Legal Case Summary

We're with us here. Amen. First matter is United States versus Ducin. Sir. Good morning. I may have pleased this court. My name is Robert Epstein. I'm here today on behalf of the appellant, Mr. Jason Dusson. With the court's permission, I'd like to reserve three minutes of my time for a bottle. Thank you, Your Honor. The first issue on this appeal concerns acceptance of responsibility. Did the district court commit legal error in denying Mr. Dusson an acceptance credit? The district court, in ruling on this matter, said that- Sir, a PSR said he was an eligible. You want to address that as to whether he is eligible for consideration for acceptance of responsibility because of the grouping here? He is eligible, Your Honor. I don't think there's any dispute from the government on appeal, which is different on the position they took below. But on appeal, as they seem to concede that Mr. Dusson is, in fact, eligible for an acceptance credit. The probation officer, the district court said the probation officer got it exactly right. I think he was mistaken

. The probation officer got it wrong. The probation officer relied on this court's decision in the United States versus McDowell. McDowell was a special situation because in McDowell, there was a guideline provision that said that if the defendant subborn perjury, he cannot get acceptance regardless of all other factors. There's no provision like that at issue here. Whether or not he was eligible, though, didn't the district court have discretion in this matter? Absolutely, Your Honor. But what the district court didn't do is do the right analysis, which is this court said in the United States versus Cohen, which Judd Sverger, you are my panel on, I understand. What this court said in Cohen was that a district court has to consider the totality of the situation. And in that case, the defendant went to trial on 25 out of the 28 counts of the indictment. But this court in Remaining said the district court could still give an acceptance credit, the government had appealed in that case. What did the district court miss here? I mean, he committed a crime while he was out on, while he was awaiting sentencing for the first crime. He was continuing his criminal activity in a different area, of course. Well, that's true, Your Honor. But what the district court didn't consider in finding that he was ineligible, the district court didn't consider that Mr. Dussan provided immediate confessions to both of the offenses, that he entered extremely timely guilty plays. It's filed no motions within its discretionary matter, isn't it? It is absolutely discretionary. And we do not dispute that on Remain, the district court considers the totality of the situation and concludes that Mr. Dussan did not accept acceptance. That's within his discretion. But it would also be completely within his discretion to award acceptance here

. And what this court held in Cohen and what it held in McDowell was that a district court is obligated to look at the totality of the situation in deciding whether or not acceptance is warranted. The district court simply didn't do that here. The district court believed that the probation officer was right in concluding that Mr. Dussan was quote unquote, ineligible for an acceptance credit. The other key factor here in determining. Could one make an argument that you have harmless error here? Let's assume it is error, that he is eligible. And you do have to look at the totality of the circumstances. Other than the fact that he accepted responsibility. When you look under the, I mean, he gets a huge benefit by virtue of grouping. Correct. I mean, he, in other words, one is a 30, one is a, what, 13 is that correct? That's correct. So you don't add them together. You just look at the 30. Right. And that's because the drug offenses are somewhat more severe. Correct. And the counterfeiting of that. But having gone and committed a very significant drug crime, afterwards, and you look at all the other circumstances, is there any way you think this court, the district court, would even consider in the balancing act granting acceptance responsibility? Absolutely, Your Honor. Again, this is a defendant

. The first factor under 3E1.1 is does the defendant truthfully admit his conduct. And then the last factor is how timely this is in mission. Is it a defendant who immediately confessed about the offenses? Is it a defendant who entered extremely timely guilty pleas, saving the defendant, the government, the expense of going to trial in these cases? That's a very key consideration in determining acceptance. And then another key factor here is that it was undistuted, that Mr. Hussain accepted responsibility for the much, much more serious drug offense. To the extent that the committing an offense, wall-on-preetrial release, is a factor, a negative factor, in determining whether or not he accepted responsibility for the counterfeiting offense. It's not a negative factor with respect to the drug offense. And it was undistuted that with respect to the drug offense, he accepted responsibility. That is the offense that's driving the sentence here. That's the offense that has a 30 offense level. With the offense level here and the criminal history, it's what, 97 to 121 months if you have a 30. And you're saying 30 should be 28, is that right? Yes, Your Honor. And 28 would get you what sentence in range? It would get us 70 to 87. So it can make a very significant difference in this case. And I think it should be the district court that, in the first instance, considers the totality of the situation and analysis that the district court did not get to here, is the district court followed the probation officer in finding that he was ineligible, which I think we all can see everybody agrees now with mistake in. Could you also address the third issue, which is the consideration of the 3553A factors? Yes, Your Honor. The district court here did not address the 3553A factors whatsoever in explaining his sentence. And even more fundamentally, he didn't acknowledge and respond to the arguments that the defense council had made regarding those factors

. The defense council had asked for a below guideline sentence in part on the fact that Mr. Ducant had tried to cooperate, which I neglected to say, is also an extremely important consideration in terms of acceptance of responsibility. He participated, he tried to cooperate with the government, he participated in monitored phone calls, he tried to set up a controlled delivery of the drugs and the next purchaser along the line. So that's an extremely important consideration in terms of the 3553A factors. Now, district court never acknowledged it and never responded to it. I agree that after the court said that he wasn't sure that he was being told the whole truth, he then went right to sentencing. But when you look prior to that in the hearing, can't we glean from the many statements made by the sentencing judge? Here, what his reasoning would be under 3553A? I don't think so, Your Honor. And I think what Your Honor is referring to is the fact that the district court in responding to some of the family members, when the family members were asking for mercy and for the possibility of House arrest, the district court said this is too serious an offense for House arrest. And the government sees it on to that and says, well, he did assess one of the factors under 3553A, the seriousness of the offense. But it's very different context. It's one thing to say this is such a serious offense that he can't get House arrest. It's another thing to explain your sentence and explain why this is the minimally sufficient sentence. The sentence that's sufficient but not greater than necessary to achieve the purposes of sentencing. The district court did not do that. And I don't think it's fair. I don't think it's right to take his remarks with respect to the issue of House arrest and carry them over to the explanation of sentence that he didn't provide. The district court, you think there was a chance that the district court was going to give a House arrest sentence here? I didn't. Oh, no, no. And the defense council, any requesting a sentence, I'm sorry, but the defense council wasn't requesting House arrest

. She was requesting a sentence at 60 months. Yeah, but he went into great detail about on the minimal involvement in the crime. And it was pretty clear from his analysis that he did not regard Mr. Dusan as a minimal participant outlined several factors. I think you're cutting short the district court's analysis here a bit. This is an experienced district judge. Both in the state trial courts and the federal trial courts. He's. Yes, sir. But to the extent that we can take some remarks by the district court and say that there were some explanation for the sentence. That doesn't relieve him of the responsibility of responding to defense council's arguments as to why there should be a below guidelines sentence. Whatever the district court may have said about his role doesn't relieve the district court of the obligation to respond to the argument about him cooperating Mr. Dusan cooperating with the government in being deserving of a lesser sentence. But that can be that obviously he thought that the subsequent crime trumped that that degree of cooperation. But we don't know that all we know on the first issue is that he believed that Mr. Dusan to be an eligible will see if the government can help on that issue. Yes, Your Honor. One of the other arguments that defense council made as to a lower sentence was that Mr. Dusan was addicted to cocaine

