good afternoon my name is mark butcher i represent in a miller we have divided our time between the three of us i was speaking for eight minutes this afternoon then mr morse on behalf of levi miller will be speaking for five minutes followed by ms over meyer who will be speaking on behalf of sam mullet for fifteen minutes reserving two minutes for a bottle it sounds good your honor we're here today because the government's trying to salvage a conviction obstruct justice against animal or without any evidence to support that conviction there is no evidence that any participants in the hair and beard cutting of barber and marty miller knew anything or intended to burn the bag of hair that was collected from  let alone any intent to impede any govern investigation or to obstruct justice it was a six you raised in the prior prior appeal yes your honor we raised this in a prior appeal the brief argued specifically in multiple places including in the summer the argument in the argument itself and in the point headings that the only conspiracy that anna miller arguably joined was a conspiracy to cut hair and importantly than one attacker many attacks or what was how did that bree how did that argument get developed the argument was focused on the one attack was with respect to barbara and marty miller which is the only attack the animal or was alleged to have been involved in and importantly in pointing out in our brief that only the only conspiracy that any miller may have joined was a conspiracy to cut hair with respect to barbara and marty miller the government didn't respond by saying what about the conspiracy to obstruct justice there was not even mention in their brief at all and the first time any mention of that came up with regard to anna  was after the conviction was wired you're referring to the last round of briefing or this round of briefing in the in the last round of briefing your honor the is why would it be their duty to talk about the conspiracy if it wasn't clear  you're our view is that it was clear that we raised that we raised it by saying the only conspiracy that she may have entered was a conspiracy to cut hair not what you argued i'll get your brief i guess from the initial peel but you argued insufficient evidence of a conspiracy to obstruct justice and you have an argument section in that your brief that you filed that i that i read that obviously didn't respond to it it's in there your honor it's in what's in that brief is the argument that the only conspiracy that animal or may have been involved with was a conspiracy to cut hair that's how it's phrase it's phrase very clearly that way and it's developed along those lines in several different places in the brief and  it's true that she was present she was also present when the bag was taken to see a log that is actually in dispute there's two different witnesses and in fact one witness johnny mast when asked expressly to tell the  people who were present that day he does not list animal or about the other way though i think one of the other witness doesn't give a list of who was and was not there the other witness sort of speaks in generalities about who who was there  t our view would be that even if she was present there when the hair was brought back there's still no evidence of any intent to obstruct a government investigation even her being there at that being there is not enough there must be something else to show she intended this and there was no discussions before the hair cutting occurred about collecting the hair bring it back and destroying it and the first time that ever came up was when sam mullet said it once the bag had been brought back there was never any evidence before that of any discussions especially with respect to anna miller that she intended to destroy the bag here in this this is important especially because of the the way that the verdict forms here were given to the jury the jury was asked to find a conspiracy to with three objects to commit a hate crime to obstruct justice and to make false statements the jury found two of those objects but the way that the forms were given to the jury that was one form and then they were asked for each defendant whether that specific defendant joined that conspiracy the jury was not given opportunity to say that for example in a miller only join conspiracy to commit a hate crime or only join a conspiracy to obstruct justice so once the jury found but there was a conspiracy to commit a hate crime and to obstruct justice it was an all or nothing choice as each defendant the jury had to find either that the that the each defendant committed a conspiracy too with both objects or no conspiracy at all and we believe that was improper and it was an improper use of the jury forms because then  appellate brief the first time to say it's it was you were complaining about the sufficiency of the evidence with respect to a conspiracy to join multiple attacks if that's how you read it then what do we do in the not sure i understand your question is that you're saying you're your argument today is there's no way there's not sufficient evidence to show that she committed a conspiracy to engage in one attack and my recollection of my understanding of the first appeal is that's not what you argued you argued about sufficiency of the evidence with respect to a conspiracy to engage in multiple attacks ok so there are different arguments and so i'm saying if that's how i end up reading your first brief in the first appeal what do conspiracy but if you do even if you did read it that way we believe that it's plain error for the judge to have submitted to the jury a theory of the case for which there's no evidence to support it and there's just no evidence in the record to support the conclusion that anna miller intended to  struct justice or intent to join a conspiracy to