has two aspects to it one was whether or not he was constitutionally deprived of his right to a present witnesses on his own behalf and further the ineffective assistance of counsel in failing to because the presence of mr you know rope us the i'd like to deal with a lot of point first the trial was a multi day trial and on the sixteenth of the month in which was tried the judge addressed the defense attorney pointing out to her that she had contacted the module service to find out how to bring in the defendant she had been given information that  would work by one person in the marshal service and she was given information by another person that he would be a school person was the appropriate way to do it the judge told her on december seventeenth that the appropriate way to do it was that he did score this on the very next day she presented witnesses that she had placed in a notice of alibi as witnesses on the stand she was limited to three out of the five that she had name by the she had concluded her testimony she then moved to reopen it to be able to bring in mr bean a rope of and the court told to that she was too late that secondly that there would be prejudice in continuing this case though that was relatively excused they would have been tech together and we don't know how long it would have taken to get the witness in well i it is a valid ground but it still has to be balanced i think it's a balancing process with regard to whether or not the person who has to be brought in is so central to the defense that it imperils the defen the witnesses even if he was the central he wasn't noticed in the alibi witness list was that's correct in the certain how would we know on this record whether or not that was a strategic decision well you that these two aspects to first as to the first alibi list that you gave he was a fugitive at that point so she couldn't very well have put him on anyway but she certainly should have put him on by the third alibi list when he had been taken into custody and was a codefendant and she didn't do that if that's done if she was going to bring him in as an alibi well i suspect your honor that it was simply strategic why on earth would she by the sixteenth have inquired of the marshals as to the way to go about bringing him in in my suggestion is that that might be a matter for a hearing well i think it's sufficiently developed on this record jarana she is  should have known better she's told that before she actually ever moves to bring him in she's told on the sixteenth that she did it at the wrong way but i thought that the correct me if i'm wrong is is that the main emphasis in in the briefing with respect to her insistence that he call that it was her client who was insisting that he call well that's correct and but but her client at that point it would be inconceivable to me that a defense attorney representing a defendant would not discuss with the defendant whether or not on a codefendant was necessary to his defense and point out all the difficulties with that nevertheless that he could take the fifth for example and then we would not know really that's really what i'm asking you i don't know whether any of those things happened or not well i would be something for hearing i it perhaps could be but i think on this record it's certainly sufficient because you have the fact that she never moved for it before certainly a last minute request by counsel if that's all it was suggest to me it's ineffective not to have seen the possibilities that a codefendant could have testified but certainly the fact that she asked about it two days earlier had to mean at least that it was on her mind and not bringing this guy in on not and she didn't then when she's told by the court with enough lead time for cases and yet begun it you you're not doing it the right way you have to hate the men and you should know better and she does nothing to do that she hasn't even taken the effort of protecting her client's interests so that if she had discussed it with her client and he said look i want this guy in and she thinks it's a bad idea she at least could get behave out the so that he's physically present at the time when she turns to the client and says i still think it's a bad idea and he says i want him on no matter what you still need to show prejudice in the district were in denying the request for extra time both points to the lateness of it but also to the fact that he doesn't see prejudice because of the uncertainty about what the witness would affect the president's analysis i think it affects the prejudiced analysis you're wrong on in that no one would know until again a robust took the stand whether or not it would or would not be helpful or harmful neutral in the sense that he takes the fifty two to make a profit about what he would say she indicated at one point and i do quote it in the brief that he said that he would testify that my client wasn't there but no elaboration on that no pointing out whether or not he would testify that someone else was the i suspect your honor that she was not able to talk to him directly while he was represented by counsel and he was represented by counsel at that point  even if you're right that you don't need the hearing ineffective part as to the prejudice that something you're hearing would be helpful well if if that's the way the court feels then that's what it feels i think the record in response to the court but there's no explanation for why the delay and frankly it can't be any i mean if i'm told by a court that i haven't done it correctly and i got a day in which to do it correctly i do it correctly if i'm not sure which of the contrary pieces of advice i get from a u s marshal service i do both of them what's the harm in sending out a subpoena and a hate is corpus only to be told that one was unnecessary it does no harm as long as you get the witness then so as far as i'm concerned ineffectiveness screens out on this wreckage as a constitutional noun and it also does with regard to the sentencing she when asked if she wants to say anything at all in favor of her client all she says was he went to trial because he claims his innocence and he still does she mention nothing that he's married with three children she mentioned nothing that he had two operations she mentions nothing that he was younger there have been a roadless she never contradicted the court when the court said that he was a leader where globalist was clearly acknowledged to be the leader nature about her client to plead his case and give the court perhaps only moment mon momentary pause which might not have affected the courthouse sentence at all but certainly we have no light being shed as five three a can through econ situations and gave a lengthy