Legal Case Summary

. Well, we would submit that the, in addition to language is making sure that a separate crime is being separately punished, that being the 924C crimes that carry the mandatory minimums in this case of 30 years. But the language that says consecutive also is meant to say that it can't run with those, those, those underlying predicate offenses. Council, during the time the guidelines were mandatory, but afterwards, many, many court of appeals basically told district courts, you can't impose a sentence simply because you disagree with the guideline. You can impose it for independent reasons to ensure a just result, but you can't impose it merely because you don't like the guideline. And they monitored that pretty well. That's basically what this district court didn't say, it didn't like the mandatory minimum. It said instead that it thought of what a fair sentence was and that would have been, one day, if it could have done it, given that the rest of the sentence 30 years was even further beyond what the judge thought was adequate for punishment, deterrence, and all the other factors under 3553, correct? Correct. So it's not negating Congress's purpose if a district court gives one day, correct? I would say not, no. And one day is a day of punishment, isn't it? No question is to that, Your Honor. Yes. Isn't that your point? Basically, it is that and we also have to take into consideration, you have the parsimony requirement that pervades the whole sentencing reform act, we find it in 3551, we find it twice in 3553a, that the parsimony provisions are what's considered as to the total sentence. And when you look at the factors that are set forth within 3553a, within 3551, which talks about the circumstances of the case, in 3661, which says there's no limitation as to what can be considered by a court in determining an appropriate sentence, in light of that parsimony requirement, that ends up in the results that we have. This, the 924C is a statute, it's nothing to do with the guidelines, and it does say sentences have to be consecutive. So I go back to the point I opened with you are in effect asking for a concurrent sentence. Just adding one day. But as Justice Kagan and I discussed, one day is an additional punishment, and one day... I'm sorry, I'm sorry, I'm helping you. I'm sorry. This is the one who wasn't. Like my ends mixed up, I'm sorry. But as was indicated, that is an additional sentence, that is an additional punishment, that is provided for according to the statutory provisions. 924C limits as to having to be a consecutive sentence in this case 30 years, but it does not tell us to the underlying crime of violence predicate offenses. Well, it seems to me that you decided

. It seems to me that you have to concede that your position completely negates the, or can, completely negate the effect of 924, but that there are other reasons why Congress probably would have allowed that. And I suppose that's 3553 to take into account all of those factors. So you're saying basically that 3553 overrides 924C, but that's hard to read the statute that way. And I'm not suggesting that it should be read that way. I think that they're read together, but 924C does have restrictions that require the, in addition to language, and it requires it to be consecutive. But there's nothing in 924C that limits what the Court can determine as to the predicate offenses as to those crimes of violence. I thought that you're... I thought that your answer to the Chief Justice was perhaps telling because you said that. You thought that were it not for 924C, this would be an unreasonable sentence under 3551, 3553. Isn't that your answer? And doesn't that show that Congress, although it generally conferred on district courts, the authority under those provisions to determine what is a reasonable sentence in light of the enumerated factors, withdrew that discretion with respect to the component that is covered by 924C. So if that's what Congress was doing, then why shouldn't that entire sentence be ruled out in determining the sentence that is reasonable under the count that is not governed by 924C? Because we don't read 924C as being in conflict with 3553A. You read all the statutes together, and Congress knows, believe they know how to set constraints and set limitations, and they did so in 924C to ensure that a violent crime, such as carrying guns and commission of a predicate offense, is going to carry a long period of sentence and a severe sentence. And they want to ensure, if you look at the history of 924C and its evolution, its recalibration over time, it has made it, I mean, when we first started off in 924C, there could still be suspended sentence or parole, sending reform act took those away, so they recalibrated 924C to reflect that. And they've done so over time, and they again had the ability, after 1028A came into existence, to say that you can't consider, you can't compensate for, you can't take into account that, in that case, an aggravated identity theft, but that mandatory minimum sentence, when you're making a determination as to that underlying crime of violence, they could have done so, they didn't. Judge Lucero's point that Congress can do a belt and suspenders operation, and that there was, there was additional insurance in 1028. Doesn't mean that 924C shouldn't be red to have a real sentence for the predicate offense. But we would answer that the Congress had the opportunity to do so, and they didn't do so, when they amended 924C, at least two times since the advent of 1028A, and it's not a redundancy issue, because there they went forward and said, this is how, they used all the language in 924C, and they went farther, and they put that additional restriction on the sentencing court to make a determination as to the underlying predicate offense. That's, that you can't consider that mandatory minimum in doing so. Congress has that ability to do so, they know how to write the laws, and they know how to limit sentencing discretion, and they did so to the extent that they did in 924C. You think that's a realistic assessment of the way a legislative body works. So we put this in 924C, then we put stronger language in 1028, and now we're amending 924, and well, maybe we better strengthen 924 to make it in line with 1028. Did they have any reason to think about that at the time when they amended 924? We would submit the Congress. There's a circuit courts ruling

. There's at least one the 10th that had ruled in your favor. That's correct. Had it done so by the time 924C was amended? It did. Yes. The decision and Smith came down in 2014. There was also a six-circuit case, United States versus Franklin, that I believe came down in 2007, that post-dated the changes in 1028. Post-dated or predated the changes in 924C? It came out, it came out, it came after the changes. Well, I'll pick up Justice Alito's question then. Is there any indication that Congress was aware of those court of appeals decisions? Well, Congress and the past has made changes to 924C based upon what courts have done. If we look at the BUSIC opinion, for example, they courts had interpreted that there was no requirement for the consecutive or additional sentence. And they went in, they changed 924C in response to what this court had done in BUSIC. So I submit that the Congress has that ability, if they do make changes to 924C in the future. Obviously, that would be in a relationship to what they feel is the appropriate punishments that must be imposed for the crimes that have been committed. How old was your defendant? Do you know? He was 24 years old. His co-defendant brother was 23 years old, but it was three years. So he would be 50 or something? He would, under the current sentence, he would serve more time than he's actually lived. And if we go back, this is something we would be direct answer to because the statutes have changed so quickly that I may have lost track. But the 3553B is what I'm looking at. And that talks about departures. And I take it that the sentence for robbery was a departure. The guideline recommendation for, and you did sentence the judge under the guidelines. Correct? The judge calculated the guidelines. All right. We didn't depart from the guidelines. He didn't say, but he did depart from the guideline sentence, which was 48 months or 44 months

. 40 months in this case. And he went from there to one day. And 3553B says you have to, I don't know if it's still law, have to impose a guideline sentence unless the court funds there exists here a mitigating circumstance of a kind or to a degree not adequately taken into consideration by the sentencing commission in formulating the guideline. So you'd look and see their guidelines as 48 months. And they departed down to a day for the reason that there was this add on sentence, the mandatory. Now, is there anything that suggests that the commission did not have that and take that into account? In other words, is it a proper factor for departure? Viewed not now from what Congress intended, not viewed from the point of view of the statute's who've been referring to. But viewed simply from the view of the commission and the Congress as to when you can depart downward. You know what I would submit that this is not really a guideline analysis without the judge made to determine this? No, this is a statute and the statute says, Judge, if you want to depart downward, you can do so if you're applying the guidelines only for a reason that the words are to repeat them. And a mitigating circumstance of a kind or to a degree not adequately taken into consideration by the sentencing commission, informulating the guidelines. I'm not giving you an answer. It's not a hostile question. It's not a friendly question. It's a question I'd like to know the answer, too. The sentencing judge did depart downward considerably because the guideline range was higher than just the suggested. He departed downward to 40 from what was the range? It was 84 to 105 months without the enhancement that would be under the guidelines if the guns were present. It was a significant departure. And he gave various reasons for making that departure, that variance to the basic reason. What was he thought that the mandatory was long enough? Well, he also, the judge indicated that the reasons he was considering this was the role that the role that Lavandine Jr. had played compared to the role that his brother had played. He determined that based upon his primal history and the nature of those convictions that he had, he articulated numerous reasons as to the basic reason. I think it's fair to say, as he thought the mandatory was long enough. If he could have gone to the one. That may assume that then. And it seems to me as if I hadn't thought that through to this moment, and I still haven't the relation of 30, 55, 53 B. It may be you haven't thought through either

. Maybe nobody has, but I mean, and maybe there isn't one. But I wanted to learn as much as I could if there is a relevance of that. Well, and I look at the factors that are said for 135, 53 A of which the guidelines are one of those factors. Same as policy statements are one of those factors. And they go, I submit to the overall sentence that the court imposes. And when a judge in this case, it's not a guideline sentence that he's deciding, he's varying based upon the 35, 53 A factors, those tapestry of factors that the thread of parsimony runs through in which he makes those determinations. Let's look at what those four main tenets of parsimony are. For example, the term- No, no, I know 35, 53 A. That isn't a problem for me. What I'm trying to think of is maybe this is a matter that lies in the hands of the commission. Maybe you could say, well, the commission didn't say you couldn't to part for that reason. And therefore, it is a factor, a mitigating factor, not considered by the commission. But maybe the commission should it choose to do so could consider it, and could say when it could, and when it couldn't be, in which case the judge couldn't to part downward. You say, that's what's going through my mind, and there's no point repeating myself. You might have thought about it. You might not have a little bit of a citation. Well, I'd like to think I've thought about it from the context of looking at the guidelines as a starting point and as a determination that helps to guide a court to consider sensing, but it's just a factor for the court to consider, and the overall factors that are set forth in 3553A, as well as 3661, as well as 3551, leads us to consider all of those factors in determining what total sentence should be imposed in this case. The court varied in this instance based upon what he found the guidelines to be, but then those additional things that he considered, those factors that he looked at, to make the determination as to what would be the appropriate sentence to impose on the petitioner in this case. And any total sentence is obviously subject to a pillant review for substantive reason, as under abuse of discretion standpoint. So the government, if in this instance, felt that the court that then imposed a sentence of one day with the additional 30 years, the mandatory minimums required, and the government felt that that was not a substantively reasonable sentence, that's still subject to review by the appeal of courts. How does that normally work, not in a mandatory minimum way, but if you've got three different offenses, and you're going to be sentenced on each of them. On a pellet review, how is that reviewed? Is it the total sentence, or do they go by one, one, two, and three, and say, we think you abuse your discretion and only giving five months for this, and then that doesn't affect the three years you gave for that? How is that actually happen? My understanding is that the pellet review is based upon the reasonfulness of the total sentence that's imposed. Now, if there is a portion of that sentence that the court felt that it wasn't dealt with properly by the sentencing court, then they would address that either for a clearer error and what was looked at and how the guidelines were applied, or de novo as to the application of the guidelines themselves. So there are those considerations to be made from a pellet review standpoint, but the overriding consideration I would submit would be the substantive reasonableness for impuse of discretion. In first looking at this case, my thought was that it would be very difficult for the judge to determine what the sentence should be for the underlying crime without looking at what those were or he or she was required to do under 924

