s for sentencing on a case that was back in two thousand and five subsequent behavior resulted in the case being dragged out significant amount of time at the sentencing for the last probation violation which is replete with the idea that unfortunately sometimes when defense counsel say we have the last word that last words yes your honor and that was the case here counsel was not allowed to present the case in the appropriate fashion he was not allowed to argue subsequently and fourteen months was issued after the courting quired of the prosecution what do you want and the prosecution said well fourteen months and then that was it there was no other hearing there was nothing else and counsel points out in his documents is the air your honor the court should give specific reasons or should show a basis for the adoption of the of a sentence in a case when he adopted the fourteen months which was the on the outside of the guideline range than one would presume that it's appropriate for the court to give some rationale why that sentence is being given or at least give coun some way to look at it that wasn't done and to say that given the amount of materials that were provided to the court in this case which is overwhelming and this case is to say this case is unusual is is minimizing if this is a case my client was an eagle scout and i looked that up and his mother has the documentation through life scott which one before you go to my client in forbes he was an eagle scout coming from a scouting background that means a lot to me and it gives me an insight into his personality and the idea that the one criminal behavior came down and what the court didn't take into account what the court didn't look at was somebody comes out of custody after a case like this or after any case and they're virtually unemployable we find that problem we're reprinting is the justification for for having some sort of  and that is the case that he had a significant amount of time not just in home confinement home confinement with electronic device device which makes the difference under the current sentencing printers now should that  be counted for him yes it should and should the court of accounting for that so the court have been more specific yes how can the well that's the difficulty i have is how the court can account for that because what he's being sentenced for is the most egregious of his violations and that's what gets eight to fourteen months and the as i understand it the house arrest was for the less  egregious violations and the court is not permitted really to credit that so how is it you think it is the court certainly should take into account that it would counsel was allowed to see the very last minute to say we please have credit for all to yes you'll agree for time served it was specifically requested that he get that i might request i said it was noted i mean at the end they said well it's no he's done with the sentencing and then counsel says about the one hundred and nine days so i i guess my concern is this which was unclear to me from your brief is that he's not being double sentenced he the whether the bureau of prisons wants to you know make a recalculation is up to the of prisons but he's basically sentenced within the guideline range for the offense that was the highest level and so he fall within the guideline range so then what's the problem with that the problem is this when someone is before when the person before the court is a particularly vulnerable or particular  sensitive nature in this case i represent here me and who would like to see the use of his left or left arm was was damaged his result of of doing now what's the what's the problem with where the so far you've identified one error i think which is in your view the district court didn't give reasons are there any other errors by the district court yesterday ok the and that is that's what we have to focus on there was a there was a subsequent motion to modify filed to allow justice to allow us to be able to present the evidence of a young man who's who was who was receiving five k one benefits for having conveyed having allowed the conviction of a cop killer through his testimony something he knew was incredibly dangerous something which resulted in a hit going out on him we understand that but to follow up on the question was was what you at least asking your briefs is that your client be credited for the time served on house or home home confinement indeed i think so but the question is was judge real required to do that is there any guideline or any case that required him to do that job any i would have done it maybe judge ferris would have done it but that's beside the point was he required to do it and if so what was the source of the require judges required to do few things however in this case i'm not sure that well in this case he was required to examine the data that was behind it we have a young man who is who is permanently injured for the rest of his life suffering the potential loss of his left arm not receiving therapy at this time he's a man who came out of custody unable to get a job so he sells himself to a five to a friend and says i can make us good money and they sell direct t v this young man always wore direct t v shirt around because he was so proud of his business he was making six figures a year this is not reflected in the probation report this is something we should have been able to to present to the court we should have been able to and that was it this was a different beyond a difficult situation well i mean mr siddharth saying things i go to less things we have the custody and we think that should be reflected they talk about the surgery and the delay i'm having a hard time seeing where judge real shut down any discussion and maybe the fact is mr saddam didn't do a good job in putting it before the court but i don't see where he good morning your honors and may please the court my name is keith ellison and i represent the united states i was also the usa at the supervised release revocation hearing underlying this appeal just briefly to comment on the last thing the court  discussing i don't believe the defense argued in its opening brief that he was precluded from argument in any point but there are two things that i think that it's helpful to start off clarifying st of all this was a sentencing hearing the defendant had previously had made it his violations and the reason we put it over for a sentencing hearing was for the defense to be able to file a sentencing position both d the government and offense file sentencing positions the defense sentencing position which discuss many of these factors that the defense was just talking about is found in the defense's excerpts of the records volume two then go into house arrest i think it's helpful to clarify the posture with what ended up with this hundred and nine days if the court looks at the transcript will see that mr saddam was requesting eighty one days there is some confusion as to what happened here in january of two thousand and eighteen the defendant appeared before the district court for two other alleged violations of supervised release these are found in the record it's described in your forty eight and the clerk's record at seventy four the defendant had failed to report for drug counseling that submitted a positive test for cocaine use at that hearing defend it admitted those violations the district court imposed d a condition of home detention and continued mr jackson on that current term of supervision in a week or two after that he was the victim of a shooting and at the probation officers request home confinement and drug counseling were suspended wall local law enforcement investigated that shooting in june of twenty eight thousand defend it came before the district court for four new violations of supervised release at this hearing he admitted two of those deny two of those and the district court set it for an evidentiary hearing on the two denied violations prior to a hearing on the denied violations the government and the defense stipulated to request to a request to stay proceedings and hold them in advance wall of those state court violations or