. Now where's that in the record that he. Defense council made made that proper to the district court. The district court. Is there anything in the record that supported that? Not beyond the proper, but the district court obviously accepted the proper because the district court is a condition of his supervised release ordered drug treatment and testing. But when he when he was interviewed in connection with the pre sentence report. Did he tell the probation officer that he had a drug problem? Not that I'm aware of your. No, but he obviously told defense council who made that known to the court and the court accepted it in ordering drug treatment and testing for him. There's a possibility he what one he didn't tell the. Pre sentence officer or probation officer excuse me. But it also may be an indication in the record here that he took the other. A tack that he didn't have a cocaine problem. I'm sorry that the probation officer. Yeah, that he. Dusan did not have a cocaine problem. We simply don't know your honor and see that that's the problem where the district court doesn't go through the 3553 analysis doesn't respond to defense council's arguments. The public court is left to speculate as to what the state of the record really is. That's why this one of the main reasons this court has insisted upon the district court explaining its sentence going through the 3553 factors and responding to the arguments of the defense attorney. Yeah, I'm just saying my point is that waiting to the sentencing hearing for counsel to make a statement without there being anything relating to cocaine use in the precentance report or elsewhere. Well, that doesn't seem to get you very far

. Council did make that representation in the sentencing memorandum as well. There was daily cocaine use and that was the precipitating cause of Mr. Dusan's involvement in the drug conspiracy. I see my time is just about up so unless there are any further questions from the court. Thank you, Mr. Youngerbough. Thank you. It's Newton. May I please the court? My name is Katie Newton. I represent the out the Lee and the Smattered United States of America. This court's being asked today to review the very careful and thorough determinations that were made by a very experienced district court judge of the sentencing hearing. The district court judge who looked at a defendant who after pleading guilty to counterfeiting charges. You agree on the acceptance responsibility or that he is eligible for consideration? Absolutely, Your Honor. And the government's position is that while the probation officer may have inarply expressed the term of ineligibility, it's very clear that Judge Davis... The probation officer said specifically ineligible and the judge said specifically that the PSR got it, quote, exactly right, close quote. That is correct, Your Honor, but the district court judge also said of the sentencing hearing in a colloquial with defense counsel. That other judges have denied acceptance of responsibility for these reasons

. Judge Davis also said very clearly, I think this is a fair treatment. This is an experience just for a judge who knew what his obligations and discretion were. You may be right. And if I were to place a bet, he's not going to give acceptance of responsibility based on the total of the circumstances. But don't you have to jump through that hoop procedurally? Your Honor, believe that the record is clear enough that we do not need to remain this case for Judge Davis to essentially make the same determination again. Where did he go through the other circumstances that one were taken to account in denying the acceptance of responsibility? Your Honor, what Judge Davis did look at? Judge Davis had a colloquial with defense counsel on this issue. And in this issue, defense counsel admitted that the court had the discretion. If this court is going to look at this as a legal error, the Judge Davis legally did not understand this obligation, this should be reviewed under a plan error standard. It was not clear in a pellets opening brief what standard we should be looking at. As the government believes that this was a factual question and the judge exercised properly his discretion to deny acceptance of responsibility, that should be reviewed under a clearly erroneous standard. But in looking at the record, very clearly at page 110 of the appendix, the District Court asked many judges reject acceptance of responsibility when defendant commits crimes later. And Defense counsel admitted that the District Judge would be within his discretion to deny acceptance of responsibility. When there is a later crime, would seem to ignore that you must follow a totality of the circumstances analysis. That is, you have to balance the good and the bad. Where did the balancing take place here? Your Honor, believe it, it's inherent in the record in looking at the Judge Davis did do the balancing by recognizing the crimes that he admitted earlier, his cooperation guilty plea and then his determination to commit later crimes after that point. All of this comes into the totality of the circumstances. Well, what you've got is on this one you've got a counterfeiting crime, the person admitted that he had done very quickly. You have a drug crime, the person admitted accepted responsibility very quickly and in fact cooperated. And so it was not something that was, you know, drug out of him, he, he, he fast up

. And normally one gets a two level down, you go down two levels. And in order not to do that, you need to do some balancing. And the only thing I can find in the record is the court seemed to think that he was ineligible for that because he committed a second crime after he was out on bail for sentencing relating to the first crime. Your Honor, that is certainly one interpretation with the District Court said. Acceptance of responsibility and also recognizing that he believed not allowing acceptance in this case was a fair treatment. And looking at the totality that we also have to recognize that if we gave acceptance of responsibility after putting all this together, combining the offenses and doing the grouping, essentially Mr. Dusson receives a complete discount for his counterfeiting offenses. I'm allowing simply that the two point there's no doubt he got a benefit that that's what happens with grouping here. But when you look at the application though to 3 E 1.1 A, it lists a host of factors 1 2 3 4. Looks like 6 or 7. And I don't see any any any discussion of any of those. Your Honor, the factors will be relevant in this case would be Mr. Dusson's truthfully admitting the conduct that he had committed. Another factor would be his voluntary withdrawal or termination of criminal activities. The judge certainly looked at both of those and the judge in his discretion was certainly entitled to determine that he believed the lack of voluntary withdrawal from criminal activity outweighed his admitting what he had done. One of the other considerations is voluntary assistance to authorities. Rehabilitative efforts. The timeliness of his conduct and manifesting acceptance responsibility, which we said was quick

. And also his cooperation with regard to to others. Your Honor, with respect to the cooperation there is nothing on the record that indicates Mr. Dusson ever provided any real cooperation in terms of the counterfeiting offenses. And in fact, instead he went on to drug trafficking. In addition, what is on the record is that Mr. Dusson said he wanted to cooperate with respect to the drug trafficking but was unable to do anything. Mr. Dusson, after he was arrested, tried to run a red light, tried to escape, and after he was caught by authorities he was detained. Mr. Dusson, therefore, was not a we cannot determine what post rehabilitative conduct Mr. Dusson would have undertaken, what withdrawal he would have taken from further criminal activities. Because he had no choice anymore. And with respect to the district judge indicate that those factors were not present and therefore he didn't have to consider them. Your Honor, the district court did not specifically stay those. It was not addressed by either counsel. The district court addressed the what we have brought out by both counsel with respect to acceptance of responsibility. What's troubling about this case is that the probation officer said he's ineligible for probation because of his continuing criminal conduct. And how do we know from this record that the district court was convinced by that that he was ineligible? Your Honor, we have a very experienced district court judge who did acknowledge that it is- What's in the record that demonstrates to us that he was aware that he was eligible? The fact that the district court judge said that this was a fair treatment that he was given to the defendant, the fact that the district court judge that other judges had denied this, shows that the judge was making a choice. He didn't say, I am forbidden from giving acceptance of responsibility. He didn't say the law does not allow me to give acceptance of responsibility. The other thing we do- We also have to look at is that looking in the totality of the circumstances here in any event, when you look at what happened later on, there is no question as to what the district court would do in this case specifically giving the litany that he did and is colloquy with the defendant certainly at the end of the sentencing hearing. Remember, the defendant did not ask and the defense counsel did not ask when the judge was discussing acceptance for a chance for the defendant to speak at that time. The defense counsel did not raise at that time that the defense counsel believed that this was a legal error that the judge was making. Instead, the defense counsel also viewed this as the judge exercising his discretion at that time. Clearly, in the colloquy that the judge gave us had with Mr. Ducon later, it was very obvious that the judge did not believe what Mr. Ducon was telling him. The judge did not believe with respect to the involvement with Vimer Rodriguez, who Mr. Ducon had described as the person who was going to sell the drugs, the person who was really more responsible when Mr. Ducon admitted that he was the one who had brought Vimer Rodriguez into the counter-fitting scheme. That goes on to the minor role adjustment. I guess, on my case, I probably beaten the acceptance responsibility of death. If there's no further questions, I'd like you to turn to what the district court did in going through the 3553 A factors. Your honor, this was a district court judge who should be commended for the thorough care that he took in this colloquy with the defendant. Although the judge did not go through at the end, the litany of what the factors are, and looking at the colloquy he had with the defendant, it is clear the care that he took. He discussed specifically with other witnesses, and in Mr. Ducon's presence, of course, the fact that how serious these offenses were, the high quality of the paypal. Well, this is one through him