. But then it occurred to me that judges and lawyers do this all the time. We think of a hypothetical case. Suppose 924 did not exist, what sentence would I give? Judges do this all the time in condemnation cases. We don't look at the value of the improbable. We can look at a problem in an abstract way. So I see nothing that prevents the judge from making quite a proper determination for the underlying offense and saying, but looking at the statute, it has to be consecutive. Then the consecutive sentence has been the length of the consecutive sentence has been set forth. So I see nothing analytically difficult about the government's position. But that, I submit your honor, that that turns around the determination to be made, the independence, the separate crime, the separate punishment goes to the 924C. It has to happen. It has to be put on to that. But the consideration overall as to the underlying crimes of violence still lends itself to discretion by the sensing. Well, that's the key to that. That's the question before. And I believe the Court in Smith, United States versus Smith, the 10 circuit case that we're relying upon talks about that. You can't have judges having blinders to look at just the underlying crimes of violence and then doing so as the government is suggesting in this case, that's under 1028A. But 1028A has the additional point. Well, but you said you can't have this, but you can if we interpret the statute the way the government wants. And my argument is that the Congress could have written the statute to include what they include in 1028A. They didn't do so in this instance. Now, in terms of that analytical difficulty, there is inherent in this scheme a bit of double, a lot of double counting because the substantive crimes almost always in trying to judge the severity of punishment for that, you're always thinking of the gun. And that always adds to whatever analytically separate punishment you think should be given for the substantive crime. So there is a little bit of twisting of a judge by saying you have to somehow put yourself in the position of punishing this person without knowing that he's going to be punished for the gun anyway for 30 years and think of what the punishment should be without that punishment because the gun is present in both crimes, correct? Yes. The identity theft add-ons. One is for every crime except terrorism is only two years, correct? Correct

. The aggravated identity. And in many ways it's punishing for a separate activity than merely the possession of identity theft items. Well, there are listed within the statute are the specified crimes that it would apply to. Yes, sir. Exactly. So the five years is for the terrorism. In those instances, yes. I would agree with that, Your Honor. If there are no further questions, I would ask to leave to have the rest of my time for the battle. Thank you, Council. Thank you, Your Honor. Mr. Yang, Mr. Chief Justice, and may it please the Court. Petitioner asked the District Court for a one-day sentence on his four non-section 924C felonies. That petitioner now concedes would be unreasonable without the 924C. Accepting his position would directly circumvent 924C's long-standing requirement that the courts would impose a specified additional and consecutive sentence beyond the punishment for the predicate solely for the choice to bring a gun. It would circumvent it. On the other hand, it seems to me that if you're talking about 30 years for an offense that the judge thinks merits a lot less, if Congress wanted to prevent circumvention, they should have written the law a lot more carefully. Well, I think it's true that Congress could have written it more clearly, but we think that Congress here, when you take a look at both the provisions of 924C and then read them in conjunction with the provisions of the Sentencing Reform Act, makes sufficiently clear Congress's intent that there be a- I'm not sure sufficiently clear as enough, I think, maybe indisputably clear. I mean, in your brief, you quote to be fair, that this is contrary to the thrust of 924C. And I'm not sure when you're talking about this amount of punishment, a thrust is enough. Congress doesn't pass thrusts, they pass language, and there's nothing in the language that prevents the judge from imposing a sentence, recognizing that the defendant faces 30 years already. I agree that thrusts are not a thing. We were quoting the court's decision-in-abit

. But the court's decision-in-abit also says that the language compels the imposition of an additional- and I believe this is on 25 of the opinion- this is the unanimous opinion of the court. And I think the court recognized that when you look at 924C, particularly when you look at the drafting history from 1971 onward, where Congress was taking step after step after step to restrict the sentencing destruction- I didn't say it anywhere. This is not taken into account by the commission unless you can tell me there's a guideline on this particular application of the mandatory minimum and the statute and the guidelines both say a judge can depart for a reason, not taken adequately into consideration by the commission. So unless you can point to me someplace where they take this into consideration, although they might in the future, I would say they didn't take it into consideration at all. And therefore the language allows it, the language allows it, and indeed the theory allows it, because the theory is you could have a person there who's convicted of 19 multiple counts, you know, and the judge is given considerable power to work all this out so that you have overall a fair sentence. Now that's the whole argument. So what's your response? Well, I guess to the whole argument we have a few responses. But I think, first of all, on the guidelines point, the guidelines have taken this into account since the very beginning when you were on the sentencing commission. Where, where did we take this, what, where? Well, the guidelines specifically address in section 2K, 2.4, comment note 4. They talk about how do you calculate, and as well as in chapter 5, about determining a total sentence based on aggregate sentences, multiple terms of imprisonment. The guidelines said that what you do with the predicate is you determine the predicate under the guidelines, but you don't include the specific offense characteristic of the judge. I'm going to let you get back to a fuller answer to Justice Breyer, but that certainly cuts against you. The idea that they recognize that yes, you do have to look to the mandatory minimums. You should take that into account in imposing the sentence. And now you say when it gets down to what the actual sentence is, you can't look at the mandatory minimums at all. I don't think it cuts against us, isn't it? We're going to have multiple discussions about these various factors. First, I don't think the guidelines shed a lot of light on the statutory question here. If you were to disagree with our understanding of the guidelines, that would not mean that the statute's wrong. It means that the guidelines would have to give way. We are defending the commentary and the guidelines, which again have existed since the very beginning. We're proving that I was looking at 2.4. Right, I missed it. Where is the place on 2

.4? Comment note 4. And then subsequently, this is all also cited in our brief back in the pages around the 40s when we discussed the guidelines. But about the guidelines and the statute, the guidelines would have to give way. And we are defending the commentary because we think not only have this commentary been around since 1987 when the guidelines were first sent to Congress, and have since been there. We think that there is a sensible distinction between the conduct that the court considers when determining the sentencing of the predicate, and knowing that the conduct is accounted for separately in the 924C, and considering the total aggregate sentence. That is something different. Congress specified where courts looked to the total aggregate sentence in Section 3584. In Section 3584, Congress said when there are multiple terms of imprisonment, the court shall, with respect to each offense, consider the 3553A factors when deciding whether to make the total sentence by making them concurrent or consecutive. But we know that Section 924C wholly removed that power, and in doing so, it removed the power of the court to tailor the total aggregate sentence, which is a power that was set in the government. The government must recognize that 924C can influence the sentence on the predicate offense because I do not correct in saying the government takes the position if 924C drops out if it is not approved. Then when it goes back to the district court, the district court can enlarge the original sentence for the predicate offense. And because we think, and this is what happens in courts, courts are applying the guidelines, which the guideline says, when you're calculating the sentence for the predicate, you ignore the offense conduct with respect to the gun because they don't want to double count it. But if you drop the 924C, it should go back for the court to consider the offense conduct as it considers the sentence for the predicate. This is reflected. I mean, I, my quick reading of four, I promise I didn't memorize the guidelines. I used to know them pretty well, but I don't know them perfectly by any means and never did. But it seems to me that comment four in 2K2.4 is saying that, that defendant, you have committed a crime and in our guideline as punishment for the crime. Part of it is increased because you had a gun. And so if we're going to apply the mandatory over here, which is our special statute here, don't apply that. But I don't see anything there that says you can't subtract. Well, when you go to 5G1.2, which governs the total sentence, the, when you have multiple offenses with terms of imprisonment, it says you calculate the total sentence with respect to the 924C's and then you tack on it. 5G1.2, I believe

. This is addressed in pages, I think around page 42 of our brief, 43. I don't know if 42. No, you have one. So the point is the guide, this is the way that the guidelines have been applied. And they were applied in fact in this way, in this case. The district court calculated the sentence in guidelines, which is 480, 420, 5 months, based on the guidelines. And when it was disputing, that's what the guidelines required. In fact, they conceded that was the proper guidelines sentence in district court. And then the district court then varied downward. And I think the provision that you're talking about about 3553B. Part of that was, of course, rendered in operative. Under booker. And then what the court did here is a post-booker thing. It's not a technical departure, it's a variance because he's applying 35. No, he varied here. He varied down to 40 months. And then he additionally said, if I had discretion, I'd go down to one day. Because I think 30 years is enough. But that is essentially just a disagreement with the policy judge. No, that's harder for you. It's harder for you because after all, if it's a variance, he's not applying the guidelines. If he's not applying the guidelines, all this stuff in the guidelines, it supports you as out the window. And including the sentence I read. And if it's out the window, all we're trying to do is back where we started, is the statute, does the statute, which doesn't mention this, forbid it? Or is it otherwise? Well, I would fare. I guess, first of all, we're not relying on the. My fault, not your fault. We're not relying on the guidelines, that's an affirmative. We just wanted to point out in our brief, we think the guidelines are consistent. But what would you suggest in what to happen? I mean, presumably, the guidelines reflect an idea that there shouldn't be any double counting of the gun. So how does the court do the sentence on the underlying crime, taking away the fact of the gun? In other words, most robberies have guns in them, and the sentences are written to reflect that they have guns in them, don't they? Aren't they? No, actually, the guidelines take into account things like Hobbesack robbery, and separately account for the gun with the two-level enhancement. And so the guidelines range when you commit a Hobbesack robbery without a gun, will just be the standard Hobbesack robbery range. Now, there are going to be other offense characteristics if you injure someone, or these things can affect the problem. But what you think ought to happen is that the judge should say, okay, imagine a robbery without a gun. What would be a reasonable sentence for that? I think the judge should do, taken to account, the judges normally do under a real offense-sentencing approach, which is you look at the offense conduct, you look at the history and characteristics of the defender. Well, offense conduct, does that mean without a gun? But without the gun, we think the judge has discretion ultimately to either consider it with the gun, or not, because Congress hasn't expressly prohibited that. But the guidelines approach, which we think is permissible, is to consider it without the gun. And then the reason for that is the guidelines say Congress has separately provided, remember the legislative history, I think there are Senator Mansfield that was the main proponent of the relevant text, the very stringent sentence and provisions, made clear that the whole purpose of this was to impose this additional sentence and require additional time in prison solely for the choice to use the gun. So the guidelines- Well, that's an excerpt from the legislative history that it seems to me unimportant in light of what the 3553 says. 3553 A says, you know well, that the judge at the end of the day has to consider the need for the sentence imposed, reflect the serious of the offense and so forth. But the 3550 seems to me you're asking, as to say, that 924C really supersedes 3553. No. What we say is 3553 doesn't apply on its own terms. It doesn't apply on its own terms. If you look through the sentencing reform act, there are at least nine provisions, all of which when you're looking at a fine or imprisonment or probation or whatever it might be, the provision says the court shall and setting this sentence consider the 3553 A factors in addition with respect to multiple terms of imprisonment. And this is on page, I believe it's 5A of our, excuse me, 11A of our appendix. If you look at 3584B, it says the court in determining whether terms imposed to be ordered concurrently or consecutively, shall consider for each offense, remember this is multiple offenses, each offense for which a term of imprisonment is being imposed, the factors set forth in 3553A. So normally what happens is the courts will determine individual sentences. So you could have a sentence of seven years and a sentence of another seven years and then maybe once capped at five. And the court says, I've got these individual sentences, I sentence for each offense. What's the total sentence? You could make that five and seven and seven, you could make it 19 or you could just make it seven

