morning your honour's and may it please the court escobar merican i guess i'd like to start with the sort of precept that every criminal defendant has the right to be judged on his own criminal record and i think that's obviously true in every case it's even more true in a case where the district court imposes a substantial upward variance under booker and it's progeny like to emphasize a few of the mitigating facts in this case before a mess thirteen started extorting my client and his family just an undisputed fact here my client lived in the united states for over twenty years with no contact with law enforcement whatsoever now granted he was here without permission that he didn't have any other work and there's no evidence of that in the record other than that one yes apparently in the eighty's he returned to his home country once and got or the other and that's not something that's been you know i know yeah so and the other thing i'd like to emphasize is that you know coming into that before you've ever been deported coming into the country is a misdemeanor under section thirteen twenty five a misdemeanor that's actually  offense is punishable by a maximum of only six months and so it's not a felony immigration violation until after you've been deported my client has been deported once in two thousand and nine and therefore he's committed a thirteen to twenty six felony violation only once and that's the  he's being punished for right now so over and over in this case both in the district court and i'm sorry to say on appeal if you look at the read brief at page thirty five and again at twenty two the government claims over and over again that they get the phrase right that my client is guilty of multiple immigration a felony violations for which he has not been prosecuted that is not true my client has committed one felony immigration violation and is the subject of this prosecution i think that's a crucial point because reentry thirteen twenty six its elements include illegal reentry subsequent to deportation subsequent to a conviction for an aggravated felony if it's b two which which this case has which as you know  overstatement of my client's criminal history is a huge mistake in a case especially where there's a thirty percent upward variance in the sentence that he received in that sense my client has almost a minimal record for somebody who's guilty of a b two violation because he had one aggravated felony one deprecation one return and then of course the crime which is how they found him in two thousand and ten he's not a serial recidivist person who gets deported and comes back and if you look at the cases that we cite such as for example lopez ramirez and the hammer tina and a litany of these cases that both sides have cited lots of them include thirteen twenty six clients where they've been deported three four five six times mr lopez ramirez i can tell you had been deported a number of times and i think had six illegal re entry is prior to the case that was litigated that cited in the briefs and that alone distinguishes escobar merican from all of these other cases that the parties are citing he hasn't been deported a number of times this is his first illegal re entry and again that's something that the government has misstated appeal and that judge gave me relied on and went in and posting the upward variance sentence of sixteen months on my client  state jails he was deported in late two thousand and nine he came back in two thousand and ten and he was arrested again in two thousand and ten for a cocaine conviction and so it was felony deprivation felony and then this this prosecution he's been saying if he's been detained since he was arrested in two thousand and ten first by the state for eighteen months and then by immigration authorities on the spiral indictment on the illegal reentry charge so there's felony depredation felony which is you need to have the felony before the deprivation in order to be guilty of a thirteen twenty violation it's you have to have been deported subsequent to sustaining a conviction for an aggravated felony under thirteen twenty six b two so i'm so honor and you were in the midst of thank you so the first one in the district court the government has no longer has no longer you know the government's taken we referred to my client as somebody who had to sustain convictions for dealing heroin in addition to po cocaine the government obviously has recognized that that's not the case and is not pursued that argument on appeal i think the other serious overstatement of my client's criminal history is the one i was discussing which is this idea that he has multiple repeat immigration felony violations and again that's one that judge give me relied on and is it's just simply not true in this case because there has only been one deprecation and there was only one entry after the deprivation my client's only immigration felony is the subject of this instant case it's one for which he's serving time right now well i think the factors he phrases them in it in a multi page discussion the district judge phrases and a number of different ways as my colleague points out but basically it seems to me that the district judge was most upset about two things one is the is the the two drug dealings and i think you're right i mean while they're both technically trafficking violations it's less than a gram of cocaine each time it's not a large scale you know we're not even talking about multiple grams never mind kilos which is what at least i think of when i think of trafficking as a serious word just give me  very upset about the drug dealing and was very upset that rightly so but again i think failed to recognize that my client started feeling record is very minimal and also didn't really give credit for the the many years that he spent client and was a much more serious drug dealer got a forty six month sentence which is the top of the guideline range from a different district judge in richmond seven different and we we have the guidelines to try to make everything but we all know different judges are entitled to do went on for pages and pages and pages about the drug dealing of my client and the fact is that my client's drug dealing record is fairly minimal by comparison and if you look i mean quantity of drugs is important chief touchbacks so that's what to be one point one is based on as we all know  meanwhile the government mistakenly i agree with your hypothesis how this happened overstated that and also overstated the immigration record of my client which this is his first felony immigration violation and he was saying all secur the judge gave me referenced repeated re entries which is just like he did reentry my notes on page one hundred twenty said quote repeated reentries and so that's wrong and again with all of these thirteen twenty six cases that we've cited many of those defendants had repeated reentry saying that i was not your honor because one gathers that your client made something of a scene in the court yes and i did ask my my colleague who is trial coun members of his family not to overstate it but members of his family are being killed by i am a thirteen because he's not paying extortion money maybe it was