good morning your honour's may it please the court christy hears from federal defenders on behalf of mr sanchez mr sanchez of the title to resign to the theme because the district court imposed a vindictive sentence after this court undercut the just the court's rationale for the original seventy mon amount of narcotics and it didn't your honor and we're not challenging the seven itself i'm sorry in my lot enough we're not challenging the da seven itself we're challenging the district court's procedure and asking for da seven so asking the prosecutor for the da seven without ever telling mr sanchez that he had asked for it and then springing it on him at the sentencing hearing without giving mr sanchez time to object or discuss anything about it is what we're challenging it's that the procedure the district court followed evidences his motivation to punish mr sanchez for his successful appeal and then after mr sanchez challenge the sentence the district court contacted the government's own agent ex parte and asked the chemist about the d s m lab report and again never disclose that conversation to the parties and i ask this question do you know whether there is a test to evaluate judicial vindictive in the context of sentencing there is a test for prosecutorial thing just vindictiveness but do you know of one for evaluating judicial conduct i haven't found one your honor and so because the government even notes in its brief the district court is rarely going to admit that it's being vindictive we are looking at the district court's actions here to show that what its motivation was and so it's that pattern that it engaged that engaged in of taking this at these acts party acts not telling the parties about the acts never intending to tell the parties about the x party x and then sort of surprising them at the hearing that shows that the district court's motivation was to make sure that mr sanchez did not see a benefit from his appeal i apologize that's all right by judges when they were sentencing drug offenders it is unusual that he should call up on the thursday technician and produce documents without having consulted was opposing counsel but how you prejudiced well it's not necessarily a question but now i feel like it's too late it's not necessarily a question of prejudice your that so we have a document which is procured in an informal manner which blurts out the truth well i think that characterization is a little bit accurate it's not an informal manner it's  secretive manner and that's all right that's secretive man well and so the fact that this that the district court undertook this improper secretive action is evidence that it's motivation was to make sure that mr cent mr sanchez was punished for his success or you'll say the motivation was to make sure of this record had the evidence had the goods on this response as well if that was the district court's only intention was to make sure it had the evidence there was a proper way to go about this it could have asked the prosecutor or the probation officer to make the da seven a part of the record given mr sanchez notice of it asked him if he objected to it and then gone about with the sentencing hearing and the guideline calculations would have that much preferable but correct it is that enough to show that this should be subject to a recent thing and to a different judge well that's not all we have here your honor we also have the x party communication with the chemist once mr sanchez challenge to the sentence and so again the district court contacted the chemist apparently on a thursday before the monday rule thirty five hearing talk to her about the d e a s seven never told any of the parties about this and it appears never intended to disclose in answer to roger's question well i would say that contacting the chemist isn't just an act of advocacy it's an improper i mean even the government agrees of the district court should not have done this they call it regrettable but it wasn't proper district court is not supposed to have an x party conversation with a law enforcement witness about a pending case and then let that conversation affect its sentencing determination and again it never intended to disclose this conversation it acted at the hearing as if it hadn't spoken to the chemist it says to her and it this is that you are one eighty one this is a lab report that i think was brought to your attention last week are you familiar with the lab report the district court should have said i discussed this with you last week correct and then gone about it acts like it's not sure whether or not the chemist is aware of this lab report and it's it's covering up the fact that it has spoken to the chemist and the fact that they that this x party communication occurred only came out on cross examination the district court never intended to tell the parties about this and so it's the act of advocacy in asking for the da seven again in secret springing it on mr sanchez at the sentencing hearing and then contacting the kemah sex party not notifying anyone springing it on the parties again and then the advocacy and calling the chemist as its own witness questioning her at the hearing for seven or eight pages of transcript the government never asked the single question of that witness so it's all of those factors combined that show that this record was trying to prevent mr sanchez from seeing a benefit from his appeal so your client might take it understands that given the guideline calculations if this is remanded and sent to a new judge so he could get a higher sentence he could your honor but there's also we've also raised the minor rol issue and so i know that another panel of this court is going to address them i know the minor role guidelines and the application of it but a different district court judge may think that perhaps the minor role determination came out the wrong way that that results in a huge swing in the guideline calculation and so he may not actually end up with a with a higher sentence unless the court has further questions  part given the fact that there was some indication that this was in the first trip that your client had with drugs you think a little risky on the minor role i don't think so he was still a courier he was you know being paid a small amount in relation to the large amount of the drugs there were a number of other people involved here and the government in fact listed those for the district where there was a spotter who was watching him cross the border good morning may it please the court states you sullivan on behalf of the united states i want to start by clarifying some facts from the record that i believe are not accurately understood at this point the court stated and defense counsel agreed or agreed that it was unusual to call up the technician to produce the lab report on the thursday prior to the sentencing that did not happen the the phone call was made to me as this is a united states attorney on the friday evening before the monday sentencing it was not made by the court by the judge himself how can we consider that if that's not in the record well i just want to clarify because well that hell would that be properly before us in any event that is we have in front of us the transcript from that hearing and if you're suggesting that we are supposed to take into account evidence that was not submitted to this panel i don't exactly know procedurally how we're supposed to do that no i am not asking this court to take into account evidence that's not in the record a statement