eighteen year prison sentence that's two hundred sixteen months there are a number of flaws with that sentence not least of which is that it's undisputed that it was based on the wrong guideline range perhaps just as troubling or maybe even more so is the frankly very strange circumstance where the transcript can be read to suggest that the district could district court may not have even intended this very severe  increase to the range or to the sentencing amount which really vaulted it to two hundred sixteen months based on a single word that is consecutive the judge or the transcript shows the sentence was consecutive which is technically a bit later that the actual written judgment included that absolutely and that's that's not the way you repeatedly say the only thing in the record is the oral statement but the written judgment also says consecutive oh no doubt about it your honor and all i'm saying is that there's nothing in the sentencing transcript at the time of sentencing indicating definitively whether the judge was really imposing two hundred sixteen months or high on that persuasive at first because you know sometimes people slip and say one thing and everyone thinks they meant the other or maybe the transcriber got it wrong but here it's confirmed by a later written judgment what's your argument well it's at the judge didn't notice it again that's certainly a possibility that not that he didn't notice it again but that it was entered into the judgement mistakenly but i think a more fundamental point is that regardless of what the judge really intended we can assume the judge actually intended this frankly unusual and improper consecutive sentence to reject really entirely the government's position that nine years would be a sufficient sentence and we can assume the judge meant to impose eighteen years the problem is and it goes to the heart of this whole problem is that there was really no explanation whatsoever of if the judge really meant to do that and even if he did give reasons for departing up or varying upward no doubt about it in fact he gave reasons for bearing up where we just don't know if he gave reasons for bearing up or that far but you don't normally have to do that once you give reasons for bearing upward you have to say this is the reason i gave twenty instead of ten or something like generally you don't you don't have to say twenty versus ten but when you impose a consecutive sentence understand the position ited states that nine years is proper here however i'm going to very up and double that to eighteen years we probably just argue about the guideline talc argument is he more or less the argument is that he said i'm going to vary upward he doesn't have to say i'm rejecting the government's argument if he rejects it he rejects it he says i'm going to vary upward these are my reasons and then he says how much he's going to vary upward although he says it in the context of one word which is a little troubling but he does say that right and that and that's sort of the fundamental point it's a little troubling because there's no doubt he was varying upward no doubt about it gives his reasons for bearing upward and he says i'm going to make this consecutive that's exactly right and  problem with the doesn't the argument that this violates the guidelines doesn't doesn't compute with me because he's talking about a variance well i understand that  the guidelines say you should not use consecutive cents here but i understand your point that post booker it's permissible to say you're using consecutive sentences and really mean a variance the problem here and i think it's it's really illustrated well by a case called united states versus cochran maybe pronounce kok reign for a year ago government relies on it that's a case in which similarly you had consecutive sentences which are certainly not the norm concurrent is the default their normal if they necessary to get up within within the guidelines range that's exactly right and that's not the case here because he's very well that's the argument right but i'm just not seeing how the argument that it violates the guidelines undermines an upward variance by definition an upward variance violates the guidelines i mean that's not in the darkness not that by definition upper variance fi was the guidelines the argument more precisely if you look at a case like united states versus cochran if the district judge is going to take this let's at least say unusual step in this context because as you point out consecutive sentences are not supposed to really be used in this context unless you have to use them to get into the guideline range is not the case here under the guidelines but once here and right rebuff five three you know that doesn't apply anymore right right but cochran says you think it should be two hundred months or whatever it is you use consecutive to get up to that two hundred months that you think is appropriate under three five five three well procedurally wrong with that i mean if that's what he intended to do well and that's sort of the point that post booker there's room for a district judge to say i'm going to use consecutive sentences even though the guidelines which are advisory say in this context you're not supposed to do that you're not supposed to use consecutive here because you're not supposed to use consecutive calculating the guideline range but this is this is passed that well if it and i have pointed out this cochran point the point about cochran which goes to i think what you're talking about is that if you're going to take the step of using consecutive sentences and here there's no doubt about the massive massive effect of that if you're going to do that you at least have to give some explanation of why you're going that unusual route just given that that's the problem with that argument as it does you can explain well what he gives an explanation for and frankly i think on this point we're going to be on the same page when you read this sensing transcript first forty five pages or so looks pretty good very much detail explanation a laundry list the government's provided about negative factors about mr nicoletti but when you get to the moment of sentencing the united states has requested one hundred eight months at the very top of the range and the district judge at that moment of sentencing this is page forty nine the transcript says i impose a sentence of one hundred twenty months on these counts hundred now many was it the two hundred sixteen to sixteen if he had said consecutive which will result in a in a in a in a variance so that his total is two hundred sixteen which would be that would it would have added about five extra words in your case would be gone right well it would be gone this this particular argument about what the judge really meant would be certainly got the argument that