. He didn't say the law does not allow me to give acceptance of responsibility. The other thing we do- We also have to look at is that looking in the totality of the circumstances here in any event, when you look at what happened later on, there is no question as to what the district court would do in this case specifically giving the litany that he did and is colloquy with the defendant certainly at the end of the sentencing hearing. Remember, the defendant did not ask and the defense counsel did not ask when the judge was discussing acceptance for a chance for the defendant to speak at that time. The defense counsel did not raise at that time that the defense counsel believed that this was a legal error that the judge was making. Instead, the defense counsel also viewed this as the judge exercising his discretion at that time. Clearly, in the colloquy that the judge gave us had with Mr. Ducon later, it was very obvious that the judge did not believe what Mr. Ducon was telling him. The judge did not believe with respect to the involvement with Vimer Rodriguez, who Mr. Ducon had described as the person who was going to sell the drugs, the person who was really more responsible when Mr. Ducon admitted that he was the one who had brought Vimer Rodriguez into the counter-fitting scheme. That goes on to the minor role adjustment. I guess, on my case, I probably beaten the acceptance responsibility of death. If there's no further questions, I'd like you to turn to what the district court did in going through the 3553 A factors. Your honor, this was a district court judge who should be commended for the thorough care that he took in this colloquy with the defendant. Although the judge did not go through at the end, the litany of what the factors are, and looking at the colloquy he had with the defendant, it is clear the care that he took. He discussed specifically with other witnesses, and in Mr. Ducon's presence, of course, the fact that how serious these offenses were, the high quality of the paypal. Well, this is one through him. I mean, did he Mr. Epstein's mentioned the cocaine use that he discussed that at all? Your honor, he did not, and there is a very simple reason he did not. There is, as your honor recognized, there is no mention anywhere in the record with the exception of defense counsel making a representation that Mr. Ducon suffered from cocaine abuse. Mr. Ducon himself, in the colloquy, never mentioned cocaine abuse. In fact, he said he got involved with the cocaine and heroin trafficking because he didn't have enough money for his rent. There is, however, mention in the Presentance Report that Mr. Ducon did have some drug issues. He told the probation officer that he had a problem with alcohol and that he had a problem with marijuana. As a result of those, the judge did order drug treatment for Mr. Ducon as part of his sentence. But the fact that defense counsel then stand and say with no basis in the record that Mr. Ducon suffered from cocaine abuse, certainly it's not an argument that the judge would need to make any more specific findings on it. Of the 35-53-A factors, why don't you run down through where you think he addressed the relevant ones? First of all, I guess, why don't you tell us which ones you think are relevant and where he addressed them in the record? Your honor, certainly, the judge addressed the seriousness of the offenses by Mr. Ducon. One with respect to the high quality of the counterfeiting that was done. Second with respect to the seriousness of the drug trafficking that was done. The judge was very careful and discussed almost two kilograms of heroin that Mr

. I mean, did he Mr. Epstein's mentioned the cocaine use that he discussed that at all? Your honor, he did not, and there is a very simple reason he did not. There is, as your honor recognized, there is no mention anywhere in the record with the exception of defense counsel making a representation that Mr. Ducon suffered from cocaine abuse. Mr. Ducon himself, in the colloquy, never mentioned cocaine abuse. In fact, he said he got involved with the cocaine and heroin trafficking because he didn't have enough money for his rent. There is, however, mention in the Presentance Report that Mr. Ducon did have some drug issues. He told the probation officer that he had a problem with alcohol and that he had a problem with marijuana. As a result of those, the judge did order drug treatment for Mr. Ducon as part of his sentence. But the fact that defense counsel then stand and say with no basis in the record that Mr. Ducon suffered from cocaine abuse, certainly it's not an argument that the judge would need to make any more specific findings on it. Of the 35-53-A factors, why don't you run down through where you think he addressed the relevant ones? First of all, I guess, why don't you tell us which ones you think are relevant and where he addressed them in the record? Your honor, certainly, the judge addressed the seriousness of the offenses by Mr. Ducon. One with respect to the high quality of the counterfeiting that was done. Second with respect to the seriousness of the drug trafficking that was done. The judge was very careful and discussed almost two kilograms of heroin that Mr. Ducon was involved with. And more than one kilogram of cocaine that Mr. Ducon was involved with. The judge also discussed Mr. Ducon's view of what he had done, whether in looking at his remorse or his view or essentially the deterrence factors. When he said that he did not believe that Mr. Ducon was still telling the truth, that he had trouble, that he thinks he got some version of telling the truth, but it wasn't the entire truth. The judge also looked at the need for rehabilitation for Mr. Ducon, looking at the fact that he did suffer from some drug abuse with respect to marijuana and alcohol, and respect that he did then look at what should be done to help Mr. Ducon with respect to that. The judge also looked at what his past employment history had been. When through with Mr. Ducon what he had done, that his position says delivering pizza, his position is in working with Mr. Rodriguez. The judge looked at all of these factors in a very detailed, in a very detailed quality. Did he talk about disparity of sentencing at all under A6? The judge did not specifically talk about disparity of sentencing but your honor. The judge gave a within guideline sentence. As the Supreme Court has said in Rita, you can presume that this is a reasonable sentence. In fact, the judge specifically stated that even though he didn't believe he had gotten the whole truth from Mr

. Ducon was involved with. And more than one kilogram of cocaine that Mr. Ducon was involved with. The judge also discussed Mr. Ducon's view of what he had done, whether in looking at his remorse or his view or essentially the deterrence factors. When he said that he did not believe that Mr. Ducon was still telling the truth, that he had trouble, that he thinks he got some version of telling the truth, but it wasn't the entire truth. The judge also looked at the need for rehabilitation for Mr. Ducon, looking at the fact that he did suffer from some drug abuse with respect to marijuana and alcohol, and respect that he did then look at what should be done to help Mr. Ducon with respect to that. The judge also looked at what his past employment history had been. When through with Mr. Ducon what he had done, that his position says delivering pizza, his position is in working with Mr. Rodriguez. The judge looked at all of these factors in a very detailed, in a very detailed quality. Did he talk about disparity of sentencing at all under A6? The judge did not specifically talk about disparity of sentencing but your honor. The judge gave a within guideline sentence. As the Supreme Court has said in Rita, you can presume that this is a reasonable sentence. In fact, the judge specifically stated that even though he didn't believe he had gotten the whole truth from Mr. Ducon, nonetheless he was going to impose a within guideline sentence of 100 months, which certainly was at the lower end of the guidelines that Mr. Ducon was facing. The Supreme Court recognized to Rita that the district court in making its determination of within guideline sentence is also looking at or taking into consideration all the factors that the sentencing commission had already laid out. Therefore, the district court in going through very carefully and in a very detailed manner with Mr. Ducon what he believed was important, it's clear by imposing a guideline sentence that he was taking into consideration the proper factors. How much discussion was there of the sentencing guideline range? Your honor there was in the beginning of the colloquy with Defense Counsel and with government counsel the judge went through the guideline range. The judge also, I guess, discussed that guideline range at the end of the colloquy with Mr. Ducon. So specifically the range was discussed and there were no objections with the exception of the three levels that the defense counsel had asked for for acceptance of responsibility. And the additional levels of the defense counsel had asked for for a minor or for minimal participation. Other met the both counsel agreed that the guideline range was properly calculated and the court has specifically put that on the record. And some your honor. This court has stated that there is nothing to be gained by a remand when the district court would only articulate again what it was already made clear. And in looking at the sentencing hearing as a whole, it is very clear that Judge Davis took time with the defendant, looked at the facts, spent a great deal of time with the defendant and with counsel. Did the court counsel made it, did mention it, the sentencing, did he not that Ducon had attempted to assist authorities? Is that correct? Your honor whether it was a mention may, then Mr. Ducon had attempted to assist authorities by trying to make the calls. No, it obviously did rise to the level of a 5K 1.1 departure or a motion by the government. But did the court address that at all? Your honor the court heard what Defense Counsel said

