representing mcgill arse of floors seven minutes for myself i would like to reserve the total of two minutes for rebuttal mr martin will speak on behalf of more bay you have gone for a couple of minutes to address and seven minutes on the clock so we its case under section thirty five fifty three a for an above guideline upward bear variance the court expressly found that this witness this m c r on multiple occasions made allegations that were untrue that represented expressions of anger or vengefulness her testimony did not meet a clear and convincing standard of proof regarding the most serious aspect of the case that being whether mcgill was accountable for her serious physical injury either that he had committed these claims of rampant sexual physical and emotional abuse and deprivation against him c r in her teenage cousin b court also said that there was a great deal of ambiguity regarding the evidence this isn't the court's function to weigh all of those considerations and then determine what evidence to believe and what evidence to discard and didn't the court do that well the court made a stab at it we we feel that there was a procedural problem here essentially there's a forty month upward variance of a sentence that mchale receives the variance is based in large part on the very word of this very same discredited witness m c r factual findings have to be logical plausible and supported in the record  the court's factual findings we would submit were implausible in light of an inconsistent in being inconsistent with the earlier credibility finding that's that's a really kind of a clear attack on the facts that underlie whether the sentence was substantively reasonable i'm not sure i understand that i think the presentation has been made to us that there's procedural error here is because as an easier standard to challenge i really don't understand the procedural error there's no question but the judge considered the various factors put forward including defendant's difficult childhood in life and so forth then and the question as to whether the testimony that was offered could be entirely relied upon all that was being considered indeed you've just cited two is the district court's consideration of it so i just i'm just kind of mystified as to what the procedural error is i understand the potential with the substantive reasonableness of the sentence but the problem there is the standard is highly deferential and so help me to explain to me why this is procedural error and it's not something we should judge is based on substance well  we it's difficult i think to determine how much of the court's reasoning in the end was based on the credibility of a witness that had already discounted without the witness the proof fails absolutely with the witness we said this is all not procedural error the judge can plainly considered what you're arguing he missed consider but that's a different question the procedural argument as i understand it is the district court didn't consider was supposed to consider and i see him going through exactly the same things you're talking about well there there was  very negative paul hanging over the case even after he made his ruling this i mean we had a long hearing on whether this over this whole issue of serious physical injury  court try to change direction because at times i'm still not hearing that is being a procedural error so let me let me try it this way the judge ultimately says this doesn't fit the usual alien smuggling case and heaven knows we get a lot of alien smuggling cases and coyote's and people being taken across the border and taken somebody else's cousin and so forth and he what i hear the district court saying is that here's somebody who's taken over for the purpose of exploitation now the level of exploitation maybe in dispute but it's plain to me that the district court concluded that this girl was taken advantage of in a serious way at least economically and that doesn't seem to be a clearly erroneous factual determination or if that's the case what is it more that i'm supposed to be looking at because that's the reason the judge went out from for your client what was it from twenty seven months to forty months or something like that talk about the degree of the departure with with the enhanced meant that he denied if that had applied the range would have been thirty three to forty one m he denied that in an instant based on the lack of a clear and convincing showing of that element that takes the reigns down to twenty one to twenty seven months then he comes back and applies thirty five fifty three a factors relying in large part upon the same witnessed to put to put the time back on the i've seen that before it happens it is just a real oddity and it is even more odd because the government even after the ruling continued to argue continued to remind the court of all the sexual abuse and they've done it in the appeal i went through their briefing it's about seven pages of descriptions on how horrible the life in this in this household was if it's so in consequential and so  irrelevant why do they keep talking about it and so and we've touched on another issue that i think and i think maybe this does impact both due process and procedural aspects of this and that is the there's really no logical reason if due process is the driving concerned that there should be dual standards that we can consider the evidence for one purpose we're going to hold it to a higher standard for purposes of imposing an enhancement because of a disproportionate impact and even though the impact would be equally disproportionate for various purposes we're only going to apply the lesser standard the preponderance standard that's i mean i've looked for cases that directly address that i don't find any but it is normally in the system we have a reasonable doubt standard for a