the morning your honour's nikon raises sentence of life in prison without the possibility of parole was both procedurally and substantively and reasonable it was procedurally unreasonable because the court denied the third point for acceptance of responsibility even though the government had consented point and the court has discretion to deny that point and it did so as punishment for what the court mistaken believed considered by the court overall but did anybody raise the third point issue or acceptance responsibility that is your honor is it once the government says that he should get the benefit of the third point you really have no discretion once you were the first two points that everything anybody ever phrase that to the district court i don't think that the record would reflect that trial counsel put it in those terms so i mean he it's part of my argument it's certainly not the whole argument but it's part of the argument and i think you preserved an objection to the denial of the acceptance of responsibility point i don't think he at the time of sentencing used said to the court wait a minute you can't the third point is the wrong thing to do perhaps he should have but it was clear that it is the wrong thing to do and that you have no discretion if you're the court to use that as a punitive measure when the government has consented to it is it clear that the judge took away the third point meaning the one for only acceptance of responsibility were just decided to take away a point oh no i think it's clear the judge took away the third point is i don't i'm not sure i want to try understand how you take away only one point unless it's taking away the separate third point well but i didn't i think if you if you look at the sentencing it's absolutely clear she says i'm going to give you the two points for acceptance of responsibility the first you know the three one point one a points but i'm not going to give you the third point and then i submit by itself was procedural correct guideline sentence and the correct guideline sentence would've contemplated a sentence of three hundred sixty months and it's different to have a mandatory sentence of life than to have a guideline have to be the government's burden to show that there is something in the record that indicates assuming we thought you were right that this was an iranian sky blind calculation and i'm wrong that it would be the government's burden to show that something in transcript shows that the judge made clear that this would have been a life sentence regardless of the guidelines and this was all kind of an exercise going through the i think that's true and i don't think she she did make clear that it would be a life sentence certainly she was just served by the videotape and use that for her to make a number of conclusions that we believed were erroneous but she never stated it doesn't matter because i'm giving him life no matter what she posited percent and she structured her sentence so to speak on the basis of taking off this third point and then putting it into a guideline of course and the maybe more importantly point in the long run  you suggested that it was erroneous for the judge to draw the conclusions that she did from the videotape and i'm wondering what's the basis for that given th videotape i would think is best for us susceptible to differing interpretations but i rather thought that the judge's interpretation was the better  contributed money with others and he disposed of the body he did not say i committed the murder and the government did not ask him if he committed the murder in fact the government did ask him three questions to his sort of  exactly what the allocution was asked him if it was an obstruction murder did you and others contribute money now if he contributed money as the government was emphasizing it seems to be that he's contributing money to someone there's an egyptian will two points that's added to the murder based upon a phone call he had with randy tyson after he was arrested just separate from the two points he got on the anyway and you know i think as we argue i think from this wreckage you could say counts was ineffective because at that moment counsel should have said well then we reinstate our objection and let me explain i will for the thirty five fifty three factors right once the court san i'm going to play it anyway though whatever strategy the council thought he was engaging in in saying i gave up my two point obstruction objection backfire and there was no point to give it up at that point because it had merit because it was consistent the notion that he was telling randy tyson chill i remember she's concerned she's a coconspirator she knew it was going on the notion he was telling her a lie is based upon the same premise which is that this this man somebody else he's lying when he says somebody else committed the murder and he's lying when he said it was the result of other know when the government says well there has superficial appeal i think it is more than superficial i think it makes sense and the second component of this is the cell phone tower evidence just like to like go into a mall and a little bit of detail because if you really look at it it supports the story that nick one is told all along nake women and miss thompson more in telephone contact a lot but it ceased on july nineteenth no more telephone contact after that the day of the murders july twenty second the government says when nicole thomson made her last phone call on ray this was a mile and a half away that last phone call was to so then the lawyer telephone calls radius at five thirty seven twenty six minutes later presumably a mile and a half away and the government has never said the lawyer telephone was not present at the murder it says he's calling this whose who's a mile and a half away in the government says well it's plausible that they met up at some time but it isn't really plausible because if they met up then why is the laura telephone calling reyes and why is he pinging from a tower a mile and a half away but it really is consistent with reyes is perhaps less than perfect and articulate testimony about what happened