good morning your honor christopher burden on behalf of the contrary hatcher before i begin i like to reserve three minutes for a bottle please the court mr hatcher was entitle to be sentenced based on issues properly disclosed to him and in fact supported by a preponderance of the evidence but here premised on the government's speculation the court stated its belief no fewer than four times that mr hatcher may have committed a shooting a shooting with which he was never charged with and that was never mentioned in the p s r nor in memorandum these facts constitute two separate bases for remained but there's also a rd here the district court made a clearly erroneous finding when it concluded that mr hatcher had been convicted of two robberies when no evidence supports such a finding and it's this for this rd issue which i'd like to start with the government concedes error here that is that the record does not support a conclusion that mr hatcher was in fact convicted of two robberies and so there's no question about whether there's an error the only issue is whether or not this made a difference in the sentence conceivably so just on that point that's your main point but just on that one just to tell you my reaction to it i mean is it in my is unfair to say there's a conflict here in other words you have the p s r which says one thing everybody agrees to including the judge and then this statement in the course of the litany of crimes where a mistake i mean so anyone can be true right and just a broader statement accepting the p s r in its in its entirety a substitute for what the judge was actually finding there which is that there were two robberies two robberies effect his criminal history score but they did not your honor but of judge believe that his criminal history was extensive and violent and adding an extra robber to that one that wasn't supported in the p s r one that he can fact not being convicted of fees that if you want to sara lee remind me to counsel at the time say your honor i'm a man i've been listening carefully but i think you said to you did mean one right anyone say that no your honor and that's why we can see you here on a plane or a standard cover and we can take the robbery issue and also you know this area doesn't need to be seen in a vacuum it can be read cumulatively with the other errors that occurred in this case regarding the on charge shooting and so as we talk about for error as we mentioned in our beliefs one issue is the procedural issue is the fact that we sentencing is warranted here under the two prong test of fleming and compensator because the issue of the on charge shooting was a surprise that came up at the hearing and it prejudiced the defendant's presentation to the court there is no reason in surprise why don't you just give the answer to th question you know is coming you know why it wasn't completely a surprise how does that work into it i'm sorry i was acknowledged in discovery yes ok so i'm just trying to you using the word surprise or you know what's of that really the fact that the government disclosed a fact in discovery is not enough to signal that the issue itself is going to come up at the sentencing hearing and in fact the government had numerous opportunities before the sentencing hearing to bring this fact into the course of issues that would be considered at the sentencing hearing that's what it p s r is for that is what pretrial sentencing memorandum for the government did not avail itself of those vehicles and in fact the government admits that the court toss that the reason was the original understanding member of the original understanding is they weren't going to ask for more and it seems to me what i did look like was happening is they were this was being used offensively in response to your clients some of your clients explanations were so self defense thing is a little sketchy given that the same gun was used in a violent crime three days earlier so that's what so why isn't that a fair assessment of what happened because it's not i think outside the pale of whether or not the gun was used defensively or not the question is whether the issue of this on charge shooting should never and for been raised and which the court was unaware of before the hearing had come as a surprise and so there was no reason the defense counsel would have believed that was on the table just by virtue of the fact that the government hadn't reason in these earlier opportunities means that there's no reason for the for the defense counsel walking into that hearing to have expected that that would have come up  i mean here's the hypothetical you know you have they point out in discovery it's a let's say she is the gun possession charge they point out on discovery that you know gosh the last time we looked in your house and did a search your house we found fifteen guns ok and so in the course of the hearing you gets up and he says i've never possessed a gun in my life and i don't know how this one got here he knows the government knows about the fifteen guns he makes that statement is their surprise when the government says your honor we have to tell the court about this evidence we have a fifteen gun found in this house well that's not surprised you know what you're walking into when you do that and st off i'd suggest that fact would probably be in a p s r that's  mean but it was seeking a sentence that was at the high end of the sentencing range here so it certainly had room to argue various factors that would increase mr hatcher's sentence up to the high point of the of the sentencing guidelines and that's that's what the government did here moreover it's not about whether the issue came as a surprise from the perspective of the government giving notice the question is whether the court's reliance on this issue came as a surprise the court had no reason to have this information and in fact didn't signal that it was going to rely on that information in till it started handing down the sentence itself the court never said upon hearing the government speculation and in while it was interviewing aged hartnett this seems really important i think prejudiced by not having received this