conviction and let a sentencing judge consider all sorts of things based on a lower standard sentencing is different well and in the treadwell example that i did cite to clear and convincing is is often or is sometimes appropriate where there's a disproportionate impact there is such a thing here it in the other aspect of that is that the courts stated reasons for this up with variance if true would constitute charge crimes namely theft of wages about manual this is awkward to say but i'll say it manual nonconsensual vegetal inspections that was a that that was one of the reason stated that's a crime that's that's forcible rape convincing standard federal tells us that this one charge criminal conduct and yet he's citing that he's relying almost wholly on him see ours word for this so that's that's a clear cut example  treadwell just to remind you distinguish his conduct that was an inherent part of the conviction from that that's on charged and essentially if if is him c r is angry invincible enough to invent sexual in our brief specifically the court's wholesale refusal or dismiss all of the thirty five fifty three a factor the history and characteristics of the defendants specifically the extreme poverty that they all suffered during their while it basically said it will not consider these sorts of cases or this one so usually exists for right right and i'll quote the court the court stated at page four hundred forty five of the transcript almost without exception anyone in federal court has suffered a horrible childhood to paraphrase the rest of it so by citing that reason the court is basically excluding the history and characteristics of the defendant there's a difference between not considering something and considering and and deciding not to give it weight in my mind the latter is substantive evaluation the former is procedural he touched the base he just decided it didn't come from very much how does that make that a procedural violation i agree with the court's concern of distinction but i don't think that it applies in this case because the court looked at the base decided he didn't have to touch it and then kept running because the court said well this is true in all criminal cases in federal court there for on and on not outside the heartland in other words it is nothing that takes it outside the heartland of cases that the court sees that's kind of how i interpret it the court words well i don't think the court said that i think but but i think then the court committed error if it if it found that because these were undisputed extreme facts regarding the terrible child where you have substantive reasonable land at that i agree if the court did considerate and say well it just doesn't apply because i don't think the court did because it said almost without exception everyone has a terrible childhood in federal court and therefore i'm not going to consider it the other reason the court rejected the extreme childhood neglect  statutory factor was because the case involved financial gain and i would suggest that that is not supported by the case law or the statute at all it removes that thirty five fifty three a factor from virtually every federal criminal case because frankly most federal criminal cases involve some element of financial gain drug case is fraud case is a lot of immigration cases involve some kind of financial financial gain and the court stated well i'm not going to consider your extreme child childhood neglect because this case involved financial gain and the extreme childhood neglect was connected to the facts of the case here it provided cultural context for why the problem you described as being a procedural error as opposed to the mis weighing for substantive reasonable us well i think united states versus party requires the court to the trial court to consider non frivolous thirty five fifty you have to say that that's not answering my question that's a or as such a high level of generality it's not helpful because there's no doubt that the judge was aware he recited the argument can you give me a precedent that says the judge is awareness and discussion by saying i don't think that counts for anything here is a procedural error i don't have a case in mind but if i can just provide an example if the court said you presented an argument regarding the horrible childhood abuse but it's tuesday and i'm not going to consider on tuesdays then this court would but i didn't say that i agree but i would suggest the reasons he cited were equally wrong all right now thank you   the matter was not raised in the open but also if there was it wasn't raised as an issue before the district court and it was an issue before the district court here and i would only finish by saying that even if the push case doesn't apply if that's what this court finds i would point to the courts to the courts to the thirty three pages of a rep factual recitation of the government's brief talking about things that are still very hotly contested heartland of the typical illian harboring case even the facts admitted in the plea agreement are sufficient to support that conclusion the plea agreement states that the opponents conspired to r had had been vindictive or lied about things m c r actually said that she had done that she testified so it was a good knowledge and all the parties understood that there were portions of her testimony in which she admitted she lied about this because she was enduring she wanted to get revenge so that's i wouldn't characterize that as him finding that her that that was what her testimony was it's just summarizing the testimony that was before the court in the evidence i was before the court but some of the clobbering evidence introduced in this case included the false identification documents found in the defendant's residence monica one of the co defendants in an interview with law