sentencing judge to explicitly punish a defendant for the exercise of his constitutionally protected rights most notably his decision not to testify in his own defense at trial and whether or not the sentencing judge in this matter was explicit in that punishment is clear from the record and i would like to start with the sentencing judge's comments at the beginning of his sentencing because after all that's why we're here when the judge began sentence he said i'll impose now i'll impose sentence now mr cabrera i am as the government recommends going to sentence you at the top of the guideline range the reason i'm going to do that mr cabrera is because throughout these proceedings i have to tell you you know your behavior to me at least even a pretty complete disrespect for the law and for these proceedings generally i'll give you some examples well everybody has the constitutional right to go to trial you have at least as far as i'm aware through your attorney and through letters to me persisted in what i what i view as some fantastic story regarding the altering of these tapes that basis for sentencing someone at the high end of the guidelines just that statement alone  if the district judge believes it's a fantastic story about why is there any problem with that well i think what that allows for is for the judge to inject himself into trial strategy  and to be calm before then but if if the judge thinks this is it absolutely crazy idea that cabrera had that the tapes had been altered why shouldn't the judge be able to sentence at the high end of the guidelines well i think it relates back to the inability of mr cabrera to adequately that those tapes and acquire an expert earlier on in the case this particular judge and i hope i'm answering your question in a roundabout way if the judge believes that a claim is frivolous certainly the case law supports the fact that the judge could sentence the defendant on that basis but to punish mr cabrera in this instance under these facts with these record with this record is is unfair and let me tell you why the original motion that was filed regarding these audiotapes which was had an opportunity to put himself on the record either at trial or in support of his request for an expert to have these tapes analyzed because the motion that was filed was summarily denied for two reasons number one it failed to identify a legitimate controversy and secondarily it failed to give the court any information about what type of expert will be would be required and what that cost would be i think it's a very dangerous road to go down when we have judges who who inject themselves into these proceedings and determine whether or   right directly the question asked bose's is a frivolous defense one that is contrary to promoting respect for the law do you have any authority one way or the other on that point i do not i would just say factually in this case this was not a frivolous defense this this defense regarding those these tapes in you can look at what the jury did when the jury was in the deliberation room the jury asked for the tapes to be replayed certainly through cross examination of mr cooper's counsel some questions of fact had been raised that the jury wanted to hear this tape  of that quote which says you never put yourself on the record either at the trial or in support of your requests for an expert to have these tapes the first thing that the judge mentioned is mr  now that behavior there is nothing on the record that mr cooper was jumping up and down during the trial or being disrespectful to any of the jurists or any of the attorneys involved there certainly was a throughout this record there is a tension between mr cabrera and his court appointed attorney and that is very common throughout courtrooms across the united states it is likely one of the most tenuous relationships one can imagine  trying to protect a defendant from the power of the government and their case and also protecting that defendant from himself and it's we would respectfully submit that the record supports that mr  attorney did very little to protect him in a very foreign atmosphere for mr cabrera who obviously did have a criminal history he wasn't new to the court but there was also a language barrier here  native languages spanish and the entire record evokes quite a bit of miscommunication which is common and what it appears here is that the judge didn't like the disjointed nature of the defense and that all began when mr cabrera was not allowed to have a basic review of this very import piece of evidence and it's  position that that was due to a lack of effectiveness of counsel mr cabrera himself on the record states that he didn't even realize that there would be no expert or there would be no analysis of the tapes until he i thought the tapes of altered in the motion to which was a suppression motion citing brady versus maryland which was was inapplicable there were two motions suppression motion kind of in tandem with the motion for authorization of an expert it does of are in that motion that mr cabrera believe that the tape omitted important aspects of that conversation and at the very minimum and also relates that sections of the tape were in automobile and although that argument wasn't made it certainly could have been made that an expert analysis or enhancement of that tape could believe from the record in the motion that what mr cabrera was trying to do through counsel was create a question of fact state generally where and also mr cabrera did note that there would be there could be focuses on the sentencing judge's language and explicitly punishing mr cobra for failing to support that theory with his own testimony which is a basic fundamental right for him to have invoked and should not be hell against him part of any defense theory or assertion of their defense is to poke holes in it in a case and without armed without any sort of support for his beliefs or his positions about what the tape should have had or would have had or could have had  decided not to testify and if the court holds otherwise and decides that this type of language in sentencing is permissible it is permissible to use a defendant's election to cross it