may please the court good morning my name is jesse segal i represent the well seuss morello in this case is scheduled to be released on january nineteenth two thousand and eighteen which i am continuing to be surprised is only next year had the district court granted his motion for a sentencing reduction to give him the same benefit that he enjoyed when he was sentenced that is a sentence twenty six below percent below the low end of the sentencing guidelines he would have been released about five months ago the district court of used its discretion when it did night the motion for a sentencing reduction because it failed to consider the strong public policy in favor of giving people who cooperate a meaningful benefit in order to encourage others to cooperate in p discretion i mean the supreme court says sentencing judges can sentence based on policy disagreements i mean and so is an abuse of discretion of a particular judge doesn't want to give as much credit for cooperation as as most judges would i think that that would be the explanation if we were talking about the sentence imposed in the first instance as i was about two years ago and i lost that argument  however here it's it becomes something more than that because what we have is we have united states sentencing guidelines section one b one ten b be to  and that is the further emphasis on the public policy behind giving a corporate or meaningful benefit and it what it does is it provides an exception to the normal rule that applies which says that a person's sentence may not be adjusted to below his amended guidelines range where the person originally received the sentence or her guidelines  as the result of a government motion pursuant to section five k one point one you know we have a district here explained her reasoning acknowledged his substantial assistance to the prosecution but she deemed it outweighed by the seriousness of these drug crimes which she stated undoubtedly ruined fifty times lives and then observed that your client was a far more extensive drug dealer than the two other dealers against whom he had cooperated now these are factors that i would think a district judge could consider in deciding the value of the cooperation so how is this an abuse of discretion will be first of all those were the findings the court made during the original sentencing which were then reiterated this is in a bizarre where you know you trade parts of a sentence in the end the district court has to decide that the sentence adequately deals with the seriousness of the crime deterrence the role of the defendant at the time she had the original sentence she decided a departure was is bt seems to call for is why the court doesn't explain why that conclusion doesn't change when the guidelines come down when the court originally sentenced mr mor required to impose a guideline sentence much less a departure from it it has to consider that there is the statutory factors that there are five fifty three a factors and it explains why here it didn't think a further sentence reaction was warranted i'm still having trouble happens how we conclude that a district judge is always required to give consideration for cooperation i think if a court doesn't give any consideration whatsoever for cooperation i mean that's a totally different situation and very among those of us who've been on the district for pension know there's cooperation and then there's cooperation and sometimes the circumstances can warrant considerable mitigation other times it seems that the defendant has not done that much i'm not putting this case into any category teams though that the district judge gets to make that decision but what th what happened was during the initial sentencing the district court tied the sentence that was imposed to the sentencing guidelines and she said that had mr m five would have been seventy and that is correct although there was a question of well that would have only been that had mr morello qualified for the safety valve because he was charged with the mandatory minimum of sentence of ten years and the argument was made that in that instance he would have had to see if the valve in which case he would disclose the additional activities which i think is questionable actually but to be fair that that would be i assume the government's response i think that's the spawn's to that point but here's the question to me is if the judge said i would have given him a heart a sentence at the high end of his guidelines in his guidelines were one thirty five to one sixty eight so therefore i'm giving him a sentence that's thirty five months below the low end of those guidelines or twenty six percent of the low below the low end of those guidelines and now the guidelines change and now the guidelines are one hundred eighty to one hundred thirty five months so at the very least it would seem to me that the district court should have explained why given that fact his sentence shouldn't be lowered to reflect that change one hundred wasn't a magic number it wasn't just we've looked at everything and i'm pulling one hundred out of the air no one hundred was related to the guidelines that he was facing he was and he got a sense and that's the cell you characteristic of a sentence indicated that she thought he deserved a sentence of one hundred sixty eight months you know it was the high end of his guidelines but she thought he deserved a sentence of one hundred sixty eight months not all right i'm i'm using guidelines and i'm departing percentages from guidelines the judges think that he deserved to serve that time in jail now she had more flexibility under the guidelines but she still thought his crime was serious enough to not barred further departure i'm still hard pressed to know where we would look for authority to conclude that that's eight an abuse of discretion whatever other judges might have thought in similar circumstances well i suppose what i'm asking the court to find and i don't know if you want me to do this and then we'll give you time for your rebuttal ok thank you i suppose what i'm asking the court to find is that the court did not consider for example the thirty five fifty three  thirty five fifty three factors which require a court to consider among other things issue of general deterrence and ultimately if that's not persuasive to find this was simply he considered the need for sentence to provide adequate deterrence that's at page sixty three of