entirely justified i'm just looking at other reasons yes it's record that seem to be yes alive and well is a reason yes he you know it was a very upset about what had been going on in el salvador with his family but i think as your honor has planned out my strongest argument is that judge give me based his upward variance on my client's criminal history my client's criminal history w incorrectly overstated both by judge give me with respect to the immigration violations and repeatedly by the government and again with respect to the immigration violations the government is continuing that air on appeal and it's read brief to the tr twenty his criminal this is judge give me speaking his criminal history consists centrally of the repeated re entries there's a misspelling but that's what it says and the distribution offenses i mean it's clear that the judge relied on this misstatement about the immigration history and again in many thirteen twenty six cases it is true that there are multiple deprivations and multiple reentries but it's not true in this case and you know for all that my colleague wants to posit that there is a universal rule in thirteen twenty six sentences there can be no universal rule about the exercise of a judge discretion and i think that's particularly true when you're talking about a booker or call variance where you know honestly your honour's if my client had gotten away then guideline sentence i don't think i would have any argument at all but the fact is that my client received a substantial upward variance on the basis of misstatements and misperceptions about the seriousness of his record and again i'd like to emphasize he didn't have any contact with law enforcement for more than twenty years that he was here until two thousand twenty nine years and this has never happened i'm at a loss you know some of the language some of your rhetoric which is not exactly about this you you called it exactly right in terms of what happened here the survive on today's motion was filed a week before this one i was involved in a huge number of things and i used that as the model and i did a very poor job like knowledge editing that the word heroin comes in when i cut and paste the section dealing with drug dealing in history and illegal immigration  case the same thing with felony immigration violations and the use of re entries and the wording there have yes the exactly as your honor says i  down but he said somewheres under a gram i think gram is the right thing every time what would what would be what would have to be different so that you wouldn't have asked for the departure there were were there two things about this case one is the number of entries dolly was illegal yeah one felony entry which is the one he was prosecuted for but with only one conviction for reentry but there's more than i think fairly to a thirteen twenty six suggestion my thought process here was that you have a defendant who comes who then goes back to get married once he becomes an adult then comes back illegally across the border  sometime after that many illegal reentry do you think there were at least three the initial one the i thought you just said to me that illegal re entries are entries or not when one could say i'm sure ms plot would would argue that i think that i thought you just said no i said one could say that yes in fairness to the argument of my colleague here that with that was not my that that is a hard question to answer because i give weight to the points that counsel has made in this our deal and the comments the court has already made as to the quantity of drugs perhaps i should have taken a closer look at under one gram i looked at those drugs and cases in terms of i have a state judge first of all it's a guilty plea to possession with intent to distribute not just possession despite the suggestions in and in the appellate brief that that this is a small change guy the second thing is i have state judges who initially imposed a five year sentence and minimally four and a half was suspended but that's my understand stay practice that judge obviously thought it was a serious thing given the amount of come back time and then the second case the judge went up substantially to a seven year sentence and suspended i believe was five and a half months five years or five heroes yes and so when i try and look at state criminal history convictions i trying to evaluate that in terms of how did the state judge look at it and what did the second state judge think of this and obviously i think given that he  a he or she thought their state that the second time around they thought it was even more serious and therefore in increased surprise i no you know we think it was more serious the thing ever i but i just so so your answer is you're not sure whether i would i would take a hard look at it not for the reasons that we've gone through i still a pretender but i still tend to think that this a consideration of variance for that reason and those two things if i may just however go back to just my explanation on my gaffs here i just want to tell the court and  do ask your indulgence in this regard that you know twenty twelve was a very hard year for me i did fifty eight new indictments in this area i was soley handling all of the immigration things  the same time i had fourteen appeals to this court to handle as well as many other matters and frankly the lesson i learned is what i could do it at age forty eight i can't do it fifty eight and your honor was exactly right i the intensity of the work level and also be even more scrupulous on editing than i i would ask the court to accept that it was not by any means intentional to misstate  johnston explained when he left the office he said to me because i asked him was he said litigation is a young man's game and sad truth is that's the case and that's the cold reality i've had to come to grips with here the many seventy would be any honesty and if so how many times i do not know the answer to that but my i think maybe eight or ten cases you handle them all with the whole office there's a prosecutor to compare your record to in the office no correct that's correct it you know if you look at the other cases circumstances the you know someone came back here i remember one case of him think the name of that where the alien was genuinely concerned about an allegation of mistreatment of his child then and that was the claim as to why he came back to it try and look at those kind of things to decide what we're doing here and why and how and i'll point out judge give me focused on this as well he said the most important thing for him in that sentencing hearing i was not the number of coming back in the border because judge jimmy i will tell you does not see it as a problem people coming here to work just give me said that after two thousand and nine of a son he's dealing drugs and he gets that one serious conviction of five years and then gets ordered after that and comes very quickly back i think the defendant said it was like a three month period whatever it was and judge jimmy focused on that only and said you came quickly back and you started dealing the judge gave me said this is not a victimless crime he and i think