result at that time and as part of that stipulation there was one hundred and nine dollars days remaining from the previously imposed period of home confinement for the separate violations so the government and the defense stipulated as part of the request to stay proceedings that those one hundred and nine dollars days remaining would be reimposed as a condition of the request for th that's for a few months those for me those four allegations from the june twenty eight thousand dollars hearing were still out there and in january the probation officer filed a new petition for revocation of supervised release because defend imposed home home confinement restriction or excuse me location monitoring with a residential restriction as a condition of his released pending his final revocation hearing and so i think those two things were confused by the mr saddam in the underlying hearings and in defense counsel in its opening brief but at no point in time was defendant sentenced for the top end of the guideline range or why he was sentencing as he did it what is the government's response to that there i think certainly the government would concede that it would be much easier standing in front of the court if the district court had said more factors st the defendant had spent the better part of a decade violating the terms and conditions of his supervised release this was the rd time in about a year's period where he was in front of the district court for these violating that one of the difficult we could divine that if we ourselves were trying to figure out what the sentence was and why one might sentence him at the top of that range but we don't have anything from the judge on that point and we have a case law that may sickly says you have to offer you don't have to you know write a novel but you do have to say something and i don't see anything here as to why it was sentencing him to the fourteen month and of course if we look to the cardy case which the defense relies on heavily in his opening brief it does say in this also is reflected in the supreme court's decision in a read of receiving united states that when the defense request or when a party request is sentenced separate and apart from what the district court ultimately imposes the district court should give a greater explanation but both of those cases talk about how anywhere they want it actually just home detention way lower than so he offered an alternative for the judge and the judge didn't buy that alternative but we don't know why correct and but in both of those cases it talks about how the district court only needs to do these things if that request is non frivolous and it's the government's position that when you look at the record as a whole that was a frivolous request that the defendant's conduct didn't earn him a sentence below what the district court ultimately imposed and as the carty case as the court in the party case mentioned it's unclear what the fence things would have happened had the district court said more this is a very reasonable sentence under the circumstances he was before the court being sentence or excuse me for six violations of the terms and conditions of his supervision and as i mentioned to the court before this the rd time in about a year's time he was before the district court he was out of options and the fact that he wanted to stay on home confinement and continue to violate the district court's trust was not something the district court was willing to entertain in the snow so you know  favor that one might normally for example the assistance he provided and the very precarious position he put himself in to be witness his injury he has a lot of things that one might look at you say it's a reasonable sentence well it just happens to be what the guy lay gave him the guideline sentence so normally if he hadn't had an explanation that would be fine the government i take it was extremely pleased with the level of his cooperation and what he went through put himself through to help you all out certainly your honor when he was sentenced in the district of hawaii and there was a motion for reduction of sentence for substantial assistance that was in two thousand and twelve by the time two thousand and nineteen rolled around the defendant had just a demonstrated history of disregard despite multiple considerations being given to him for what the court describes as the mitigating circumstances so he dissipated all the gratitude he had pulled up with the government your honor not only had he done that but i think the district court was at the end of its lease with the funding that there were again the probation officer described defendant as a representing a danger to the community as not amenable to supervision as somebody who needed confinement and for all of these reasons even though he was the victim of a shooting and we even allowed him to have a later sent or excuse me so the surrender date because he had medical proceedings but at no point time did the district court think it was appropriate to allow the defendant to continue just to stay in his home and violate the terms and conditions of his supervision you know what i am wondering this could have been justified but when you look at the record to see what the judge said we don't find that he said anything does that pose any problem your honor again the government's position is that the record as a whole supports the sentence that was imposed and as this court has recognized this court can infer the basis from the record but if we go to the rd element of the plain error review prejudice the defendant doesn't show any prejudice in this case there's nothing the defense says that would have changed the sentence had the district court said more and so for that reason the government's position that we don't i don't know that i mean that we could speculate but you know maybe maybe should have eight months or nine months or and again your honor i think that's what the government's position is that if you look at the record as a whole the defense history and characteristics his conduct in this case and just his repeated violations that a sentence at the high end of the guidelines range which this court has recognized is generally reasonable under the circumstances it's fitting in this case and unless the court has any other questions i'm a baby out of time thank easy to point out a list of violations or number of violations without going into the volume of each one of them which were limited time here probation did indicate he's a danger society didn't say why what was he danger to do he hadn't committed violent crimes were serious crimes whatsoever and then they recommend that well he's going to be able supervision so once he does time no supervision these things will fly in the face of one another in particular when we look a five k one situation this was a young man who was placed in physical and significant emotional problems as a result of that he shot me his car and it's a violation that he was with a felon at the time when it doesn't say this is a felon who was looking to get a job because there's they're incredibly employable they're loyal employees he made a judgment that this was a guy who was going to be a good business decision they set up a factory where he was going to do t shirts i know this because mama's in court today i know this because they bought a one hundred thousand dollars machine to do this when they were going to see the machine when some low individual comes up to the car and tries to kill him and kills a passenger at the time the emotional trauma that results from that having had many friends in the military go through go through things the vietnam era i still have friends wake up at night screaming because what they went through in vietnam to know what this guy went through to see the sort of things the court should have listened to this and you know we're going to do is decided on the record and that's that's what we have to do we have we put in for it for a motion to amend the judge the date was set the judge took the date off calendar and then i think you thank you thank you both for your argument this morning united states versus jackson is submitted