this prior notice from the court that it was going to consider this issue mr hatcher's counsel couldn't interview alibi witnesses couldn't interview witnesses that were potentially at the scene of the alleged crime couldn't have  a standard for that the defense counsel did not seek a continuance here we don't know what would have happened had he sought that continuance but to go forward and proceeding on this hearing on this bare record without defense counsel the court is really saying as to the parents of this guy or the use of this gun three days earlier i mean in your brief you talk about it is if the court is accusing him of actually using the gun but the court is pretty clear that it doesn't know the answer to that right it's just isn't it ultimately the all the court knows is the gun was used three days earlier either because he possessed it he used it he just bought it from a you know criminal  isn't that all he's saying and it doesn't seem to feature big in there and he clearly is focused on things he said the same crime the same sense that didn't work before so that's that's the major theme but i'm trying to figure out what this minor theme even is and i didn't think it was anything more than he goes back to the neighborhood knee has on a gun that was used in a crime three days earlier that's not great my wrong and i'm misstating it you are in inference from that fact would be completely irrelevant the fact that the g used by somebody three days prior if it wasn't mr hatch or should have no bearing in sentencing and so looking at those for crying or getting guns from people that just used it in a violent crime but why does it matter that the gun was used in a violent crime as opposed possessed the gun it was her continue to use it you know he was certainly willing to use it he affiliated himself with people who were willing to use the gun and the only gun that's in use that's talked about during this hearing is that this prior shooting but there's no evidence in the record that supports a conclusion that he knew anything about this on charge shooting that he knew the people who committed the shooting that you know that he had been there or there that he knew any of the witnesses when agent hartnett shows that is a factor that the district judge that's right and the government it concedes in its briefing that that comment relates or could conceivably relate to the on charge shooting and so that's one of just four comments throughout the history of the laying down of the sentence which included two comments that were made specifically in discussion as to why a guideline sentence was improper that the court in fact relied upon this issue of the unchurched shooting and to your point judge right on the fact that mr hatcher had a connection to what happened at the un charging even though there was no evidence that supports that fact even even egypt hartnett testifying or at least giving statements on behalf of the government actual was involved in the shooting at all in fact he said that a t f couldn't prove the case it couldn't be solved and although he was able to state the theory that somebody else there had fired at least one shot he said that all the witnesses were completely uncooperative so other than these bullet casings there is no evidence that would tie mr hatcher to shooting there's no motive there is no tangible evidence and there's no testimonial evidence about him just begun there's just his possession of a gun three days later and that single fact cannot which cannot rise to the level for pondering he should have said anything about i mean that's not even allowed to say he possessed a gun that was used three days earlier in a violent crime can't do that i think there's no relevant to treat this is an issue of substance of reasonableness to which no objection was required and therefore an abuse of discretion standard applies but plainer applies to the surprise theory plainer applies to the surprise theory because that is a procedural issue  impermissible speculation that was considered by the court we can time it that is a substantive issue thank you thank you seventeen he's released to a halfway house less than two months later he physically runs away from that halfway house in march of two thousand and seventeen in april two thousand and seventeen he's found with a loaded firearm in his waistband after having being shot he's taken to the hospital he absconds from the hospital and is not found again for thirteen additional months until he's finally arrested on this case those are the undisputed facts that the district court relied on in imposing this upward variance now i want to talk about all three of palin's assignments of error but i want to talk start st with the standard review issue because that's what the court was talking about last writing what i'll refer to as the speculation claim so we have you know the claim that the district court considered an impermissible factor or here that the district court improperly speculated about this prior shooting is appropriately considered as a procedural reasonable is claimed because it goes to the process that the district court judge took place when he was fashioning his sentence and this court has said as much in the last two years and published opinions in a way on parish bill roy johnson and lawrence johnson and it is and it's as recent have to go back to the st published opinion on the topic and  and if you look at i think i would say that the st case that took this up this impermissible factor piece and in grappled with it was mon month in two thousand and seven and if you look at this court's decision in cabrera which of course parish impermissible factors and looking at the question of improper speculation you know the rate of paris was an improper speculation case philip johnson was an improper speculation case twenty three days ago in an unpublished opinion in slate williams was also an improper speculation case but looking even further back than towing to about seventy five days after booker came down this court handed down webb and webb in i know you do your honor and so in web the the court wasn't breaking it down into substantive in