. My fault, not your fault. We're not relying on the guidelines, that's an affirmative. We just wanted to point out in our brief, we think the guidelines are consistent. But what would you suggest in what to happen? I mean, presumably, the guidelines reflect an idea that there shouldn't be any double counting of the gun. So how does the court do the sentence on the underlying crime, taking away the fact of the gun? In other words, most robberies have guns in them, and the sentences are written to reflect that they have guns in them, don't they? Aren't they? No, actually, the guidelines take into account things like Hobbesack robbery, and separately account for the gun with the two-level enhancement. And so the guidelines range when you commit a Hobbesack robbery without a gun, will just be the standard Hobbesack robbery range. Now, there are going to be other offense characteristics if you injure someone, or these things can affect the problem. But what you think ought to happen is that the judge should say, okay, imagine a robbery without a gun. What would be a reasonable sentence for that? I think the judge should do, taken to account, the judges normally do under a real offense-sentencing approach, which is you look at the offense conduct, you look at the history and characteristics of the defender. Well, offense conduct, does that mean without a gun? But without the gun, we think the judge has discretion ultimately to either consider it with the gun, or not, because Congress hasn't expressly prohibited that. But the guidelines approach, which we think is permissible, is to consider it without the gun. And then the reason for that is the guidelines say Congress has separately provided, remember the legislative history, I think there are Senator Mansfield that was the main proponent of the relevant text, the very stringent sentence and provisions, made clear that the whole purpose of this was to impose this additional sentence and require additional time in prison solely for the choice to use the gun. So the guidelines- Well, that's an excerpt from the legislative history that it seems to me unimportant in light of what the 3553 says. 3553 A says, you know well, that the judge at the end of the day has to consider the need for the sentence imposed, reflect the serious of the offense and so forth. But the 3550 seems to me you're asking, as to say, that 924C really supersedes 3553. No. What we say is 3553 doesn't apply on its own terms. It doesn't apply on its own terms. If you look through the sentencing reform act, there are at least nine provisions, all of which when you're looking at a fine or imprisonment or probation or whatever it might be, the provision says the court shall and setting this sentence consider the 3553 A factors in addition with respect to multiple terms of imprisonment. And this is on page, I believe it's 5A of our, excuse me, 11A of our appendix. If you look at 3584B, it says the court in determining whether terms imposed to be ordered concurrently or consecutively, shall consider for each offense, remember this is multiple offenses, each offense for which a term of imprisonment is being imposed, the factors set forth in 3553A. So normally what happens is the courts will determine individual sentences. So you could have a sentence of seven years and a sentence of another seven years and then maybe once capped at five. And the court says, I've got these individual sentences, I sentence for each offense. What's the total sentence? You could make that five and seven and seven, you could make it 19 or you could just make it seven. It depends on whether you make them consecutive or concurrent. So the question about the total imprisonment when you have multiple terms of offenses with terms of imprisonment, 3554B affects that. And it says, that's where you apply the 3553A factors to determine the total length. But Congress took that power away. Congress took that total power away totally in 924C. By directing that you cannot do that, you must impose them consecutive. Well, that's why I don't understand your answer to Justice Kennedy because you said, no, you're not saying that 924C is 3553. I think you have to be saying that. You might still be right, but you have to be saying that there's this background principle, which is 3553, which is this parsimony principle and all these factors. And then 924 comes along and says, but not here. I guess in a sense we are saying that, but I don't think it operates directly on 3553A, because I don't think 3553A operates as a free-standing, free-standing provision. It comes into play at various points in the Sentencing Reform Act where the Court, the Congress, has said, you consider these factors in making this determination in setting, deciding whether to set on the amount of a fine, you look at the 35. But one way you might look at this, and this goes back to what the Chief Justice said, he said, well, when there's a 30-year sentence implicated, you better be pretty clear. And also, when you're legislating against a fairly strong background principle of 3553, you better be pretty clear that you're displacing that background principle. And here, you just have not been clear enough. You were clear enough in 1028A. We know what that looks like, but here you just haven't been clear enough to upset this background presumption. We think that it's clear enough because 3553A applies, for purposes of setting the total term of imprisonment, the only reason 3553A applies is because Congress provided that they are to be considered in 3584B in setting the consecutive or concurrent. And so that has been removed. That has been removed. If it were true that 3553A just generally was a free-floating provision that applied everywhere, then all the nine provisions of the Sentencing Reform Act that specifically say you must consider the 3553 factors with respect to these specific types of sentences would be superfluous. If this case had arisen before the Sentencing Reform Act was adopted, I think that Dean's argument would certainly be correct. Would it not? I think we would have a more difficult, the judge would have complied with the statute, the term wasn't consecutive. And than that, it was discretionary, so it was completely within the judge's discretion. I think what we would have to argue in that case is that the Congress would have known that the traditional place that judges determine the aggregate length of a sentence when there are multiple offenses carrying terms of imprisonment is in the determination that, whether the sentence is run concurrently or consecutively

. It depends on whether you make them consecutive or concurrent. So the question about the total imprisonment when you have multiple terms of offenses with terms of imprisonment, 3554B affects that. And it says, that's where you apply the 3553A factors to determine the total length. But Congress took that power away. Congress took that total power away totally in 924C. By directing that you cannot do that, you must impose them consecutive. Well, that's why I don't understand your answer to Justice Kennedy because you said, no, you're not saying that 924C is 3553. I think you have to be saying that. You might still be right, but you have to be saying that there's this background principle, which is 3553, which is this parsimony principle and all these factors. And then 924 comes along and says, but not here. I guess in a sense we are saying that, but I don't think it operates directly on 3553A, because I don't think 3553A operates as a free-standing, free-standing provision. It comes into play at various points in the Sentencing Reform Act where the Court, the Congress, has said, you consider these factors in making this determination in setting, deciding whether to set on the amount of a fine, you look at the 35. But one way you might look at this, and this goes back to what the Chief Justice said, he said, well, when there's a 30-year sentence implicated, you better be pretty clear. And also, when you're legislating against a fairly strong background principle of 3553, you better be pretty clear that you're displacing that background principle. And here, you just have not been clear enough. You were clear enough in 1028A. We know what that looks like, but here you just haven't been clear enough to upset this background presumption. We think that it's clear enough because 3553A applies, for purposes of setting the total term of imprisonment, the only reason 3553A applies is because Congress provided that they are to be considered in 3584B in setting the consecutive or concurrent. And so that has been removed. That has been removed. If it were true that 3553A just generally was a free-floating provision that applied everywhere, then all the nine provisions of the Sentencing Reform Act that specifically say you must consider the 3553 factors with respect to these specific types of sentences would be superfluous. If this case had arisen before the Sentencing Reform Act was adopted, I think that Dean's argument would certainly be correct. Would it not? I think we would have a more difficult, the judge would have complied with the statute, the term wasn't consecutive. And than that, it was discretionary, so it was completely within the judge's discretion. I think what we would have to argue in that case is that the Congress would have known that the traditional place that judges determine the aggregate length of a sentence when there are multiple offenses carrying terms of imprisonment is in the determination that, whether the sentence is run concurrently or consecutively. And then you would have had a very tough argument. On the other hand, if this case had arisen before we decided Booker, if you read the guidelines correctly and it does seem to be, they do seem to say what you say they say, then you would clearly be correct. So we're in this kind of weird world that this court has created, where the guidelines are advisory, but then they're not advisory. And so that's why we have this problem. Is that correct? Well, I didn't want to say that because... Nobody but me would agree with you. We obviously accept Booker as the proper interpretation of the law of the Constitution. But I think what I would say is that the guidelines, there might be a slightly different analysis. And I think the guidelines would then provide yet an additional sentence to correct. The lack of beauty of the guidelines is there so artificial on so many levels. All right? What differentiates a normal theft from robbery is the use of force. And the guidelines in defining the guidelines range for theft starts at a much, much lower base level. Starts at a seven, okay? For a robbery, it starts at a base level of 20. Once you start with that huge difference between the use of force and the non-use of force, obviously the robbery guideline is always going to include the use of force. The fact that it might be with a gun as opposed to a knife as opposed to a threat of violence or whatever else you want to define it, the use of force is inherent already in the guideline calculation. Because otherwise that there's no reason they could have just had one table and said if you rob someone, if it was a pure calculation as you suggested without thinking about the gun, it would have been $20,000 is taken. We're all going to start at a offense level of five years and build up from there. But that's not what the guidelines do. So when you're taking discretion away from a judge, I think that's one of the reasons we often require specificity. Because the guidelines are artificial in so many different ways. And there are gyrations that we go through as judges to comply with dictates that are not often very clear. Well, I think I'm not here to criticize the guidelines. I think the guidelines have worked for quite some time and have brought some rationality to sentencing that didn't previously existed, which was an important thing

. And then you would have had a very tough argument. On the other hand, if this case had arisen before we decided Booker, if you read the guidelines correctly and it does seem to be, they do seem to say what you say they say, then you would clearly be correct. So we're in this kind of weird world that this court has created, where the guidelines are advisory, but then they're not advisory. And so that's why we have this problem. Is that correct? Well, I didn't want to say that because... Nobody but me would agree with you. We obviously accept Booker as the proper interpretation of the law of the Constitution. But I think what I would say is that the guidelines, there might be a slightly different analysis. And I think the guidelines would then provide yet an additional sentence to correct. The lack of beauty of the guidelines is there so artificial on so many levels. All right? What differentiates a normal theft from robbery is the use of force. And the guidelines in defining the guidelines range for theft starts at a much, much lower base level. Starts at a seven, okay? For a robbery, it starts at a base level of 20. Once you start with that huge difference between the use of force and the non-use of force, obviously the robbery guideline is always going to include the use of force. The fact that it might be with a gun as opposed to a knife as opposed to a threat of violence or whatever else you want to define it, the use of force is inherent already in the guideline calculation. Because otherwise that there's no reason they could have just had one table and said if you rob someone, if it was a pure calculation as you suggested without thinking about the gun, it would have been $20,000 is taken. We're all going to start at a offense level of five years and build up from there. But that's not what the guidelines do. So when you're taking discretion away from a judge, I think that's one of the reasons we often require specificity. Because the guidelines are artificial in so many different ways. And there are gyrations that we go through as judges to comply with dictates that are not often very clear. Well, I think I'm not here to criticize the guidelines. I think the guidelines have worked for quite some time and have brought some rationality to sentencing that didn't previously existed, which was an important thing. The guidelines post-booker, of course, advisory are advisory. That's what I'm trying to, I'm not criticizing, not criticism. I'm trying to figure out what's the right system, putting this case aside. Well, the guidelines, I'll try this. If the guidelines were here, it wouldn't be such a problem. Because they would have the commission could look into this and it could right take the factor into account and then we'd have $35,000, $53,000, and we'd follow that in the future unless it was irrational. But they're out the window. Okay, they're out the window because it was a variance. So now we're left with 924, the C, you know, the statute. And we're also left with the provision that says that a court of appeals has to look at a departure or a variance and see if it's reasonable. Is that the right word reasonable or rational or something? What's the word? Well, I think that you have to look to the reasonfulness of the sentence over there. What is there's a word in the appellate part when they're doing the review? Is it reasonable or un-you know? I'll look at that. I think it is reasonable. Yeah, I think it is, too. Okay, so now the word is a good word. Correct, correct. So that's the question in this case beyond the case is really how do we do that? And so what I would try out is it'll be obvious if you're right and the statute's clear. Okay, the 924C. Then you win. That's the end of it. That's what you think. I don't think it's clear. If it's not clear, what do we do? Well, I think that's the end of it. And now what about looking, looking to see what the commission said about it? Noting that this is an individual case, not general, not general, where the district court has more power, or other things. Now you tell me, those are floating around in my mind

