sentence i'm so here's the question i have a great i'm very interested in this given my service but is it about the length of the sentence is it simply about incarceration as related to rehabilitation or is it is that the character of the sentence or the characteristics of this is because of course district court judges all the time impose characteristics of sentencing that are rehabilitated right yes i'm not sure your honor what you mean by characteristics of sentencing well so i'm i'm going to there's been quite a bit of litigation or had been in the past over and i think i can remember now the case in the circuit where it was decided the that it's error for a district court to quote unquote order that someone participate in the five hundred hour program because that's at the discretion of the girl of prisons we of course on the supervision we required all the time well on supervision and that's different and that's another distinction that the supreme court made in tapia that there are things that a court can order when someone is going to be placed on supervised release that after tapia the sentencing court cannot require or cannot factor into the sentencing decision for the actual sentence itself and part of that i think is going back  another case of started out in the circuit i think it was one of the us versus johnson cases in the supreme court where the supreme court distinguished between the basic rationale for incarceration as opposed to the rationale for supervised release and case where the length was explicitly made longer in order for one of these programs to be completed and it it was also out of a circuit in which in which it had been held that that was a legitimate basis for determining the length of incarceration so that if the judge if the judge was a little unclear which i guess the judge wasn't you could assume that in that circuit that's what was going on we don't really have that here do we well that one what we have at most is sort of an inference from an inference that he might have taken that into account in a circuit where you're not supposed to take it into account and we would more likely assume that that it wasn't being taken into account so i'm just wondering whether this is is is is an offense is a violation of copyright or not that's my question well i would point out and it just sort of dawned on me in fact last night that the the  parallel between this case and the tapia case in terms of what happened i think there is quite close in tapia in both cases the defendant received a top of the guideline sentence in tapia the district judge gave two reasons for imposing the sentence or at least according to the supreme court where they said that it was the first clearly was and i think the judge there said the first is to give sufficient time to participate in the five hundred than the than the range right well he does that's what he said the judge said that i thought of going higher i think there's plenty of that means that go in a higher higher but the judge didn't say what those reasons were there was no recommendation in that it's plenty of reasons for going higher while there was no record and other things but i don't want to i'm not going there i think this is enough but other th the the doesn't sound like he's giving him more so that so that he could have time to do a drug program does that well i think it just doesn't it it just doesn't to me that just doesn't raise that red flag well and there actually was a red flag at least in tapia where the record showed that the length was extended to make sure that there was time to do this well i think in the parallel in this case on page twelve of the sentencing transcript which is that page i d number one forty seven is the judge is going through an explanation of his sentence aggression now one point he says that's on line eighteen talking about and it's a little bit unclear what he's referring to when he says it requires i think going back when he's talking about the entire as i read it over the entire situation here but it says requires that you be taken out of the community for a while and you'll be given some program haddock opportunities some of which you've already started and that's quite close to the statement in tapia although in reverse order that the judge had talked about some of the things that mr turner that mr kroll could use  says i think it requires a be taken out of community for a while and be given programatic opportunities i don't see why that sentence doesn't suggest maybe the program medic opportunities are in the in the supervised  release and he hasn't started talking about the length until he gets to the next paragraph or even the one after well and then again in fact on pay and again on page thirteen the following page and all the when the judge says i think sixty one months was sixty three months would be federal pardon isn't that where he's talking about not going higher in that paragraph that that have that are in sodomy but i don't have the same line numbers it's in the middle of a large paragraph in the middle of that page and the judge did start off talking about he thinking of going higher but then he says i think sixty one months should be able to give the federal bureau of prisons an opportunity to provide you with education educational opportunity and will give you a mental health evaluation and and presumably some medication that will deal with your emotions that will deal with your ability to interact socially with other people will give you the ability to hold your anger in check and will give you an understanding the laws must be at ellingham what he said what he can get that i'm just i guess  can tell you what i'm really concerned about i'm concerned about imposing a certain clear statement rule on district judges when they sentence i'm not sure what that gets us in a case where unlike in tapia where there was a clear possibility at least that this sentence was longer than it otherwise would have been in order to give in this activity here you have language which is unexceptionable except for this discussion in