well here the next case on the calendar united states versus jo not larson of the federal defenders for mr jones your honour's this court remanded this case for further consideration as maybe just under the circumstances we therefore told the district judge that we would like to put in a brief explaining why the circumstances supported a sentence reduction the judge refused he said in effect no matter what the circumstances are i will not recent this person i will not even read a brief on what the circumstances that that that this court flagged entailed or why they in your view support to say we're not even read a brief yes we what he said what he issued his order saying submit proposals on how we should proceed we put in a letter saying you should proceed by receiving a brief and holding a hearing to determine whether the circumstances that this court flagged in the reman order and really the circumstances of the case generally support a sentence reduction we said we're going to talk about those in detail we endeavored to pursue some of the merits by getting in touch with mr jones we were blocked by the government and the district judge blocked us from having an in person meeting with him in new york we sent our person out to the prison where he was the prison blocked us from having a private human in person meeting with mr jones to pursue a submission on jones's own situation which is one of the circumstances this court flagged when it sent the case back to judge how do you respond to the the view that it previewed certainly the arguments that you would have made in greater detail such that the district court did have a sense of what your proposal was and what the government's proposal was how do you respond to that i respond that we previewed some of the issues but one of the issues in particular judges jones's own situation was definitely not previewed because it had been three years since the sentencing and we were blocked at every opportunity from getting information from mr jones about his situation so and again that by the terms of judge gervase his order he sought proposals on how to proceed and therefore we put in our letter saying well you should proceed your honor by letting us brief the circumstances that the court has flagged that you make any substantive arguments beyond procedural with respect to the jurisprudential ups and downs in this area of law that had also supported to remain and we did to the extent we could we flagged the fact that in the interim period from this court's initial deter anation of the appeal until basically been huge ups and downs in this area of law about what a crime of violence is whether robbery counts whether the career offender guideline applies and we flagged preliminarily some cases where people got the benefit of the jones ruling while mr jones relief but we certainly didn't get into the merits because the judge didn't ask for the merits and the government's position that essentially this proposal on how to proceed was our shot at the merits and our opportunity to be heard is really disingenuous the order was limited to a proposal on how to proceed and even said in our letter it is therefore limited to a procedural proposal to then except the government's argument is kind of like a bait and switch it's like the judge is telling us give us a report a proposal on procedure we do so and then because we don't get into the merits the government essentially says aha you mr chance you lost your chance you had your chance it's over that's simply not equitable your honour's this court sent the case back because the elephant in the room here about this particular case besides all of the jurisprudential ups and downs is that the big picture is that we're looking here at a fifteen year prison sentence given to a man with an i q of sixty nine for fleetingly biting the finger over three hundred pound marshall who said putting in a sworn affidavit that he suffered no loss from this bite this case deserves a real nd look that's what this court decided when it sent the case back for further consideration given the circumstances and we said to the judge we would like to brief the circumstances but he said no i don't want to hear a brief and we're not having a hearing it doesn't matter what you say no relief will be given to this person that complies with neither the letter nor the spirit of this court's mandate in se course in sending the case back st to the letter further consideration as maybe just under the circumstances your honour's one cannot reasonably conclude that no further consideration is just under the circumstances without considering what the circumstances are page twenty two dollars of our opening brief we cite the supreme court's decision and patterson in determining what justice does require the court is bound to consider any changes either in fact or law to since the judgment was entered this court flagged jones's own situation what are the facts of his case we know of his mental impairments that were documented at the time of sentencing but we don't know what's going on in the three and now four years since then those facts may warrant all kinds of relief in three different ways st of all there may be evidence of post sentencing rehabilitation which of course would be relevant to whether justice supports a lower sentence in this case secondly on the flip side there may be evidence that incarcerating mr jones who does have these mental impairments has only exacerbated his death as it's and made it worse i think it's generally understood that prison is not the best place for people with mental illness to be and of course  argument for another way to punish him for what he did thirdly jones himself jones himself we wanted jones to come to the hearing we wanted jones to speak to the judge it can't be underestimated the potential panel felt as reading between the lines that it was constrained as to what it could do it felt that there was there should be a deeper inquiry as to what happened but that it could not vagaries of the changes in the laws and so forth and the timing of this particular case that led to this particular sense at this particular time when many other people were were getting the benefit of the of the changes briefed as we've briefed why that necessarily requires consideration of the circumstances and that's precisely what we asked to do in district court we said here are the circumstances the court has flagged not just the jurisprudential ups and downs but also  jones's own situation because that the concurrence from judges calibration hall also talk about the substance of the sentence here they note mr jones his intellectual