the were the words were something along the lines of i might be inclined to give you a break mr escobar merican but you did this he did it on a quick turnaround and that's not a victimless crime and i have to ask who else has gotten addicted i think was the words he used in his commentary so i i put it in treated very seriously with regard to that i want to i wan stress that despite what the argument was made by the other side that the good thing the only solace i find and in this case after my apology is the judge gave me did not get confused by  my mistakes and i actually made very specific findings that i think are quite reasonable in this case one may disagree with his ruling but that's obviously not the standard in looking at the sentence and it's was the judge reasonable but he has a point in your hand does that i mean maybe maybe you're saying to traffic you know loans judge sort all allows us to infer that must have been some or as we just the beginning all what do we get them that well ok all right  i think judge traxler already it's common already pointed out that that he was caught with the one bag and some cash in that instance this the facts as set out in the pre sentence report were that a informant went to an officer detective and said this person he described him and then ultimately pointed him out when when the defendant came out of the restroom i believe is where the facts go has been selling baggies of cocaine in there and then the altered and then it proceeded from there and then in the consequence they find the one bag still on him in the that the same kind of little blue baggies were used in the first conviction nine and in that case gets have one so that it would point nine grams of cocaine less than a grand yes ok and and and and so that was his his  process there and i think he had like seven hundred eight hundred dollars in cash on him at the time in the first offense as well so i put myself in judge in these evaluation a couple of things one is you seem to have the same kind of actions in both cases you have the same kind of baggies and you also have state judges who impose the sentences that they did and the defendant could have pled to a possession if that was the facts that supported the case he did not it was possession with intent to distribute and there were serious sentences imposed on each of those and i think the judge made the what what was going on there it was was that the judge's concern was as you point out that he gets a serious sentence here in the state he gets deported his response to that is to violate the immigration code coming back after the deportation which is a felony violation and also then to could recommend it's dealing drugs and while the quantity is not great the pattern is what troubled the sentencing judge here and i think that was a fair call on his because remember the standard is for reviewing the sentencing is not just reasonability but it's a substantial deference to the judge discretion the last thing we could have is this court being forced to do novo review every sentence same and that standard is there that the palin is only speaking of reasonableness but it's going to be use of discretion many criminal is that correct in terms of the total cond under the characteristics and history of the fenton section of thirty five fifty three as a this court has said and i cited the cases in the brief a number of times that uncharged conduct and even acquitted conduct can be considered by the district judge not as a binding thing but but he's not going to put on blinders or or close his eyes to it either and this court has said that that's appropriate to consider in the totality as the court has applied the standard of all the circumstances regarding this particular defendant then i giving the example the case that i cited in the brief that is not addressed by misrepresentations made by the prosecution in the next case is the prosecution going to say to me oh misrepresentations are fine you've already decided this on published case that's why we make them on published they're not presidential which is why very quickly i said that should take some comfort in the fact that it would be presidential i do not expect to be back in this circumstance ever again judge but by your point i hear you time the circumstances there were three prior unprosecuted entries he was prosecuted on his for if there was no criminal history whatsoever the guideline range was zero to six months and a base offense level of six prosecuted justified an imposition of a sentence of sixteen months which was almost three hundred percent above the high end of the range and the court said the repetitive nature the need to deter the defendant and others and thank you our so i'd like to start initially by saying that we've made no allegation of intentional misconduct on my colleague's part to start where mr sharon left off with perez lopez i would say the first thing that distinguishes that case from this case is that the sentence there is only sixteen months as opposed to the sixty months that my client is currently serving and as mr shiller said there was no criminal history in that case and so it's a thirteen twenty six a violation which made the stat max only two years as opposed to the twenty or stat max that my client faced but again i would say that there's a there's especially during substantive reasonableness review there's a fundamental difference between a sixteen month sentence even when there's a ten month variance and a sixty month sentence which is which is the result of a fourteen going or directly what you would acknowledge  say from from my other litigation experience my understanding is that a reference to a dimebag is usually deemed to be one tenth of one gram and in this case it's nine blue small dime bags in the first in the first  taishan entries is actually minimal compared to some of the cases i've seen and again the single deprivation and the single quote illegal re entry close quote which us judge was amusing as a term of art is actually a well given that i think what sets this case apart your honor is that is the misstatements and again the unintentional misstatements but especially when judge gave me refers to quote repeated re entry is close quote that it does not to me demonstrate an understanding of my client's actual immigration history it because particularly when the two initial entries were both on the record in the one nine hundred eighty s and then there's only the one which is the subject of the instant appeal it is the current criminal offense that we're that we're talking about because a judge gave me as misstatements not a claim here i've noticed and my colleagues have started looking into it on on carter remains there are actually a number of cases where a car to remain has resulted in a lower sentence for the client i've also had some cases where the same sentence was re imposed with a better explanation but you know it's impossible and nor should either i or this court determine what a district judge would do on remand i mean that's up to judge give me to work out if this court's deems that the mistakes are you know sloppy enough to send this case back and just in closing i'd like to know it again