to use  stablished law that where a defendant does decide to testify and the sentencing judge decides that that defendant is being untruthful then that certainly can be held against him in sentencing  we agree with you that this one comment you never put yourself on the record either at trial or in support of your request for an expert violation of your client's constitutional rights why should we not nonetheless  affirmed no your honor because that disrespect for the law and it is clear from the record relates to the judge's frustration that mr cooper didn't support his defense theory in the manner of which the judge thought he should support it and that would be it would have been by putting himself on the record so it's all interrelated in other words a case would need to go back to the district court for iraq correct and i would also note that is the first think that the sentencing i realize i'm out of time i was a response to that and then it timing wise it is the first thing that comes out of the judge in terms of this is why i'm sensing you let me give you an example i don't like your defense and the fact that you didn't support it with your own testimony is a disrespect for the law and it's our submission that the defendant's invocation of their fifth amendment right to remain silent does not events a total distance respect for the law and the sentence should be invalidated for that reason  may please the court michael porter only have united states the defendant received a within guidelines sentence he received a sentence of sixty three months he also received a consecutive sentence of fourteen months that was on a prior supervised release revocation for his first federal felony possession conviction the defendant does not appeal the consecutive sentence he received on a supervised release violation rather he appeals the sentence and he claims that is procedurally and reasonable because the district court punished him for the exercise of certain constitutional rights united states myths that the record indicates and reveals that the district court did not commit plainer in this case and that the district court did not punish the defendant for the exercise of his constitutional rights i do think that the standard of review is important in this case and i'd like to touch on it a little bit later in my argument but what we are dealing with is a plain error standard of review when we look at the district judge does make this comment you never put yourself on the record either a trial or in support of your quest why isn't that a violation of the them in the right because i think that the intent that the defendant seeks to ascribe to that statement is taken out of context the district court didn't just say that your honor the district court said at trial or any other time and i may have misquoted exactly what the district court said but what the district court was referring to was the proceedings in general and i do think the background is important in this case at the beginning of this case the defendant filed a motion seeking expert fees and what the defendant sought to do was challenge the audio recording of the control by that was played at trial in this case now the magistrate judge denied that motion and denying the motion magistrate judge essentially stated that the defendant had failed to provide any basis for that the defendant never sought to renew that motion that if any could happen now we fast forward a little bit to trial it was a pretty short trial it was a day long trial the verdict was return the second day from what i was able to glean during trial the defendant's defense at trial was not so much that these audiotapes had been altered in some way but rather the defendant sought to put on a defense that he was also acting as a confidential informant for law enforcement unbeknownst to the confidential informant that actually testified at trial and law enforcement defendant actually requested an entrapment instruction a trial and receive that instruction so i don't think his defense focused on the audio recording itself or at least not exclusively on that but we fast forward a little bit after that shortly after trial the defendant sought to obtain new counsel and the magistrate judge granted  on his motion for new counsel and what the magistrate judge of course was not the trial judge that's the district so what's the magistrate judge making the judgment that there was perjury what had happened at what had happened at that particular hearing your honor is the defendant had stated on the record under oath that his attorney had essentially promised him victory if you had gone to trial and the magistrate judge found that statement very problematic and i believe that was the basis for the comment that the defendant had committed perjury during that particular hearing we fast forward a little bit later and this is before sentencing the defendant sends a letter a pro se letter to the district judge and in that letter i do think the defendant in this may go back to the one of your questions judge clay i do think the defendant attempts to shed some light at that point on what he believes would have been on this audio recording the defendant in that letter says that he was convicted of an offense he did not commit because he was being held at gunpoint during the control by the defendant also a eges that law enforcement had it at the control by and he also alleged that the edited the tape of the controlled by and he also alleged that the united states edited the tape of the control box so then we  district court has all of this information when it's considering an appropriate sentence to fashion in this case under the thirty five fifty three a factors the district court was was clearly frustrated and the district court stated on the record that it perceived defendants conduct throughout the course of these proceedings as have been seen a complete disregard for the law and lack of respect for the proceedings i submit that that statement was accurate and on point the basic problem is there is this statement you never put yourself on the record either at the trial or in support of your request for an expert and then there is a period and that the