good morning again your honor it is a near certainty that mr chimes will die in prison this court has warned that a death that that death in prison is not to be ordered lightly and that a defendant who will not outlive his sentence that factor should give pause to the district court at the time of sentencing a sentencing that i that requires a defendant to die in prison is notably harsher than a sentence that allows them to die on the outside it requires the defendant to have no control over the circumstances of his  talks about the age of the court should should not be you know the fact that daisy talked about age in the court should not impose a life sentence and he's acknowledged that various statistics and he says the case should be decided on its own merits and he are the circumstances of the case where reprehensible however one of the cases that the government relies on and it's a case called truths in that case the defendant was a bank robber who was seventy seven at the time of sentencing and was facing to seventy seventy to eighty seven months in prison and i looked at the sentencing transcript for that case and the district court's acknowledgment has a whole different tone and demeanor the court says daniel before me as a human tragedy your statement a moment ago that a sentence within the guideline range is potentially a life sentence is a chilling thought there's no question about that now that's fundamentally different from what the district court said in this case  this court has indicated that a death and sent death death in prison should give the sentencing court pas and in this case all the judge said i've heard that and seen those statistics before i'm not sure i grasped them i think each case is decided on its own you're making comes up most often with much older defendants often with health concerns where relatively speaking shorter terms of this is a case where the sentencing commission would have said life absolutely right there's we're off the charts on the offense level here even with criminal history category one  and while nobody does these things lightly we've got a pretty broad sweeping policy statement by the sun usually commission that yes this is appropriate whether he's twenty one or thirty or forty whatever will be yes yes your honor and i think that actually goes to the second point that i wanted to make on the prior question first the district court kind of brushed over this but second while the district court does make a great record about the actual offense itself as you're saying that the guidelines would have recommended in this case three hundred forty years and if the if mr giant had actually received a much greater sentence we would have and we ought to worry about the difference between life and three hundred forty years you know your honor what i'm arguing is that in this case where life would have been warranted under the guidelines and the sentence was so high the guideline range three hundred  years the guy the judge departed two hundred eighty three years below the guideline range so what we're talking about in essence is a difference of three years between a sentence that would have given him the hope of reaching a release day and dying on the outside of eighty eighty one point nine years sense and told the district or anything beyond fifty three point one years it's a life sentence so we have this very narrow window in this case of three years and we have a judge that was willing even even in light of reprehensible facts in this case we have a judge that was willing to depart two hundred eighty three years below the guideline range so we're left with this question when he brushes over this what mr daisy said what the fundamental question before the court was is this offense is this an offense that should result in a thirty seven year old man dying in prison we have a coworker who is giving some credence to an argument here he's departing two hundred eighty three years below the guideline so the question becomes what about those three years are we certain on the record of this case that the district court adequately considered there thirty five fifty three factors when he just made this statement that brushed over this fundamental argument he was there and if you are this is this really about just three years yet the difference between the sentence that he got and the difference then the sentence that mr daisy figured would be would cause him to die in prison is three years yet but we're not really you know really arguing over three years here and you're not arguing about what his actual life expectancy is this isn't a debate about th cool terms correct turner but that's just to point out we had a judge that was giving some credence to the facts mr daisy made an extended argument about marginal deterrence in this case and we have a judge that was giving some credence who sentence far below the guideline range and we're just we want to bring the question to this court that a sentencing judge is required to just to discuss and address the principal arguments that in this case is the district court's attention and is a district court statement that yes our basis of the sentence because at this point the judge has already decided that a fifty six year sentence meets the thirty five fifty three factors with the exception that our argument is that he did not give proper consideration to the fundamental question that mr daisy raised which is is this a case where a thirty seven year old man should die in prison i mean that's exactly what he did he's clearly attempting to achieve a life sentence here i don't know what to make of i'm not sure i grasp the statistic statement to me that doesn't make a whole lot of sense but it's very clear that the judge was trying to achieve a life sentence here based on the severity of these crimes and the fact that  this defendant is a child molester not just a child pornography offender i certainly understand your point of view your honor but in our in our view that statement that you're expressing that you're not sure when he says i'm maybe about seventy in the like seventy eight year old range so then in terms of the court looking at because statistically at least he was expected to die in forty four years and forty four plus thirty seven puts him in eighty one right right so when you do the math in terms of what do you what you want and you want it seventy seven or something less than seventy seven that's what i'm trying to get particular sentence the he can't get less than fifteen and so we just want to we just want to ask this court was the district court statement enough and because he sent in so far below guidelines that we believe that there is a chance that if he comes no correct your honor but at the most we would say that that was forfeiture at the most and that's just a negligent negligent omission and that would still what the district court did in this case still then would not be the clearer standard and unless the courts had good morning your honor so winfield long for the united states i'm with confessed to being puzzled by the argument i just heard in that it sounds to me like the defenses acknowledge now that the judge did give in fact it sounds like a acknowledging given a fair amount of credence to the effect of life sentence that the defendant got in this case and when i take to be their argument then is he did not express sufficient anguish on the record about the effect of that which has no support in the law that that is some burden of the district judge to do in sentencing at all i suggest what this case and really stands for three particular propositions are three main themes that there is no gotcha game in sentencing this court's always been clear that it's not a check the box system for judges on sentencing that they look to the record as a whole to see if you can see why the sentence was imposed and in this case the transcript reveals i'd suggest any reasonable person that everybody in the courtroom was very actively engaged in earnestly trying to flesh out all of the issues that were involved in the sentencing in this case prosecutors a  lengthy lengthy sentencing hearing with witnesses elaborate discussions about issues including lengthy discussions from the defense mitigating factors including the effect of life sentence the judge in that case in this case i think the waiver argument i them for size more from the standpoint of simply being reflective of the effort to try and flush out all of those issues from the judge earnestly asking you see if i addressed your arguments mr daisy and mr daisy i think that over on the record thinking through what else is going on and then says yes i think you have your honor it's not a game of gotcha they're trying to figure out what are the issues here we all doing the right thing which is every that you can ask for in the record and finally maybe most importantly at the third point is that no fair reasonable person could read this record and not understand why the judge imposed the sentence that he did he goes over my calculation that close to ten pages of the thirty five fifty three a factors in some detail connection with the evidence he's heard at the hearing in the present report and continually comes back to the heinousness of the crime no one certain terms and there imposes a less than twenty percent of the recommended victim in particular his daughter who is the most direct victim a grandparent testified and i think there was a neighbor perhaps or maybe even the mother who testified the least those two testified at some you you can have one minute consideration to the life sentence my argument is that the district court was giving credence to mr johns arguments at sentencing possibly the marshal deterrence argument the judge sentenced far below guidelines and that the judge may have sentenced even lower had the judge given proper consideration to the death of het mr johnson present and we would ask that this court just consider carefully if the sentencing judge say stating on the record i've seen and heard the statistics before i'm