. Ducon, nonetheless he was going to impose a within guideline sentence of 100 months, which certainly was at the lower end of the guidelines that Mr. Ducon was facing. The Supreme Court recognized to Rita that the district court in making its determination of within guideline sentence is also looking at or taking into consideration all the factors that the sentencing commission had already laid out. Therefore, the district court in going through very carefully and in a very detailed manner with Mr. Ducon what he believed was important, it's clear by imposing a guideline sentence that he was taking into consideration the proper factors. How much discussion was there of the sentencing guideline range? Your honor there was in the beginning of the colloquy with Defense Counsel and with government counsel the judge went through the guideline range. The judge also, I guess, discussed that guideline range at the end of the colloquy with Mr. Ducon. So specifically the range was discussed and there were no objections with the exception of the three levels that the defense counsel had asked for for acceptance of responsibility. And the additional levels of the defense counsel had asked for for a minor or for minimal participation. Other met the both counsel agreed that the guideline range was properly calculated and the court has specifically put that on the record. And some your honor. This court has stated that there is nothing to be gained by a remand when the district court would only articulate again what it was already made clear. And in looking at the sentencing hearing as a whole, it is very clear that Judge Davis took time with the defendant, looked at the facts, spent a great deal of time with the defendant and with counsel. Did the court counsel made it, did mention it, the sentencing, did he not that Ducon had attempted to assist authorities? Is that correct? Your honor whether it was a mention may, then Mr. Ducon had attempted to assist authorities by trying to make the calls. No, it obviously did rise to the level of a 5K 1.1 departure or a motion by the government. But did the court address that at all? Your honor the court heard what Defense Counsel said. The court did not make any other specific comment with respect to the fact that Mr. Ducon had tried to make some phone calls. And as a court recognized, the government most certainly did not make a motion because Mr. Ducon had not provided substantial assistance to the government with this respect. But how are we to take this into account in terms of weighing reasonableness, realizing that there is a significant difference given to the sentencing judge. When we don't know a whole lot of what went through the judge's mind, we're trying to use my words with regards to Mr. Epsity. We're trying to glean from statements he made during the course of the sentencing hearing, but when the actual sentence was given, it was there was literally next to nothing other than I'm not sure I'm getting the whole truth. That is correct with the very last statement that the judge made. That's what he said. But the court is required and should look just at that last statement. Simply by giving a litany at the end doesn't mean the judge took any more care. But I think the court does need to take a look at everything that the district court addressed in the district court said and the district court looked at throughout the course of a lengthy sentencing hearing. And when that is done, the government believes that it is clear that the judge was very careful in his determination as to a guideline sentence that is presumed by this court or can be presumed by this court to be a reasonable sentence. And nothing takes, there's nothing presented that takes his sentence outside of that presumption of reasonableness here. Could not one look at this sentencing transcript and make the link response in reviewing it that what really happened here was the judge perceived that this person either wasn't being completely serious with him or wasn't giving him the whole truth and got a little upset. And as a result, just went straight to the sentence, didn't pass through any of the hoops and the question then becomes is that enough? But isn't that a possible reading of this transcript? The judge was getting a little irked at what he perceived to be a person up for a second or a second crime, I should say, two crimes together. And he didn't think that this person was necessarily being straight with him. Your Honor, certainly as a possible reading

. The court did not make any other specific comment with respect to the fact that Mr. Ducon had tried to make some phone calls. And as a court recognized, the government most certainly did not make a motion because Mr. Ducon had not provided substantial assistance to the government with this respect. But how are we to take this into account in terms of weighing reasonableness, realizing that there is a significant difference given to the sentencing judge. When we don't know a whole lot of what went through the judge's mind, we're trying to use my words with regards to Mr. Epsity. We're trying to glean from statements he made during the course of the sentencing hearing, but when the actual sentence was given, it was there was literally next to nothing other than I'm not sure I'm getting the whole truth. That is correct with the very last statement that the judge made. That's what he said. But the court is required and should look just at that last statement. Simply by giving a litany at the end doesn't mean the judge took any more care. But I think the court does need to take a look at everything that the district court addressed in the district court said and the district court looked at throughout the course of a lengthy sentencing hearing. And when that is done, the government believes that it is clear that the judge was very careful in his determination as to a guideline sentence that is presumed by this court or can be presumed by this court to be a reasonable sentence. And nothing takes, there's nothing presented that takes his sentence outside of that presumption of reasonableness here. Could not one look at this sentencing transcript and make the link response in reviewing it that what really happened here was the judge perceived that this person either wasn't being completely serious with him or wasn't giving him the whole truth and got a little upset. And as a result, just went straight to the sentence, didn't pass through any of the hoops and the question then becomes is that enough? But isn't that a possible reading of this transcript? The judge was getting a little irked at what he perceived to be a person up for a second or a second crime, I should say, two crimes together. And he didn't think that this person was necessarily being straight with him. Your Honor, certainly as a possible reading. The government does not believe that that is the most likely or the correct reading of the transcript. And we need again to go back and look at precisely what Judge Davis was asking Mr. Dusson throughout the colloquial that he did. And the judge was very, very careful. Now he'd even discussed with Mr. Dusson for example that what Mr. Dusson talked about Vima Rodriguez. The judge had acknowledged he had previously just had Mr. Rodriguez in for a competency hearing, which Mr. Rodriguez IQ was found to be 61. And the judge asked Mr. Dusson, what's your impression of Mr. Rodriguez? Is he bright? And Mr. Dusson said, yeah, he's a regular person. He's not that he's not bright. That's part of the minor role, judgment. And I'm not quibbling with that. My concerns are acceptance responsibility and the procedure that the court went through in announcing its sentence. Your Honor, there is no requirement that the Judge Davis had given any specific emphasis or special emphasis to any of the factors that the judge looked at

. The government does not believe that that is the most likely or the correct reading of the transcript. And we need again to go back and look at precisely what Judge Davis was asking Mr. Dusson throughout the colloquial that he did. And the judge was very, very careful. Now he'd even discussed with Mr. Dusson for example that what Mr. Dusson talked about Vima Rodriguez. The judge had acknowledged he had previously just had Mr. Rodriguez in for a competency hearing, which Mr. Rodriguez IQ was found to be 61. And the judge asked Mr. Dusson, what's your impression of Mr. Rodriguez? Is he bright? And Mr. Dusson said, yeah, he's a regular person. He's not that he's not bright. That's part of the minor role, judgment. And I'm not quibbling with that. My concerns are acceptance responsibility and the procedure that the court went through in announcing its sentence. Your Honor, there is no requirement that the Judge Davis had given any specific emphasis or special emphasis to any of the factors that the judge looked at. This is this court should give difference to what Judge Davis saw in terms of the factors that he believed were most important in terms of the sentencing. And the government submits that the record is clear that the judge did not simply get hurt with someone he did not believe was telling the truth. Instead he took a great deal of care, both enlist listening to the witnesses that were presented on half of Mr. Dusson and listening to Mr. Dusson's defense counsel and enlisting to Mr. Dusson's himself. At the end of hearing all of that, the judge made the determination that considering he did not believe he had gotten the whole truth and as a whole after the sentencing hearing still gave him a guideline sentence. The fact that he did still give him a lower end of the guideline sentence would seem to clearly indicate. If you take the acceptance responsibility as you have at 97 to 121, but Mr. Epstein said it under the other, if you include that, it would be 70 to 87 months, that correct? Your Honor, I believe if it was included at a level 28, it would actually be 78 to 97 months. Actually, that makes more sense to me. But on end of our way, we also do have to consider that defense counsel, Mr. Dusson himself, had asked for these sentencing hearings to be consolidated. This was his decision to make. And in taking that decision, he then has to be a some responsibility for the fact that the court is going to look at the entire totality of the circumstances. He could have chosen to be sentenced on the counterbiting case first. If he had done that, he then faces a higher criminal history category and even if he might have been given, and that's a question of might have been given acceptance or responsibility just looking at the drug offense, he's an entirely different posture at that point. But here, this is a decision he made. The government believes the record is clear that the judge did look appropriately at all the factors that should be considered and gave an appropriate within guideline sentence