. The guidelines post-booker, of course, advisory are advisory. That's what I'm trying to, I'm not criticizing, not criticism. I'm trying to figure out what's the right system, putting this case aside. Well, the guidelines, I'll try this. If the guidelines were here, it wouldn't be such a problem. Because they would have the commission could look into this and it could right take the factor into account and then we'd have $35,000, $53,000, and we'd follow that in the future unless it was irrational. But they're out the window. Okay, they're out the window because it was a variance. So now we're left with 924, the C, you know, the statute. And we're also left with the provision that says that a court of appeals has to look at a departure or a variance and see if it's reasonable. Is that the right word reasonable or rational or something? What's the word? Well, I think that you have to look to the reasonfulness of the sentence over there. What is there's a word in the appellate part when they're doing the review? Is it reasonable or un-you know? I'll look at that. I think it is reasonable. Yeah, I think it is, too. Okay, so now the word is a good word. Correct, correct. So that's the question in this case beyond the case is really how do we do that? And so what I would try out is it'll be obvious if you're right and the statute's clear. Okay, the 924C. Then you win. That's the end of it. That's what you think. I don't think it's clear. If it's not clear, what do we do? Well, I think that's the end of it. And now what about looking, looking to see what the commission said about it? Noting that this is an individual case, not general, not general, where the district court has more power, or other things. Now you tell me, those are floating around in my mind. I'd like to know what's floating around in your mind. I don't believe the commission gets any deference with respect to the construing federal statutes. So, what's the respect to the guidelines? Yes, but what's the respect to construing federal statutes, I don't think so. And so what we're back to is 924C and its interaction to the various provisions of the Sentencing Reform Act. The key provisions, they rely on 3553A and they say, well, you have to consider all these factors. But 3553A applies in very specific places of the Sentencing Reform Act, including when there are multiple terms of imprisonment and a court has to decide what the total imprisonment is going to be. That's 3584 and that's been taken away because Congress took away the power to have concurrent sentences. If you think the case is resolved at a higher level, it seems to me that your friend has a very good technical argument. This says these sentences have to run concurrently. One day they run concurrently, end of case. And your argument is, you know, you look at the drafting history, the commentary to 2K, 2.4. All the other arguments you've got and the basic one is, well, that's technically correct, but it's obviously not what Congress had in mind. Congress obviously had in mind adding the mandatory onto a normal sentence one way or another under the guidelines and all the provisions we've been talking about. So if you view the case that way, technically correct, you know, contrary to the obvious policy, what case can you give me to tell us how to approach a conference? I think it's a very significant case. Well, what's your best case where you have a very significant sanction in the balance and you have technical compliance on one hand, but clearly contrary to the purpose? We don't think that they're technically correct. No, I understand. We think that there is a plausible argument that they make on the text, but we think that the proper approach is you always have to approach statutes holistically. You look at the statutory text, you look at the Congress structure, the context, the legislation. Well, the context, the legislation is like, I mean, you insist when citizens deal with the government that they turn square corners, and I think it's right for a criminal defendant when they're facing 30 additional years to insist that the government turn square corners. Well, I think what you might be referring to is the principle of lenity, but the court has repeatedly emphasized, I think, a Bransky, one of Justice Tagan's recent opinions explains this, that lenity lies only if there's a grievous ambiguity that you met at the end of the day. You have to have to go to a principle of lenity for Mr. Stoler to be right. I mean, you would just say, and this is very much along the lines of what the Chief Justice was saying, you would just say something like, look, if we're going to be strictly textualist here, this does not have the kind of requirement you wish it had, which is to say it doesn't have the language that's in 1028A. Your essential argument is that, red Mr

. I'd like to know what's floating around in your mind. I don't believe the commission gets any deference with respect to the construing federal statutes. So, what's the respect to the guidelines? Yes, but what's the respect to construing federal statutes, I don't think so. And so what we're back to is 924C and its interaction to the various provisions of the Sentencing Reform Act. The key provisions, they rely on 3553A and they say, well, you have to consider all these factors. But 3553A applies in very specific places of the Sentencing Reform Act, including when there are multiple terms of imprisonment and a court has to decide what the total imprisonment is going to be. That's 3584 and that's been taken away because Congress took away the power to have concurrent sentences. If you think the case is resolved at a higher level, it seems to me that your friend has a very good technical argument. This says these sentences have to run concurrently. One day they run concurrently, end of case. And your argument is, you know, you look at the drafting history, the commentary to 2K, 2.4. All the other arguments you've got and the basic one is, well, that's technically correct, but it's obviously not what Congress had in mind. Congress obviously had in mind adding the mandatory onto a normal sentence one way or another under the guidelines and all the provisions we've been talking about. So if you view the case that way, technically correct, you know, contrary to the obvious policy, what case can you give me to tell us how to approach a conference? I think it's a very significant case. Well, what's your best case where you have a very significant sanction in the balance and you have technical compliance on one hand, but clearly contrary to the purpose? We don't think that they're technically correct. No, I understand. We think that there is a plausible argument that they make on the text, but we think that the proper approach is you always have to approach statutes holistically. You look at the statutory text, you look at the Congress structure, the context, the legislation. Well, the context, the legislation is like, I mean, you insist when citizens deal with the government that they turn square corners, and I think it's right for a criminal defendant when they're facing 30 additional years to insist that the government turn square corners. Well, I think what you might be referring to is the principle of lenity, but the court has repeatedly emphasized, I think, a Bransky, one of Justice Tagan's recent opinions explains this, that lenity lies only if there's a grievous ambiguity that you met at the end of the day. You have to have to go to a principle of lenity for Mr. Stoler to be right. I mean, you would just say, and this is very much along the lines of what the Chief Justice was saying, you would just say something like, look, if we're going to be strictly textualist here, this does not have the kind of requirement you wish it had, which is to say it doesn't have the language that's in 1028A. Your essential argument is that, red Mr. Stoler's way, this would utterly eviscerate C1D2, the consecutive requirement, and I'm quite sympathetic to that. But there's still this question of, when a statute doesn't say what you would like it to say, and you're reduced to saying, if you read it the other guy's way, it would eviscerate what we meant when we passed another provision. You know, what should we do, and where do you point us? I would say that it's true that it eviscerates the purpose and the whole structure of the statute, but the statute says a lot by removing authority. So the question is, what authority was removed? I think it's helpful to look at page 11 of the government's appendix. It's 3584. 3584B governs discretionary decision of a judge when there are multiple terms of imprisonment. How do you decide the total length? The total length is set by making them concurrent or consecutive. And 3554B, or 3584B, sorry, specifically says that in deciding the total length by making consecutive concurrent, you apply the factor set fourth and 3553A. That's what they rely on. But 924C removes that authority. 924C removes the authority to be able to set the total length of imprisonment when there are multiple terms of imprisonment. So you're saying that in this case, the judge said, I can't look at 3553A. No, he does. The judge, there are various other places for the total. Other than for the initial downward departure. But for the total, you can look at 3553A and setting the individual terms. But Congress separately addressed how you make those terms, how you add them, make them, the total, it depends on the aggregate, right? Would you add them or run them concurrently with each other? So that is what 3554B addresses. And that's where the 3553A factors are applied. But Congress took that authority away. That's what I think speaks volumes. And when you look at the structure of the Sentencing Reform Act, the Sentencing Reform Act kind of has a modified real offense sentencing approach. So you take a look at the offender, the characteristics of the offender, the history, not only the offense conduct, beyond this particular offense conduct, you go broadly like what's all the relevant conduct? You're asking the judge to say in calculating the sentence for the underlying offense. I'm going to look at all of these factors. Frankly, it's meaningless because what I'm going to do in 924C. But I'll do something meaningless

. Stoler's way, this would utterly eviscerate C1D2, the consecutive requirement, and I'm quite sympathetic to that. But there's still this question of, when a statute doesn't say what you would like it to say, and you're reduced to saying, if you read it the other guy's way, it would eviscerate what we meant when we passed another provision. You know, what should we do, and where do you point us? I would say that it's true that it eviscerates the purpose and the whole structure of the statute, but the statute says a lot by removing authority. So the question is, what authority was removed? I think it's helpful to look at page 11 of the government's appendix. It's 3584. 3584B governs discretionary decision of a judge when there are multiple terms of imprisonment. How do you decide the total length? The total length is set by making them concurrent or consecutive. And 3554B, or 3584B, sorry, specifically says that in deciding the total length by making consecutive concurrent, you apply the factor set fourth and 3553A. That's what they rely on. But 924C removes that authority. 924C removes the authority to be able to set the total length of imprisonment when there are multiple terms of imprisonment. So you're saying that in this case, the judge said, I can't look at 3553A. No, he does. The judge, there are various other places for the total. Other than for the initial downward departure. But for the total, you can look at 3553A and setting the individual terms. But Congress separately addressed how you make those terms, how you add them, make them, the total, it depends on the aggregate, right? Would you add them or run them concurrently with each other? So that is what 3554B addresses. And that's where the 3553A factors are applied. But Congress took that authority away. That's what I think speaks volumes. And when you look at the structure of the Sentencing Reform Act, the Sentencing Reform Act kind of has a modified real offense sentencing approach. So you take a look at the offender, the characteristics of the offender, the history, not only the offense conduct, beyond this particular offense conduct, you go broadly like what's all the relevant conduct? You're asking the judge to say in calculating the sentence for the underlying offense. I'm going to look at all of these factors. Frankly, it's meaningless because what I'm going to do in 924C. But I'll do something meaningless. No, no, no, not at all. If, for instance, the judge would say, as in this case, an appropriate sentence is 40 months. The judge says an appropriate sentence for each of these four has a 40 month term. In a normal world, if there was also a five year sentence, the judge would then go to 3554B. And so I'm going to consider the 3553A factors to decide if I'm going to add that 40 to the five years, or I'm going to just run them concurrently so that it's five years total. That's what normally happens. Section 924C says you can't do that. You have to add it. It is, in addition to the punishment, the punishment for the predicate offense. And so we think that simply underscores what has always been the thrust, the understanding of 924C. It is a harsh provision. There is no doubt. But Congress intended that to be harsh because of the extreme danger presented when you add a gun to either a crime of violence or drug trafficking offense. And Congress made that determination that it's going to be at least five additional years for the gun. And if there's a second or subsequent, 25 years. Disagreement with that length of an imprisonment, simply circumvent what Congress was doing in 924C. If you're in the realm of what's reasonable, the judge is looking at. Well, you are under the appellate provision because he's varied from the guidelines. Of course, you have to give the mandatory minimum. There it is, the gun, 25 years. And now the judge thinks, you know, this is way beyond what this guy did. It's fine for the gun, but his total conduct here doesn't warrant such a long sentence. On a pallet. So in the other part, it's a reasonable thing given this individual who may suffer certain individual things, dot, dot. The reasonable thing to give him one day