was made that the lab tech from the bench and defense counsel added this very argument that that lab technician was called by the court to obtain the da sat and on the thursday night before the hearing that did not happen with th evening the judge's clerk contacted me when i was working late and asked if i had a copy of the da seven i did and i e mailed it over to chambers were do we get the impression that the judge called the judge called the lab technician on thursday the week after the sentencing prior to the rule thirty five evidentiary hearing which was set the cat communication with the lab technician by the judge did not happen until after the defendant was sentenced the second time the alleged acts party communication which the defense pointed to was evidence of indictive ness didn't even a car until after the actual quote vindictive sentence had occurred so the defense is asking you judge cole technician for the second sentence was already entered act the second sentence after been challenged on this a pill at that sentencing hearing the court clarified with the defense counsel that defense counsel did not dispute the accuracy of the da seven it was not until the rule thirty five motion that the accuracy of the da seven was challenge by the defense i believe i'm speculating here i can only speculate as to what was in the district court's mind but in that written rule thirty five motion certain challenges were made to the chemistry the accuracy of that lab report and i can only speculate speculate the judge read that motion and thought well i'll just call the chemist and ask her which of the two hearings to the district court indicate that it didn't matter what the ninth circuit said the most that this defendant was going to get from him was a seventy month sentence period i believe it was the second hearing that it would be normal procedure to make the da seven part of the record at the sentencing hearing i've been in the usa for twelve years we've never made the da seven part of the record it's something that's informally exchanged between the parties prior to the courts sentencing hearing when i read the record i was under the impression that the process of requiring that the district judges had it was a brand new process there and in the southern district of california yes and in fact it's not a formal requirement that the judges actually have the d e a s seven it's a requirement that both parties have seen the  and looked at the results from the d n a lab this was something that had recently come in effect prior to the sent the second sentencing hearing in your experience you've said you've been practicing fifteen years have you ever had a district court judge refuse a continuance so that a defense attorney could properly prepare to cross examine an expert on an issue that was critical to the sentencing the court not in my recollection i will note that it was the appellant's motion of the defendant's motion to the rule thirty five hearing that was being held it was an evidentiary hearing set for that date and the court did inquire of her did she have witnesses ready for the legal proposition and factual proposition that this report was not accurate and there were none and that's when the court said let's call the chemist black letter written out legal standard for judicial vindictiveness what is and i believe that's why we have the presumption of vindication vindictiveness that arises in the case law when you have a certain set of facts and that is a higher sense is imposed at the time of the second sentence on the remount in this case we do not have that and we have lost saying that it is the court's obligation the district court's obligation to correct any type of error and the calculation of the guidelines and with the da seven came the information the truth if you will of the actual purity of the meth amphetamine it is then jacked of basis under the guidelines that the amount of actually pure methamphetamine in this case raised the guideline level in this defendant sentence right but what is odd is that you as the prosecutor did nothing to put that forward to the district court that the district court it after having said that there is no way that he was going to change his sentence decided to figure out a way to make the sentence legal so to speak yes i think that the  the facts there have i point to the very recent change in the policy in the district court of not being able the judges having been instructed by the chief judge not to move forward on a sentencing with the lab report unless the court has any specific questions united states r i'd first like to answer judge rogers question i believe the district court said it both the first and second hearings that it wouldn't impose anything but a seventy month sentence at the r one zero one zero zero two which is the first hearing it said it would only impose a seventy month sentence regardless of the guideline range regardless of really anything and then at the second hearing that you are one ninety three one ninety seven to ninety eight to a four and to nineteen it repeatedly said that the best mr sanchez was going to do in front of this district court was a seventy month sentence were guarding the policy the district court did mention the quote unquote policy this wasn't a formal policy in the district and the policy was for the prosecutor to provide as the district court explain the policy because it's not reduced to a general order the prosecutor was supposed to provide the d a seven to the district court and if that wasn't done by sentencing the district court was supposed to continue the sentencing hearing until it had the d a seven and the parties had seen it so that wasn't the district what the district court did here the district court was not actually following the policy two more points of clarification your honor i understand that the prosecutor or the government is focusing on who called miss them and asked for the after the lab report our objection isn't whether or not it was the korean deputy or a clerk our objection is that that was done on a friday night without ever telling mr sanchez that this was going to be an issue with the sentencing the only way mr sanchez found out about this is because missed sullivan have an e mail defense counsel forty five minutes before the sentencing hearing hearing and say oh by the way judge brown clerk asked me for this absent that mr sanchez defense counsel would have walked into sentencing without ever knowing that the d a seven was even going to be an issue and i think that was the district court's intent was to surprise him with it given the way the district court asked defense counsel this is an open remonde defense counsel said yes and then the district court said well in light of that i've been provided with the da seven and that's going to raise or guideline range four levels at least and the final point your honor is a yes the the x party conversation with the chemist did occur after the original re sentencing hearing and so again we're not arguing that that we were prejudiced by that or that it affected the imposition of the original sentence we're arguing that all of these factors taken together show the lengths of the district court was willing to go to this court should consider why the district court was taking these improper actions if it was really just trying to get the guideline range correct these improper actions are evidence of the district court was trying to prevent mr sanchez from siena benefit from his appeal thank you very much