procedural reasonable as yet however i would point this court to pin site page three hundred and eighty three in webb where the court said that booker required this court quote to consider not only the length of the sentence which i would contend is substantive reasonableness but also consider the factors evaluated in the process procedures employed by the district court in reaching its illicit terminations that maps on really well to ray on that maps on really well to fill roy johnson you know all these fine distinctions to any of these cases wrestled with the only thing that matters here in the only reason you're debating this which is whether plane air applies or not to an on preserved air in other words the reason  fight matters is to whether you get in the van or basket which says no plane arest a subset of reason in subjection is but this is a very artificial discussion to go back and look at these cases when they're not being asked the real question is it plain air or not it seems to me the question here should be is this the kind of a air you would expect counsel to mention at the hearing that's the point of the boss to question which the scores have for a long time and bostic doesn't make any sense when you're complaining is i think the sentence is too long it just doesn't make any sense that that's the whole premise of challenge the p s r or anything else in the case so i guess i feel like we can go down this road there's you know must be seventy five cases we can parse here but the real point is whether you have to preserve the air right that's why you guys are fighting about this well i don't know whether impact i totally agree on i think a helpful kind of shorthand to try to figure out whether something is something said more procedural is could be fixed at the bost stage and would it be addressed and take this case for example but that would be true of a sentence being too long that could be fixed at the trial court stage you could you could require if you wanted to making up new law you could require that all objections to any reasonable this aspect of the sentence be raised at the district or to the district court can fix the problem before the court of appeals gets to it now i know reasonable this is the standard for appeals courts and not for district courts but if the nature of the appeal is going to be it's not a reasonable sentence either procedurally or substantively you could say if the sentence is one hundred years you should object to it at the district court level so the district court can fix it i guess where my response to that would be let's say that the defendant has defended has allocute at sentencing and ask for a ten year sentence and the district court hands him a fifteen year sentence i mean it's kind of implied that the did that the defendant is disagreeing with the link to the sentence i mean in the sense of that's why it's always made sense to me that we don't require him to stand up and say i object to the length of the sentence but we're going would be here he's gotten a variance upwards he objects to the variance upwards what is the basis for the variance upwards he's arguing the basis for it is he said you know i heard you talking about this prior shooting it was a surprise to me which of course he didn't say that either because he'd received an discovery then the the court could have done a number of things the court could have said no no which is what we think really happened here i didn't consider that at all i consider was the fact that the gun was used in a prior shooting or you could have said fact or whether that someone three days later says yes i'm pleading guilty because i was a felon in possession of this firearm this farm's been hanging over my mantel piece for the last twenty years i'm fairly sure it works but i'm not you know i'm not even one hundred percent sure that it works we would allow him to put that it's information about the gun it's information about is the gun dangerous i mean it's the got this this was it this is not a firearm that he bought at you know best case scenario for him and about this fire really except it was in  his at the time that he was shot and he is a felon and therefore he is a felon in possession of well you know one more thing your honor we know that it was it was used the farm was used in a shooting not a month earlier not a week earlier three days earlier in the same part of town now whether hatcher was involved in that shooting or not that is a relevant factor about that firearm that demonstrates its dangerousness that demonstrates that hatcher is involved and he's he's already had a federal firearms conviction he's back in the same area of town he's involved in the criminal element he's carrying a gun that was used in a shooting three days prior and we believe this is pointed up by judge sentence point if you look at how this came out in the sentencing proceeding this was in response to this claim that he was just carrying the gun for self defense well in that that was how this that was how the three days prior shooting came out so whether hatch that certainly that certainly could have been a reference to him being actively involved in the shooting three days prior we agree with that you know it also could have been the district court saying you know here you are you've already got a federal firearms conviction you're running away from the halfway house you're going back to the same area you're carrying a loaded firearm and if you look at page i d ninety seven of the m p s are the this shooting that hatch so hatter shot that's how he's found with the firearm the shooting was an execution style shooting it wasn't a robbery gone bad for example where what happened was someone walked up behind hatcher and shot him in the head and then walked away so this is him he's back in the same neighborhood carrying a loaded gun he's you know this it certainly looks like a retaliatory type shooting and so it could have been in relation to that now we don't think we would point we don't think that the district court going down to the speculation flame the subs of the speculation unless the court has additional questions about the standard review we