this longer paragraph that says i'm thinking of going over but i'm not going to because this is enough you'll have this you'll have that if that's if that's language that's not allowed to be said you turn will be turning over cases that that express this concern about this language and judges are just going to turn around and say the right thing and we won't really have gained anything well i guess it's sort of a sort of mouthing of words requirement that that's that's what i want to avoid if you're asking us in effect to create a mouthing of words requirement i guess i'm just not too sympathetic with well your honor i do what i'm saying i understand exactly what you're saying and i think the phrase that this court and used in the past instead of saying a mouthing of words was ritualistic incantation of your ass it sounds to me at least i want you to address my concern that you're asking us for a ritual in contagion the look at this judge this judge sits in this circuit where you're not supposed to do it he hasn't said i'm doing it he's just said i'm not going over the limit because this will be enough time for you to take part in these wonderful programs that you want to take part him and you turned that into a failure of the rick ritual incantation you're not accomplishing anything for justice or for the law or for anything well i guess i would disagree with you your honor in terms of what the judge said as offering an opportunity to the defendant to participate in programs or to make a decision when the judge says it will give the it should be able to give the federal bureau of prisons an opportunity to provide you with these things that he's putting it from the point of view of that and i don't think that they're i think it's a distinction without a difference what this judge said here and the judge in tapia saying this is so you can get into the five hundred hour program and again even the supreme court it page one thirty one supreme court of twenty three ninety two the last paragraph on that page the court says the record talking about the fact that there's nothing wrong that it's a positive thing and we're not saying that there's anything wrong in the overall scheme of things with having someone participate in rehabilitative programs but in the proper context and the supreme court says that that there's nothing the where they say the sentence in court to hear did nothing wrong and probably something very right in trying to get  effective drug treatment program says but the record indicates that the court may have done more it may have selected and so that's the issue here that the record is not clear that this was not a factor and just on a personal note and i've mentioned this in several other arguments before the court on several other issues that from the point of view of whether it's requiring a ritualistic incantation or not that defense attorneys in particular in a position where our clients have issues that they think merit some consideration and if there is just a ritualised an incantation and i know one of the other judges the chief judge now says and i'm aware under tapia that imprisonment is not basic reason for i forget exactly what it says but basic reason for imposing a sentence of incarceration that from our point of view it doesn't help so that's one reason on a personal level when we're trying to explain to our clients why they got the sentence they did in light of what they think are legitimate non frivolous issues arguments for mitigation so i think it's not this is not just a situation where we were asking the court to impose a rule just for the sake of imposing  rule we think it's important that there was no objection to the alleged toppy error here no that's correct so our review was for player no i would disagree with that your honor the disagree with this court in the case in the walker case we cited both discretion was there a pasta question there was yes and they said no i said no legal objection i think that would get back past the bostic argument i mean the bostic rationale is that you're giving the defendant defense counsel a chance to make the correction while the judge is still imposing the sentence here and it's it seems to me that this is the type of error that would be covered by bostic well again this and i can understand why the court why you would feel that way but there are at least there are two published opinions the dean case in the walker case which expressly say that this is why wouldn't this be a harmless error under the circumstances hey i would direct the court's attention although it's an unpublished case the co felt case that the government cited for the proposition that plain a review should be applied where the court went through the panel in that case went through very clearly the fact that even under plain error they just applied plain error review and determined that it was appropriate to vacate the sentence and remained that all of the factor why this case it would be appropriate under p view to reverse and remand because i think the it's unclear the record is just not clear that the judge did not base his sentence on an improper factor that the statements that were made by the and have you sustain that burke well i would think so your honor that as the co felt panel indicated that there's a substantial right to be sentenced according to proper factors and not the sentence based on improper factors all right thank you c good morning sally baron's on behalf of the united states i thought i should start perhaps with the plan error of your review argument because there is confusion in the case about what standard applies the law and circuit appears to be unsettled both as to the end of the day it matters a little bit less which bucket we drop this particular type of appeal into and instead we should turn back to the principles of of honor and bostic which is that if a appeal if an issue can be clarified or corrected at the district court level it should be required that the appellant do so otherwise they suffer from plain error that would be true for any factor that a sentencing