please the court robert culp assigned counsel for appellant who's families here in support as he serves what we contend is an unreasonable actually beyond maximum five year sentence and extremely poor physical and mental health at the devons medical facility in massachusetts mr milan pleaded guilty to the very poor choices of leaving an anonymous note and making an anonymous phone call to a bankruptcy judge saying to back in the case in essence and lying about it to federal marshals this case was probably heading toward even on a pessimistic standpoint from mr milan's perspective this case was probably heading to a sentence maybe within eighteen to twenty four months which was the government's range that they advocated when of course this whole case was turned upside down i would say by the submission to the court of a confidential informants conversation a transcript of such that was taken in prison we believe that this that the here the consideration of this tape itself was was the accused offensive in july of two thousand and seventeen i believe it was sometime in in october of that month that the informant wrote to the marshal's  and then i believe the recording was made in november even though they had been spent the record reflects that they have been talking to each other they knew each other in prison for a couple months at least but one recording about two hours long you've got in your confidential appendix was made in november that i believe in december was when the government advised st they advised the court ex parte and then eventually the defendant late december of that year and then believe that the informant reached out to the government sometime in october yeah i thought that's the chronology of it that the letter is that he wrote to the to the marshal's office are not in the appendix they were not given to the judge but they are quoted in defense counsel sentencing submission i've requoted them for you particularly the parts where the informant says i don't believe what this guy said he must be crazy i think that's an important point for our other argument that there should have been a inserted an informant who you would argue deliberately elicited remarks about the pending offense yes absolutely about the pending offense i realised the government is saying that there were marks about potential other offenses also taken in those and that conversation but but the fact that the got the government presented them and they were used in this case about these charges makes it on a clear plain messiah the question as well because it used at the subsets of so the bank robbery is not question was i thought the question was whether the the lawyer you need a lawyer before he could be questioned in relation to this crime but if you volunteer other crimes that consistent with massage other information can be bought in the arizona sentencing which obviously could include other criminal activity so i don't know that before or after the offense would make a difference but the point is that close that that say that it's a messiah violation i also strongly disagree with the government's argument that he can if there is plain error here it's not prejudicial because the judge at sentencing thought well i think  so to me that's that's clear prejudiced that this this this six level increase that was not even the plea agreement was brought down on defendant other governments as well the government or so on that the judge just gave other reasons why that guideline may have applied but those reasons have to do with concealment with the fact that when he made the you know honest phone call he didn't give his name when he bought the phone and things like that they're not they're not about the threat and not not even the government nor the department of probation even said that that was reason for that six level increase to come into play so you really you've got the six level increase coming into play because of the messiah violation so that's i mean i just recorded say i think the phone call significant but i don't i would make the same fine being without the phone call so are you sir are you saying that he just didn't have adequate setting aside the phone call he didn't have an adequate basis for that finding absolutely not i don't think anything he said goes beyond concealment doesn't have anything to do with preparation to carry out a threat which only came into this case with the can still with the recorded conversation with the statements about that he had a gun ration you know it when he makes a nd phone call using a burner cell phone and has the conversation well i'm i'm sorry i'm misstating the record the messages left in the mailbox but then there's a phone call and that's follow on conduct that seems to intensify and it's planned conduct that tends to seems to intensify the initial communications saying everything all turned out what am i missing i don't it's maybe an intensi apply and partner probation didn't either they all came in with with the conference confidential informant tape instead of the argument is that there's just not enough in the record in the district court may have said he wasn't he didn't need to rely on the the that there should have been a hearing that this man should have been required to take the stand because of his cause i meant that he didn't believe what this guy is saying i don't know how you can take these words off of a piece of paper and draw such a dramatic meaning to him with a man in such poor health and and give him a maximum sentence with course we're arguing that it goes it goes to four of the supervisor release goes goes beyond the maximum i think you've got to have a hearing and for that reason and his good morning may please the court my name is mark silbermann i represent the united states in this appeal in july two thousand and seventeen and as mr milan and bankruptcy proceeding was headed towards what he perceived to be an unfavorable resolution he made two threats against the judge presiding over that bankruptcy litigation st run the th of july holiday he went to the judge's home address and left a note in her mailbox telling her to back off that she was overstepping authority and he was just warning for now about fifty six days later on july th he made a call to the judge's home phone number which was relayed to her personal cell phone he refused to identify himself but noted that he'd been in the judges house the previous week and left a message for her and told her to extend a deadline in the bankruptcy case and then maybe everything will be ok based on that threatening conduct and then mr milan is false statements to the marshals investigating that threatening conduct mr marsh and mr milan and pleaded guilty two thousand and one charge and judge meyer sentenced him to the maximum term of imprisonment of five years there was no error in that sentencing and no aaron relying on the covert recording made on november th two thousand and seventeen to answer judge pierce's question about the chronology here it was on october th that the marshal service received a letter from the informant government agreed to dismiss count one of the indictment but the government reserved its right to make the argument that the threat guideline should apply at sentencing and that's what happened in the case the government made that argument it was november  the covert recording was made so that was a little less than a month after the change of plea and sentencing proceeded in february of the next year or so about three months after the covert recording had been made would you address the block or your argument here because i  troubled by the idea that when formal charges are pending that the government could insert an undercover informant to to investigate whether enhancement should apply and i know that's not how you would characterize the facts here but that seems to be the implication of your argument yes your honor so if i could back up for a moment and just explain the context in which the decision was made to introduce the informant i think this is reflected in the record m and was asking this informant to find someone on the outside who could threaten or assault the judge again to get her to back off and so when the decision was made to make a covert recording it was  eye towards new conduct completely new conduct and yet at this court's decision that counsel referenced earlier and