there was support for the conclusion would be gone because their sport he's just explained all his reasons oh no doubt about it he would if you could are you a substantively unreasonable but but apart from that just apart from oh this is a lot the argument would be gone so basically we're just we're just arguing about whether he sufficiently clearly said the two hundred  sixteen i mean in some sense on this particular point in putting the other points to the side in a large tent that is exactly right because and in a normal case where it's you know ten versus twenty months that type of thing maybe  doesn't matter much but in the context of everything that occurred or you got to remember the idea of a consecutive sentence literally does not show up in any hearing or any document in this record period now you look at the current case just in the way that sentencing works now as i understand it it's used to reach a total sentence which the judge finds to meet that three five three factors i mean i think that can happen i think the problem is if you're going to use consecutive to essentially double even the prosecution's request here do something so severe and actually vault the sentence into maybe one or two percent of the fraud cases in the country that would have such a severe sentence you have to at least under cochran explain i know you're asking for this and your sentence but i decided to bump it up to eighteen years now judge rogers in light of some of these comments i would point out again as i said the outset there's no dispute here that we had the long starting  begin with separate and apart from what we've been talking about he's got the wrong guideline range we know he's already serving time in prison is not called for and you reference the substantive unreasonableness you know that that's very much implicated here we're again we have to be very clear about this the united states documented and explicitly made clear all the factors it believed were negative about m crime his background it's the united states told the district judge we recommend the very top of the guidelines one hundred eight months the response of the judge as we've pointed out in that one moment was to say you know i've decided to very up and with their work consecutively it doubled even the government's recommendation of the top of the range now this very much implicates substantive and reasonable illness as the legal case indicate i point out in the brief there are three percent of fraud cases in the country where a judge goes anywhere above the guidelines which even a month above this judge doubled the top end of the range and doubled the united states government government's request for a proper sentence and what happened here is you've got a sentence that let me remind the court mr nichols has a criminal history of zero points and he certainly has some things in his background the judge could consider but even if mr nichols was a category six offender let's say he had four previous murders he had five previous financial crimes his guideline range would have been one hundred eighty eight months at the top this judge with a single word of consecutive not requested by any party not mentioned in the district court proceeding says i'm going to bump it up to two sixteen the government's position is that the exact same factors that they said justified one hundred  eight months also work for two hundred sixteen months this isn't it's not substantively reasonable i think as i indicated the outset the cleanest way to look at this case from the perspective of the sixth circuit is that we need to get this right this man is serving time in prison that is number one not justified because we know the guidelines range is wrong number two we have a very weird situation where the judge put in the word consecutive may have intended it and if you did did not explain why it was consecutive and finally if you really intended this two hundred sixty month sentence and her decision where it leaves no distinction for offenders who are worse than mr nichols and under the a legal decision that means that substantively on reasonable for those reasons we would request that the case be remanded for simply a proper sensing hearing thank you thank you morning your honour's main place the court my name is laura ford and i'm here on behalf of the united states your honors i'd strongly disagree with the contention that we've confessed error in this case as to the base offense level our position has always been that nick lasky should not even be heard on this issue because we have a plea agreement in which he stipulated to a base offense level seven he had an appeal waiver where he agreed to waive sentence except to the extent that it exceeded the guideline only if it gets down to the guideline maximum i mean once you get to appeal you get to appeal don't you get to appeal the the other than the specific issues which you said he can't address on appeal record he can nor the pre sentence report reflected that guideline principle for that sentencing did you argue to this judge that he should impose like you agreed to a guideline s argued that he should be sentenced at the top end of the guideline range consecutive concurrent sentencing was not specifically discussed nor argued by the government no not not that i'm aware of i don't recall any anything about consecutive vs concurrent sentencing but i think the record is clear that the court did actually intend to order the sentences to run consecutively he specifically said they would run consecutively this is a judge that has a great deal of experience sixteen seventeen years by the time of sentencing he demonstrated that he knew the difference when you know a few lines later our orders the supervisor at least turned to run concurrently and he said of a people you know even people who've been judges for sixteen years can say concurrent when they mean consecutive or vice versa it's some kind of strange you know how this thing read's i don't agree your honor because i think he says you know the most you know home or not of it or whatever you know them of the most brilliant people sometimes slip a word all there is is this one word there because you can because he was varying and he didn't have to justify  if he meant concurrent right all or is this one word which starts with c o n just like the other word and it just it's just it's troubling i don't know you know maybe there's no legal basis for making sure that's what he meant but it's a little troubling that the that there's one hundred months of sentencing based on the last half of one word i think on the flip side though there's nothing more than speculation that the court might have made a mistake i think well it's you can say there's nothing more than speculation but in view of the detail of the analysis that there would be that much difference you