obstruct justice in any way beyond you know it's all about how much or how little inference be drawn here that's the issue isn't it so you've got somebody who participates in here at least is present the hair is collected and is present according to one witness with the hair is taken to the person the government identifies as the ringleader who also is said to him in front of all these people burn a hair get rid of a camera there's  you could argue that some of this is just mere presence which doesn't prove a conspiracy but the first step is going to cut the hair that's that's really that's now somebody actively participating in it and can't the jury infer from that all the other steps i don't think you can your honor i don't think the jury could say that her participation in cutting the hair means that she also intended to obstruct justice to spare but desecrated jury question is my question to you i don't believe that's enough evidence i think that what we have here is classic mere presence and mere presence is not enough to prove a conspiracy and in the miller did nothing more than she was present she cut hair there's nothing that she did or anything that she said there could be that upon which a jury could infer that she intended to obstruct justice there's just no evidence there and i think that for that reason the court should reverse the count one the conspiracy count in its entirety with respect to anna miller  and just one more thing about the jury verdict forms the court gave an instruction to the jury that they could find a conspiracy so long as they found that any defendant either one intended to and i see my time  this point very briefly whether either defendant intended one to commit a hate crime or to obstruct justice or to make false statements the jury forms made that impossible the jury was not able to do that so the judge gave an instruction to the jury that contradicted the forms that they had in the forms were defective and therefore the court should reverse the conspiracy count on that basis as well objection to the jury forms your honor there was not but i believe that that would be plainer thank you thank you as they please the court joseph more somebody half of levi miller as i was listening to my colleagues speak regarding sufficiency because mr miller lead by finds himself in a very similar situation however at a very high end or much higher end of the pool i suppose or of the latter as it relates to what his ultimate sentence was originally and then what it was ultimately a reduced to it re sentencing regarding a sufficiency challenge to begin with mr miller was obviously individually found not guilty of obstructing justice after this court's original opinion in the first appeal which admittedly i was not involved but nonetheless in review of that one of the things that i just heard argued that made me harken back to my original read of the court's opinion was in fact there was no remedy or there was no direction or there was no mandate from the court to the district court other than to retry the case and the language in why i find this really puzzling your client wants to be retried for the the way that the way in mr miller's objective view here your honor is that all that he ever wanted was a full and fair trial regarding all of those charges the way that all to me the whole matter was dealt with everything was so for instance the object of the conspiracy as he as he sits before the court i mean what are his i'm just not understand the answer we all know the prior  pinioned says the hate crime convictions fail because of a flawed instruction ok and the only way you're going to get a conviction for a crime and increase sentence for it is based on a new trial that's not us telling them to do that and more puzzling than anything is why you kind would want that to have happened i would have thought your client would be saying nice work thanks for convincing the government not to retry me on the hate crime and just take it at that and this certainly some people just can't accept victory i mean just think who when you want well if that in if in fact in in upon request for clarification to this court and all to me from the government's on bank request that was denied as well  it would that would be certainly understandable but the question that mr miller has or stands before the court in wonder is that regarding the original mandate of the court did this court direct the district court to proceed to a reset and sing or did it direct this district or did it direct the district court to in fact what the plan language seems to suggest the remedy being a retrial of the matter certainly  government's election which did not happen the intervening event this recent unsing for which we're now here on where in the air is still as i thought it was that there's been an error because your client was not retried and he'd like to stay in jeopardy and like to have the new trial certainly i would never wish nor would my client ever wish to be subject to continued jeopardy or hate crime potential your honor however having said that as an individual who was not interested in plea negotiation or a plea bargain at some point i was seeking a full and fair trial was seeking a trial and certainly everyone and nothing more fair from a colonel defendant's perspective than a to whether those convictions were challenged and if those convictions are challenge that's just the way it goes and as i had heard earlier judge griffin question my colleague regarding the challenges regarding sufficiency or things at that time and certainly noting in the in the court's original opinion there was an indication in that opinion obviously that the convictions for obstructing were false vacation were not challenged defendants don't challenge other sources of conviction or counts other than the hate crime statute