heller us good to see you you may proceed when you're ready thank you judge good morning may it please the court counsel my name's daniel unless i'm with the federal public defender's office and i represent mr johnson on this appeal he raises three i began by focusing on the friend issue of course my client had the right to represent himself but only upon a valid waiver of his right to counsel and there was no valid waiver in this case the district court never asked he had the right to representation in this matter and the matter that was specifically pertinent to that was the initial appearance the judge didn't discuss the right to counsel throughout the balance of the proceeding and furthermore the judge didn't ask even the necessary things for the to be a valid waiver of the right to counsel at the initial appearances so those things are important my client's a th grade education he had very limited dealings with the criminal justice system other than the one case in california where the th circuit said that the record established that he was a fool so i don't see that any of those questions and answers in the information for the court as satisfying t he was convicted and sentenced he certain and he told the court that he had represented himself in half a dozen trials i know the other ones were civil but that's a lot more than most defendants coming before a court why wouldn't that satisfy the appropriate experience certainly because the difference between civil in criminal cases enormous so let's winnow the number down from six relevant cases to one and then in the one case if you look at what his performance was that should have been a very strong indication to the magistrate judge the my client did not have the necessary background and experience to competently represent south the trial and make that decision the th circuit said that established by the record that they were fools that shows a disastrous effort to represent oneself not a competent ability to represent oneself in the instant proceed but the there's a whole matter of the nature of the proceeding as it changes in the denial of all of his b trial motions for subpoenas and cetera those were important junctures in this case in the evidence in the city rather the posture of the case of change by the time it made its way from the initial appearance to the final pretrial conference that the district court should agree weighed this and said look what's changed so i'm going to have another examination and it should be full some in it wasn't so even if we had a critically happened earlier are are you to point to anything that happened before the trial or actor turned out that would lead to the conclusion that he actually was not ignored judgment and you're right but then also if we look at the tensor of the case in hanson where at the proceeding the defendant said he does honor the author from the government incident zeroed in on that correctly so to say this is a person doesn't understand what's going on when and a criminal case you're just entering an offer that is the equivalent of my client saying he moves to discharge the indictment at the initial appearance and so the hanssen case the denser case from two thousand and nineteen i think that squarely indicates what your honor is getting out about his ability to make an intelligent decision in that is strong evidence under hanssen to say that he couldn't do it or mr hill us i got a question for you it's been troubling me in this case and with your experience mr conan is maybe you can help me out you make a good point that on the to be one point one issue that the twenty to twenty one billion has you know it's a complete fiction there's no reality to it whatsoever the thirty level or the thirty or thirty level offense level enhanced may or increase occurs at five billion five hundred and fifty million as you guys know what do you do in a case like this with with computing the guidelines you know that you know the twenty or twenty one billion is fiction because everyone would agree with that but the district court has to make a particular finding you're doing it under the prism of the you know quote intended loss unquote how do you go about this it's not very difficult i think that mcbride in stock i'm are useful starting points for this and so if we look at the six or its case in mcbride open seven circuits case and stock timer you approximate what is reasonable in the case and you look at the person's intent as well judge so both of those things are at issue here and if under you see that there's this fanciful thing where it's almost like the in contagion example that the court gives you would say that you calculate the guidelines and it does have a twenty billion dollars loss but that is not a reasonable number to use for this proceeding to determine sentence and sentences should always be reason so if we recognize the unreality of that then we shouldn't walk ourselves in to a guideline determination guidelines have been known to disproportionately affect people by looking at certain things you know crap nurses powder cocaine purity of methamphetamine all sorts of things that under kim bro in that line of cases judges well they start with a great guideline calculation should look to what the actual facts are in the case accurately calculated the guidelines you're just challenging in saying that the district court procedurally erred by not considering the intent of your client which you could infer from that twenty one billion dollar and realistic figure both the intent and the lack of economic reality there would you agree there are some guidelines that the intended loss as a pure factual matter was correctly calculated your argument is that  should have been taken based on that is that correct absolutely and that the lack of concern that the judge said in giving out the sentence he is failure to account their principal argument with this limited record that shows that you cannot determine the reasonableness of the sentence based on the limited exchange between the judge in my client and just briefly unless the court has questions about the sentence the two hundred and sixty month sentence essentially is going to find my client to prison until