southern district of alabama he sits in mobile is a graduate of the citadel and the university of alabama school of law and we're very happy that he's here to help us with with our work you're familiar with our lighting system when the yellow light goes on that means that your time is drawing to a close so begin to wrap up if we take you beyond the light and don't worry you're on our time and not yours and with that will begin based on a misapprehension that the codefendant mind range was in the words of the district court at least double that of mr camacho moon as this mistake happened because the prosecutor asked for the upward variance because it all of twenty six and that was based on the assumption i guess that or least what was believed that the importation was dealt with more severely by the guidelines than the possession yes at the time at the time right that's what people that's what the thought was at the sentencing hearing that is what the thought was was that the that congress and the sentencing commission had intended to punish those who bring the drug into the prison more severely than those who receive it in the government's later rule thirty five motion they change that argument a little bit because instead of relying on whether it's the giver or the receiver they say it depends on whether it was a narcotic drug or not either way it was wrong because the guideline never should have applied to the codefendant if you plainly a plain reading of the text of the cross reference shows that the cross reference which would have increased the guidelines to twenty six dollars only applies under two conditions one you have to be convicted under seven hundred and ninety one dollars a one which is the bringer of the drugs and you have to be punishable under seven hundred and ninety one dollars b one in order to be punishable under seven hundred ninety one dollars b one which is a twenty year punishment as opposed to a b two which is a ten year punishment in order to be punish you're subject to twenty years in prison under d b one or when mr when you'll says the father came up for sentencing as i understand the record his advisory guideline range was a record i guess had to be a little bit of a downward variance very down to probation at least in terms of a jail sentence yes with a certain amount of time and house believe yes i believe it's four years probation and one hundred and eighty days hauser and again as i understand the record the government filed a motion on on the rule thirty five dollars to correct the sentence but that this record ultimately denied it because of lack of jurisdiction correct right that is correct and the syria the district court use was that by the time it ruled on the motion more than fourteen days it passed and so it was powerless it varying upward was not just the guidelines but what the district courts thought was the difference in culpability of the two individuals what do you say about that although he can look at the difference and culpability i think that's where he was talking about the role in the often here it cannot be divorced from this mistake about the quatermain has had a higher criminal history category think of the district court knew that it would have affected the way that he looked at the role in the office that the relative culpability can't be divorced from the mistake in the guidelines because he was worried about the guidelines punishing the stepfather more severely but they never were going to punish the stepfather more severely but he was also concerned about and this doesn't affect the ultimate point you're trying to get to but he was also concerned about the fact that mr camacho a new new is when you know as was the one who got his stepfather involved yes your honor and lied to him in the district court's view to get him to do what he wanted him to do and that landed him with a felony conviction that is at least potentially separate from the advisory guidelines calculation is it not know i think it is well it is separate maybe separate from the guidelines calculation but it's not separate from the idea that there was this disparity and that this the almost thought that mr camacho i mean as was coming off better than his his stepfather you still have the disparity which relies on this clearly erroneous guideline calculate and if you look at the really it was st and foremost in the judge's mind at sentencing he says this is the bitter disparity is a bitter pill for me to swallow and under the case law it doesn't have to be the only factor that is in the judge's mind that the erroneous facts or the materially false fact it can be one of several factors that goes through the judge's mind and really if you read the transcript the judge was really focused on this disparity and how it affected everything how it affected that that a six concern but also how it affected the circumstances of the of did the district judge see anything i don't think is i don't think the stepfather's sensing transcript is in the record but the district judge say anything or was anything raised at the stepfather's sentencing with regards were wrong about the god lying i don't think there's a big dispute about that and part of the reason they were always wrong is as i was saying the government chose to indict this case under seven hundred and ninety one they did juggle they allege was seven hundred and ninety one d one  which main which meant it was a ten year office under seven hundred and ninety one b want b to excuse me not under b want the guideline only would have applied it was under b one so there was no reason at the time for the court to think that this would have applied or for the government to think that this would have applied regardless of other factors we know they were wrong we know that the court relied on the cement material misapprehension when it varied upward and impose a sentence above the guidelines it was st and foremost in the court's mind it was the bitter pill to swallow we also know that because the prosecutor conceded his responsibility for his mistake in making the upward variance in the rule thirty five motion and the prosecutor asked the court to go back and correct the sentence to one within the guidelines i don't think the government would have asserted that if they didn't think that the court had relied on this misinformation when it it sentence mr camacho moon s how much time does he have left to run approximately his initial sentence until about november of this year so about and then the other one and then the other one kicks in whatever it is yes we also know that in the briefing before this court the government agreed on pages twelve dollars twenty one cents of their brief codefendant would be facing and i think it's fair to say that when the prosecutor realized his mistake he was concerned that he may have misled the court and that that may have factored into his sentence so he wanted to give the court an