but it's consistent with where he says he was the timing of when he says he got to this scene and with what he has maintained throughout these proceedings and the government permitted him to maintain at the point your theory is of the cell phone evidence is that the most consistent reading is that at five sixteen the lure or at least what somebody told pre sentence report  the person and thompson are more or less in the same place so they're effectively already meeting at five sixteen what happens between five sixteen and five thirty seven you know other than that person murders thompson and then at five thirty seven calls ray has to report that the deed is done and that's your theory well the government doesn't seem to have much of an explanation as to what's going on between the  person and thompson for twenty one minutes plus twenty one minutes until ray is called and then whatever time it takes ray has to get to the scene so that ray is can do the murder that's and that's essentially what i'm saying and as you know they put it in  both procedurally and substantively reasonable the court properly found or certainly was within her discretion to find that when took the stand and testified that he did not personally commit the murder and was not present for the murder both of which there was evidence was not accurate based on that recording that the confidential source made of raya's in february of two thousand and fourteen it was judge talons was well within her discretion when she listened to both the recording and she listened to the defendant and upon right has testified at the sentencing proceeding to say i don't credit what you're saying today at the sentencing hearing i do credit what you said when you did not know that your life was on the line i recognize that the government here is appropriately defending the district judge decision about this but back in the district court did the government ever take the position that ray is had personally committed this murder  a standard took the position that it didn't matter but in any representation to the court as to the government's theory of what did actually happen and i thought there was some implication that the government's theory was closer to what is said than to what the government is saying i'm not saying the government is saying it happened now but that the government is now that judge towns found the government is now defending and i'm wrong about i believe you are i think that the government and i don't mean to be mincing words here but i think that the government simply never said who personally carried out the murder and who was present for the murder what the government said was that there was no question that there was another individual who was involved in the murder plot and we called that individual both the war and a lookout for a reason the individual was a war because based on the phone evidence the government's emitted that that individual who is on the phone lord miss thompson to that location in brooklyn where she was ultimately killed to be clear the government does not know where ms thompson was killed the government doesn't know what time ms thompson was killed all the government's evidence proved was that at some point there was that telephone call between ms thompson and person that we called the war and  not entirely clear on how this works in my last involvement in criminal investigations was before this wonderful new technology the i understand that when you make a call that hits  the cell phone tower is it the case that the cell phone is continually pinging off towers even one phone calls are not being made it can because i don't think this is in the record right but the cellular telephone providers keep track of where a telephone is so it does periodic lee check in with that phone and would there's no information in the record about the interim hole between that call or whatever it is that gets to the re is phone at five twenty seven and six thirty and i was wondering if that evidence exists or not it's not in the record but is that something that the government has as to where ray is might have been or what phone what phone towers he was paying off in  approximately the government has this all of the seller's telephone records that exist for that time period and sitting here right now i could tell you if there was a hit between you know five twenty seven and six thirty when he mean frankly if i were the judge here i don't know that i would care whether thompson carried out this murder by himself or whether he with full premeditation planned with other people to have this witness killed and paid money to have it done and then participated in disposing of the body is a lesser factor that would seem to me to be the critical issue and i don't see how it matters that he did it with his own hand or  not wouldn't matter to me anyway to the sentence but that goes to the substantive reasonable notice and you know it seems to me that if if it did matter to the district judge it would be asked the court or through counsel asked the court judge are you going to rely upon the statements that are on the consensual recording that was made in february two thousand and fourteen and the court says yes and then for the first time he says well i'm going to testify and i'm going to tell you that what i said on that recording was not actually what happened and so the government was not had not put forth all of the evidence to show exactly where he was at what point in who carried it out and frankly the government likely would have taken a similar position that it did that as your honor pointed out earlier the governor's decision was it it just didn't matter but i think that the court i was completely within our broad discretion in saying that whether it matters or not what matters to me is that you lied i understand so and so i guess that is a point to that if it if it does matter to the judge whether his statement was false as to what he did because that suggests that he didn't really accept responsibility after all regardless of whether it's one point two or three that comes off if  and that turns on the question of whether he did the killing that's right