the appendix ok thank you we'll let you then rebut after the government has its opportunity to argue of the government judge forrest did not abuse her discretion in denying the defendant's thirty five eighty two motion she understood her authority and her ability to change his sense if she chose to especially after the government consented to to ensure that was the case that the judge in fact understood her authority she noted that under the guideline and the statutory interpretation implementation of the guidelines that she could if she chose to reduce the defendant's sentence to as low as  months however considering the defendant's offense and the nature of the cooperation he rendered judge forrest after considering the appropriate factors decided not to and amend this as the government's position was understand that  was it would have been appropriate to reduce the sentence absolutely and there's nothing inconsistent with that here your honor as the court knows the discretion of the judge is exactly that the judge takes into account the opinions of both sides and decides on her own based on her own assessment of the facts and the law what the appropriate sentence should be the fact that the government took position in support of that below does not change the fact in any way the judge force properly exercised her discretion  took into account all of the facts and arguably is ignoring the starting point i mean the starting point is supposed to be the guy on ranging and knocked down but it it is arguably ignores the starting point but in this case she didn't judge she noted that she could go as low as eighty months and so even though that was a possibility judge for said under the facts of this case and this defendant's conduct and the cooperation that was rendered i don't find it to be appropriate i'm going to stand by rip my originals and the one hundred months that was within her discretion to do and that's what's committed to the district court's discretion to decide these issues despite or in fact contradicting the arguments even if correctly noted had the defense actually safety valve and provided the information about his drug activity that would have been relevant conduct which would have changed his guidelines range so i don't accept the premise of what the range was but there's a second reason as well your honor cooperation gives additional is one of these cases we're we didn't have fully complete cooperation no you're on that's not what i mean what i mean is when the defense is claiming what the guidelines would have been they're excluding the additional information that would have been provided in a safety  which would have increased that number the guidelines range we've increased but the second point your honor about the benefit of cooperation there is a secondary benefit that should not be ignored which is a cooperating witness by in the southern district of new york by acknowledging and pleading guilty to his entire range of conduct forever protects himself from being further prosecuted by anybody for that conduct so in this case the government obviously through this investigation knew that mr morello was a serious drug dealer knew from the investigation of the retired n y p d of officer in the exhilarate officer who mr morello was he retained further exposure for his drug dealing by pleading guilty as a cooperator he arrays that exposure for em so it's not just the benefit from the report with regard to that last point there's nothing in the record to indicate what mr morello's additional exposure or potential exposure would have been that is the additional benefit that the government points additional benefit on mr morell was purely theoretical because that only that's that's only an additional benefit to him if he had exposure to that other conduct if that other conduct predated the pre printed dated the statute of limitations if that other conduct was outside of this district in the record correct there's absolutely nothing in the record about that furthermore to the argument that well he would have have had to have talked about this during safety valve proffering his numbers would have gone up well yes and no on safety valve proffer you don't have to tell about everything that you've ever done what you have to do is you have to talk about the instant offense and conduct that's relevant to it and again there's nothing in the record to tell us how much is his sentencing guidelines would have gone up how that would have been either the same or different than what he revealed during cooperation proffers i think judge chin was exactly correct it does ignore the guidelines and you know i think it's really an interesting next question i'm just asking i think you have the question raised a good point but i think i think that there is something that's interesting here which struck me is that the section b two b well we always think about the idea that the sentence that's imposed on a cooperator bears some relationship to the guidelines that he faces he or she faces otherwise we assume that it's some sort of either percentage reduction or some sort of a reduction off of that or it's the starting place but the fact of the matter is when the judge sentences a person who's cooperated they're not obligated they have they have to look at the sentencing guidelines among other factors and they impose a sentence that's appropriate well section b to b is the only place that i can find in the guidelines where the relationship between the sentence that's imposed on a cooperator and the sentencing guidelines is explicitly acknowledged and it explicitly acknowledges it by saying that where the defendant received the sentence below his guideline range he can have the benefit of a reduction in the guidelines to a point comparably a level so we go back to this discretion that  district court has i don't disagree with you by the way that as a matter of practice it might be better to give cooperate was consistent with what the government will see in this case a lower sentence because it sends a signal fine the other would be whoppers but here we have winds question that's been given to this record i agree but i think it is less in this instance where the district court has already gone on record by imposing a sentence that was a certain percentage below the sentencing guidelines now we have something concrete to start with rather than just this kind of a morpheus what's an appropriate sentence thank you