transcript obviously so if we thought that that were a violation of the fifth amendment rights to criticize the defendant for not testifying at trial about his theory why shouldn't we send this case back to the district court to reset means without factoring in that factor i do agree with your honor that that particular sentence is is disconcerting however it's only disconcerting when it is taken out of context there were other factors in the record that support the district judge's sentence in this case sir but that really doesn't that raise the basic question if a district judge has five factors that are proper factors and one factor that is we're going to assume unconstitutional shouldn't this panel send it back so the district judge could remove the offending factor and just look at the five valid factors and you know maybe you can give me a case that would say no you don't have to do that but i don't have that would be great i don't have that case honor in and i would concede it if the court believes that what the district judge did in this case was punish the defendant for exercising any constitutional rights then the appropriate thing to do is to remand the case for re what knowing that but well in that is why the standard of review is so important in this case your honor it is a plain error standard of review what clean air is its error that is so palpable it is clear and obvious it jumps off the page the defendant does seek to ascribe a malintent to the district court's comments some of them in this case but i submit that the only way that you get there is if you interpret in read between the lines as to what the district court meant and whenever you have to engage in that type of analysis it cannot be plain error it's not error that is so clear and so obvious that it jumps off tell me a lot about this other basis that is this fence is so frivolous or fantastic is that it's that itself  shows a disrespect for the law do you have any case with arnie that says a frivolous or a fantastic defense of the district judge the think has much merit is a round to some of someone more harshly i am i submit that it is appropriate consideration of thirty five fifty three factors in the factor that that i would cite to is to promote respect for the law and i don't have a specific case on point your honor what i do have and we did cite this in our brief and it's united states v miller and what united states v miller was threatening to follow a baseless defamation suit it was your honor but i submit that what the district court is truly concerned with here is the allegations the lack of support for the allegations a defendant absolutely has a  constitutional right to present a defense but with this particular instance right here there was no support that was ever given as a basis for those allegations and they are pretty bold allegations and that was the concern that the district court has and there's a lot of different ways that a defendant can present these type issues to the court house side of the presence of the jury so i don't think it's fair to say that when the district court made that comment that what he was referring to is  either the defendant's right to not testify a trial lawyer or the right to cross examine witnesses attorneys make motions and women a all the time when you say that you don't have any case to support your position are there any cases at all that have gone one way or the other and whether having a fantastic story or frivolous defense can be an example of disrespect for the law under the thirty five fifty three a factors are there any cases at all dealing with this no matter whether they're pro or con your position i don't i was unable to to find a case either way your honor what i would attempt to analogize it to is is two things the obstruction of justice context and also  except in some responsibility context at sentencing a judge can impose an enhancement for obstruction of justice if the judge believes for example that the defendant perjured himself and that's the classic example is get i officer didn't suggest i mean when i'm wrong and you're right but you're correct your honor so it sort of is interesting that there is no effort to have an obstruction of justice even though the magistrate judge at one point you're saying said there was perjury involved and then it is being used arguably as a factor under this disrespect for the law component of the thirty five fifty three are there are cases where that has happened that actions that could have been obstruction of justice are in fact used as disrespect for the law the judge i don't know whether there are i don't i can't stand until your are that that i'm aware of any but i would also  like in this to the acceptance of responsibility context and judges do have the discretion at sensing that sentencing to withhold two points for stepped into responsibility now the judge didn't do that in this case but i submit that if a judge  has the discretion to withhold for example points for a step into responsibility then he certainly has the discretion to sentence a defendant within the guidelines for what he perceives to be among other things a total disrespect for the law and i'm just skeptical of whether putting on a even a crazy defense there e is disrespect for the law i mean how we got this supreme court case of indiana versus edwards that says the two thousand has a constitutional right to challenge the state's case quote in any way he sees fit but the defendant didn't put on a crazy defense here your honor he didn't put on any defense as force i can gleen he didn't put on or mount a serious defense related to his allegations about this particular audio recording he did send a letter to the district judge saying that the audio recording was audited by law enforcement in the united states and that if it had not been clearly the court would it would have been able to discern that he was held at gunpoint during this transaction at trial the defendant's defense essentially focused on entrapment and he sought to argue that he was a confidential informant as well maybe had to switch to that the after the district judge would allow him to have an expert to examine the type williard that