. No, no, no, not at all. If, for instance, the judge would say, as in this case, an appropriate sentence is 40 months. The judge says an appropriate sentence for each of these four has a 40 month term. In a normal world, if there was also a five year sentence, the judge would then go to 3554B. And so I'm going to consider the 3553A factors to decide if I'm going to add that 40 to the five years, or I'm going to just run them concurrently so that it's five years total. That's what normally happens. Section 924C says you can't do that. You have to add it. It is, in addition to the punishment, the punishment for the predicate offense. And so we think that simply underscores what has always been the thrust, the understanding of 924C. It is a harsh provision. There is no doubt. But Congress intended that to be harsh because of the extreme danger presented when you add a gun to either a crime of violence or drug trafficking offense. And Congress made that determination that it's going to be at least five additional years for the gun. And if there's a second or subsequent, 25 years. Disagreement with that length of an imprisonment, simply circumvent what Congress was doing in 924C. If you're in the realm of what's reasonable, the judge is looking at. Well, you are under the appellate provision because he's varied from the guidelines. Of course, you have to give the mandatory minimum. There it is, the gun, 25 years. And now the judge thinks, you know, this is way beyond what this guy did. It's fine for the gun, but his total conduct here doesn't warrant such a long sentence. On a pallet. So in the other part, it's a reasonable thing given this individual who may suffer certain individual things, dot, dot. The reasonable thing to give him one day. Congress made the determination. You don't do a reasonable thing. No, I would, I know. If I think that, then you win that's the end of it. And that's why, you know, when you have a predicate offense that Congress said, add his additional mandatory arm. And you don't look to the length of the total because maybe, maybe 30 years in the judge's view is not reasonable. But Congress required that. That is a separate, that is for Congress to decide what the minimum is going to be for the 924C. What would be reasonable is when you take a look at the predicate offense and you say, would this be a reasonable one day for four felonies? Would that be reasonable? And the answer to that is, of course not, as my brother conceded in his argument. So again, I think the whole, the idea that a judge would go down to one day because of a disagreement with the length of the mandatory minimum, simply succaments the statute and inconsistent with 924C's text. Thank you. Thank you, Council. Five minutes, Mr. Stoller. There's no affirmative ban in district courts considering 924C sensing when considering the predicate offenses. And again, the overarching theme of discretion and parsimony, prevents. Council for the government seems to indicate that we look at 3584B. We agree that it limits that there has to be that 30-year consecutive sentence. But it just guides the court's discretion with respect to the 3553A factors. It doesn't say that it only apply to each count not the aggregate sentence. And you look at 93584 and you read the third provision, it talks about the aggregate sentence in itself. So the reliance by the government on 3584 is, we say it is misplaced and does not affect whether or not the total sensing scheme with the parsimony requirements put on ends the result of the court determining what's sentence is sufficient but not greater than necessary. We don't quarrel the 30 years must be imposed under the mandatory minimums. What we do quarrel with is whether or not the court should be able to take that those factors in consideration as well as all those other factors that are set forth in 3553A, 3551, 3661, which gives us the determination to be made as to what should be the appropriate sentence in this case. There's no other questions

. Congress made the determination. You don't do a reasonable thing. No, I would, I know. If I think that, then you win that's the end of it. And that's why, you know, when you have a predicate offense that Congress said, add his additional mandatory arm. And you don't look to the length of the total because maybe, maybe 30 years in the judge's view is not reasonable. But Congress required that. That is a separate, that is for Congress to decide what the minimum is going to be for the 924C. What would be reasonable is when you take a look at the predicate offense and you say, would this be a reasonable one day for four felonies? Would that be reasonable? And the answer to that is, of course not, as my brother conceded in his argument. So again, I think the whole, the idea that a judge would go down to one day because of a disagreement with the length of the mandatory minimum, simply succaments the statute and inconsistent with 924C's text. Thank you. Thank you, Council. Five minutes, Mr. Stoller. There's no affirmative ban in district courts considering 924C sensing when considering the predicate offenses. And again, the overarching theme of discretion and parsimony, prevents. Council for the government seems to indicate that we look at 3584B. We agree that it limits that there has to be that 30-year consecutive sentence. But it just guides the court's discretion with respect to the 3553A factors. It doesn't say that it only apply to each count not the aggregate sentence. And you look at 93584 and you read the third provision, it talks about the aggregate sentence in itself. So the reliance by the government on 3584 is, we say it is misplaced and does not affect whether or not the total sensing scheme with the parsimony requirements put on ends the result of the court determining what's sentence is sufficient but not greater than necessary. We don't quarrel the 30 years must be imposed under the mandatory minimums. What we do quarrel with is whether or not the court should be able to take that those factors in consideration as well as all those other factors that are set forth in 3553A, 3551, 3661, which gives us the determination to be made as to what should be the appropriate sentence in this case. There's no other questions. I'll ask you now. Thinking of as at a deep level of what Thomas Reed Powell said about the law, he wants us to think of this second part, you know, as related. But really, no, look at the second part, keep it totally separate and the statute means that the part about robbery has to be done separately. Reed Powell said if that you can think of a thing that is inextricably related to another thing without thinking of the thing to which it is inextricably related, you then have the legal mind. That's what he wants us to do. He says that's what the statute requires. And we submit the statute. Shouldn't we read that way in this instance, you know? Do you think it matters that it's a 30 year mandatory minimum? What if it was a one year mandatory minimum, would the result be different? It may. I mean, that's the court's really? Well, it may be different from the standpoint, I mean, no, the one year has to be imposed. A year and a day would be up there. If, under the total test of reason on us and applying the factors that the court's supposed to apply, makes that decision that he thinks that's the appropriate sentence, that that may be right, but it's going to be subject to the test of substance of reason on us on appeal. And the here and the instance, it's a different scenario because it's 30 years, you know? And that's what works out. Thank you, Council. The case is submitted.