opportunity to revisit that sentencing decision tried to do that by filing a rule thirty five a motion but there are a couple of things wrong with that st rule thirty five dollars does not permit a district court to revisit its choice of a reasonable sentence and which is essentially what we were asking the district court to do rule thirty five only permits a court to correct a clear air which this court has said is a can can to a plain error that would almost certainly result in a remain and and that brings me to my nd point and that is that the prosecutor at the time was under the misimpression that there was site some type of plane or clear error to correct here and in fairness to him he did not have the sentencing transcript at the time he filed that motion and just as we appellate lawyers sometimes have to concede that an error occurred in the in the district court when we review the district court record sometimes we have to take back a concession when we realized that that concession wasn't merited well legally i think you're right but factually it doesn't take away from the fact that the district court was given information which turned out to be correct incorrect  right and so you i think i think you're right that rule thirty five would not have allowed the district court to go back and undo what it did but that doesn't take away from the fact the factual matter that the district court was given unfortunately incorrect information about the co defendants advisory guidelines and if you read the transcript that's at least one of the rationales the district court gave for its upward variance  question is and then you can spend all the time you want answering it why isn't the easiest and right thing to do to just remand it and if the district court things that a twenty four month sentence is the right sentence no matter what the stepfather got it'll be two answers to that first one is that i don't think the prediction about the stepfather sentencing range was wrong at the time i filed a motion for leave to file a corrected brief addressing that point and that was denied so i'm a little hesitant to explain why that is but i do think that the prediction for the step father's guidelines range was right and another an error occurred at the stepfather's sensing hearing i know but that's a lot of errors to walk back that the government has wandered into well i mean you told the night you at that time and so we're here with a sort of very weird record we do have a weird record i can't dispute that but we also have a record that's on plane air and and and in order or under ordinary circumstances why would that be plainer here the p s r said in the reasons possible reasons for a variance of paragraph seventy didn't object to that but more importantly at the sentencing hearing the prosecutor also didn't have the precise investigation report and couldn't have gotten it correct but what he could have done and when when the prosecutor said at the sentencing hearing the stepfather is likely facing forty six to fifty seven months the district court said i don't have the stepfather's p s r i don't know what he's going to be facing i believe he's going to be facing at least double what you're facing again camacho didn't object to that and to the contrary what he said was his counsel i understand that there is a disparity and the court certainly has every right in the book are factors to take that into consideration now you point out how could she have known she didn't how the p s r she didn't know what the what the guidelines range was going to be but she knew she didn't have it knew the court didn't have it the court said it didn't know what the guidelines range is going to be so she could have done a number of things she could have argued judge you can't take that into consideration that's speculation and you shouldn't take that into consideration or she could have put the government to the burden of proof on that point or she could have said if you're going to take into consideration the guidelines arrange for the stepfather you need to wait until after the stepfather's p s r has come out or until after the stepfather has been sentenced and then sentence me or she could have said sense them both at the same time but none of that  happened all of that could have been avoided had the government not told the district court she something in correct about the guidelines statement correct but she can see it in that the court could take that into consideration and she had an op she had an opportunity an obligation to preserve what she what would ultimately she claims now be an error by raising that in the district court telling at least asking the district court to postpone sentencing for much  until after the stepfather sensing but ultimately we don't think that this that this record shows that the courts so so on on plane air review she has to show that this actually had some effect on the stepfather sense and we don't think that they can show that here and i should point out also here's if you're looking at the substantial effect prong of plane error here's one of the things the district court said i think the guidelines under represent the seriousness of the offense and the defendant's role in the offense the responsibility the court has is to make sure that the public is protected i've already indicated in the record why i think the potential disparity between the sentence for this defendant his co defendants warrants an upward variance as well correct that was one of the reason so so the court with listing the reasons why i thought a substantial by a variance was warranted and no doubt the court mentioned this disparity in their relative culpability as one of them but the but the other reasons the court listed there was a as you said the circumstances warrant it the guidelines under represented the seriousness of the offense and the defendant's role in the  and the responsibility that the court has to make sure that the public is protected and then the court also mentioned this disparity in culpability and and really that's what the court was getting at here although there was discussion of this disparity and guidelines ranges what the court was really getting at here was a disparity in culpability there was much discussion about how it was unfair for the stepfather to be facing a potentially longer sentence when it was really this defendant's fault for bringing in the stepfather and and this forty six to fifty seven months guideline range that was mentioned really never came into play i mean we never certainly the prosecutor never asked for a sentence for camacho mean isn't anywhere close to this forty six to fifty seven months writing range in fact the prosecutor told the court that he intended to move for a downward variance for the stepfather and ultimately what happened was the district court gave so much of a twenty four month sentence so by the time the court had gotten to sentence a