don't think the court did rely on the fact that hatcher was was actively involved if you look at page i d one hundred and fifty two the district court was careful to say so at least we know that the firearm that he possessed had been used by someone in that general district court says he has a propensity for violence because he has this prior somewhat conviction isn't that an odd thing to say if you think that he was involved in a shooting three days prior that he's harkening back to this prior assault conviction he's not because he's not relying on that he's relying on he's relying on hatcher's complete criminal history his he does have a propensity for violence he's back in the same neighborhood he's carrying a loaded firearm those are the reasons why the upward variance may go to the what my my colleague let off with was this issue about the misstatement about the two robbery convictions this goes to that tom altman criminal history if you look at the  history was some twenty pages long he did only have one robbery conviction as an adult he also had flown as assault conviction and his federal gun conviction and all five juvenile convictions including two up to burglaries and he had another arrest for robbery but not a conviction so we think that's probably where the mistake came from but that misstatement by the district court judge did not change the criminal history category it did not change the guideline range and it did not change the district court judges overall rationale for his upward variance if you look at page id one hundred and sixty two dollars at the top of that page the district court judge explained this defense been involved with the wall off since he was fifteen he's received sentences of probation incarceration none of the previous and this is had just heard him from violating the law he continues to carry a firearm which was discovered after he was shot by the way when he was finally arrested thirteen months later because he shot again so he shot a nd time and that's how the that's how the police finally caught him so he's under a federal senate where he intentionally walked away from a halfway house leading to the escape charge this is why and he got forty six months previously the up the top limit in this case is fifty one months so this case kind of screams out for an upward variance if he's not after after serving a forty six month senate he's right back in the same right back in the same neighborhood again carrying a loaded firearm  circumstances because he was this individual is not deterred by the previous same crime forty six month sentence walks away from a halfway house and here he is with a gun again as he had got a little bit of time i wanted to surprise the surprise issue  looking at cop and you're of course the cop injure the situation was these pre sentence reports were were not they were secret as to everyone except for the defendant it was involved i think they were literally were not available to the defendant unlike here where we have the information provided in discovery that four shell casings from this gun mattia shooting for three days prior that was provided in discovery and it's not it's not the record but it was provided a farm case so the facts and circumstances of the firearm are important so this firearm the fact that this firearm was used in a shooting three days prior is a fact and circumstance about that firearm that it's foreseeable would be used in sentencing i'd like to address two main points st with the speculation and then with regards to the standard view on that claim i want to push back on the idea that the idea that mr hotter himself used the gun was not a factor in sentencing we've already talked about the one quote in which the government concedes that it may have referred to mr hunter participating in the entertaining he at the clerk said even a guideline sentence here would not be sufficient to meet the purpose of the sentencing statute and then afterward says and then as we know of course now he returned to the old neighborhood and continued to use a firearm have a firearm on or about his person and i recognize the judge doesn't know the full extent he but he does in that sentence speculate that he may have continued to use a firearm he does so again at the beginning of the sentence and he said he says and that's why he's going off unfortunately to serve a very levy time because of the circumstances here in the history here the possession of the gun and obviously the gun whether it's by him or someone else certainly willing to use it i mean his his theory is like i need a gun for self defense that conjures the image of going  registering and keeping the gun with you for a long time we know that's not what happened here he did not get this if the it was used in a crime three days earlier the odds that it somehow got to a gun store and he legitimately bought  just takes you back of the central point he said it's a dangerous neighborhood i needed it for self defense and that's just not what it looks like i'm sorry and i don't think that's speculation at all he did not appear at a gun store register it and keep it with him at all times right we don't know how we procure the gun and more probably we don't know if he has knowledge of the prior so you think he got it from a gun store they are not i'm not going to engage in that speculation because i don't think the clerk should have engaged in that speculation i understand th implausible utterly implausible on this record that he went to a general store that sells guns got his gun use the waiting period and complied with all those rules you have to acknowledge it's not crazy to one that was dangerous well as it had been used in a crime three days earlier it wasn't you know he pointed out the example now what you're allowed to ask about how what's the history of this gun and i hate to be trite but you know you can ask about the history of a gun  let's assume for the moment that he had bought his gun legally would be irrelevant that the gun that he's found to have possessed which just been hanging on the wall these years that would be a relevant point at a sensing hearing i believe it would be here at the history