We'll hear argument this morning in case 1592 60 Dean versus United States. Mr. Stoller. Mr. Chief Justice, and may I please the Court. The question confronting this Court is whether a judge can exercise discretion at sentencing in light of congressional directives in section 924C that a 30 year mandatory minimum must be imposed as part of the total sentence. Throughout the sentencing we form act in the myriad of factors set forth for a judge to consider it arriving at an aggregate sentence that meets the overarching goals of being sufficient but not greater than necessary. We submit that there is nothing in the language of section 924C that prevents a judge from reducing the portion of the sentence for crimes of violence. We don't doubt that if the mandatory minimums were out of the picture and all we had was the underlying offense here that this sentence would be reversed on appeal, do you? I would submit, yes, so that would not be accurate. But you said nothing in 924C, but there is a bar on concurrent sentencing and reading the statute to the way you do which shrink the concurrency to the vanishing point. If it have ed only one day to the 924C sentence. Well, the concurrent provision requires that it does not, it runs in addition to the predicate offense, but the concurrent language in there is the same language that we would find for example in section 1028A of the statutes, which has that same language, but it goes farther. When you look at the language in 1028A, it follows the same roadmap that 924C has. But it's 20 years later, right? It's 20 years later, but 924C has been recalibrated over time, starting in 1968. And even after 1028A came into existence in two separate times, Congress has changed provisions, excuse me, and 924C to change types of guns. Thank you for that. Just assume that 1028 for a moment didn't exist and say you had to argue from this language. And this essentially repeats Justice Ginsburg's point, but this language says it shall run consecutively, it shall not run concurrently, and your version of this statute essentially allows a district court to negate that language. It's as if that language were not there in terms of what the district court can do. Well, we submit that the district court has to give some sentence for the underlying crimes of violence, and then those. Well, some sentence, you know, a day, six hours, whatever it is, but can essentially make that disappear. I mean, you know, it's concurrent plus a day. I mean, that couldn't have been what Congress meant concurrent plus a day when it said it shall only be consecutive. Well, Congress, we assume, knows how to write the laws that they write, and they had the ability to strictly limit, and they have in 924C, to some extent, as far as it having to be. Well, you're right, that Congress did not say what it said, in fact, in 1028A. But, you know, sometimes, sometimes the way we try to understand statutes is to say any reading that utterly eviscerates something that Congress clearly did say can't be a good reading. Well, we would submit that the, in addition to language is making sure that a separate crime is being separately punished, that being the 924C crimes that carry the mandatory minimums in this case of 30 years. But the language that says consecutive also is meant to say that it can't run with those, those, those underlying predicate offenses. Council, during the time the guidelines were mandatory, but afterwards, many, many court of appeals basically told district courts, you can't impose a sentence simply because you disagree with the guideline. You can impose it for independent reasons to ensure a just result, but you can't impose it merely because you don't like the guideline. And they monitored that pretty well. That's basically what this district court didn't say, it didn't like the mandatory minimum. It said instead that it thought of what a fair sentence was and that would have been, one day, if it could have done it, given that the rest of the sentence 30 years was even further beyond what the judge thought was adequate for punishment, deterrence, and all the other factors under 3553, correct? Correct. So it's not negating Congress's purpose if a district court gives one day, correct? I would say not, no. And one day is a day of punishment, isn't it? No question is to that, Your Honor. Yes. Isn't that your point? Basically, it is that and we also have to take into consideration, you have the parsimony requirement that pervades the whole sentencing reform act, we find it in 3551, we find it twice in 3553a, that the parsimony provisions are what's considered as to the total sentence. And when you look at the factors that are set forth within 3553a, within 3551, which talks about the circumstances of the case, in 3661, which says there's no limitation as to what can be considered by a court in determining an appropriate sentence, in light of that parsimony requirement, that ends up in the results that we have. This, the 924C is a statute, it's nothing to do with the guidelines, and it does say sentences have to be consecutive. So I go back to the point I opened with you are in effect asking for a concurrent sentence. Just adding one day. But as Justice Kagan and I discussed, one day is an additional punishment, and one day... I'm sorry, I'm sorry, I'm helping you. I'm sorry. This is the one who wasn't. Like my ends mixed up, I'm sorry. But as was indicated, that is an additional sentence, that is an additional punishment, that is provided for according to the statutory provisions. 924C limits as to having to be a consecutive sentence in this case 30 years, but it does not tell us to the underlying crime of violence predicate offenses. Well, it seems to me that you decided. It seems to me that you have to concede that your position completely negates the, or can, completely negate the effect of 924, but that there are other reasons why Congress probably would have allowed that. And I suppose that's 3553 to take into account all of those factors. So you're saying basically that 3553 overrides 924C, but that's hard to read the statute that way. And I'm not suggesting that it should be read that way. I think that they're read together, but 924C does have restrictions that require the, in addition to language, and it requires it to be consecutive. But there's nothing in 924C that limits what the Court can determine as to the predicate offenses as to those crimes of violence. I thought that you're... I thought that your answer to the Chief Justice was perhaps telling because you said that. You thought that were it not for 924C, this would be an unreasonable sentence under 3551, 3553. Isn't that your answer? And doesn't that show that Congress, although it generally conferred on district courts, the authority under those provisions to determine what is a reasonable sentence in light of the enumerated factors, withdrew that discretion with respect to the component that is covered by 924C. So if that's what Congress was doing, then why shouldn't that entire sentence be ruled out in determining the sentence that is reasonable under the count that is not governed by 924C? Because we don't read 924C as being in conflict with 3553A. You read all the statutes together, and Congress knows, believe they know how to set constraints and set limitations, and they did so in 924C to ensure that a violent crime, such as carrying guns and commission of a predicate offense, is going to carry a long period of sentence and a severe sentence. And they want to ensure, if you look at the history of 924C and its evolution, its recalibration over time, it has made it, I mean, when we first started off in 924C, there could still be suspended sentence or parole, sending reform act took those away, so they recalibrated 924C to reflect that. And they've done so over time, and they again had the ability, after 1028A came into existence, to say that you can't consider, you can't compensate for, you can't take into account that, in that case, an aggravated identity theft, but that mandatory minimum sentence, when you're making a determination as to that underlying crime of violence, they could have done so, they didn't. Judge Lucero's point that Congress can do a belt and suspenders operation, and that there was, there was additional insurance in 1028. Doesn't mean that 924C shouldn't be red to have a real sentence for the predicate offense. But we would answer that the Congress had the opportunity to do so, and they didn't do so, when they amended 924C, at least two times since the advent of 1028A, and it's not a redundancy issue, because there they went forward and said, this is how, they used all the language in 924C, and they went farther, and they put that additional restriction on the sentencing court to make a determination as to the underlying predicate offense. That's, that you can't consider that mandatory minimum in doing so. Congress has that ability to do so, they know how to write the laws, and they know how to limit sentencing discretion, and they did so to the extent that they did in 924C. You think that's a realistic assessment of the way a legislative body works. So we put this in 924C, then we put stronger language in 1028, and now we're amending 924, and well, maybe we better strengthen 924 to make it in line with 1028. Did they have any reason to think about that at the time when they amended 924? We would submit the Congress. There's a circuit courts ruling. There's at least one the 10th that had ruled in your favor. That's correct. Had it done so by the time 924C was amended? It did. Yes. The decision and Smith came down in 2014. There was also a six-circuit case, United States versus Franklin, that I believe came down in 2007, that post-dated the changes in 1028. Post-dated or predated the changes in 924C? It came out, it came out, it came after the changes. Well, I'll pick up Justice Alito's question then. Is there any indication that Congress was aware of those court of appeals decisions? Well, Congress and the past has made changes to 924C based upon what courts have done. If we look at the BUSIC opinion, for example, they courts had interpreted that there was no requirement for the consecutive or additional sentence. And they went in, they changed 924C in response to what this court had done in BUSIC. So I submit that the Congress has that ability, if they do make changes to 924C in the future. Obviously, that would be in a relationship to what they feel is the appropriate punishments that must be imposed for the crimes that have been committed. How old was your defendant? Do you know? He was 24 years old. His co-defendant brother was 23 years old, but it was three years. So he would be 50 or something? He would, under the current sentence, he would serve more time than he's actually lived. And if we go back, this is something we would be direct answer to because the statutes have changed so quickly that I may have lost track. But the 3553B is what I'm looking at. And that talks about departures. And I take it that the sentence for robbery was a departure. The guideline recommendation for, and you did sentence the judge under the guidelines. Correct? The judge calculated the guidelines. All right. We didn't depart from the guidelines. He didn't say, but he did depart from the guideline sentence, which was 48 months or 44 months. 40 months in this case. And he went from there to one day. And 3553B says you have to, I don't know if it's still law, have to impose a guideline sentence unless the court funds there exists here a mitigating circumstance of a kind or to a degree not adequately taken into consideration by the sentencing commission in formulating the guideline. So you'd look and see their guidelines as 48 months. And they departed down to a day for the reason that there was this add on sentence, the mandatory. Now, is there anything that suggests that the commission did not have that and take that into account? In other words, is it a proper factor for departure? Viewed not now from what Congress intended, not viewed from the point of view of the statute's who've been referring to. But viewed simply from the view of the commission and the Congress as to when you can depart downward. You know what I would submit that this is not really a guideline analysis without the judge made to determine this? No, this is a statute and the statute says, Judge, if you want to depart downward, you can do so if you're applying the guidelines only for a reason that the words are to repeat them. And a mitigating circumstance of a kind or to a degree not adequately taken into consideration by the sentencing commission, informulating the guidelines. I'm not giving you an answer. It's not a hostile question. It's not a friendly question. It's a question I'd like to know the answer, too. The sentencing judge did depart downward considerably because the guideline range was higher than just the suggested. He departed downward to 40 from what was the range? It was 84 to 105 months without the enhancement that would be under the guidelines if the guns were present. It was a significant departure. And he gave various reasons for making that departure, that variance to the basic reason. What was he thought that the mandatory was long enough? Well, he also, the judge indicated that the reasons he was considering this was the role that the role that Lavandine Jr. had played compared to the role that his brother had played. He determined that based upon his primal history and the nature of those convictions that he had, he articulated numerous reasons as to the basic reason. I think it's fair to say, as he thought the mandatory was long enough. If he could have gone to the one. That may assume that then. And it seems to me as if I hadn't thought that through to this moment, and I still haven't the relation of 30, 55, 53 B. It may be you haven't thought through either. Maybe nobody has, but I mean, and maybe there isn't one. But I wanted to learn as much as I could if there is a relevance of that. Well, and I look at the factors that are said for 135, 53 A of which the guidelines are one of those factors. Same as policy statements are one of those factors. And they go, I submit to the overall sentence that the court imposes. And when a judge in this case, it's not a guideline sentence that he's deciding, he's varying based upon the 35, 53 A factors, those tapestry of factors that the thread of parsimony runs through in which he makes those determinations. Let's look at what those four main tenets of parsimony are. For example, the term- No, no, I know 35, 53 A. That isn't a problem for me. What I'm trying to think of is maybe this is a matter that lies in the hands of the commission. Maybe you could say, well, the commission didn't say you couldn't to part for that reason. And therefore, it is a factor, a mitigating factor, not considered by the commission. But maybe the commission should it choose to do so could consider it, and could say when it could, and when it couldn't be, in which case the judge couldn't to part downward. You say, that's what's going through my mind, and there's no point repeating myself. You might have thought about it. You might not have a little bit of a citation. Well, I'd like to think I've thought about it from the context of looking at the guidelines as a starting point and as a determination that helps to guide a court to consider sensing, but it's just a factor for the court to consider, and the overall factors that are set forth in 3553A, as well as 3661, as well as 3551, leads us to consider all of those factors in determining what total sentence should be imposed in this case. The court varied in this instance based upon what he found the guidelines to be, but then those additional things that he considered, those factors that he looked at, to make the determination as to what would be the appropriate sentence to impose on the petitioner in this case. And any total sentence is obviously subject to a pillant review for substantive reason, as under abuse of discretion standpoint. So the government, if in this instance, felt that the court that then imposed a sentence of one day with the additional 30 years, the mandatory minimums required, and the government felt that that was not a substantively reasonable sentence, that's still subject to review by the appeal of courts. How does that normally work, not in a mandatory minimum way, but if you've got three different offenses, and you're going to be sentenced on each of them. On a pellet review, how is that reviewed? Is it the total sentence, or do they go by one, one, two, and three, and say, we think you abuse your discretion and only giving five months for this, and then that doesn't affect the three years you gave for that? How is that actually happen? My understanding is that the pellet review is based upon the reasonfulness of the total sentence that's imposed. Now, if