that motion was brought earlier on and in the proceedings the defendant never renewed that motion and he could have what the magistrate judge said is you didn't get me anything in here to support this request the match or didn't the magistrate judge didn't say you can't file another motion and put some facts in here that would support your request to match or a judge simply said there isn't enough in your for me to granite implying that there might be and i see plain down the road this is the attorney's law not the defendant's law which would be an interesting idea which is not an issue in front of him if it is your honor what i would submit is did that is more properly addressed in a twenty two fifty five motion and not on a direct appeal and the reason for that is ineffective assistance of counsel claims are often very fact specific and the appellate court in the first instance it's a very difficult court to look at a case and make a determination on whether or not there was ineffective assistance of counsel oftentimes just to cut district court judges will hold hearings on these and in here prove and i do think that there's a possibility that there may be a twenty to fifty five motion in this case later on down the road but i would submit the district court as is the best place for that to be handled in the first instance the only factor that's raised from my  reading of the district judges sentencing for sentencing at the high end is this disrespect for the law which is done through the two aspects mentioned by the district judge one the fantastic story and two not the defendant not putting himself on the record am i missing something was there any other factor that the district judge relied on for i and it's not that the district court expressly reliant on your honor however there were arguments that were presented to the district court and i do think we can infer at least that the district court consider those considered those arguments the united states didn't know that this particular defendant had a serious criminal history the united states noted that he had a violent past he had a prior conviction for especially attempted aggravated robbery worry it tempted to rob a moment at gunpoint you also had a prior federal felon in possession conviction and in front of the the exact same court and that's what the basis for his supervised release revocation was so the united states did point out to the district court that this particular defendant did have a serious criminal history not just by virtue of the fact that he had numerous offenses but that he also had a history of violence in his past i think we can infer that the district court considered those but i will if it minutely that it's reports are not expressly state on the record that that was the basis for the sentence in this case it what i would i would close with your honor is is the standard of review in this case and i think it is very important the standard of review is is plain error and the united states image that we simply cannot look at the record in this case and ascribe any plain error to the district court unless we seek to read between the lines and attempt to interpret what the district court meant when he made certain comments at sentencing any time you have to engage in that type of analysis i respectfully submit it cannot be plain air it's not air that is so obvious and clear on the face of the case plain error in this case is in the record and i don't believe we have to read between the lines the judge explicitly gave his basis for his decision at the outset of his allocution and gave specific examples for why he decided to sentence mr cooper more harshly i'm glad that the government mentioned mr kerberos pro se motion to remove his counsel because it is  while this is not in an ineffective assistance of counsel claim the effectiveness of of mr cabrera's counsel is what led to this judge's frustration with the proceeding in general and i would submit  that this type of tension between attorney client plays itself out in courtrooms and trial courtrooms all across the country it cannot be used to explicitly punish a defendant more harshly and i want to mention that particular hearing which was not before the sentencing judge but was before judge lee and what judge least said after mr cabrera made the claim that he had been made a promise of success at trial rather than remaining silent on that issue and protecting his client mr cabrera's trial counsel basically refuted that claim and said on the record i did not say that causing the judge to note that i quote or paraphrase i've just come as close to a lawyer accusing his client of perjury as i have as i ever have before and what that is is an example of the lack of protection mr cabrera and his attorney were trying to come up with a defense and without the analysis of those tapes the defense had to take a different direction and i respectfully disagree with the government that there was not an entrapment defense asserted at trial that entrapment instruction was submitted and the basis of that was that there were parts of the tape that were omitted that would have shown that mr cobb rare a could have thought that he was also working for the government and that these were two individuals that were both trying to quote unquote get each other for the government to improve their standing or whatever criminal pending allegations or charges that they had what you know this ruling may not be consequential for mr cabrera himself as as your honor pointed out this case could be remanded judgment tease could eliminate this impermissible basis for sentencing and rely on the general bases that the government has already put forth that we're not specifically delineated in the ruling but it has far reaching consequences and i know my time is up because it would create a chilling effect if a defendant is not allowed to to meaning y test the government's case then the adversarial system breaks down and defendants are then faced with a choice of constricting their their avenues for defense for fear that a judge may be critical of their attempt or be skeptical of its of its strength and that's a question for the jury and not a question that should