his death because the present sentence a live to be eighty one years old into the actuarial tables may be less the sentence keeps him in prison till eighty eight years old and that is contrary to the noble tradition in the courts i kind of mixed explains why he's kind of up against you know of a possible life sentence of sorts i'm not exactly embracing the expression but it's because of that and so in two thousand the whole thing is so crazy but that's not a scientific term a does an effective life sentence stripey you as at all unreasonable  is situation on his own it's he's he's you know part of the thing of the kind of underlying theme is that he's a rat folks like federal folks throughout you know whether it's turning his judges  officers that's is it been is history and so in some of the things that we see for example you know the dishonor offer is what folks like this tend to do they're kind of harassing i'm not saying isn't but i'm not saying he's not and it's it's that that type that we're dealing with as far as the sensing goes there is a built in offer you know it's a nonviolent  se he's getting so he could be eligible for different things like st wolf for b o p to consider any kind of compassionate release for then the course to mull over a compassionate  release you also have a good time credit which i imagine he could been building up a little better how do you not pick committing crimes so there are things that are out there and it's it's simple a little guideline s so it's it's so i you know i you know i do care about human life and that and the judge did too by hoping that he gets out and you don't get out there but that the judge fence he was intended as much the and but it was the possible what went through the court system it went through the bankruptcy court and you know it the bankruptcy court was you know it with the help of a usa was able to kind of seal the documents before it had the effect of ruining the o p s credit scores and plus he had twenty eight dollars other identifiers said he had memorized that that he was going to put into the  same mix so you have somebody it's not just not just the money it's the be inflicting harm on government employees so i think that was your honor that was fi the problem the way i read says i i certainly did not make that clear and i apologize to the court you know you have to apologize  i i do not know if it's in a record and i apologize it's kind of what we're used to down here in southern district of illinois it's the public defender and i think all the panel attorneys do the same thing they meet with the client ahead  and they kind of you know they find out it all so they know if there's a concern before all sunburned from the the initial appearance in front of the magistrate judge so you know not only would they be you know focusing on an issue like this whether this person really wants to public defender or not but to be focusing on issues as far as detention and regular mental capacity and so that's why i think you know that's why our courts have that routine your honor  by its terms doesn't purport to be self representation for all purposes right well it's it's for all the legal proceedings no it's a matter it's for the arraignment of hearing it's the court's obligation to make sure the defendant is aware of the pitfalls of representing himself and make sure that he is knowingly and voluntarily intelligently decided to do so you can't put that on the defendant well i'm sorry i may have been jumping ahead as far as time scale at he he's advised about proceeding criminally without an attorney the of goes into the a fact that he's advised that he should have an attorney and at one point even a standby attorney and he refuses that he still he can and also by the way of motions and anything that would happen after the initial appearance the judges would also be able to kind of say hey we better revisit this and do something if necessary and that's you know that would be what i i would submit as kind i know mr hill is joins issue with the colloquy with the magistrate judge but i think one of the points that i took away from his brief is that at the very least there should have been a full and complete forever hearing before trial kicks off this guy's face seen on i mean facing major time a life sentence well your honor i would say that he had two hearings two formal hearings gilbert is that what you have in mind while a charge judge i was looking at his right is concept of side the defendant's constitutional right to proceed pro se yes your honor the judge it was it was a it was a final preacher also the judge is dealing with all the pretrial issues and fred it was one of those issues that the judge you know revisited and said are you sure you want to do this well he the judge would have known that by the fact that he was pro se that he and he was granted that to proceed earlier that he was in a good position and through all the the  the pleadings that were filed by the pro se defendant that you know he knew what questions he was going to ask and the united states in advance of the hearing the record doesn't show that there was the production presumption must be that there wasn't furthermore the tradition seems to be in the courts in particular in the southern district of illinois that there is a specific threat  especially the case where motions have been denied things have happened that is something that the judge should be really weighing through a very full thread a colloquy at that point not piggybacking on things that happened that he doesn't even especially know at the time of the initial appearance and then lastly because something went in the bankruptcy court doesn't mean that the scheme was possible in the last was there for intended in the sense the guidelines read regard that issue this is still impossible amount of wast the district court said so and yet the district court priest past that fundamental thing in imposing a sentence that's a life sentence here so for these reasons we asked the court to vacate and remain and order a new trial of the very least there should be a new sentence ok gentlemen thanks to both of you will take the case under advisement and will last stand in recess