there is a portion of that sentence that the court felt that it wasn't dealt with properly by the sentencing court, then they would address that either for a clearer error and what was looked at and how the guidelines were applied, or de novo as to the application of the guidelines themselves. So there are those considerations to be made from a pellet review standpoint, but the overriding consideration I would submit would be the substantive reasonableness for impuse of discretion. In first looking at this case, my thought was that it would be very difficult for the judge to determine what the sentence should be for the underlying crime without looking at what those were or he or she was required to do under 924. But then it occurred to me that judges and lawyers do this all the time. We think of a hypothetical case. Suppose 924 did not exist, what sentence would I give? Judges do this all the time in condemnation cases. We don't look at the value of the improbable. We can look at a problem in an abstract way. So I see nothing that prevents the judge from making quite a proper determination for the underlying offense and saying, but looking at the statute, it has to be consecutive. Then the consecutive sentence has been the length of the consecutive sentence has been set forth. So I see nothing analytically difficult about the government's position. But that, I submit your honor, that that turns around the determination to be made, the independence, the separate crime, the separate punishment goes to the 924C. It has to happen. It has to be put on to that. But the consideration overall as to the underlying crimes of violence still lends itself to discretion by the sensing. Well, that's the key to that. That's the question before. And I believe the Court in Smith, United States versus Smith, the 10 circuit case that we're relying upon talks about that. You can't have judges having blinders to look at just the underlying crimes of violence and then doing so as the government is suggesting in this case, that's under 1028A. But 1028A has the additional point. Well, but you said you can't have this, but you can if we interpret the statute the way the government wants. And my argument is that the Congress could have written the statute to include what they include in 1028A. They didn't do so in this instance. Now, in terms of that analytical difficulty, there is inherent in this scheme a bit of double, a lot of double counting because the substantive crimes almost always in trying to judge the severity of punishment for that, you're always thinking of the gun. And that always adds to whatever analytically separate punishment you think should be given for the substantive crime. So there is a little bit of twisting of a judge by saying you have to somehow put yourself in the position of punishing this person without knowing that he's going to be punished for the gun anyway for 30 years and think of what the punishment should be without that punishment because the gun is present in both crimes, correct? Yes. The identity theft add-ons. One is for every crime except terrorism is only two years, correct? Correct. The aggravated identity. And in many ways it's punishing for a separate activity than merely the possession of identity theft items. Well, there are listed within the statute are the specified crimes that it would apply to. Yes, sir. Exactly. So the five years is for the terrorism. In those instances, yes. I would agree with that, Your Honor. If there are no further questions, I would ask to leave to have the rest of my time for the battle. Thank you, Council. Thank you, Your Honor. Mr. Yang, Mr. Chief Justice, and may it please the Court. Petitioner asked the District Court for a one-day sentence on his four non-section 924C felonies. That petitioner now concedes would be unreasonable without the 924C. Accepting his position would directly circumvent 924C's long-standing requirement that the courts would impose a specified additional and consecutive sentence beyond the punishment for the predicate solely for the choice to bring a gun. It would circumvent it. On the other hand, it seems to me that if you're talking about 30 years for an offense that the judge thinks merits a lot less, if Congress wanted to prevent circumvention, they should have written the law a lot more carefully. Well, I think it's true that Congress could have written it more clearly, but we think that Congress here, when you take a look at both the provisions of 924C and then read them in conjunction with the provisions of the Sentencing Reform Act, makes sufficiently clear Congress's intent that there be a- I'm not sure sufficiently clear as enough, I think, maybe indisputably clear. I mean, in your brief, you quote to be fair, that this is contrary to the thrust of 924C. And I'm not sure when you're talking about this amount of punishment, a thrust is enough. Congress doesn't pass thrusts, they pass language, and there's nothing in the language that prevents the judge from imposing a sentence, recognizing that the defendant faces 30 years already. I agree that thrusts are not a thing. We were quoting the court's decision-in-abit. But the court's decision-in-abit also says that the language compels the imposition of an additional- and I believe this is on 25 of the opinion- this is the unanimous opinion of the court. And I think the court recognized that when you look at 924C, particularly when you look at the drafting history from 1971 onward, where Congress was taking step after step after step to restrict the sentencing destruction- I didn't say it anywhere. This is not taken into account by the commission unless you can tell me there's a guideline on this particular application of the mandatory minimum and the statute and the guidelines both say a judge can depart for a reason, not taken adequately into consideration by the commission. So unless you can point to me someplace where they take this into consideration, although they might in the future, I would say they didn't take it into consideration at all. And therefore the language allows it, the language allows it, and indeed the theory allows it, because the theory is you could have a person there who's convicted of 19 multiple counts, you know, and the judge is given considerable power to work all this out so that you have overall a fair sentence. Now that's the whole argument. So what's your response? Well, I guess to the whole argument we have a few responses. But I think, first of all, on the guidelines point, the guidelines have taken this into account since the very beginning when you were on the sentencing commission. Where, where did we take this, what, where? Well, the guidelines specifically address in section 2K, 2.4, comment note 4. They talk about how do you calculate, and as well as in chapter 5, about determining a total sentence based on aggregate sentences, multiple terms of imprisonment. The guidelines said that what you do with the predicate is you determine the predicate under the guidelines, but you don't include the specific offense characteristic of the judge. I'm going to let you get back to a fuller answer to Justice Breyer, but that certainly cuts against you. The idea that they recognize that yes, you do have to look to the mandatory minimums. You should take that into account in imposing the sentence. And now you say when it gets down to what the actual sentence is, you can't look at the mandatory minimums at all. I don't think it cuts against us, isn't it? We're going to have multiple discussions about these various factors. First, I don't think the guidelines shed a lot of light on the statutory question here. If you were to disagree with our understanding of the guidelines, that would not mean that the statute's wrong. It means that the guidelines would have to give way. We are defending the commentary and the guidelines, which again have existed since the very beginning. We're proving that I was looking at 2.4. Right, I missed it. Where is the place on 2.4? Comment note 4. And then subsequently, this is all also cited in our brief back in the pages around the 40s when we discussed the guidelines. But about the guidelines and the statute, the guidelines would have to give way. And we are defending the commentary because we think not only have this commentary been around since 1987 when the guidelines were first sent to Congress, and have since been there. We think that there is a sensible distinction between the conduct that the court considers when determining the sentencing of the predicate, and knowing that the conduct is accounted for separately in the 924C, and considering the total aggregate sentence. That is something different. Congress specified where courts looked to the total aggregate sentence in Section 3584. In Section 3584, Congress said when there are multiple terms of imprisonment, the court shall, with respect to each offense, consider the 3553A factors when deciding whether to make the total sentence by making them concurrent or consecutive. But we know that Section 924C wholly removed that power, and in doing so, it removed the power of the court to tailor the total aggregate sentence, which is a power that was set in the government. The government must recognize that 924C can influence the sentence on the predicate offense because I do not correct in saying the government takes the position if 924C drops out if it is not approved. Then when it goes back to the district court, the district court can enlarge the original sentence for the predicate offense. And because we think, and this is what happens in courts, courts are applying the guidelines, which the guideline says, when you're calculating the sentence for the predicate, you ignore the offense conduct with respect to the gun because they don't want to double count it. But if you drop the 924C, it should go back for the court to consider the offense conduct as it considers the sentence for the predicate. This is reflected. I mean, I, my quick reading of four, I promise I didn't memorize the guidelines. I used to know them pretty well, but I don't know them perfectly by any means and never did. But it seems to me that comment four in 2K2.4 is saying that, that defendant, you have committed a crime and in our guideline as punishment for the crime. Part of it is increased because you had a gun. And so if we're going to apply the mandatory over here, which is our special statute here, don't apply that. But I don't see anything there that says you can't subtract. Well, when you go to 5G1.2, which governs the total sentence, the, when you have multiple offenses with terms of imprisonment, it says you calculate the total sentence with respect to the 924C's and then you tack on it. 5G1.2, I believe. This is addressed in pages, I think around page 42 of our brief, 43. I don't know if 42. No, you have one. So the point is the guide, this is the way that the guidelines have been applied. And they were applied in fact in this way, in this case. The district court calculated the sentence in guidelines, which is 480, 420, 5 months, based on the guidelines. And when it was disputing, that's what the guidelines required. In fact, they conceded that was the proper guidelines sentence in district court. And then the district court then varied downward. And I think the provision that you're talking about about 3553B. Part of that was, of course, rendered in operative. Under booker. And then what the court did here is a post-booker thing. It's not a technical departure, it's a variance because he's applying 35. No, he varied here. He varied down to 40 months. And then he additionally said, if I had discretion, I'd go down to one day. Because I think 30 years is enough. But that is essentially just a disagreement with the policy judge. No, that's harder for you. It's harder for you because after all, if it's a variance, he's not applying the guidelines. If he's not applying the guidelines, all this stuff in the guidelines, it supports you as out the window. And including the sentence I read. And if it's out the window, all we're trying to do is back where we started, is the statute, does the statute, which doesn't mention this, forbid it? Or is it otherwise? Well, I would fare. I guess, first of all, we're not relying on the. My fault, not your fault. We're not relying on the guidelines, that's an affirmative. We just wanted to point out in our brief, we think the guidelines are consistent. But what would you suggest in what to happen? I mean, presumably, the guidelines reflect an idea that there shouldn't be any double counting of the gun. So how does the court do the sentence on the underlying crime, taking away the fact of the gun? In other words, most robberies have guns in them, and the sentences are written to reflect that they have guns in them, don't they? Aren't they? No, actually, the guidelines take into account things like Hobbesack robbery, and separately account for the gun with the two-level enhancement. And so the guidelines range when you commit a Hobbesack robbery without a gun, will just be the standard Hobbesack robbery range. Now, there are going to be other offense characteristics if you injure someone, or these things can affect the problem. But what you think ought to happen is that the judge should say, okay, imagine a robbery without a gun. What would be a reasonable sentence for that? I think the judge should do, taken to account, the judges normally do under a real offense-sentencing approach, which is you look at the offense conduct, you look at the history and characteristics of the defender. Well, offense conduct, does that mean without a gun? But without the gun, we think the judge has discretion ultimately to either consider it with the gun, or not, because Congress hasn't expressly prohibited that. But the guidelines approach, which we think is permissible, is to consider it without the gun. And then the reason for that is the guidelines say Congress has separately provided, remember the legislative history, I think there are Senator Mansfield that was the main proponent of the relevant text, the very stringent sentence and provisions, made clear that the whole purpose of this was to impose this additional sentence and require additional time in prison solely for the choice to use the gun. So the guidelines- Well, that's an excerpt from the legislative history that it seems to me unimportant in light of what the 3553 says. 3553 A says, you know well, that the judge at the end of the day has to consider the need for the sentence imposed, reflect the serious of the offense and so forth. But the 3550 seems to me you're asking, as to say, that 924C really supersedes 3553. No. What we say is 3553 doesn't apply on its own terms. It doesn't apply on its own terms. If you look through the sentencing reform act, there are at least nine provisions, all of which when you're looking at a fine or imprisonment or probation or whatever it might be, the provision says the court shall and setting this sentence consider the 3553 A factors in addition with respect to multiple terms of imprisonment. And this is on page, I believe it's 5A of our, excuse me, 11A of our appendix. If you look at 3584B, it says the court in determining whether terms imposed to be ordered concurrently or consecutively, shall consider for each offense, remember this is multiple offenses, each offense for which a term of imprisonment is being imposed, the factors set forth in 3553A. So normally what happens is the courts will determine individual sentences. So you could have a sentence of seven years and a sentence of another seven years and then maybe once capped at five. And the court says, I've got these individual sentences, I sentence for each offense. What's the total sentence? You could make that five and seven and seven, you could make it 19 or you could just make it seven. It depends on whether you make them consecutive or concurrent. So the question about the total imprisonment when you have multiple terms of offenses with terms of imprisonment, 3554B affects that. And it says, that's where you apply the 3553A factors to determine the total length. But Congress took that power away. Congress took that total power away totally in 924C. By directing that you cannot do that, you must impose them consecutive. Well, that's why I don't understand your answer to Justice Kennedy because you said, no, you're not saying that 924C is 3553. I think you have to be saying that. You might still be right, but you have to be saying that there's this background principle, which is 3553, which is this parsimony principle and all these factors. And then 924 comes along and says, but not here. I guess in a sense we are saying that, but I don't think it operates directly on 3553A, because I don't think 3553A operates as a free-standing, free-standing provision. It comes into play at various points in the Sentencing