explanation as he did for being a robust there's no reason these nothing that appears on this record to justify that increase disparity of the five years nevermind the increased disparity overall the range of sentencing provided under the guidelines except is no question that whoever did this crime the crime was heinous absolutely heinous and certainly out of the run of the mill there's no question that it would have deserved an increased sentence over the guideline calculations because of the nature of the crime but to go five years higher because the man went to trial that's the only reason he cries out on this record when asked for a further explanation with a motion pro sentencing it wasn't on the motion was simply denying so that as a result it's ineffective for counsel to stand up there and not take the opportunity to point out the good things about the con and and that wasn't done it all how much that was on the record how much of what is missing from what could have been said and would be relevant to potentially saw in a different sense when the issue is before us on this record and how much of what's missing is not in the record i have quot everything that was in the record about mr garcia has gone and part of your record also includes the sentencing of mr of being a robust so that you have in front of you those facts of the he mentions some of them that doesn't that mitigate the prejudice i don't think so you're on on i think this something different i judge didn't pull any facts that he issued wants to show that the a sentence falls within the reasonable range of sentence is sufficient but not greater than necessary complying with the gall standard no question about it but when a lawyer gets up to advocate for his client that's his opportunity to wield those facts as strongly as he can to convince the judge that the sentence should be less punitive than is recommended and what the government recommended was also punitive enough and the court went over that in gussied mccain's case and the government itself acknowledged that gussie if it got played well number two out of the three coconspirators who went in there and committed this press things too hard i think you're wrong on that that within the realm of the appeals court and mitchell suggests some sense the truth of the matter is that it's not why because this lawyer has been down in puerto rico for some time that's a small community and she's i q before judging him as a lot he's been east season judge he's in senior retired status there is no criminal defense attorney who has any sense at all it doesn't check the range of sentencing with the judge you already know you've got a heinous crime you've got to use everything you possibly have to try to convince this judge not to go overboard on this kind of an offense to simply say strategically i'll be quiet and maybe he won't notice some of the bad facts is impossible especially after a five day trial with those bad facts come out in a horrific slow dramatic  makes garcia's criminal history more greta's i don't think it's a matter of whether or not one's criminal history is more courageous than the other but it is certainly one component this wasn't a first time offender he has a criminal history including prayer and something clued in on carjacking a home invasions which was part of the pre sentence report he also showed a little respect a continued disrespect for the law throughout these proceedings been given the opportunity to be on bail and during that time by leaving his parole with the state state officials and then when taken in again by federal authorities the court receiving word that he how heinous some of the behavior of bikers here on in this particular offense was to the point of wrapping a fishing wire really under age boys and neck and while threatening has a father looking for more   far far better behind in terms of dates i'm sure that was certainly something that he had in mind and like i said he this was a case of one defendant deciding to go to trial and the other one pleading guilty and then that added to the other components of the sanctions regime under three fifty five three factors would one would certainly put the five year difference within a reach reasonable amount but still make this a reasonable sentence your honor just following up on that  judge barron's question does the does the record as far as you know establish that mr serious conduct was more severe than or her being as the judges references at sentencing seem to be roughly equivalent when he speaks of well you know when he says torture of the other he says psychological and physical torture i couldn't tell the difference in terms of their participation and in that conduct i think the for the reading of the record they were pretty much equally culpable there was this wasn't a case of her being out simply by being behavior towards the victims in this case to the point of having already looted for over forty thousand dollars a year and valuables still holding them for an hour and a half and including at a certain point when the third  resources not having to go to trial and prove its case beyond a reasonable doubt before a before a panel of juries and it has certainly moves the there is certainly  forgotten do you recall what the government recommended for sentence in this case versus  supports the proposition that presenting awareness as a fundamental element of due process of law however that right is not absolute they defend it certainly needs to meet determining function of the trial process in this case the defendant has failed to meet that test first  by these requirements established by the court system the only explanation given is as to its good faith with regards to the through the marshal service for having him act the trial to testify however there is no explanation for having waited until after the parties had rested to see may be a prejudice to a trip to germany function to exclude a potential witness for the defendant is equally true that batch of the training function can be afforded by bringing a surprise witness as was and this case since he was brought into tension had she brought up an argument that the council points out in his brief that she should have said that he played a lesser or if not unimportance role in the crime obviously that comes into tension with her clients wish to stick to his claim of innocence in terms of having the council's pointing out that he should have a point that defense counsel should have pointed out that he was married with three children that he  was the chief supporter there was evidence brought to trial that yes he was in a relationship with this woman with three children however viewing further in the p s r it shows that they had since