however the court said that she had listened to the government at the court's request played the recording in its entirety for the court the recording of this february meeting the court also said that she had listened to it prior to the sentencing and then she listens on raises kester money so she was in a position to listen to mr ray as watches mannerisms as he answered the question and say i just don't believe you and so given the broad discretion that sentencing courts are afforded to make those credibility determinations and frankly the guidelines specifically provide with respect to acceptance of responsibility that the sentencing court is in a unique position to evaluate the candor of a defendant and she did that this she and as a result of her unique position to weigh both the his demeanor and his statements made on the recording and his demeanor in the statements made at the sentencing proceeding she levels of acceptance responsibility the district court has no discretion has to award the third level you really don't talk about this in your brief but it seems as if that's the law that if that she did not have the discretion to just den the defendant a two level reduction for acceptance of responsibility but not to a third point and she uses the word not the third point suggesting that she's referring to the level that only the government can i think that she made it terminations that she wasn't going to give full acceptance of responsibility and to the she would have been within her discretion to simply say i'm not giving any acceptance of responsibility but she didn't and i guess that's that was a question  was asking is there a power in the district court to divvy up and just i mean i understand the court can say you've struck the justice you don't gain acceptance of responsibility credit a but does the judge have the right to say well you sort of obstructed justice in half or you really expected justice and i could take it all away i'll cut you some slack and only give you two points instead of three or one point instead of two that's not how the guidelines work is that's that's true in part however two things i want to raise the first is that the guidelines of course are not mandatory and so the government's myths that she can if she wants say you know in effect i'm giving him only partial credit and that that's appropriate use of you know i may not make a difference when it goes back if it goes back to the district court because the court can do what the court thinks is the appropriate sentence and i for one don't see much weight to the idea that this was a substantively unreasonable sentence even if mr ray is his account is the true account of what he did but technically is it not the law that if there is a guidelines error and again this is the subject issues of preservation and all kinds of other legal issues but if there is a guidelines the sentence is procedurally on reasonable on last it's clear from the transcript the judge would have given the same sentence so i want to address that i think the error would have been let's say that the proper thing to do based on her finding was to simply not give any acceptance points then what she should have done some way then it's not so clear if the judge only wanted to take away one point then how do we know what the judge would have done if you can take away three points or no points i get hypothetical it all seems  many of these guidelines things strike me as somewhat ridiculous in a world in which sensible district judges are treating the guidelines as guideposts and not binding but we have to deal of course judge however i think that judge towns was crystal clear that she decided that a sentence of life was appropriate she did not fixate on the acceptance of responsibility as as based on the fact that he lied she really focused on his demeanor during that recording and that he had not accepted any remorse had not shown any remorse for his conduct and i think based on her very clear statements in both at the sentencing proceeding about the heinous nature of the crime and his attitude towards it and frankly the statement that she highlighted this that he said he would do it again if his life is on the line i don't think there is any question that judge counts would have imposed the same exact sentence regardless of whether there was a full reduction for acceptance of responsibility or no reduction the government has said in its papers just said just now it's true that the court found that despite the fact that nick carter is had written a letter expressing them had a retired marine colonel who was a friend of the family say he was laden with guilt and sorrow the judge relied on something that happened true years earlier when there's a lot of posturing if you watch the whole tape this is a man in a crime ring is who's very influenced and easily manipulated by his older cousin whose father was murdered when he was ten and this cousin who's a seasoned criminal knew what he was doing and you know he's years earlier is a static and then you can have growth or maturity or change is i think it consistent with our principles of criminal justice and inconsistent with the evidence in this case which really reflects that he did grow and change looking at the tape is the tape but the government have the tape at the elocution and it didn't demand that reyes allocute to a greater role in the crime i can't stand here and tell you why not but it does matter because this was not just and this lurch telephone the government asks repeatedly and there were others in the government no says recent here today that this was a conspiracy involving others and of ray's having a role in it but he wasn't the actual guy who put the whole thing in motion he didn't suggest if he was acting on behalf of these people who got him involved in the bank fraud in the first place it very well might matter to the ultimate sentence and i think the the bottom line is that this is a very severe sentence you can have and they can raise entitle to a chance at a sentence based on accurate factual finding and ac guidelines calculation and i thank the court very much for its time thank you and we'll reserve