macho munoz this predicted forty six to fifty seven month range had fallen out of the equation the district court was assessing their relative culpability and wanted to impose a sentence on camacho munoz that would leave it room to very downward sufficiently for the significantly less culpable stepfather and so in doing so it felt that it needed to very awkward i should also mention that in the court's statement a reasons for the sentence impose the court check five boxes for the reason for the variance five reasons for the variance of the nature and circumstances of the offense specifically the role in the offense to reflect the seriousness of the offense to promote respect to the law and to provide just punishment for the offense to afford adequate deterrents for criminal conduct to protect the public from further crimes and of course to avoid unwarranted sentencing disparities among defendants only one of those had anything to do with the stepfather's possible sense and even that had nothing to do with the sentencing range in section eight of the statement of reasons as additional basis for the sentence in the case the court said a guideline sentence guideline sentence in this case would have been disproportional as compared to the  relative culpability right but the reason i see that as a little different is that there's a difference between varying downward from fourteen months to probation and from forty six months the presumptive range to probation and had the district court known that the stepfather's advisory guideline range would have been lower maybe that gap would not have been the same well i just i don't i don't have the confidence you do i think to know exactly what the district court was trying to accomplish given the stepfather's purported advisory guideline range well i'm playing their review you don't have to have that confidence or we have i speak only for myself but i'm not sure we have plainer review that when you look at the sensing gu when you look at the sensing transcript she asked she she conceded that the court could take disparity into account she didn't say guidelines range or should she take the disparity into account and she asked for the court not to vary because of the age of the defendant because he would be serving a consecutive sentence because he because he'd already been punished by having been in the shu losing his gain time  and being transferred to a less desirable prison facility but she never made any suggestion that the court could not take into consideration what at the time was a predicted guidelines range for the stepfather or that that was too speculative or the court should not consider that and she had ways to preserve that and she did it so now we can't speculate on whether this disparity was one of the factors that tipped the court to very upward in fact we know the court was going to bury upward despite the disparity because the court said this guideline range does not account for the seriousness of the offense so we know from the sentencing transcript of the court was going to upward anyway despite what was described as this disparity so she cannot show here that that one factor changed the court's decision to your honor listening to the government's argument i can't help but think that she's taking inconsistent positions with respect to this whether or not the court relied on the disparity factor on the one hand she says we can't speculate on whether or not the disparity played a role because he was going to get an upward variance anyway but on the other hand she says the court wanted to leave enough room to show that leave enough room to be able to vary downward for the  codefendant so if the court was actually wanting to leave enough room to very down for the codefendant later that seems like the court is relying on it and that's inconsistent with saying that the court was not relying on the disparity  secondly just to make the record clear the estimate of the guidelines was not was was wrong at the time and it was wrong because the government charged him with a ten year off and based on this not being a narcotic drug if the government wanted to charge us as a narcotic drug they would put that in the indictment they would have put b c d one c in the indictment it would have triggered a twenty year penalty under b one and the guideline would have applied to the codefendant but that's not what happened so whether or not this is a narcotic drug or not is completely irrelevant to this and they didn't put the penalty in the indictment what they put was which definition of her hit object was introduced into the prison that tells you what penalty applies the prohibited object is defined in d right so we know that they were asserting that it that the b one penalty would apply as my colleague referenced she attempted to file a motion to correct her brief and it sounds like she's still standing here today saying that the guidelines were wrong at his sentencing that's not true they were not wrong the cross reference did not apply and never would have applied to him he had the correct guidelines at the time of the sentencing level  and improper factor also does not have to be the sole reason for the variance there are three cases that i had cited in my brief in support of this i would ask the court to look at the court to alvarez case where the court looked at two factors one was erroneous one was not the johnson case where the court said that it relied at least in part on the iranians factor the a royal james case where the error fundamentally affected the calculus and the  case where the court said it it gave significant weight and it was a major part of the justification for the sentence so it does not need to be the exclusive reason for the variance in order for us to prevail also i would point out that the government's argument with respect to plain error applies only to the due process and the procedural error k error arguments and theories in our brief it does not apply to the theory of relief that we have based on substantive unreasonable that is correct it was based on yes he said do not do not very awkward based on this disparity we submit that the objection was properly preserved but even if this court disagrees and applies plain error we also submit that we can prevail on the plain error test both for the due process prong and the procedural error prong we also submit that the standard of use is not as rigorous for the substantive and the i'm sorry the plain text of the guidelines the co defendants indictment and the co defendants plea agreement today your honor we're just asking for the same remedy that the government already requested in the court below in the rule thirty five motion go back for recent unsing and indicated that they had the governor also indicated it would be preferable and it's briefing before this court we're just asking him between the sentence be vacated and re mandate and re sentence based on accurate