the st thing that the district court said before imposing sentence was that the court didn't have evidence the court stated i'm not able to make factual findings by a preponderance of the evidence concerning his childhood a good share of the arguments made by defense counsel are based on facts and circumstances that have not been established by the evidence their argument and certainly arguments can be persuasive but the reason we have the evidence is to test f and credibility and so i've considered the arguments but not at the same level as if he had evidence and finally the court said in terms of the abuse as a child that is now alleged he has never told anyone that as far as i know the reason the district court did not have the evidence that it needed was because the district court denied me the opportunity to present it had the district court granted mr  motion to continue the sentencing mr penn willis's family would have been there and testified providing the missing evidence that the district court said it needed for its decision will counsel was an offer proof to the court on this point your honor there was not however i did say in moving for the continuance that the family wish to address the court and offer of proof would not have been the same thing as actual testimony under oath no i understand did you say to the court i asked for a continuance because my client's family would like to be present or did you  say i asked for a continuance because there is substantial evidence that my client family wishes to present because i understood it was the former not the latter it was somewhere in between and what i had said specifically was that the family would like parents could have each testified to the neighborhood that he grew up in and why didn't you make an offer of proof on this point well your honor and the evidence that the family would have testified to was in the sentencing memorandum and i presented it to the court or not the brazil bit i did present all of the information but the problem with the decision was that the district court found that there was not actual evidence so i would need to present that testimony under and did you tell the court this we're going to sort of question what they would have said because the problem is with the other offer of proof we don't know whether you were hurt by this or not we have no way of knowing whether their testimony would have because we don't know what they were saying and these parents and waste would have testified to information that was already provided i can go through that with this court as to what they would have testified to they  well the problem here was that the district court in this case wanted more counsel's argument that this her court here wanted somebody who could testify and that what i was providing in my offer to the court was the truth and was supported by more than simply argument that's where we come to the problem and so mr a would have testified in addition about mr penn way was beginning to work at the age of thirteen that he was taking care of his siblings the type of children in his neighborhood and the fact that the family ran out of money for retained counsel after two trials on a voluntary man's manslaughter prompting mr penalises guilty pleas his wife would have testified to the conditions into juana and the situation with the stash house he was living near and the killing next door which prompted him to try to come to the united states the family's financial condition which kept mr panelists from living in one of the perhaps resort areas that the district judge would refer to that would be safer than wanna and the willis had shared information about the assault against him as a child and that she was working with an immigration attorney on the you were weren't there some letters or other communication from the family that the court did have access to and review yes there were a number of letters and the court indicated that this represented mr penley last had many very fine qualities but again that was determine whether the district judge abused its discretion in denying the continuance and the court will have to determine whether there was an arbitrary and reasonable denial of the continuous that that materially prejudiced my client and i think sentencing memorandum reflect i was inconsistent contact with mr paine willis is white and as soon as i found out that the that mr quinn this is father's medical condition and deteriorated such the family could not travel to new mexico that you would like to have a continuance because his family would like to attend and then later at the time of the motion of the hearing on the motion you said the likelihood the continuance would accomplish the purpose for which the continuous was asked that the sentencing been continued for perhaps one or two months the family would have been able to come to court and testified rd is inconvenience to the opposing party the witnesses and the court the government was unopposed to this continuance and they had no witnesses in fact the government had been granted its own continuance in july for  its own purposes which we had actually opposed because it was going to be a bit more difficult for the family to come and when the children were in school ms tippett well said children were in school so the government was well aware  the family was coming to address the district court and better established the other things and prior to sets saying they had no objections to the family could be there in fact that the attorney who wrote the sentencing moment in the case was actually no longer with the u attorney's office at the time of the actual sentencing so it was not an inconvenience to her and mr payne willis simply couldn't reset on another docket a month or two down the line finally we do believe that there has been a showing of prejudice here because that the court could not weigh that three thousand five hundred and fifty three a factors that i had presented as highly as for example the guideline range because there was not actual evidence so we would ask the court to find imposed substantively on reasonable sentence we do recognize the court does not have jurisdiction to review the district court's discretionary denial of a departure but we would ask the court to take into account our arguments and for the departures in as laid out in the briefing only in the context of substantive reasonable this on appeal of course the court cannot assume where there is a offense when he was sixteen he was thirty seven dollars at the time of the sentencing he was the youngest defendant in that case and he was characterized as a lookout so what did he really do your honor is he did not kill the victim or even lay a hand on him and there were two hungary's in that case there was no evidence that my client ever committed an act of violence in his life and that conviction was so old that if he had reentered nine months later he would not have received either three criminal history points or a ten level enhanced meant the often level and there's really no in careful evidence that my client should have received a ten level bomb as opposed to say a four level this sort of this conviction for which he received a six year sentence mr penn weightless as well he lived in the united states after coming back from his deportation and with no criminal history for nine years got married had two children the soccer coach for his client there for his child saying he was such a supportive and involved parent he was going to make him an assistant coach the next year had ice not rated his workplace and the  then he had a number of professional letters religious letters he was a very well regarded member of society so other than the conviction arising from incidents from when he was sixteen he only had one illegal reentry prior to my case and so i believe he's actually outside of the heartland for somebody with this sort