however as it relates to the for instance in mr miller's case the conspiracy for which he sits there was no possibility for anything other than that original appeal to be challenging that in fact situation once a challenge the hate crime itself there be the in a related this of that and the object of the conspiracy and it becomes so disjointed for mr miller levi at the when it comes time for sentencing because the question is regarding that jury verdict form as was stated earlier became an all or nothing proposition and once that hate crime is excised  that conspiracy to obstruct account that he remains with now that he also may receive the statutory maximum sentence for despite frankly the need get a lower sentence we received and  was a general proclamation amongst groupings of defendants that essentially went as the court is well aware you three gentlemen in this situation receive eighty four months altman when that was brought back and there is no separation between was that at that time was a four months relative to the hate crime conviction which is now excised from by the court was that what was the separation amongst that sentence and again this goes to the in a related idea of all of that the recent saying was not what the court would want in this red lights going on for a little while but maybe just to think about this point in revers doing the bottle if you still think it's arguments worth making you can make it but to accenture making a sentencing argument of of course the district court judge did not know exactly what part of the eighty plus month sentence went to hate crime and what went to obstruction of justice because at that point both convictions were good in the district  of course was allowed to act on that promise and so that's what he did on re sentencing you can't do that anymore and so he's impose a sentence based on one i don't know that's what he's allowed to do good afternoon your honors may it please the court when the over my on behalf of sam mullet if scuse me getting over a cold your honor is this obstruction case is back before this panel because the district court imposed a kidnapping sentence and use an arbitrary percentage to impose a sentence of over ten years for simple nonviolent obstruction sammul it has been custody for fifty three months as of today and he has another five years to go he will be in prison until he is seventy five years old under the current sentence after this court vacated the underlying convictions in miller and the government mediately proceed to re sentencing and not to retry the defendants on the hate crimes count but they use the back door of sentence you happy with that decision to complain about that as well we were happy to have recent hitting and have to have a retrial on hate crime yes very much so i have very much  of conduct including crime conduct that's really a big part of the issue here isn't that the big part of this is not so much the hate crime conduct the assaults it's that the kidnapping is the kidnapping here that drove the guidelines up the hate crime guideline by telling the guideline you're referring to refers to kidnapping something and then unlawful restraint the guideline refers to kidnapping hostage taking restraint presidential assassination  some types of i would say that it's limited to kidnapping restraint is covered by a two level enhanced over in three a one point three i think it's a full i thought form aimed to a four point one maybe i've got it wrong as kidnapping abduction unlawful restraint i got it wrong i don't have the title in front of me so what are the guidelines says and that's what is ok in front of you but the guideline also allows a two level in why was this not unlawful restraint what am i missing this is not a type of restraint that it's analogous to federal kidnapping and that's what this court has in starting with epley in one thousand nine hundred five if you cross reference to the kidnapping guideline it must be for a crime it's analogous to federal kidnapping which is true federal kidnapping guideline does not the federal can i think i don't hear it goes though the federal kidnapping i like i believe refers to federal kidnapping and the types of the federal into the common he's asked about the commentary about the guidelines it was my understanding that the federal with this a state version of kidnapping that would be part of it there are some crimes that involve some in here moving of people and then there are some that don't and a lot of the cases over time and this is something way back to my law school days a long time ago that you normally if you have a separate offense of kidnapping it has to involve some the extra can't be here and as you bargain and the but here it seems that's the dilemma is is the restraint inherent in a hate crime or is the restraint on top of the crime in order to cut the beard so that there's a nuance here that's exactly the issue this is actually the issue and here it's been our position all along since the first briefing that this was just restrain incidental to an assault there is often restraint involved with assault whether someone's grabbing someone to keep them still or sitting on top of them you know while they're punching them or something of that there was no restraint beyond what was necessary for some defendants to cut their hair some weren't restrained forcibly come in your house and intimidate you that could be a crime by itself as long as i've touched you that's a personal injury but what are going to be but now i put you on the floor and hold you well either i or other people cut your beard that could be argued to be additional strain gets us closer to kidnapping doesn't it i think it's the same as holding you know someone by the shirt to him to assault them here is it is to hold the victims still or some victims some of them