judge is not supposed to look at sensing judge is not supposed to look at this factor be nice if the lawyers judge you're not supposed to look at that factor i think that it looking at various factors that's the essence of substantive substantive review i don't know what subset of review is attacking of the decision because the judge is looking at the wrong factors think it's clear that what constitutes substantive reasonableness versus procedural reasonableness is kind of a false dichotomy and there is a spectrum and where these issues among you can say that but to me the difference is whether the judge needs to say something or do something that's procedural and whether the district judge is taking something into account that he shouldn't be taking into account we're not taking into account what he should take into account but that gets to the substance of balancing of factors i would say that in a case like this the tapia case whether the real issue here is whether or not the district court is applying the statute thirty five fifty three  mind run case if you will is where a defense counsel makes all of their arguments for leniency on the record and then the court pronounces a sentence we should not require that defense counsel then object again to the argument or to the  actual sentence that's pronounced when they've already made their arguments and in other cases where within that within that apply when you say well there's five factors here i don't think you should apply this factor and i do think you should apply this one and this one should apply strongly and this one should apply weakly and then at the bostic they don't have to go back and rehearse all of those do they that's the whole idea of the exception and banner it is except in a case like this where what the appellant is saying is the court considered rehabilitation in a way that it shouldn't have that is certainly an objection that could be made and should be made because the because it's so concrete so identified with identify ways or something like it's identifiable and the court can clarify or correct it and i would also you know lose i don't think we lose because top it doesn't even apply because tapia is a different case and the case at issue here and i was a different in tapia this is the district court specifically said number one you need to get this type of rehabilitation and i making your sent enough to do that here judge bell didn't go the second step but he did say that you need rehabilitation but he didn't do the second step and therefore i'm opposing so many months and i mean the fact that he didn't obvious as a court commits no error by discussing the opportunities for rehabilitation without prison i mean without or the benefits of specific treatment or training programs to the contrary a court properly me address a person who is about to begin a prison term about these important matters it's also a rule thirty five fifty three a two d factor educational correctional medical treatment the district court is supposed to consider those things here the defendant raises the issue  rehabilitation that is the the the crux of his allocution i need rehabilitation i'm excited about rehabilitation if the district court hadn't addressed it we'd be here in a different appeal namely the defendant be arguing that the court hadn't responded to the arguments so that thirty five fifty three a reference really goes to my very first question which is as a trout court judge i am supposed to consider those resource related issues that i'm not sure tapia really stands for the proposition only in the context of supervision so really is this about a liked of sentences in other words is this in order for you to get the help you need i'm to have to imprison you for a longer period of time and that's really the crux of the problem and topic that i think that i can as a trial court judge say i'm one of the i want you to stay in longer i'll tell you another word this comes up i'd like to ask you this question which is what about a sentence in which a judge says well i'm going to sentence you four to five years because i want you to stay clean from drug abuse and stay away from bad influences is is that ok under talk you know if the district court imposes the sentence so decides on incarceration instead of probation say because he wants to hear she wants to rehabilitate the defendant i think that's clearly air if the court says i'm giving you a longer sentence because that will help you rehabilitate yourself i think that is a clear toppy air however it is certainly appropriate for the district court to talk to the defendant about the importance of rehabilitation the importance of taking opportunities for rehabilitation and the fact that prison system may be able to offer those opportunities and then answer your question does what about requirement of a certainly a court cannot order someone to get their ged before they get out of prison but are figure out it'll take you six more months and therefore give you six more months to do i think that's probably toppy eric the way the language typically works that's recommended lots of probation offices is that you you take you you study for the ged if you don't get it you can't force somebody to complete it by the time they're completed then you have to in supervision you have to keep working at it and supervision is clearly supervision we can impose a lot of things on the defendant that are not actually vailable or something that we can have an enduring incarceration it counsel can we go to the specific facts in this case yes and this is a page thirteen of the sentencing transcript starting to line twelve judge bell's talking about the length of the sons that he's decided to impose to i think sixty one months and that's what he's imposed here should be able to give the department of prisons an opportunity to provide you with education educational opportunities and we'll give you a mental health evaluation and placement and presumably some medication that will deal with your emotions and will deal with your ability to interact socially with