so and to be clear that is what happened for much of the covert recording in particular information was elicited about mr milan in splot to a doctor and extort other litigants and lawyers in his big case about his plot to fabricate evidence to be used in a lawsuit against the bankruptcy judge and about his plans to assault or kill the judge in the future so all three of those offenses would be future conduct all of them the government soon it's a blocker distinct involving the gun and then possible obstruction for concealing the gun it is the government's view that if mr malott in fact brought the gun with him to the judge's house either on the occasion when he dropped off the no or on some other occasion or if he was simply sitting in his car thinking about going to the judge's house armed with a firearm that those would be all of that would reflect a different and distinct offense on their block burger in particular i'm thinking about section one hundred and fifteen  assaulting or murdering a federal official or attempting to commit those crimes which require different elements each of them has a distinct element from section one hundred and fifteen dollars a one b wrecked me if i'm misunderstanding but if he had not entered a plea agreement and gone to trial on the original charges you wouldn't have sought to introduce the the evidence about the gun at that trial correct i don't know that i can answer that question i think there's a possibility there would have been a superseding indictment and things may have changed in that scenario i think the this does present some thorny questions and i think you're hitting them your honor your question in particular about this six level enhanced means for evidence of intent to carry out a threat but i don't know that this court needs to grapple with those thornier questions because this is a plain error standard of review and the rd prong requires mr lott and to show that any th amendment covert recording i have no doubt based on the facts here this is a quote from judge meyer that mr milan is conduct evidence in intent to carry out the threat that this was very far from some kind of a misguided or empty gesture i rely on numerous facts here apart from the business the fact that he then acquired a burner phone using cash and a false name that he then went to the judge's house that he then made that phone call which judge livingston points out doesn't intensify the threat it does show that he's taking the steps meyer concluded after going through this conduct on the basis of justice i do think that this carefully planned an extended conduct to me evidence is an intent to carry out the threat it wasn't just an impulsive one day kind of conduct goes on the prior conduct they just described would be sufficient in and of itself and that's that's st of all that be reviewed for clear error but there's no error at all in that conclusion i know that my adversary talks about this all had to do with concealment but in looking at application no one to section two a six dollars the sentencing commission itself says that in determining whether the subsection the one that's the successful and handsome that we're discussing applies the court shall consider both conduct that occurred prior to the offense and conduct that occurred during the offense so the guidelines itself point us to exactly the information that judge meyer relied on and saying i would have implied i would have applied this six level enhanced meant i would have considered it independent entirely independent of the covert recording and so in the government's view and before i conclude judge meyer made that type of finding at every step along the way of sentencing he says i would have gone to the threat guidelines as an up  in the context of this sentencing it was an abuse of discretion not to call the informant absolute had been requested so the the case law is quite clear that the sentencing procedures to be used fall within the discretion of the had all of that he knew and he called it the baggage of the informant he knew all of that he knew what motives the informant had what consideration he could possibly be looking for the contents of conversations that may have taken place between the informant and the defendant prior to the taping right and mr milan was able to bring that out himself he didn't have to take the stand he didn't have to subject himself to cross examination tomorrow heard him out at the sentencing proceeding on his thoughts regarding those prior on tape conversations with the informant defense counsel is able to argue at length about those issues and in the end the judge said you said what you said on this tape and it's this is from informant carried and he heard at length from defendant and defense counsel about the at the set up about those prior conversations that judge livingston alluded to earlier so the government's admits that there was no abuse of discretion at all in judge miers this isn't to proceed with the hearing without calling the informant to testify and again even if there was i go back to the issue of prejudice here any error in this town tex would be harmless because it was an objection made you be conducting harmless error review but that's minor which i don't think he could have been more clear in saying he would have reached this same sentence the the same route independent of the covert recording i see that my time is up you thank you just very briefly on the chronology issue just to be clear at the time that the plea was entered the defense had no idea that he was being recorded or anything like that if they didn't i'm not going to fight him he had not been letters to the marshal's office that this guy is crazy he's not why would why wouldn't you want to hear from the guy who was listening and why was he not what made you think he was nuts were you baiting him those kinds of questions so and then on was he nuts when he said this was enough when he said that i've also pointed out and in my brief that there are things that are provably false when he describes his plea and that recorded conversation he talks about a conversation he had with the district judge or the judge says why don't you go to trial and you can cross examine the bankruptcy judge it never happened we have the transcript of the plea that never happened so mr milan was saying things that were not true on this tape and i think we need to have a hearing to get to the bottom of it and it's real quickly on  the the must back to the messiah issue i feel like the government is saying that if there is something in this tape that's different from the charge defense then it's sort of whitewash is the whole recording and they can use it any way they see fit that's not the way  messiah works in texas forces cobb the man had been charged with robbery and then he was subject to a similar situation and they found the additional evidence that was closely related but it was about different charges spring court never said obstruction or about threatening a witness or about attempting to flee there are lots of things that happen that can happen after a plea is entered or after formal charges are brought to the it seems difficult to say that the senate saying judge is supposed to not know of them it may be different in some ways and this court basically said that the judges entitle to hear about this additional criminal activity but but if you're going to court and before that judge a  different evidence on the charges in the case to me that's of outright messiah violation the government's not saying that messiah isn't applied to sentencing if if if you don't apply the sentencing in this in this case then then you're changing the rule initially of course messiah dealt with another indictment or a debt the different crime that might be prosecuted or not not necessarily that sense so you think the government is just sent this informant in to try and get more stuff that they could use at sentencing no i don't i don't think this is about the government's motivations then they may have had concerns about what they're being told that was being said in prison so but if you're if you're going to go  and you're going to take statements you can't use them in that in the case in which he's charged he has a right to counsel in that case so so you can't you can't do that or else messiahs of knowledge that's that's my position thank you very much