the honorable united states court of appeals for the st circuit is now in session all persons having any business before this honorable court make it their attendance and they shall be heard god save the united states of america and this honorable court court is the need to avoid warranted disparities in federal sentencing must include the need to avoid unwarranted racial disparities and it must be and in fact it may be the most important factor to consider when evaluating th and fifty three a six and this case presents an opportunity for this court to explicitly recognize that structural racism and implicit bias are real and they're important factors when a district court is sentence i want to highlight for the court specific examples of how this incident was treated differently when we were speaking when the court was looking at the incident for the white defendant versus the black and if i could i'd like to compare the prosecutor's sentencing memorandum and the two paragraphs describing the exact same incident these are from  'll begin with the st paragraph quote the defendant engaged in an egregious offense involving the violent robbery of an a t f c w the fact that he and his co defendants did not know of the offense that the c w worked for an a t f does not mitigate the seriousness of a robbery committed at gunpoint all involved are extraordinarily lucky that the victim suffered no more serious physical harm given the extreme risk posed when firearms are involved and quote now this is the same incident in a different defendant sentencing memorandum quote here the defendant was involved in an armed robbery of an unarmed government c w this offense is inherently dangerous and all involved are lucky that the c w was not seriously hurt and as a recognized in my brief there is a difference in their criminal history but what the judge mentions repeatedly is the filing nature of this offense and the violent nature of the offense is the same the the the offense is the same the course of conduct and it's actually mr sparrow who brandishes the weapon so while there may be some basis to distinguish between them based on the prior record it  in in a manner of using it as a pistol whip he admits that he was negotiating this firearm sale he says i didn't brandish that weapon and the judge credit that so he actually he denies it and she credits it and also point out that during the sentencing hearing the court actually remembers that incident as being more violent than it's actually alleged to be so during the sentencing hearing she does rely on that incident and she says your client she's actually talking about the distinction between mr sparrow and mr farmer and she says mr farmer threatened somebody with if she threatened to pistol whip somebody who was in the fetal position but if you look back at the p s r in the plea colloquy that's not the allegation the allegation is there was she conflate two different incidents and actually remembers it as being more violent than it was because he's alleged his defense counsel what you're saying is a discrepancy to the attention of the court unfortunately defense counsel did not bring that directly to the attention of the court he asked for parity but he does not make these fine points about the differences in how the two are treated but we also what what the judge is aware of but fails to account for is that even if that were true although again mr farmer denied it and the judge credited that even if that's the case it's mr sparrow who is also at the same time brandishing the firearm so to to rip so if you compare these the sentencing memorandum describing the incident to the judge and the judge's recollection of the incident in mr farmer's case it has a much more violent appearance even though it's the exact same incident that mr sparrow was involved in was the p s i create we're both b s i was written by the same some i believe that's true i keep i thought i remember that the probation officer mentions making a mistake and because she was doing them all at the same time so i didn't see the p s r of mr sparrow but it's my understanding that it was written by the same person and they have are you able to have a quote from p s on if you haven't seen i'm sorry how are you able to have a and he manually assaulted this individual and the plea agreement riff and he was looking at a very serious sentence even under the guidelines so we're not suggesting that this is not a violent incident but the point is that when you make a comparison between the east or treat it that disparity doesn't seem fair i guess with just the pay is suggesting is that he has more culpability because he's the one who did the actual thing well and i would suggest that that our criminal law does not reflect that i mean a simple assault is a manual assault and but i would also and i would also call attention to another difference here about the prosecutor conveys that this clot that mr farmer had a leadership role in this offense she tries to suggest that he had a leadership role she suggests that in the senate saying memorandum even though she doesn't seek an enhancement under the p s r the judge agrees and says yes it looks like he had a leadership says she harnesses that in her sentencing discussion and yet i would suggest i would ask the court to engage in the simple exercise of imagining my client is white if we engage in this exercise and we it when we look at mr sparrow or mr carette as the six foot three tall black man suddenly it's i would suggest to the fact that he had seven hundred whereas the other two only had four suggesting that that supported a leadership finding that's true and and i'm suggesting that if any you can take any fact extricate any fact from this and draw an inference that there was a leadership role so what inference would you care for us to draw from the fact that there was a difference in the distribution there else should we draw my st of all i don't believe that we know how much money they had in total we only know how much money of the market money so that there's been any number of reasons why he may have had more money but you could draw and you could latch on to the fact that mr perec was is the one who arranges this transaction and if you notice he does he sits back he doesn't get his hands dirty and at the end of the situation at the end of this phony firearms sale he actually tells the other two what to do and they do it he says tell him why this is happening and they obey his command we can look at the fact we can look at that fact and draw an inference that mr perrette is has a leadership role we kill look at the fact that mr sparrow at the end of the transaction he stands up and he puts on gloves and reaches out in takes the firearm and from that we could we could infer that he has a leadership role so my point is it's pure speculation any we can if it and if we actually take that this and imagine any one of them is the black man and i submit that because of the impact of it puts it bias that we can't assess that that it's much easier to draw an inference that one of the other people would be the leader if we imagine that individual as the taller heavier black man so i would ask the court to draw no inference that there's a leadership role here that or not he had the