. This is this court should give difference to what Judge Davis saw in terms of the factors that he believed were most important in terms of the sentencing. And the government submits that the record is clear that the judge did not simply get hurt with someone he did not believe was telling the truth. Instead he took a great deal of care, both enlist listening to the witnesses that were presented on half of Mr. Dusson and listening to Mr. Dusson's defense counsel and enlisting to Mr. Dusson's himself. At the end of hearing all of that, the judge made the determination that considering he did not believe he had gotten the whole truth and as a whole after the sentencing hearing still gave him a guideline sentence. The fact that he did still give him a lower end of the guideline sentence would seem to clearly indicate. If you take the acceptance responsibility as you have at 97 to 121, but Mr. Epstein said it under the other, if you include that, it would be 70 to 87 months, that correct? Your Honor, I believe if it was included at a level 28, it would actually be 78 to 97 months. Actually, that makes more sense to me. But on end of our way, we also do have to consider that defense counsel, Mr. Dusson himself, had asked for these sentencing hearings to be consolidated. This was his decision to make. And in taking that decision, he then has to be a some responsibility for the fact that the court is going to look at the entire totality of the circumstances. He could have chosen to be sentenced on the counterbiting case first. If he had done that, he then faces a higher criminal history category and even if he might have been given, and that's a question of might have been given acceptance or responsibility just looking at the drug offense, he's an entirely different posture at that point. But here, this is a decision he made. The government believes the record is clear that the judge did look appropriately at all the factors that should be considered and gave an appropriate within guideline sentence. If the court is going to work for us, the government will rest on this. Thank you. Mr. Epstein. Thank you, Your Honor. By the way, isn't she right? Is it really 79 to 97 as opposed to 70 to 87? I apologize, Your Honor. That was with three levels off for acceptance. And the please here are extremely timely, so you would expect if he is getting acceptance, he would get that third point. But it was my mistake. I figured that out. It was with the third point. Mr. Dussan did ask for some holidays and I certainly didn't relieve the district court judge of the obligation to assess the totality of the situation and designing acceptance or somehow waive an error by the district court to in finding that he was ineligible for acceptance. Even as to the judge's remark at the conclusion of sentencing that he got a version of the truth, it's hard to understand what the judgment by that exactly because the judge did give the minor role adjustment and he said absolutely Mr. Dussan was entitled to the minor role adjustment and of course one of the requirements for minor role is that defendant truthfully provide all information that he has about the case. And the judge's final remark in that regard about getting a version of the truth, he didn't point to anything in particular that he thought Mr. Dussan was being untruthful about. It may simply be that Mr. Dussan had limited information to the provide about these cases

. If the court is going to work for us, the government will rest on this. Thank you. Mr. Epstein. Thank you, Your Honor. By the way, isn't she right? Is it really 79 to 97 as opposed to 70 to 87? I apologize, Your Honor. That was with three levels off for acceptance. And the please here are extremely timely, so you would expect if he is getting acceptance, he would get that third point. But it was my mistake. I figured that out. It was with the third point. Mr. Dussan did ask for some holidays and I certainly didn't relieve the district court judge of the obligation to assess the totality of the situation and designing acceptance or somehow waive an error by the district court to in finding that he was ineligible for acceptance. Even as to the judge's remark at the conclusion of sentencing that he got a version of the truth, it's hard to understand what the judgment by that exactly because the judge did give the minor role adjustment and he said absolutely Mr. Dussan was entitled to the minor role adjustment and of course one of the requirements for minor role is that defendant truthfully provide all information that he has about the case. And the judge's final remark in that regard about getting a version of the truth, he didn't point to anything in particular that he thought Mr. Dussan was being untruthful about. It may simply be that Mr. Dussan had limited information to the provide about these cases. The practical problem you have looking at this case is that even if this were to go back and it were to be made clear that this person is eligible for acceptance responsibility, I would lay a pretty serious bet that he's not going to get it and we're going to stay with the same offense level and criminal history category 30 and one, which is 97 to 121. And then the court is then going to go through and lay out odd nauseam, the 3553 A factors and the sentence is still going to be at the low end of the range 100 months. That may be, but truthfully, I'd like to take that shot with the district court. I would like to be in the position of being able to argue all that Mr. Dussan did here to deserve an acceptance credit. It's the same situation this court had in Cohen were in the inverse actually what the district court gave an acceptance credit, heard the defendant speak, thought he was remorseful. The government took it up on appeal and argued, hey, the judge has to consider the totality of the situation and consider the fact that he went to trial on 25 out of the 28 counts. Now, there's no doubt the government made that argument to the district court in Cohen. There's no doubt the court heard that argument, but the court and there's no doubt the court thought it was fair to give an acceptance credit. Nevertheless, while this court agreed with the government that the court had not on the record made the totality of assessment analysis that is required, this court sent it back, recognizing that the district court could give that same acceptance credit again. Any further questions from my colleagues? Mr. Epstein, thank you very much. The case was very well argued. Thank you, Ron. We will take the matter under it.