impairment his i q of sixty nine the fact that this bite was essentially trivial to the three hundred pound marshall who said he suffered no loss and said in effect this case deserves a nd look for that reason too we want to understand a little bit more about why the district judge felt compelled to give this particular person a fifteen year prison sentence for biting this person's finger and so we said keyes there's another troubling aspect of this case and that is that after the sensors imposed the defendant  was somewhat unkind to the judge and in a way that you know workers could could could see that that might get any any judge pretty upset and i wondered if you if that was  let interfere with the judge's ability to make a just determination and i think your honor for recognizing that fact because as your honor knows that's one of the points we make in our briefing as to why reassignment is warranted here because i don't even want to read a brief from you as to why you might merit a lower sentence he cited among other reasons these personal insults that mr jones had made against him three years earlier that i think gives one pause as to whether perhaps an objective observer might might reasonably question the impartiality that's the standard under preserving the appearance of justice we're not saying judge tariff is biased and we're not saying he's incapable of listening fairly but the cases that we the context but the lack of remorse that that is how it was characterized when mr jones exploded after upon learning for the st time that he was going to be sent to prison for fifteen years and i think what mr jones could have explained on remand but was not allowed to is why he did that your honor because up until then there was obviously a fight about what the guideline range was it was either three to four years or twenty years our position was that it was three to four the government recommended an unspecified but significant term but the st that anyone heard of the fifteen years came when judge therapist announced it and to mr jones given his impaired intellectual functioning and given his situation and given the fact that he was on the eve of release from his seven and a half year prison sentence when he did bite the finger i think it's understandable to an outside observer that he might have responded that way it's not ok he that he responded that way it's not all right but i think that's one of the things mr jones could have spoken to at a reman proceeding he could explain to the judge why the shock of this double long sentences to what he just finished serving just when he's on the eve of going back to his family was devastating  want to read the brief i don't think that that is a faithful a full and scrupulous enforcement of this court's mandate to give this court to give this case further consideration as maybe just under the circumstances the circumstances simply were lake and i represent the united states today and was also the prosecutor at the trial and the case at issue as well as the subsequent district court proceedings just starting quickly with mr larsen left  i think there's a very important part of this outburst that is not being referenced and was omitted and that it is clear from the record that he got into a physical altercation with the marshals an extra c s those had to be called to the courtroom and that's what judge tariff is referenced seeing so when he says there's a lack of remorse he's referring to an instance where an individual has just gotten sentenced for assaulting a federal marshal upon hearing the sentence he lashes out at the court and then gets in a physical altercation with the marshals there are choirs to come there and so i think it's fair and appropriate for the district court to have cited that in saying that there was a lack of remorse but turning to the underlying issue here and i think that mr larsen and jones argues a lot about the spirit of the man mandate and essentially argues that anything short of a recent scene was inconsistent with the spirit of the mandate but i think it's important to look at the actual mandate as judge walker noted in that it was a discretionary mandate there's no dispute that it was discretionary in nature and while we didn't object we didn't claim that he was legally prohibited from conducting a recent scene nor was it required under it and the specific issues raised in the concurrence which i think are important to focus on especially in light of the absurdity is judge calibers see wants to know what the district court no in his description of what he says is the absurdity i think that there has been sort of an attachment of absurd e g to the actual sentence as opposed to the circumstances and judge calibers he says what is more in this may be the true source of my sense of absurdity there appears to be no way in which to ask the district court to reconsider the sentence in view of the happenstance and to view of its own assessment of jones crimes and of its downward departure and it asked the central question to the district court which judge karen fistfight had in his thoughtful order in which he says in light of the sentences that the other similarly situated guilty defendants have received and in light of jone situation both of which you as a district judge are best suited to determine what is the sentence that you deem is appropriate in this case and in multiple moments in the concurrence there's a reference to the fact that judge  situated to make a determination as to what the appropriate sentence is and this court asked judge a therapist to look at the happenstances to look at the circumstances that happened in this case and answer the question of and circumstances as well as the very significant and lengthy criminal history of this defendant that it's an appropriate sentence and when you look at judge garrett fizzes order he very clearly invoked t specific like the language and concepts of the concurrence he thoughtfully considered it he wrote out of respect for the concerns articulated in the concordance the court has now revisited this matter and respect really and upon further reflection looking at the entire record having cited the procedural history having cited the party submissions as well as his history with the case he answered that question clearly and unequivocally that he deemed that above and beyond he really thought about the concurrence as well as the opinion as well as the issues procedurally that have been raised at this case the case he looked at the submissions of the party which were not mere scheduling procedural issues as jones would have you believe and he came to a