other people and give you the ability to hold your anger in check and will give you the understanding of laws that must be obeyed i mean that sounds rehabilitative doesn't certainly he's talking about rehabilitative ok and he's also put in the context of i imposed a sixty one sixty one month sentence for these reasons i mean i don't know how i was up to not tapir i don't think that he says i and giving you sixty nine months for those reasons i think that well that's exactly what he says he says i think sixty one months will do this and the implication is that maybe a loss of such a lesser sentence would not do this but you have to have the length of sixty one months to fully accomplish what he wants which includes these really rehabilitation goals especially i disagree that i know isn't that it is not a appropriate implication i disagree that is it is that clear i think that you have to read the holes that clear ok well is it isn't that clear that he's not looking at that section he starts about sixty one months i agree but the context is important right before that section after talking about the the criminal history of the defendant he talks about well i thought about going higher here i thought about going higher but in order to get an amount he has if anything shortened the prison term because he thinks that's enough and again under tapia the error is either imposing a sentence instead of probation or lengthening a sentence and this is not even i don't think that it's even arguable that he has lengthened a sentence here in order to provide the defendant with rehabilitation so even if you think that he is saying i'm giving you sixty three months because that's enough he's not lengthening the sentence here in order to do that it just happens that sixty three months the top end of the guidelines is also enough to give the defendant the rehabilitation services that are appropriate i don't even think that you should go that far though i think that the this is appropriately read as responding to the defendant's request for rehabilitation and it is in the mix of several factors including the defendant's criminal history he talks about the thing that troubles me most in this case aside from the gun the fact that this gun was used to kill seven people is that the criminal history is off the charts and that's the thing that troubles me most in providing the  thank you thank you had nothing to do intentionally with with mr kroll but i think of an interesting situation because i think i'm maybe taking a position that i'm usually on the other side of in most of my cases what the government's asking is talking about here is what the government thinks the law should be as far as toppy is concerned and as far as the standard of review our position is that that may well be a legitimate argument but the fact of the matter is what the law is in this court has said in two published opinions that it's substantive and reasonable this issue that it's an abuse of discretion because it's relying on improper facts what do you do with hinder since the supreme court anderson i don't believe that henderson is as helpful here is the government would like it to be henderson and again i look the question presented in henderson although there was an introductory paragraph simply was when the govern was unsettled at the time of trial but settled in the defendant's favor by the time of appeal should an appellate court reviewing the quote plain or a close quote apply johnson's time of appeal standard as the first second six tenth and eleventh circuit stew or should the appellate court apply the ninth circuit's time of trial standard which the d c circuit in the panel below of adopted that and even the introductory paragraph to the question presented there did not refer to tapia toppy it happened to arise in the context of a tapi case but the issue was at what point is an error determined to be playing for purposes of review so i think that that is that the henderson case simply is not applicable here i think the  six circuit rule for example rules thirty two point one b says published panel opinions are binding on later panels a published opinion is overruled only by the court on buck we're familiar with that rule and i think of the plainer and even  i will admit that i was represented mr coe felt in that case in the court applied plainer review but ultimately he got the result that he was looking for and seemed not to make any sense to  try to litigate the issue of whether playing or review was appropriate when he received the the remedy that he was seeking but i think here that and i think as you point out judge griffin that this is i think at best from the government's point of view it's unclear what judge bell intended here and that was what happened in tapia and i think that the supreme court again the supreme court said that the court may have done more it may have considered this and on page twenty three ninety three it says the statement suggest that the court may have calculated the length of top you sentence to ensure that she receives certain rehabilitative services and the sentencing court and that is something courts may not do yes suggests that the court may have considered those yes as opposed to have held the fitly that did that in there that that that's the same argument made here i think so yes again on page twenty three ninety of the opinion the supreme court said thirty section thirty five eighty two a prohibits the court from considering rehabilitative needs to impose or lengthen a period of confinement when selecting a sentence from within or choosing to depart from the guidelines range each ac in the sentencing process receives the same message do not think about prison as a way to rehabilitate an offender and i think here it's the same it that's clearly what happened that rehabilitation played a significant role it was considered the statement by judge bell certainly suggest strongly that that was a factor that he didn't have to go more to to achieve these to give the the opportunity to do this but that doesn't mean that the sentence that was