We're with us here. Amen. First matter is United States versus Ducin. Sir. Good morning. I may have pleased this court. My name is Robert Epstein. I'm here today on behalf of the appellant, Mr. Jason Dusson. With the court's permission, I'd like to reserve three minutes of my time for a bottle. Thank you, Your Honor. The first issue on this appeal concerns acceptance of responsibility. Did the district court commit legal error in denying Mr. Dusson an acceptance credit? The district court, in ruling on this matter, said that- Sir, a PSR said he was an eligible. You want to address that as to whether he is eligible for consideration for acceptance of responsibility because of the grouping here? He is eligible, Your Honor. I don't think there's any dispute from the government on appeal, which is different on the position they took below. But on appeal, as they seem to concede that Mr. Dusson is, in fact, eligible for an acceptance credit. The probation officer, the district court said the probation officer got it exactly right. I think he was mistaken. The probation officer got it wrong. The probation officer relied on this court's decision in the United States versus McDowell. McDowell was a special situation because in McDowell, there was a guideline provision that said that if the defendant subborn perjury, he cannot get acceptance regardless of all other factors. There's no provision like that at issue here. Whether or not he was eligible, though, didn't the district court have discretion in this matter? Absolutely, Your Honor. But what the district court didn't do is do the right analysis, which is this court said in the United States versus Cohen, which Judd Sverger, you are my panel on, I understand. What this court said in Cohen was that a district court has to consider the totality of the situation. And in that case, the defendant went to trial on 25 out of the 28 counts of the indictment. But this court in Remaining said the district court could still give an acceptance credit, the government had appealed in that case. What did the district court miss here? I mean, he committed a crime while he was out on, while he was awaiting sentencing for the first crime. He was continuing his criminal activity in a different area, of course. Well, that's true, Your Honor. But what the district court didn't consider in finding that he was ineligible, the district court didn't consider that Mr. Dussan provided immediate confessions to both of the offenses, that he entered extremely timely guilty plays. It's filed no motions within its discretionary matter, isn't it? It is absolutely discretionary. And we do not dispute that on Remain, the district court considers the totality of the situation and concludes that Mr. Dussan did not accept acceptance. That's within his discretion. But it would also be completely within his discretion to award acceptance here. And what this court held in Cohen and what it held in McDowell was that a district court is obligated to look at the totality of the situation in deciding whether or not acceptance is warranted. The district court simply didn't do that here. The district court believed that the probation officer was right in concluding that Mr. Dussan was quote unquote, ineligible for an acceptance credit. The other key factor here in determining. Could one make an argument that you have harmless error here? Let's assume it is error, that he is eligible. And you do have to look at the totality of the circumstances. Other than the fact that he accepted responsibility. When you look under the, I mean, he gets a huge benefit by virtue of grouping. Correct. I mean, he, in other words, one is a 30, one is a, what, 13 is that correct? That's correct. So you don't add them together. You just look at the 30. Right. And that's because the drug offenses are somewhat more severe. Correct. And the counterfeiting of that. But having gone and committed a very significant drug crime, afterwards, and you look at all the other circumstances, is there any way you think this court, the district court, would even consider in the balancing act granting acceptance responsibility? Absolutely, Your Honor. Again, this is a defendant. The first factor under 3E1.1 is does the defendant truthfully admit his conduct. And then the last factor is how timely this is in mission. Is it a defendant who immediately confessed about the offenses? Is it a defendant who entered extremely timely guilty pleas, saving the defendant, the government, the expense of going to trial in these cases? That's a very key consideration in determining acceptance. And then another key factor here is that it was undistuted, that Mr. Hussain accepted responsibility for the much, much more serious drug offense. To the extent that the committing an offense, wall-on-preetrial release, is a factor, a negative factor, in determining whether or not he accepted responsibility for the counterfeiting offense. It's not a negative factor with respect to the drug offense. And it was undistuted that with respect to the drug offense, he accepted responsibility. That is the offense that's driving the sentence here. That's the offense that has a 30 offense level. With the offense level here and the criminal history, it's what, 97 to 121 months if you have a 30. And you're saying 30 should be 28, is that right? Yes, Your Honor. And 28 would get you what sentence in range? It would get us 70 to 87. So it can make a very significant difference in this case. And I think it should be the district court that, in the first instance, considers the totality of the situation and analysis that the district court did not get to here, is the district court followed the probation officer in finding that he was ineligible, which I think we all can see everybody agrees now with mistake in. Could you also address the third issue, which is the consideration of the 3553A factors? Yes, Your Honor. The district court here did not address the 3553A factors whatsoever in explaining his sentence. And even more fundamentally, he didn't acknowledge and respond to the arguments that the defense council had made regarding those factors. The defense council had asked for a below guideline sentence in part on the fact that Mr. Ducant had tried to cooperate, which I neglected to say, is also an extremely important consideration in terms of acceptance of responsibility. He participated, he tried to cooperate with the government, he participated in monitored phone calls, he tried to set up a controlled delivery of the drugs and the next purchaser along the line. So that's an extremely important consideration in terms of the 3553A factors. Now, district court never acknowledged it and never responded to it. I agree that after the court said that he wasn't sure that he was being told the whole truth, he then went right to sentencing. But when you look prior to that in the hearing, can't we glean from the many statements made by the sentencing judge? Here, what his reasoning would be under 3553A? I don't think so, Your Honor. And I think what Your Honor is referring to is the fact that the district court in responding to some of the family members, when the family members were asking for mercy and for the possibility of House arrest, the district court said this is too serious an offense for House arrest. And the government sees it on to that and says, well, he did assess one of the factors under 3553A, the seriousness of the offense. But it's very different context. It's one thing to say this is such a serious offense that he can't get House arrest. It's another thing to explain your sentence and explain why this is the minimally sufficient sentence. The sentence that's sufficient but not greater than necessary to achieve the purposes of sentencing. The district court did not do that. And I don't think it's fair. I don't think it's right to take his remarks with respect to the issue of House arrest and carry them over to the explanation of sentence that he didn't provide. The district court, you think there was a chance that the district court was going to give a House arrest sentence here? I didn't. Oh, no, no. And the defense council, any requesting a sentence, I'm sorry, but the defense council wasn't requesting House arrest. She was requesting a sentence at 60 months. Yeah, but he went into great detail about on the minimal involvement in the crime. And it was pretty clear from his analysis that he did not regard Mr. Dusan as a minimal participant outlined several factors. I think you're cutting short the district court's analysis here a bit. This is an experienced district judge. Both in the state trial courts and the federal trial courts. He's. Yes, sir. But to the extent that we can take some remarks by the district court and say that there were some explanation for the sentence. That doesn't relieve him of the responsibility of responding to defense council's arguments as to why there should be a below guidelines sentence. Whatever the district court may have said about his role doesn't relieve the district court of the obligation to respond to the argument about him cooperating Mr. Dusan cooperating with the government in being deserving of a lesser sentence. But that can be that obviously he thought that the subsequent crime trumped that that degree of cooperation. But we don't know that all we know on the first issue is that he believed that Mr. Dusan to be an eligible will see if the government can help on that issue. Yes, Your Honor. One of the other arguments that defense council made as to a lower sentence was that Mr. Dusan was addicted to cocaine. Now where's that in the record that he. Defense council made made that proper to the district court. The district court. Is there anything in the record that supported that? Not beyond the proper, but the district court obviously accepted the proper because the district court is a condition of his supervised release ordered drug treatment and testing. But when he when he was interviewed in connection with the pre sentence report. Did he tell the probation officer that he had a drug problem? Not that I'm aware of your. No, but he obviously told defense council who made that known to the court and the court accepted it in ordering drug treatment and testing for him. There's a possibility he what one he didn't tell the. Pre sentence officer or probation officer excuse me. But it also may be an indication in the record here that he took the other. A tack that he didn't have a cocaine problem. I'm sorry that the probation officer. Yeah, that he. Dusan did not have a cocaine problem. We simply don't know your honor and see that that's the problem where the district court doesn't go through the 3553 analysis doesn't respond to defense council's arguments. The public court is left to speculate as to what the state of the record really is. That's why this one of the main reasons this court has insisted upon the district court explaining its sentence going through the 3553 factors and responding to the arguments of the defense attorney. Yeah, I'm just saying my point is that waiting to the sentencing hearing for counsel to make a statement without there being anything relating to cocaine use in the precentance report or elsewhere. Well, that doesn't seem to get you very far. Council did make that representation in the sentencing memorandum as well. There was daily cocaine use and that was the precipitating cause of