thoughtful collect conclusion that answered the central question of the concurrence which was what do you think is the appropriate sentence and judge careful that it was fifteen years and he didn't say i don't want to hear anything and i don't want to rethink anything he respected the concurrence he i think respectfully the order did not merely say please submit your proposals as to next steps the order the judge careful of was taking into account the nd circuit's of her after moments of the judgment of this court and the mandate and then it action it also cites to a specific portion of the concurrence and it was also under the guise of jones had asked to be asked the government to move him the government had said that the court needs to order it and so there was a dispute as to what would be the next steps and the court ordered us to submit our proposals and we both submitted proposals that were detailed and substantive and i think that jones's own six page single spaced letter discussing the law on some of the issues is inconsistent with his position that he thought that this was just a procedural letter that he was putting in and that it was of no consequence outside of that but i also think that quite frankly the court wasn't obligated to take briefs if it didn't want to it wasn't obligated to take any specific action it was a discretionary mandate that said as may be just under the circumstances and i think taking the proposals reviewing all of it really digging in in the concurrence and giving the order that the court did it went above and beyond what was asked of it and it clearly showed that it was consistent with the spirit of the mandate and the central question which was judged as the person best position to make a decision about the appropriate sentence what do you deem it should be and judge characterised said fifteen years in simply because that's not what jones wants and he wanted a full recency and doesn't mean that it's in any way inconsistent with the mandate or that it didn't give thoughtful and careful consideration to what was sent back to him there and any other thank you your honor one of the circumstances that this court flagged was jones's own situation and i don't think there's a dispute that we couldn't provide any information about that because we were blocked at every turn from accessing that information three and now four years have elapsed since the original sentencing and we have been unable to make a marriage submission on this point the government's position that effectively we made a marriage submission when we proposed how the court should proceed is simply not accurate page eighty five of the  therapist where he says submit proposals as to how the court should proceed and of course yes we did flag the merits that were available to us because we are advocates after how the court should proceed is not how the court should proceed  correct this court did not order re sentence and it sent it back for further consideration under the circumstances we said we would like to explain to you why the circumstances that are relevant in this case support re sentencing we didn't say you have two reasons if the court looks at our letter it's very clear we said we propose a brief and hearing so the court can decide whether to be sentence and in that proposal of course because we're advocates we flagged the merits that were available available to us at that time namely the jurisprudential ups and downs but we necessarily could not address the merits of jones's own situation which was another reason flagged for sending this case back because again despite what the government may have you believe this is not just a case about recall an statement about jones's situation as it may have changed from the original sentence after after the regional centers imposed you know if you will updating his his resume before saying i don't think that was part of the picture that justice scalia judge calibration was interested in he was concerned about the circumstances of the sentencing occurring amidst the vagaries of what was happening in other it's that certainly accurate your honor but it wasn't only that because if you read his and judge hall's concurrence it also flags the facts of this case and the facts of this fifteen year sentence on the facts of mr jones's impairments and it  says in effect something about this sentence is not quite right to us we would like it we would like you to be a nd look under all of the circumstances relevant to whether fifteen years is really the right number and that is what we endeavored to do when we proposed briefing them and the judge didn't have to hold a hearing but to not receive any information when the reman is to consider whether you should do something under the circumstances i think it necessitates a consideration of the circumstances that were flagged and the judge said no i don't think that that's a full and scrupulous carrying out of this court's mandate and this court has an institutional interest in making sure the mandates are executed all the points that you're making about the nature of the of the crime and all of that was made at the time of the original sentence before the st appeal and then there were these are all the legal questions about whether this was a crime of violence and under the guidelines and then the back wheels came along all of that so all of those matters have been considered at that time by the judge and somehow i think you're trying to shoehorn in the fact that he's been a better prisoner since then some as a basis for for getting a recent thing but that's not what what the core had in mind when it remanded well your honor on page twenty three of the opinion judges calibration hall say the sentence is not substantively unreasonable we know there's a very high bar for that in this in every other circuit but i believe the result to be close to absurd now they don't say only because of the johnson issues at play in this case because they also flag the substance of what is going on here the bigger picture giving the mentally impaired man a fifteen year prison sentence for biting someone's finger now maybe that doesn't clear the bar of substantively unreasonable but the court said it is close to absurd we're sending it back for consideration everything the johnson issues and the merits issues and we previewed the johnson issues to the extent that we could but we necessarily couldn't preview the other issues because we were blocked at every turn all we're asking for here is for this court to enforce its mandate and to let mr jones at least have a shot at less than fifteen years in prison for a finger bite thank you