of guideline range the government had argued and the court found that he needed to receive such a sentence an order to protect the public based on at the age of the prior conviction when he was sixteen and the nature of it  a request that was never made below there is this dispute on appeal as to whether the intent was to put up testimony under oath or simply address the core if this court were to search the record the words under oath  appear anywhere below nor was there ever a request for an evidentiary hearing rule thirty two dollars and it's important to back up for a minute and look at the recognize the wide discretion the wide latitude that district courts are to the exclusion of all others recently in fulton this court and unpublished opinion said that beyond those four individuals a district court may hear from family and friends but is not obligated to be found it was an abuse of discretion at sensing a revocation for the district court refused to hear from family him and friends in that case the nd class is sort of when there's a legal dispute issue the rule thirty two says that if  there's an objection made the court may hear testimony from witnesses so even when a legal dispute is it at issue the court still retains discretion to hear from witnesses or not the distinctions relevant in this case i think for two reasons st that it speaks to whether there's a plain error analysis but it also informs the court's decision assuming there's a use of discretion because again the district court can't be said to do erred in refusing a request that was never made to it to if given the opportunity looking at the motion to continue it jeff's there as you pointed out there's nothing in there that says the family wishes to testify under oath on x legal issue it's just not that so prior to the sentencing court had nothing before it indicating that that defense counsel even though that may have been the intent intent defense counsel was going to present and put a witness on the stand and then there were numerous opportunities that the sensing hearing itself to raise an objection as to being deprived of that opportunity at the beginning when the court denied the continuance defense counsel simply said that mr quinn was to get his parents and wife wish to be here to address the court that volume for the record on appeal didn't say that they needed to testify in the court denied the continuance no objection was levied on that basis and then there's the hearing itself during which the district court rejected numerous factual search made by counsel and even at that point no objection was made to the effect of your honor if i had had the opportunity to have his wife and his family here they could testify to his background or to the circumstances of  convictions the prior convictions nothing to that effect and then at the end of the hearing after the district court has denied the continuance after the district court has rejected factual assertions it turns to defense counsel and says is there anything chief judge him and judge evil you were both on the opus forest county where there was a an objection to the adequacy of the explanation of the sentence and the court said that by failing to object to the method by which the court reached its sentencing determination that that triggers plainer view because it doesn't give that because that would have given the district court an opportunity to remedy any procedural error that that reasoning applies with equal force here and should the court decides to wipe clean air analysis and the government government position that it should while the government maintains it can meet all four problems the nd prong is clearly man after raising cleaner in its response brief in the reply defense counsel says absolutely nothing about step two the analysis there's a conclusion research and that is plain but there is no citation to a supreme court case to tense or to case or a consensus of the circuits that denying a continuous in these circumstances following day and the court denies a continuance that's simply not this circumstance so the government certainly wins and probably too but that even if the prejudice prong and or considering the west factor as to the harm that was caused so there was nothing that prevented defense counsel from from presenting under oath statements to the court to support her legal arguments it's also important that the one person who can testify to all of these things his upbringing his character the nature and circumstances of the previous convictions you know the sexual saw allegation is sitting right there in court nothing prevented the defendant from taking the stand and testifying under oath about all of these things and he was given with respect to the family being there on the record before the court you know it was an unfair for the district court to deny the continuance because there was little that the family could have added to the factual assertions that would have been material defense counsel talked about the upbringing of the defense upbringing and how the court had rejected that but it's also important to note that the court ruled in the alternative it said even assuming he had a difficult childhood i'm quoting from the record here many defendants have faced poverty difficult family situations but that does excuse does not excuse nor explain their conduct and that's it volume for the record on appeal pages twenty five dollars to twenty six dollars so even if the family had testified about his upbringing in the district court would not have found that compelling with respect to his character the town their district court accepted the letters undisputed it didn't take any issue with them it simply found that they weren't sufficient to justify a variance with respect to going nuts in mexico being the impetus for the dispute the factual premise that that occurs it simply said that that doesn't justify coming to the united states that there are certainly places in mexico that are not violent to which the defendant could have gone and that was the point that the court made when it say you know i visited mexico i know that there are places that are not violent you know notably the courts and nothing about resort areas it's unclear where the court exactly had gone then there's the sexual assault it was a vague allegation all that was alleged that at age eight an adult male in california have solved it him and he that person was not proof prosecuted there was no proffer with respect to what the family members knew about those circumstances and again the defendant is sitting there and have added to to dispute that because convictions can't be collaterally attack to the time sentencing and there's nothing in the record to indicate that even on the defendant's telling of how things occurred that the family had direct knowledge of what had happened or could contribute there are a wide range of sensors that can be appropriate in any given case and the sentence to thirty seven months at the low end of the guideline range which is presumptively reasonable was an appropriate sentence in this case given the defendant's criminal history which includes a whatever the defendant alleges occurred includes a conviction for voluntary manslaughter that would derive from you know a revenge killing of a rival gang member and he also has the repeated immigration violations you've been removed from the country twice he had a prior three thousand and twenty six dollars conviction for which he received a year and a day and so in this case it was appropriate that thirty seven month sentence was appropriate to promote respect for the law which is one of the factors that the district of specifically identified had planned to come and testify and regarding my client testifying himself he maintains his th amendment right to remain silent and not subject to himself to cross examination even at sentencing thank you very much