were not held to hold some victims still while they cut their hair and then they were immediately released and either the defendants left or they remained and talked for a little while before they left of their own accord and so when you're looking at the difference should this be two levels physical restrain for kidnapping i think you lean in favor of the defense i think you go this this should be two levels so if we take obstruction plus two levels for restraint and even including the two levels for elderly victim all but them and including a four level fo role leadership role which we disputed those but for the sake of argument all those enhanced mr obstruction you come to forty one to fifty one months it's a twenty two and he's a category one and sam has surfaced three months in this case so you have the obstruction guidelines which shake into account the obstruction conduct and you have a restraining guideline that covers physical restraint which happen here it was only restraint necessary for the offense itself it wasn't kidnapping in the true traditional sense of kidnapping which this court has and a couple previous opinions from last year the judge griffin wrote affirming the cress rough cross reference to kidnapping was anderson and peggy oh and in those cases one were involved in one thousand and two g case possession of a firearm but while the defendant possessed the firearm he went into a car with a child in the car with a gun pointed to the mother and said get in this car and drive me to a different location that was kidnapping so the court allowed the pro the kidnapping i learned that was separate than just possessing a weapon in pay go there is a confidential informant held at knifepoint in a hotel room for three days beaten severely that is true kidnapping and so what's the relevance of the fact that quite a few state laws defining kidnapping cover restrain kidnapping laws are very broad at the state level and ohio has three different statues statutes that cover kidnapping they go from kidnapping to what's untitled abduction which actually doesn't require abduction to unlawful restraint and the difference between the three you can go from an f one to a third degree misdemeanor so simple physical restraint by itself is a third degree misdemeanor in ohio that's unlawful restraint and that's under order see two nine zero five point zero three so that's punishable by up to sixty days the next level is abduction which is restraining liberty to create the risk of physical harm or place a victim in fear and that's an f three that's punishable by up to eighteen months and then ohio has kidnapping which can be an f one or an f two it's an f two if the victim is really safe restraining the liberty to terrorize inflict serious harm or creating a substantial risk of serious financial question i'm just i'm just not i'm i must be missing something here so that the kidnapping guideline you keep referring to  a guideline that as i understand it says kidnapping abduction unlawful restraint ok so it covers all three and there's a definition of i'm all for restraint that i think seems to apply to this fact pattern and what i hear you to be saying is will that's not fair there's a physical restraint guideline we should use and i guess my answer is why if if off overstrain applies here i'm awful restrain applies here and i know the intuitions about kidnapping you're invoking i have the same intuition but what am i missing about reading the guideline i think the guy at the intuitions if the guideline is inconsistent i think it must be read in defendant's favor and here the guidelines apply it to level and has been for the force for forcible restraint and then the kidnapping guideline as its course said in a court said epley is to be used for analogous crimes for the second level thirty two guideline that's one of the highest guidelines it's the same guideline for presidential assassination  and so it's an extremely high guyland so to go up twelve here because that seems like a protest to the guidelines and then it just seems like disagreement why are you having such a significant disparity between unlawful restraint on the one hand and what the other one physical restraint physical regime physical or forcible restraint ok but that's just a disagreement with the sentencing commission there's a disagreement i think and when the guy like i don't understand what that shows air but judge poster who yeah that's what i did but i'm not understanding what the air is the air if i'm off a restraint guideline by its terms applies here that's not a procedural reasonable  or it's entirely reasonable to apply it if it applies by a terms i feel like i'm missing something but i can't figure out what it is it's an error it inflates the guidelines here and so if if you have an inconsistency within the guidelines where it can lead to a two level has been or twelve level and handsome and that's a that's a considerable inconsistency in the guideline that has to be resolved in the defendant's favor you know otherwise it's so substantively and reasonable to go up to a level that you punish presidential assassination and true kidnapping and hostage taking for something that's just inherent to the offense itself when there is another guideline that can apply to that when there is the three a one point three that can apply to that and here not only were the guidelines inflated but then the court didn't even really follow anything type of thirty five fifty three analysis or rule thirty two or consider any other factor other than levi miller and johnny mollett statutory maximum sentence of sixty months and this is going to the percentage usage that the court applied across the board the court said well the guidelines don't really matter to me i have to come down this just a question of how much so the court took the eighty