual case  the this defendant might be deserving of a lesser sentence that every high sentencing range automatically leads to this strange plea bargain and so we have effectively i said he talked about the trial penalty and i don't know that any of us who do this work and can ignore the fact like for it to find in this case whether it finds that the one that whether it finds at the district court ultimately sufficiently distinguished horse provided the sufficient r or distinguishing congresses and the commission's penalties and explaining why they're wrong which i don't think it did as the court indicated in goff this court found that you need to explain why you think these penalties are too  cases and this court didn't do that it didn't even address the rationales that are describing off it all it said i don't have to address these rationales because congress wasn't acting in the commission wasn't acting in its proper institutional role and the defendant just referred to kimber over and said him or i was making clear that all the commission needs that that the guidelines be like those formulated by the commission its in its traditional impure acall sort of role kimbo explicitly says that the commission acts in its traditional role when it responds to congressional directives it says that is a classically formulated guideline that is appropriately formulated guideline and so this court should find that district courts need to explain their reasons for disagreeing with the child pornography guidelines by identifying congress's rationale and the co rationale and it is not sufficient simply to say that these are too harsh as a matter of fact and not get into why they're too harsh and this court is put a lot of work into why the child pornography courts would have a range of opinions and i think the government respects that the courts could have a range of policy reactions to congress and the commission with the what the government doesn't want to do is walk into every courtroom and have judges say these guidelines  form of distribution i don't disagree with it but the point is why the point of wondering what's what's can disagree they can say that they absolutely can they can say i don't like it but what they can say is congress didn't commission did it seems to me is following walk step congressional directives with respect to these issues the sentencing commission is responsible for the s and m enhancement it's responsible for prompting the commission to clarify bartering and so on for congress to clarify bartering it's as congress is going through this it's ask the commission to conduct empirical studies and given information about what judges i think what it is they don't like about these guidelines and there were those who printed the commission put those enhanced months in before think perhaps some of the other ones might be a a counterweight to the ratcheting up of the mandatory minimalism that we're dealing with here it is it's absolutely fine for a court to say that when congress put increased the statutory mandatory minimum disappoint me i can't disagree with such treatment for a minimum but i can say look the guidelines that that are attempting to be proportional now as a result of this catch train mandatory minimum result in things that are too high for some defendants and too low for others and and so we're looking at what congress did in the commission did and we're saying this didn't work out well for these and these reasons but for all those judges who actually agree looked at it and say i am i agree i actually think namin if we have this isn't a problem and there are length i don't know quite how to phrase this and maybe it comes from my roots as a district court judge but are you suggesting that a district court judge cannot think about people now and the effect of all of this on individuals why is that they could put on the record their thinking as long it is as it agrees with the government's thinking and if it doesn't agree with the government's thinking it's that now the government does not believe that the court needed to agree with it at all or are that the court couldn't take into account any reason why it found congress reasons to be wrong but the bike by district court by just going into it in depth missed what the reasons offered missed the opportunity to say here's what congress is doing on it instead shows an approach which was congress doesn't have anything worth considering it didn't do anything here and a factually inaccurate finding that every defendant to come before the court every child pornography defendant charts the statutory max that's factual error there is no factual basis for that by people come before the  absolutely and the courts should as a matter of of the thirty five fifty three factors addressing the individual and as a collective matter and that was addressed at great length in this opinion at great length the thirty five fifty three  yes yes absolutely with respect to the defendant i do not challenge the procedural reasonableness of the court's examination of gropers personal factors the government is not bringing the appeal on that ground what the court is saying what the government is forgive me is that when the court undertakes to say why congress and the commission who have put in an enormous effort into this have gone wrong they need to at least say accurately what congress and the commission thank you thank you