Mr. Dusan's involvement in the drug conspiracy. I see my time is just about up so unless there are any further questions from the court. Thank you, Mr. Youngerbough. Thank you. It's Newton. May I please the court? My name is Katie Newton. I represent the out the Lee and the Smattered United States of America. This court's being asked today to review the very careful and thorough determinations that were made by a very experienced district court judge of the sentencing hearing. The district court judge who looked at a defendant who after pleading guilty to counterfeiting charges. You agree on the acceptance responsibility or that he is eligible for consideration? Absolutely, Your Honor. And the government's position is that while the probation officer may have inarply expressed the term of ineligibility, it's very clear that Judge Davis... The probation officer said specifically ineligible and the judge said specifically that the PSR got it, quote, exactly right, close quote. That is correct, Your Honor, but the district court judge also said of the sentencing hearing in a colloquial with defense counsel. That other judges have denied acceptance of responsibility for these reasons. Judge Davis also said very clearly, I think this is a fair treatment. This is an experience just for a judge who knew what his obligations and discretion were. You may be right. And if I were to place a bet, he's not going to give acceptance of responsibility based on the total of the circumstances. But don't you have to jump through that hoop procedurally? Your Honor, believe that the record is clear enough that we do not need to remain this case for Judge Davis to essentially make the same determination again. Where did he go through the other circumstances that one were taken to account in denying the acceptance of responsibility? Your Honor, what Judge Davis did look at? Judge Davis had a colloquial with defense counsel on this issue. And in this issue, defense counsel admitted that the court had the discretion. If this court is going to look at this as a legal error, the Judge Davis legally did not understand this obligation, this should be reviewed under a plan error standard. It was not clear in a pellets opening brief what standard we should be looking at. As the government believes that this was a factual question and the judge exercised properly his discretion to deny acceptance of responsibility, that should be reviewed under a clearly erroneous standard. But in looking at the record, very clearly at page 110 of the appendix, the District Court asked many judges reject acceptance of responsibility when defendant commits crimes later. And Defense counsel admitted that the District Judge would be within his discretion to deny acceptance of responsibility. When there is a later crime, would seem to ignore that you must follow a totality of the circumstances analysis. That is, you have to balance the good and the bad. Where did the balancing take place here? Your Honor, believe it, it's inherent in the record in looking at the Judge Davis did do the balancing by recognizing the crimes that he admitted earlier, his cooperation guilty plea and then his determination to commit later crimes after that point. All of this comes into the totality of the circumstances. Well, what you've got is on this one you've got a counterfeiting crime, the person admitted that he had done very quickly. You have a drug crime, the person admitted accepted responsibility very quickly and in fact cooperated. And so it was not something that was, you know, drug out of him, he, he, he fast up. And normally one gets a two level down, you go down two levels. And in order not to do that, you need to do some balancing. And the only thing I can find in the record is the court seemed to think that he was ineligible for that because he committed a second crime after he was out on bail for sentencing relating to the first crime. Your Honor, that is certainly one interpretation with the District Court said. Acceptance of responsibility and also recognizing that he believed not allowing acceptance in this case was a fair treatment. And looking at the totality that we also have to recognize that if we gave acceptance of responsibility after putting all this together, combining the offenses and doing the grouping, essentially Mr. Dusson receives a complete discount for his counterfeiting offenses. I'm allowing simply that the two point there's no doubt he got a benefit that that's what happens with grouping here. But when you look at the application though to 3 E 1.1 A, it lists a host of factors 1 2 3 4. Looks like 6 or 7. And I don't see any any any discussion of any of those. Your Honor, the factors will be relevant in this case would be Mr. Dusson's truthfully admitting the conduct that he had committed. Another factor would be his voluntary withdrawal or termination of criminal activities. The judge certainly looked at both of those and the judge in his discretion was certainly entitled to determine that he believed the lack of voluntary withdrawal from criminal activity outweighed his admitting what he had done. One of the other considerations is voluntary assistance to authorities. Rehabilitative efforts. The timeliness of his conduct and manifesting acceptance responsibility, which we said was quick. And also his cooperation with regard to to others. Your Honor, with respect to the cooperation there is nothing on the record that indicates Mr. Dusson ever provided any real cooperation in terms of the counterfeiting offenses. And in fact, instead he went on to drug trafficking. In addition, what is on the record is that Mr. Dusson said he wanted to cooperate with respect to the drug trafficking but was unable to do anything. Mr. Dusson, after he was arrested, tried to run a red light, tried to escape, and after he was caught by authorities he was detained. Mr. Dusson, therefore, was not a we cannot determine what post rehabilitative conduct Mr. Dusson would have undertaken, what withdrawal he would have taken from further criminal activities. Because he had no choice anymore. And with respect to the district judge indicate that those factors were not present and therefore he didn't have to consider them. Your Honor, the district court did not specifically stay those. It was not addressed by either counsel. The district court addressed the what we have brought out by both counsel with respect to acceptance of responsibility. What's troubling about this case is that the probation officer said he's ineligible for probation because of his continuing criminal conduct. And how do we know from this record that the district court was convinced by that that he was ineligible? Your Honor, we have a very experienced district court judge who did acknowledge that it is- What's in the record that demonstrates to us that he was aware that he was eligible? The fact that the district court judge said that this was a fair treatment that he was given to the defendant, the fact that the district court judge that other judges had denied this, shows that the judge was making a choice. He didn't say, I am forbidden from giving acceptance of responsibility. He didn't say the law does not allow me to give acceptance of responsibility. The other thing we do- We also have to look at is that looking in the totality of the circumstances here in any event, when you look at what happened later on, there is no question as to what the district court would do in this case specifically giving the litany that he did and is colloquy with the defendant certainly at the end of the sentencing hearing. Remember, the defendant did not ask and the defense counsel did not ask when the judge was discussing acceptance for a chance for the defendant to speak at that time. The defense counsel did not raise at that time that the defense counsel believed that this was a legal error that the judge was making. Instead, the defense counsel also viewed this as the judge exercising his discretion at that time. Clearly, in the colloquy that the judge gave us had with Mr. Ducon later, it was very obvious that the judge did not believe what Mr. Ducon was telling him. The judge did not believe with respect to the involvement with Vimer Rodriguez, who Mr. Ducon had described as the person who was going to sell the drugs, the person who was really more responsible when Mr. Ducon admitted that he was the one who had brought Vimer Rodriguez into the counter-fitting scheme. That goes on to the minor role adjustment. I guess, on my case, I probably beaten the acceptance responsibility of death. If there's no further questions, I'd like you to turn to what the district court did in going through the 3553 A factors. Your honor, this was a district court judge who should be commended for the thorough care that he took in this colloquy with the defendant. Although the judge did not go through at the end, the litany of what the factors are, and looking at the colloquy he had with the defendant, it is clear the care that he took. He discussed specifically with other witnesses, and in Mr. Ducon's presence, of course, the fact that how serious these offenses were, the high quality of the paypal. Well, this is one through him. I mean, did he Mr. Epstein's mentioned the cocaine use that he discussed that at all? Your honor, he did not, and there is a very simple reason he did not. There is, as your honor recognized, there is no mention anywhere in the record with the exception of defense counsel making a representation that Mr. Ducon suffered from cocaine abuse. Mr. Ducon himself, in the colloquy, never mentioned cocaine abuse. In fact, he said he got involved with the cocaine and heroin trafficking because he didn't have enough money for his rent. There is, however, mention in the Presentance Report that Mr. Ducon did have some drug issues. He told the probation officer that he had a problem with alcohol and that he had a problem with marijuana. As a result of those, the judge did order drug treatment for Mr. Ducon as part of his sentence. But the fact that defense counsel then stand and say with no basis in the record that Mr. Ducon suffered from cocaine abuse, certainly it's not an argument that the judge would need to make any more specific findings on it. Of the 35-53-A factors, why don't you run down through where you think he addressed the relevant ones? First of all, I guess, why don't you tell us which ones you think are relevant and where he addressed them in the record? Your honor, certainly, the judge addressed the seriousness of the offenses by Mr. Ducon. One with respect to the high quality of the counterfeiting that was done. Second with respect to the seriousness of the drug trafficking that was done. The judge was very careful and discussed almost two kilograms of heroin that Mr. Ducon was involved with. And more than one kilogram of cocaine that Mr. Ducon was involved with. The judge also discussed Mr. Ducon's view of what he had done, whether in looking at his remorse or his view or essentially the deterrence factors. When he said that he did not believe that Mr. Ducon was still telling the truth, that he had trouble, that he thinks he got some version of telling the truth, but it wasn't the entire truth. The judge also looked at the need for rehabilitation for Mr. Ducon, looking at the fact that he did suffer from some drug abuse with respect to marijuana and alcohol, and respect that he did then