four month sentence imposed we're happy with that we were not happy with where the court came down to know but i mean the judgment that in one sense he was saying i don't care what the guidelines sentences right but we i think it's too high well the obstruction guideline is what is the guideline that should control what the different defendants did so here was a judge who was trying to do that which should seem like a bad idea i don't know that he had to do that i think there are cases that say you don't have to do it but i don't know of cases that say it's error to do it the court in this case did not discuss the individual obstructive conduct of different defendants and impose the same obstruction sentence for johnny miller who was not involved in i'm sure action with levi miller who was much more involved in the obstructive conduct in this case and assumes that they get the same thing that sixteen months statutory maximum was the correct sentence for both of them instead of their properly calculated guy raz yeah and that's where it started from a lot of the sentences starting with john moe were one fourth of what the guidelines were so the statutory max which becomes a guideline range in technical sense is still far far below what the guidelines called for the kidnapping guideline which we argue is an error it should be the obstruction guideline which is far below the statutory maximum in the case and then to come down from the eighty four month sentence which was unreasonable to begin with again it was based on kidnapping when it should not have been and say well they're limited to sixty that's twenty eight percent i'm just going to apply that across the board without looking individual mitigating factors individual conduct in the offense conduct and the national disparity it creates between this and other  consider the individual factors at the time of the original so there was very little said at the time of the original sentence and all this and that was raised in our original brief but the problems with the first sentence mentioned national disparities we're really looking at thirty five fifty three six try to avoid unwanted sentence disparities that's the part of thirty five fifty three gaited this project is focused on that he was looking at the sentences in relative terms to the inappropriate in a conspiracy case especially where you have multiple defendants to try to put them in relative culpability level to both of criminal history levels so that's certainly something that the court can consider and we're not contesting that we're saying that the starting point was wrong the starting point was wrong for johnny  seems like a real point and it was wrong here for sam all it yet is not is that it's not as though the court can't can you know give different sentences to different defendants starting point you that's yes that's not the case it's just that here the starting port was wrong the guidelines are calculated was wrong with starting point of johnny militantly my miller statutory maximum was wrong and then the court didn't listen or address individual factors it didn't discuss nationals disparity with civil rights cases which have a national average  forty three months three times less than the national average for obstruction cases is twenty three months the sentence is five times higher where it's nonviolent wanted him to do a little more math it sounds like the math that's cases by looking at national number sense of commission where you can look i think you can look at cases were this court has recently approved obstruction sentences where witnesses were intimidated were death threats were made to confidential informants and they're getting three four year sentences and here we have  nonviolent minor obstruction conduct and actually preserve evidence that did not hinder the prosecution and he has a sentence of over ten years which is beyond the hate crimes statutory maximum which is ten and so i think please the court christine who on behalf of the united states before i begin my arguments i wanted to clarify a few points that my friend made here regarding the starting point your honor she claimed that a shocking island did not control here and actually it did the nature of the shock and how it works it leads you directly back to the underlying offense so this conduct and not actually come in as relevant conduct a honor it came in directly under the obstruction guidelines which requires you to consider the seriousness of the crime being investigated that's obstruct and here the district court found that the crimes were serious that he would call the hunting testimony of the victims and that the method of attack was particularly calculated to maximize infliction of trauma and terror and in that case a district court determine the substantial sentences are warranted for the defendant's and ken not a little strange that you get to use the crime guideline i mean that that factored into the analysis even though there's no hate obstruction your honor and in this case section two forty nine expressly provides for a sentencing enhanced meant based on kidnapping and the district court applied the correct definition in this case and the jury and the district court independently found that there was sufficient evidence that the underlying conduct met the definition of kidnapping and so the finding was not clearly erroneous it was appropriate for the district court to apply the kidnapping guidelines there were no ply the when they get the guideline as opposed to jury instructions why do we care whether it's kidnapping versus unlawful restraint because there is the same guideline that covers that an abduction right am i missing something right it could be kidnapping could be called kidnapping or unlawful restraint as your honor mention the guideline title actually says kidnapping abduction