opportunity to make decisions informed decisions about his defense so there's no question that after before davis the residual clause was basis for criminal liability after davis and after a so the scope of criminal liability is quite large after davis the scope of criminal liability is much narrower and so he had the right under the notice provisions of the due process th amendment and the th amendment he had a right to make informed decisions about whether he whether his contact with their he would had a basis a strong defen no matter what happened to trial he's going to be convicted under nine dollars to four dollars c because all of those offenses are going to be crimes of violence whether or not he gets convicted of the lesser included offenses so freely my argument is focusing on his decision making he had he had a right to strategize with his it bernie evaluate the strength of his case  correctly described is the defendant did have notice of everything that he needed to know at the time of the plea the residual clause was in doubt at that time the defendant was charged with elements cross offenses and says well maybe if i knew there was a jewel clause was gone i could have argued that i'm only guilty of lesser offenses that maybe don't meet the elements clause so the defendant could have knew but legal tools were all there to do that that's a got led that would have been difficult to run but that would have been a choice the other choice is i will plead and i will try to negotiate a better deal with the government and the deal that he got was the government recommending low and guidelines that well the hard choices are not here say the easy choices but those are fair choices and those are the choices you have to make at that time there was no legal e so to the extent he said i wish i had known more i guess every defendant wishes they could have known more but that would basically freeze our legal system and he knew everything and he made choices and those choices were illegitimate there's been no point you know the plain error standard question one is was there an error and two it was clear and obvious i don't think this meet either of those because there was no error at all as you read hafe argument there was that harm to the defendant his only argument as to why he would have gone forward now is to say well if i had decided to go forward in the one hundred and twenty four c charity i would have just gone forward on this too putting everything else aside to for a fundamental problem is he shouldn't be allowed to go for the one hundred and twenty four dollars c charge because he would legally pled guilty to that with no error committed by the court in addition he really hasn't demonstrated any faith claim plausible claim of actual innocence to it and basically so to the extent that we don't call that approach you know i think sometimes those courts as well you arguments that have been raised can be raised it wasn't raised here and i will say that since gary by the th circuit today we have three circuits saying no we've got one circuit saying yes and then we need to have other circuits like ours who follow approach that's more consistent with the ones that say no as a person the th circuit then says yes so the way the case is before you right now this is not a big case to take that issue up directly on the merits given the plane or posture and all and all and the status of the law in the other circuits if we disagree how would you  merits the way we the way to say it is that it is not a structural error that the supreme court has never sat and that the failure to instruct on an element is a structural error the kind of structural errors that exist  are now though and this is one that can be measured as to what prejudice did it cause we can look at both actual innocence and reasons why someone would have gone to trial i mean in the per card case the question was posited what what evidence do you can you show us on appeal that says that this failure to tell you about this element would have made any difference that's a workable standard run operated by this circuit operated by several other circuits  doesn't and so it's not the kind of error where the prejudice can't be evaluated and i don't think the th circuit's explanation about why that isn't right it is is correct which is why since then three circuits about he said no to that argument on the ground and prejudice can be evaluated in this context standards that it might have made a difference not to get he doesn't have to prove it wouldn't make a difference that's true it's a reasonable probability that i'm right that it might have situation to what we talked about in berkeley and you know there's just there is no plausible real argument as to why a trial would have made a difference and it wouldn't have helped him when it comes to sentencing even as i explained in the br is that this was racially motivated and motivated by implicit bias so let me start by saying this was a violent offense committed by multiple people d some of them were white some of them were black i listen to the my at my friend read the sentencing the marine and i guess i mean here and huge difference in the description of the crime it was by an all around mr sparrow got a long sentence not as long as mr farmer so the question really is well why is that are there reasons they're legitimate that mr farmer might have gotten a longer sentence than mr sparrow so looking at the crime itself st i think there are differences one assessment has it correctly pointed so i mean there were some fog and it's for me it was some discussion about what was it she didn't do it but she typically the pre sentence report which is where my brief takes the factors and objected to at the sentencing and it says mr farmer just play guideline finding but is there a plausible basis to say mr farmer had more leadership role yes that he had more money it is a fact that is consistent with being more in charge because you get more either other explanations yes there are always other explanations judges are always presented with facts that are players argue point different directions and then they have to make conclusions but really the clear art of what the district court was concerned about was this defended sentence in state prison and comes out of that sent pretty sentence and then commits this violent crime while on probation for a parole from the new hampshire state sentenced for the arm robbery so the district co presented with a defendant who is presenting an escalating pattern of violence and that in the distant quite specifically says my problem my primary duty as a sentencing judge is public protection and given this record public protections is paramount in the courts says i think a longer sentence than the government's asking for is required for the court to meet its thirty five thousand five hundred and thirty eight obligations the other defended other both criminal history and that's what the district court relied on that's appropriate and that makes the sentence sub simply reasonable there there are no unexpected agressor in my free thank you thank you thank you that concludes the arguments in this case is there's no rebuttal attorney leclaire an attorney a frame you should disconnect from the hearing at this time