look at what should be done to help Mr. Ducon with respect to that. The judge also looked at what his past employment history had been. When through with Mr. Ducon what he had done, that his position says delivering pizza, his position is in working with Mr. Rodriguez. The judge looked at all of these factors in a very detailed, in a very detailed quality. Did he talk about disparity of sentencing at all under A6? The judge did not specifically talk about disparity of sentencing but your honor. The judge gave a within guideline sentence. As the Supreme Court has said in Rita, you can presume that this is a reasonable sentence. In fact, the judge specifically stated that even though he didn't believe he had gotten the whole truth from Mr. Ducon, nonetheless he was going to impose a within guideline sentence of 100 months, which certainly was at the lower end of the guidelines that Mr. Ducon was facing. The Supreme Court recognized to Rita that the district court in making its determination of within guideline sentence is also looking at or taking into consideration all the factors that the sentencing commission had already laid out. Therefore, the district court in going through very carefully and in a very detailed manner with Mr. Ducon what he believed was important, it's clear by imposing a guideline sentence that he was taking into consideration the proper factors. How much discussion was there of the sentencing guideline range? Your honor there was in the beginning of the colloquy with Defense Counsel and with government counsel the judge went through the guideline range. The judge also, I guess, discussed that guideline range at the end of the colloquy with Mr. Ducon. So specifically the range was discussed and there were no objections with the exception of the three levels that the defense counsel had asked for for acceptance of responsibility. And the additional levels of the defense counsel had asked for for a minor or for minimal participation. Other met the both counsel agreed that the guideline range was properly calculated and the court has specifically put that on the record. And some your honor. This court has stated that there is nothing to be gained by a remand when the district court would only articulate again what it was already made clear. And in looking at the sentencing hearing as a whole, it is very clear that Judge Davis took time with the defendant, looked at the facts, spent a great deal of time with the defendant and with counsel. Did the court counsel made it, did mention it, the sentencing, did he not that Ducon had attempted to assist authorities? Is that correct? Your honor whether it was a mention may, then Mr. Ducon had attempted to assist authorities by trying to make the calls. No, it obviously did rise to the level of a 5K 1.1 departure or a motion by the government. But did the court address that at all? Your honor the court heard what Defense Counsel said. The court did not make any other specific comment with respect to the fact that Mr. Ducon had tried to make some phone calls. And as a court recognized, the government most certainly did not make a motion because Mr. Ducon had not provided substantial assistance to the government with this respect. But how are we to take this into account in terms of weighing reasonableness, realizing that there is a significant difference given to the sentencing judge. When we don't know a whole lot of what went through the judge's mind, we're trying to use my words with regards to Mr. Epsity. We're trying to glean from statements he made during the course of the sentencing hearing, but when the actual sentence was given, it was there was literally next to nothing other than I'm not sure I'm getting the whole truth. That is correct with the very last statement that the judge made. That's what he said. But the court is required and should look just at that last statement. Simply by giving a litany at the end doesn't mean the judge took any more care. But I think the court does need to take a look at everything that the district court addressed in the district court said and the district court looked at throughout the course of a lengthy sentencing hearing. And when that is done, the government believes that it is clear that the judge was very careful in his determination as to a guideline sentence that is presumed by this court or can be presumed by this court to be a reasonable sentence. And nothing takes, there's nothing presented that takes his sentence outside of that presumption of reasonableness here. Could not one look at this sentencing transcript and make the link response in reviewing it that what really happened here was the judge perceived that this person either wasn't being completely serious with him or wasn't giving him the whole truth and got a little upset. And as a result, just went straight to the sentence, didn't pass through any of the hoops and the question then becomes is that enough? But isn't that a possible reading of this transcript? The judge was getting a little irked at what he perceived to be a person up for a second or a second crime, I should say, two crimes together. And he didn't think that this person was necessarily being straight with him. Your Honor, certainly as a possible reading. The government does not believe that that is the most likely or the correct reading of the transcript. And we need again to go back and look at precisely what Judge Davis was asking Mr. Dusson throughout the colloquial that he did. And the judge was very, very careful. Now he'd even discussed with Mr. Dusson for example that what Mr. Dusson talked about Vima Rodriguez. The judge had acknowledged he had previously just had Mr. Rodriguez in for a competency hearing, which Mr. Rodriguez IQ was found to be 61. And the judge asked Mr. Dusson, what's your impression of Mr. Rodriguez? Is he bright? And Mr. Dusson said, yeah, he's a regular person. He's not that he's not bright. That's part of the minor role, judgment. And I'm not quibbling with that. My concerns are acceptance responsibility and the procedure that the court went through in announcing its sentence. Your Honor, there is no requirement that the Judge Davis had given any specific emphasis or special emphasis to any of the factors that the judge looked at. This is this court should give difference to what Judge Davis saw in terms of the factors that he believed were most important in terms of the sentencing. And the government submits that the record is clear that the judge did not simply get hurt with someone he did not believe was telling the truth. Instead he took a great deal of care, both enlist listening to the witnesses that were presented on half of Mr. Dusson and listening to Mr. Dusson's defense counsel and enlisting to Mr. Dusson's himself. At the end of hearing all of that, the judge made the determination that considering he did not believe he had gotten the whole truth and as a whole after the sentencing hearing still gave him a guideline sentence. The fact that he did still give him a lower end of the guideline sentence would seem to clearly indicate. If you take the acceptance responsibility as you have at 97 to 121, but Mr. Epstein said it under the other, if you include that, it would be 70 to 87 months, that correct? Your Honor, I believe if it was included at a level 28, it would actually be 78 to 97 months. Actually, that makes more sense to me. But on end of our way, we also do have to consider that defense counsel, Mr. Dusson himself, had asked for these sentencing hearings to be consolidated. This was his decision to make. And in taking that decision, he then has to be a some responsibility for the fact that the court is going to look at the entire totality of the circumstances. He could have chosen to be sentenced on the counterbiting case first. If he had done that, he then faces a higher criminal history category and even if he might have been given, and that's a question of might have been given acceptance or responsibility just looking at the drug offense, he's an entirely different posture at that point. But here, this is a decision he made. The government believes the record is clear that the judge did look appropriately at all the factors that should be considered and gave an appropriate within guideline sentence. If the court is going to work for us, the government will rest on this. Thank you. Mr. Epstein. Thank you, Your Honor. By the way, isn't she right? Is it really 79 to 97 as opposed to 70 to 87? I apologize, Your Honor. That was with three levels off for acceptance. And the please here are extremely timely, so you would expect if he is getting acceptance, he would get that third point. But it was my mistake. I figured that out. It was with the third point. Mr. Dussan did ask for some holidays and I certainly didn't relieve the district court judge of the obligation to assess the totality of the situation and designing acceptance or somehow waive an error by the district court to in finding that he was ineligible for acceptance. Even as to the judge's remark at the conclusion of sentencing that he got a version of the truth, it's hard to understand what the judgment by that exactly because the judge did give the minor role adjustment and he said absolutely Mr. Dussan was entitled to the minor role adjustment and of course one of the requirements for minor role is that defendant truthfully provide all information that he has about the case. And the judge's final remark in that regard about getting a version of the truth, he didn't point to anything in particular that he thought Mr. Dussan was being untruthful about. It may simply be that Mr. Dussan had limited information to the provide about these cases. The practical problem you have looking at this case is that even if this were to go back and it were to be made clear that this person is eligible for acceptance responsibility, I would lay a pretty serious bet that he's not going to get it and we're going to stay with the same offense level and criminal history category 30 and one, which is 97 to 121. And then the court is then going to go through and lay out odd nauseam, the 3553 A factors and the sentence is still going to be at the low end of the range 100 months. That may be, but truthfully, I'd like to take that shot with the district court. I would like to be in the position of being able to argue all that Mr. Dussan did here to deserve an acceptance credit. It's the same situation this court had in Cohen were in the inverse actually what the district court gave an acceptance credit, heard the defendant speak, thought he was remorseful. The government took it up on appeal and argued, hey, the judge has to consider the totality of the situation and consider the fact that he went to trial on 25 out of the 28 counts. Now, there's no doubt the government made that argument to the district court in Cohen. There's no doubt the court heard that argument, but the court and there's no doubt the court thought it was fair to give an acceptance credit. Nevertheless, while this court agreed with the government that the court had not on the record made the totality of assessment analysis that is required, this court sent it back, recognizing that the district court could give that same acceptance credit again. Any further questions from my colleagues? Mr. Epstein, thank you very much. The case was very well argued. Thank you, Ron. We will take the matter under it