or unlawful restraint and it tells you to look at what relevance touched her basis there is for that and that guideline and here section two to forty nine provides that your honor there's a specific statutory enhancement for conviction there and here this court was well within a square discretion and considering the underlying assaults here and the sea about how about the tension between well it's a very serious underlying crime but not sufficiently serious that the government would retry it well you know an additional quit seems to back off the seriousness point the seriousness of the crime did not affect what the just government decision to retry your honor the government is that not to retry it because it was considering the victims and the impact it would have on them is a substantial burden on the victims here who are amish just have a higher cause and travel back and forth to trial and as as the district court heard in the testimony they were recalling traumatic experiences and it was well within the or false statement related convictions and so they would have to have been recent as on these other remaining counts but the grime practical steps in my favorite guideline is that we have in essence and convicted conduct be used to drive t that is a lot of this circuit and so the district court here was well within its discretion in imposing the below guidelines sentence that it did here and adequately explained the reason for those sentences was based on the comparative culpability of each defendant recalled the carefully constructed sentencing groupings from the first sentencing and determined that those sentencing groupings were still appropriate after it had considered all the filings and motions listened to all the counsel counsel's arguments and then determine that those culpability groupings still were appropriate here but one thing that hasn't been raised too much by the appellants in their opening argument of the i guess a little bit in a miller is these arguments about challenges to the obstruction conviction some of which were not raised the firm time and as i understand the government's position it's well if they weren't raised then it's i guess you're treating it like a waiver that's the end of the story there's no authority of the the court of appeals to review them now and i guess i would have thought and i'm really looking for guidance i would have thought that no there is discretion there's it's either a forfeiture type situation where if it's a sufficiently plain outrageous error we could still correct it or it's like loss of a case where law the case usually let things set but again there's even discretion in that doctrine from time to time to correct you know massive injustice i mean i think i can find about five cases for each of the three possibilities so i'm looking for the most sensible way to think about it and i have a very powerful intuition that in this setting this case there for example whether intervening law which didn't help you so much the last time but whether intervening law it's really hard to imagine we would not you know just completely changing the way obstruction cases work it seems hard to imagine we wouldn't no matter what happened so that proves it's not waiver well we we in this case there was no intervening law i know but i'm asking a hypothetical to try to figure this out so we've taken care of waiver it's not waiver it must be we have to left well if in terms of forfeiture and waiver this court would have discretion to still reach that issue your honor and we're not saying the court does not have discretion to reach that issue here we're saying the court should under the its own waiver doctrine determine that the argument was waived obviously the court has the discretion to decide whatever it would deem appropriate here but we are arguing that even waiver is applies even more strongly here because the defendants failed to raise this argument when i had the opportunity to do so in the first appeal and because of that and had basically the principle here is that it promotes finality and prevents people from getting two bites of the apple your honor because they had the opportunity to litigat appeal and they chose not to do so whether it was for should teach it reasons or not it was still a choice on their part whether to raise that issue and they chose not to do so and in any event we don't think we think that that is not an animal or sorry human that she did raise it well your honor  we disagree we don't think they raised it in their first as just different recognize in their first briefings they did not have any arguments related to their conspiracy to obstruct justice conviction you know they only  put all of their arguments toward challenging their conviction for their section two forty nine assaults there was no evidence that they highlighted or any arguments that they pointed to that indicated that they argued that there is conspiracy to obstruct justice lack sufficient evidence you in that circumstance we believe that they have waived and in any of that we just want to correct or clarify some of the searches made by our friend here there was sufficient evidence in the record to show that miss miller  participated in the consumer conspiracy to obstruct justice and that's i think he had previously previously mentioned that there was no evidence that miss miller was present when they presented the evidence to mr mollett of the hair and the prior cap but  id's six six four seven and six six four nine barber yoder expressly testify that mr miller was there when the bag was presented and then testified that mr mollett then directed the back to be taken and burned so  this was kimberly part of this single assault where the she participated in the cutting of barbara miller's her participate in gathering up the evidence for the purpose of