know might have there might be more of a hint of a rationale for that much of a difference somewhere  correct but in this case we can be sure that the court really meant to issue a consecutive sentence because even issues an amended a judgment in an amended judgment that reflect this consecutive term he even says at the codefendant sentencing that mr nick lives he is in the category of his own and i gave him i think he said eighteen years which would translate it coincides perfectly with the judgment in the amended judgment on the record it well if it is on the same docket and that the page idea is ten forty one what's that means on the same docket as as mr nick lost because they were charged under the same case number in the district court and i think that there's no question that the court when you look at all that that the court did in fact intends them out of of explanation for a variance increase with the amount of the variance i think the touching is there any basis for coming to that conclusion that you know you have that in illustrated law sometimes that you know something is an abuse of discretion if it's something that's remarkable or are to imagine you need more explanation that if something is otherwise clearly supported in the record i think the common thread is that the court has to say enough so to enable the court understand why the judged chose the sentence that he did and i think we know exactly why the judge chose the sentence because in the next breath he's saying you know i'm very upward from the guidelines and i'm doing this because the aggravating factors that i've just it's referencing back there's several pages where the court's talking about aggravating thirty five fifty three a factors and this is not at all the cochran case when which this court said that what the court can't say is nothing at all in that case you had a criminal offense and a supervised release violation the court discussed the thirty five fifty three factors in that case and then impose the sentence the criminal offense sentence then the court moved on and went to the supervised release violation did not reference back to the thirty five fifty three factors and most importantly did not address the defendant's argument for concurrent sentence of the court is left with wondering well did the did the judge forget about the argument did the court imply of the consider the thirty five fifty three factors here we have a reference back to the thirty five fifty three a factors and there's two cases that we cite in our brief the barry in the johnson decision to say that there doesn't have to be a separate explanation for thirty five fifty three factors when considering whether to impose a concurrent or cause or doesn't make sense that there would not be the what's troubling here is although there there is the trouble is that everything that was said could have applied to the hundred twenty instead of the instead of the two sixteen so there's nothing in a sense there's zero that explains why it's two sixteen as opposed to one twenty because if it had if instead of one twenty he had sentenced that want i don't know if he had sentenced one of them to want to wait on the other one just to whatever it was and then said consecutive and explained why he was departing then you could not parting but bearing and then you can say well that was obviously a reference to the to the consecutive but here it could just as easily have been a reference to the one twenty you see what i'm saying so there's a sense in which there is nothing it's not exactly the same as cochran but a sort of like that is not i disagree with that i think the rationales are intertwined in this case because it's right after the court says concurrent  fifty three factors and the court was deeply disturbed this is goes beyond just a financial crime you know this court the court was troubled by the damage to this credit union at the credit union five million  this credit union alone from this defendant but beyond that what makes it troubling to the district court was this pattern of threatening behavior and the court referenced some specific examples of two thousand seven he's threatening to make a massacre of someone that person had knowledge of him carrying his firearm and he personally witnessed him pistol whip somebody two thousand and nine he does actually pistol whipped someone you got another firearm involved not some of these teeth out the guy's too afraid to prosecute same year two thousand and nine he threatens his codefendant anthony reduce he threatens to shoot him and his family if he doesn't authorize more loans and it's all demonstrating a consistent pattern of threatening behavior and violence and i think that's what  pushes this to a more serious case that there is a substantial need to provide an adequate to turns into protect the public from further crimes i think the court did we re mandy can easily explain that the court you we just heard again a sense of the united states view of the bad facts about mr nick lawsky the difference today is that they're saying that supports two hundred sixteen months in the district court that was perfectly supporting one hundred eight months and i think we expect government counsel to defend the defendable decisions of the district court even if it's not what they recommend oh it's part of their job i appreciate that and i don't mean that comment to disparage that position in that sense what i'm saying is that it's very troubling to say that the exact same factors support a hundred a sentence and then in the context of a case where is you just said judge rogers there's actually zero explanation of why it's two sixteen instead of one twenty in that context the idea that those very same factors equally support eighteen years neither you and i just just quibbling with the argument that the government somehow weakening its position because it's changed its position there's two different positions one is this is what we recommend and what we've agreed to recommend in the other is this judgment of the district court is legally correct which they're obligated to argue if they are if it's supported by the law all right they are but what's t me is that what i'm reading and hearing is that the exact same factors support one hundred eight to sixteen in a context of a case where as you point out we have zero explanation of why it was to sixteen years one twenty and that's wrong pointing out i would just end by noting again that there still is no dispute that the underlying guideline range was wrong i understand united states position that says this court should be barred from considering that but there's still no argument that it was the long range mr nichols is very likely serving the wrong amount of time in prison so we asked for remained for a proper sentencing thank you thank you very much cases submitted