Reform Act where the Court, the Congress, has said, you consider these factors in making this determination in setting, deciding whether to set on the amount of a fine, you look at the 35. But one way you might look at this, and this goes back to what the Chief Justice said, he said, well, when there's a 30-year sentence implicated, you better be pretty clear. And also, when you're legislating against a fairly strong background principle of 3553, you better be pretty clear that you're displacing that background principle. And here, you just have not been clear enough. You were clear enough in 1028A. We know what that looks like, but here you just haven't been clear enough to upset this background presumption. We think that it's clear enough because 3553A applies, for purposes of setting the total term of imprisonment, the only reason 3553A applies is because Congress provided that they are to be considered in 3584B in setting the consecutive or concurrent. And so that has been removed. That has been removed. If it were true that 3553A just generally was a free-floating provision that applied everywhere, then all the nine provisions of the Sentencing Reform Act that specifically say you must consider the 3553 factors with respect to these specific types of sentences would be superfluous. If this case had arisen before the Sentencing Reform Act was adopted, I think that Dean's argument would certainly be correct. Would it not? I think we would have a more difficult, the judge would have complied with the statute, the term wasn't consecutive. And than that, it was discretionary, so it was completely within the judge's discretion. I think what we would have to argue in that case is that the Congress would have known that the traditional place that judges determine the aggregate length of a sentence when there are multiple offenses carrying terms of imprisonment is in the determination that, whether the sentence is run concurrently or consecutively. And then you would have had a very tough argument. On the other hand, if this case had arisen before we decided Booker, if you read the guidelines correctly and it does seem to be, they do seem to say what you say they say, then you would clearly be correct. So we're in this kind of weird world that this court has created, where the guidelines are advisory, but then they're not advisory. And so that's why we have this problem. Is that correct? Well, I didn't want to say that because... Nobody but me would agree with you. We obviously accept Booker as the proper interpretation of the law of the Constitution. But I think what I would say is that the guidelines, there might be a slightly different analysis. And I think the guidelines would then provide yet an additional sentence to correct. The lack of beauty of the guidelines is there so artificial on so many levels. All right? What differentiates a normal theft from robbery is the use of force. And the guidelines in defining the guidelines range for theft starts at a much, much lower base level. Starts at a seven, okay? For a robbery, it starts at a base level of 20. Once you start with that huge difference between the use of force and the non-use of force, obviously the robbery guideline is always going to include the use of force. The fact that it might be with a gun as opposed to a knife as opposed to a threat of violence or whatever else you want to define it, the use of force is inherent already in the guideline calculation. Because otherwise that there's no reason they could have just had one table and said if you rob someone, if it was a pure calculation as you suggested without thinking about the gun, it would have been $20,000 is taken. We're all going to start at a offense level of five years and build up from there. But that's not what the guidelines do. So when you're taking discretion away from a judge, I think that's one of the reasons we often require specificity. Because the guidelines are artificial in so many different ways. And there are gyrations that we go through as judges to comply with dictates that are not often very clear. Well, I think I'm not here to criticize the guidelines. I think the guidelines have worked for quite some time and have brought some rationality to sentencing that didn't previously existed, which was an important thing. The guidelines post-booker, of course, advisory are advisory. That's what I'm trying to, I'm not criticizing, not criticism. I'm trying to figure out what's the right system, putting this case aside. Well, the guidelines, I'll try this. If the guidelines were here, it wouldn't be such a problem. Because they would have the commission could look into this and it could right take the factor into account and then we'd have $35,000, $53,000, and we'd follow that in the future unless it was irrational. But they're out the window. Okay, they're out the window because it was a variance. So now we're left with 924, the C, you know, the statute. And we're also left with the provision that says that a court of appeals has to look at a departure or a variance and see if it's reasonable. Is that the right word reasonable or rational or something? What's the word? Well, I think that you have to look to the reasonfulness of the sentence over there. What is there's a word in the appellate part when they're doing the review? Is it reasonable or un-you know? I'll look at that. I think it is reasonable. Yeah, I think it is, too. Okay, so now the word is a good word. Correct, correct. So that's the question in this case beyond the case is really how do we do that? And so what I would try out is it'll be obvious if you're right and the statute's clear. Okay, the 924C. Then you win. That's the end of it. That's what you think. I don't think it's clear. If it's not clear, what do we do? Well, I think that's the end of it. And now what about looking, looking to see what the commission said about it? Noting that this is an individual case, not general, not general, where the district court has more power, or other things. Now you tell me, those are floating around in my mind. I'd like to know what's floating around in your mind. I don't believe the commission gets any deference with respect to the construing federal statutes. So, what's the respect to the guidelines? Yes, but what's the respect to construing federal statutes, I don't think so. And so what we're back to is 924C and its interaction to the various provisions of the Sentencing Reform Act. The key provisions, they rely on 3553A and they say, well, you have to consider all these factors. But 3553A applies in very specific places of the Sentencing Reform Act, including when there are multiple terms of imprisonment and a court has to decide what the total imprisonment is going to be. That's 3584 and that's been taken away because Congress took away the power to have concurrent sentences. If you think the case is resolved at a higher level, it seems to me that your friend has a very good technical argument. This says these sentences have to run concurrently. One day they run concurrently, end of case. And your argument is, you know, you look at the drafting history, the commentary to 2K, 2.4. All the other arguments you've got and the basic one is, well, that's technically correct, but it's obviously not what Congress had in mind. Congress obviously had in mind adding the mandatory onto a normal sentence one way or another under the guidelines and all the provisions we've been talking about. So if you view the case that way, technically correct, you know, contrary to the obvious policy, what case can you give me to tell us how to approach a conference? I think it's a very significant case. Well, what's your best case where you have a very significant sanction in the balance and you have technical compliance on one hand, but clearly contrary to the purpose? We don't think that they're technically correct. No, I understand. We think that there is a plausible argument that they make on the text, but we think that the proper approach is you always have to approach statutes holistically. You look at the statutory text, you look at the Congress structure, the context, the legislation. Well, the context, the legislation is like, I mean, you insist when citizens deal with the government that they turn square corners, and I think it's right for a criminal defendant when they're facing 30 additional years to insist that the government turn square corners. Well, I think what you might be referring to is the principle of lenity, but the court has repeatedly emphasized, I think, a Bransky, one of Justice Tagan's recent opinions explains this, that lenity lies only if there's a grievous ambiguity that you met at the end of the day. You have to have to go to a principle of lenity for Mr. Stoler to be right. I mean, you would just say, and this is very much along the lines of what the Chief Justice was saying, you would just say something like, look, if we're going to be strictly textualist here, this does not have the kind of requirement you wish it had, which is to say it doesn't have the language that's in 1028A. Your essential argument is that, red Mr. Stoler's way, this would utterly eviscerate C1D2, the consecutive requirement, and I'm quite sympathetic to that. But there's still this question of, when a statute doesn't say what you would like it to say, and you're reduced to saying, if you read it the other guy's way, it would eviscerate what we meant when we passed another provision. You know, what should we do, and where do you point us? I would say that it's true that it eviscerates the purpose and the whole structure of the statute, but the statute says a lot by removing authority. So the question is, what authority was removed? I think it's helpful to look at page 11 of the government's appendix. It's 3584. 3584B governs discretionary decision of a judge when there are multiple terms of imprisonment. How do you decide the total length? The total length is set by making them concurrent or consecutive. And 3554B, or 3584B, sorry, specifically says that in deciding the total length by making consecutive concurrent, you apply the factor set fourth and 3553A. That's what they rely on. But 924C removes that authority. 924C removes the authority to be able to set the total length of imprisonment when there are multiple terms of imprisonment. So you're saying that in this case, the judge said, I can't look at 3553A. No, he does. The judge, there are various other places for the total. Other than for the initial downward departure. But for the total, you can look at 3553A and setting the individual terms. But Congress separately addressed how you make those terms, how you add them, make them, the total, it depends on the aggregate, right? Would you add them or run them concurrently with each other? So that is what 3554B addresses. And that's where the 3553A factors are applied. But Congress took that authority away. That's what I think speaks volumes. And when you look at the structure of the Sentencing Reform Act, the Sentencing Reform Act kind of has a modified real offense sentencing approach. So you take a look at the offender, the characteristics of the offender, the history, not only the offense conduct, beyond this particular offense conduct, you go broadly like what's all the relevant conduct? You're asking the judge to say in calculating the sentence for the underlying offense. I'm going to look at all of these factors. Frankly, it's meaningless because what I'm going to do in 924C. But I'll do something meaningless. No, no, no, not at all. If, for instance, the judge would say, as in this case, an appropriate sentence is 40 months. The judge says an appropriate sentence for each of these four has a 40 month term. In a normal world, if there was also a five year sentence, the judge would then go to 3554B. And so I'm going to consider the 3553A factors to decide if I'm going to add that 40 to the five years, or I'm going to just run them concurrently so that it's five years total. That's what normally happens. Section 924C says you can't do that. You have to add it. It is, in addition to the punishment, the punishment for the predicate offense. And so we think that simply underscores what has always been the thrust, the understanding of 924C. It is a harsh provision. There is no doubt. But Congress intended that to be harsh because of the extreme danger presented when you add a gun to either a crime of violence or drug trafficking offense. And Congress made that determination that it's going to be at least five additional years for the gun. And if there's a second or subsequent, 25 years. Disagreement with that length of an imprisonment, simply circumvent what Congress was doing in 924C. If you're in the realm of what's reasonable, the judge is looking at. Well, you are under the appellate provision because he's varied from the guidelines. Of course, you have to give the mandatory minimum. There it is, the gun, 25 years. And now the judge thinks, you know, this is way beyond what this guy did. It's fine for the gun, but his total conduct here doesn't warrant such a long sentence. On a pallet. So in the other part, it's a reasonable thing given this individual who may suffer certain individual things, dot, dot. The reasonable thing to give him one day. Congress made the determination. You don't do a reasonable thing. No, I would, I know. If I think that, then you win that's the end of it. And that's why, you know, when you have a predicate offense that Congress said, add his additional mandatory arm. And you don't look to the length of the total because maybe, maybe 30 years in the judge's view is not reasonable. But Congress required that. That is a separate, that is for Congress to decide what the minimum is going to be for the 924C. What would be reasonable is when you take a look at the predicate offense and you say, would this be a reasonable one day for four felonies? Would that be reasonable? And the answer to that is, of course not, as my brother conceded in his argument. So again, I think the whole, the idea that a judge would go down to one day because of a disagreement with the length of the mandatory minimum, simply succaments the statute and inconsistent with 924C's text. Thank you. Thank you, Council. Five minutes, Mr. Stoller. There's no affirmative ban in district courts considering 924C sensing when considering the predicate offenses. And again, the overarching theme of discretion and parsimony, prevents. Council for the government seems to indicate that we look at 3584B. We agree that it limits that there has to be that 30-year consecutive sentence. But it just guides the court's discretion with respect to the 3553A factors. It doesn't say that it only apply to each count not the aggregate sentence. And you look at 93584 and you read the third provision, it talks about the aggregate sentence in itself. So the reliance by the government on 3584 is, we say it is misplaced and does not affect whether or not the total sensing scheme with the parsimony requirements put on ends the result of the court determining what's sentence is sufficient but not greater than necessary. We don't quarrel the 30 years must be imposed under the mandatory minimums. What we do quarrel with is whether or not the court should be able to take that those factors in consideration as well as all those other factors that are set forth in 3553A, 3551, 3661, which gives us the determination to be made as to what should be the appropriate sentence in this case. There's no other questions. I'll ask you now. Thinking of as at a deep level of what Thomas Reed Powell said about the law, he wants us to think of this second part, you know, as related. But really, no, look at the second part, keep it totally separate and the statute means that the part about robbery has to be done separately. Reed Powell said if that you can think of a thing that is inextricably related to another thing without thinking of the thing to which it is inextricably related, you then have the legal mind. That's what he wants us to do. He says that's what the statute requires. And we submit the statute. Shouldn't we read that way in this instance, you know? Do you think it matters that it's a 30 year mandatory minimum? What if it was a one year mandatory minimum, would the result be different? It may. I mean, that's the court's really? Well, it may be different from the standpoint, I mean, no, the one year has to be imposed. A year and a day would be up there. If, under the total test of reason on us and applying the factors that the court's supposed to apply, makes that decision that he thinks that's the appropriate sentence, that that may be right, but it's going to be subject to the test of substance of reason on us on appeal. And the here and the instance, it's a different scenario because it's 30 years, you know? And that's what works out. Thank you, Council. The case is submitted