taking it back to their leader to show that the assault had taken place and she was there actively right up to that point that would show conspiracy to commit a hate crime yes you know you've got to get from that to obstruction of investigation of a hate crime so how do we get to that next step she was there when the bag was directed to be burned and she didn't stop it and she was part of that common criminal enterprise a jury found to obstruct justice she didn't intervene to stop them and she was part of the group that actually collected the evidence and so there was an active participation on her part and in any  i'm having a hard time with active participation if we were looking at a hate crime in a conspiracy to commit a hate crime but it's conspiracy to obstruct the investigation of a hate crime and it seems to me were were at least a lot of this evidence is you were there and the jury in some cases if there's other evidence to go with it could for you're part of the conspiracy but the senate struction says mere presence is enough to be part of a conspiracy well it wasn't mere presence she was part of the group that actually collected the evidence she was actively part earth it shows that the defendants connection once a can once a conspiracy has been found and here there was a single conspiracy with two objects the defendant's connection can be slight and moreover the overt act of one coconspirator is attributable to all reasonable the district court acted well within its discretion in imposing the sentence that it did based on the comparable culpability of each defendant your honor this court has recognized that this request have broad discretion and sentencing and this case really boils down to one of sentencing as defendants have argued i think official court here followed the guidance of this court in really looking at the relevant underlying conduct and then conducting an individualized assessment and then discern determining based on the facts of this case that a below guideline sentence was appropriate and your honor i also wanted to clarify that the defendants here all remain convicted of an obstruction related can supervised release so at least for those defendants and he said sentencing challenges that they raise are moot and then defendants are expected to complete their supervised release in may and june of this year but in any event your hon the district court did what it was supposed to do here it acted well within its broad discretion and as your honor recognize it really did look at the facts of this case and consider and recalled testimony from trial and determined that substantial sentences were warranted for eight of the defendants who had not completed their prison terms for eight of the other defendants just judge had imposed time serve so the bottom line here is that the district court followed the proper procedures and imposed below guidelines sentences and any suggestion otherwise is belied by the facts and this case so there's not any other honour's my first point i want to make is that it was our argument that the obstruction guideline controls that's where the parties agree as we start with today one point two and we end with t j one point two because the crime here being investigated was not kidnapping the crime her being investigated was assault and the assault guidelines are lower than the instruction guideline in this case and so the obstruction guideline controls again with three disputed hansen's results in a range less than what sa mullet has already served he has five more years to go for this obstruction sentence and the the government said it chose not to retry based on the stress it would create on the victims and while that might have partly factored in their decision not to retry they laid out in their sentencing memo which is before their motion to dismiss they said we will consider the lengths of these conspiracy instructions sentences in exercising our prosecut discretion whether to retry the hate crimes in other words give us the same sentence and we won't retry but they didn't get the same send his but they still got over the statutory maximum for a hate crime which is twelve or one hundred twenty months without kidnapping and the compound and the rest of the line miller and they didn't find it they knew it was there they knew it was in his bedroom and they didn't search they didn't find the camera and it was after that point that linda i believe the lies called and there was a whole chain of command down to johnny mast eventually who decided to bury the camera no one told him to bury the camera no one told him where to put the camera and again the camera was found it was turned over before trial the pictures were used at trial so this was an attempt at obstruction that that failed and the false statements made by sam to the f b i was one false statement made after his arrest in this case so again yes there was obstructive conduct and we're not challenging the sufficiency of the evidence but when you look compared to other cases compared to the range of conduct that can fall under obstruction this did not involve witness intimidation th involve violence in any way they didn't end up hindering the prosecution in this matter so for this court to leave sam with a sentence of over ten years for obstructive conduct is procedurally and substantively unreasonable say quickly that the sentencing issues in this case remain relevant only if this court disagrees with our first claim in the brief which goes to the constitutionality of the left over obstruction convictions which we do not wa wait we just didn't raise an argument today so we asked this court to bake a counts one eight and ten as a result of federal overreach and in the alternative to vacate the sentences as procedurally and substantively unreasonable and the case will be submitted and the c