enforcement admitted when asked about bajan exams them are looked at them to see if the girls were having sex testimony also when m c r returned from the united states she told him about the harassment and he saw documents saying that the defendants thousands of dollars there were wires receipt squatting portions of her testimony there was an envelope recovered from the defendant's residence that included letters and other documents related to m c r there was the book in which m c r payments to miguel recorded detective bruno authenticated many of the documents are introduced and also testify about her investigation into  including why in certain cases some of the documents and records aren't available there are different kinds of exploitation i want to separate them for this question starting with the financial and there's there was evidence of financial exploitation and that's one of the things that appeared to influence the court but i'm not sure that's why that's a reason for taking these offenses outside what ordinarily is the case with regard to aliens smuggling most alien smuggling involves people being paid for the point of smuggling they're in it for the money in this case it's kind of in it for a diff money at a different form but how is it all that different well the court did not vary upward because of the financial gain the financial cost of the car the comus of the court made about financial gain response to defendants arguments and i believe they were miguel's in particular that he was only following god's law when he did all these things and he said that is inconsistent the ple were because the abusive nature of what happened here and he said that that his reasons were in fact you know that they recruited her facilitator her entry you want to arrived a director to find work in the control of how much she worked that they controlled her earnings that they money they say that she owed for living expenses that there were physical can damn exams conducted on the victims and that there was a lasting impact on m c r all of those factors those with actual reasons that the court gave for it varying upward there is some degree of not going down the road hears of going down the road around the corner so in this case i mean serious bodily injury the government argued that serious bodily injury occurred for a number of reasons including sexual assaults that occurred against v z that m c r witnessed and in the end all we had really supporting that claim was m c s testimony but when the court went to the thirty five fifty three factors and apply the preponderance of evidence it did say that it just talked about the exams and exams or was corroborated evidence there was monica's interview with law enforcement which the district court cited so on their own perhaps the exams do not get you to serious bodily injury but there are certainly court did not the court did not say that that never applies in fact the court referenced the sentencing guidelines and the commentary in that guidelines which says actually that it applies in very rare circumstances only extraordinary cases and the personally found that this wasn't such a case and i would also respond that mcgann counsel argued that the court in considering some of the evidence under preponderance of evidence late basically put the time back on like there's no there's no difference but the court actually stated that if he had found that handsome and the defendants would have been looking at sentences of about five years without that enhancement their guidelines which much lower in their sentence was lower so it's not that they were they were they receive the same punish they that they would have received regardless of the enhancement and regarding to the motion to strike portions of the reply brief for my band i would just argue that you know case law says that you need to raise your arguments in opening brief and if you don't there abandoned i would just stand by that and leave it to the courts discretion  counsel i the court raise the issue of this is really out of the heart and i would agree that it's really not that extraordinary particularly if you factor in  there's financial gain is an extraordinary i haven't seen many cases of any financial gain in this form it's not like you're being paid off it's like i got an annuity here in the form of this indentured servant i'm go keep milking or go to the a t m machine to getting money out of her that's that's different you know it's not even clear that they even recoup their expenses in getting or here may have made a bad investment they may use the device they were using and it's more it it exploits they both both systems exploit this one exploits in a real continuing way it ended it's largely a matter of degree if you take  it's certainly wrong it's illegal to do so as as the government brought this up miguel did profess he was acting in part according to god's law helping a distressed relative and i got into this with the district court this was a mixed motive he's he's hoping to help a distressed relative and while he's at it let's listen terrible thing for a religious motive isn't much of an excuse all sorts of terrible things are being done in the world won't quarrel with you on that one other quick point and that is that the evidence of the physical exams that was brought up there was zero evidence in the record zero to support that mcgill participated or even was aware that there was nothing there and yet the court made that one of the bases for the variance as to him there's nothing there and also there should have been a that's a separate crime a higher standard should have applied and it didn't right thank you counsel thank you to all counsel for your arguments in this case the case just argue is that made it for decision by the court case on calendar for argument if sanchez if a cello versus campbell