good morning me please the court mr florist pleaded guilty to being a felon in possession of a firearm and he was sentenced to one hundred four months on appeal he raised two issues one is  foreclosed the remaining issue is whether this court should vacate mr forrester sentence because the record is devoid of evidence to support the base alton's level of twenty six the government failed to prove the all things involved a similar automatic fire that was capable of accepting a large capacity magazine but by virtue of having the name of the of the weapon can we take judicial notice of the fact that the owner's manual for the bushmaster x seven fifteen says that they are seventy automatic with a standard magazine cap capacity of thirty rounds i do believe that you could take judicial notice of that fact however the commentary requires more there's a spatial in a temp or over quant of problem that's come into the race we can't know the problem is commentaries can't alter the guidelines they can help interpret but they can't alter so if the commentary is adding more factors to phrase capable of accepting a high capacity magazine but it adds an element that not only is it capable of accepting it but it has to have accepted it at the moment in question which is so if if your car can hold seventeen gallons of gas that's a fact whether it actually had seventeen gallons of gas at the time is an additional element that isn't anywhere in the guidelines i disagree with the court i disagree for this reason the kremas possession of  not isn't the question it's holding a firearm of that capacity versus one that could only get half six bullets or you know whatever there's firearms obviously all across the spectrum and the danger the guidelines dealing with here is this kind of mega rifle versus a smaller handgun that has a smaller capacity because of the potential damage that such a weapon can do so he possessed a weapon that is a vicious kind of weapon and why is portion of that of the enhanced when they added this language and they added the commentary and in stinson what the supreme court says is that commentary that interpreter explains a guideline is authoritative unless it violates the constitution a federal statute or is inconsistent with or plainly erroneous i don't believe this is inconsistent the problem is you're not just having to show all that you're having to show that it was plain are obvious to the court that the commentary doesn't add to the guy line rather than simply explain or interpret the guy i like and that's the problem you have you may be right as him as a facial matter but you have to go further and show that any judge would have no mess and i think that's a bit of a problem for you in this case i disagree with the or near to a magazine and that that magazine held fifteen or more rounds of ammunition the air is plain here because a straightforward reading of the relevant guideline provision and commentary is all that's needed to identify what the government commentary and again the commentary add something that's not in the guidelines i believe judge that what it does is interpret the phrase in the guidelines and this court most recently indian cruisin in taur said notwithstanding the absence of case law on point the error here is plain from the face of the relevant statutes and regulations in taurus the court said any error that can be identified purely b uncomplicated resort to the language of the guidelines as play it's the reason why i provided the court with the handful of cases unpublished and from other circuits describing the kind of information that should be included in the p s r that should be included so that it to bring everyone's attention basically to the fact that there was no magazine or conversely that there was a magazine and this is how many rounds it contains so the air was playing here i think it's clear and it's not contested that the air affected mr floors is substantial rights in addition to simply resulting in different about prague for i can skip ranges were used the judge here specifically tied her sentence to the middle of the incorrect guideline and she made no statement that that would be her sentence if she was incorrect about the guideline know what was in the book that that done that to this question what so what they did was they took outside the statutes additional punishment for for this person to hold this type of weapon it was the commission that brought them back in and i do and it's plain from the reading of the guideline commentary as i was talking about the third program not only do we have different ranges but we have a court that decided to use the middle of the incorrect range using that as a reference point that is eight months higher than what we say is the correct range and if we use the midpoint as a reference it is seventeen or eighteen months higher because there's an odd number of months  court the district court did here because that aids in meeting that they're brought to show that there's a reasonable probability that he would receive a lesser sentence it is also however a factor used in phrasing of the fourth pro fourth pro is that the error seriously affects the fairness integrity and public reputation of judicial proceedings i cited to the tenth circuit case the chief justice who are such as case regarding the fo prong and how one day in jail she caused the public to be concerned about here all of that that we have with your argument is you're taking away the discretion i mean if the argument is simply that if the wrong guy lines range refused and the right because it's always true i mean if the exact got if exact same guidelines range would result regardless of the application that it enhanced meant then we don't have a case there's no error to begin with you know here it's only when there is a different guidelines range that we're even it's straightforward on its face it offends justice and he didn't have jack now that's what we're getting is a whole pattern of these things you can't have it both ways that play in that some people then either you're incompetent you're not doing your job something else going on here can you help me with that yes or can judge four or people made a mistake in the trial or the first person that made a mistake was the u s attorney's office because they did not object to the fact that there was insufficient evidence in the p s r the second person that made mistake was the probation officer for not providing the court with sufficient evidence that person that made a mistake was the defense attorney for not raising the issue and the last person that made a mistake was the judge i don't believe that any of those people intended that we see this a lot from the southern district of texas federal public defender's office i think we as a court have to judge each case as it is without regard to whatever else racine but i do think this is something that the  office needs to take a look at because you should be having your appellate lawyers involved at the trial stage so that we don't keep having this for the reason that your clients face a higher burden on appeal and for the better reason that maybe we fixed the problem which is the whole reason why you have a contemporaneous objection rules again i'm going to judge this solely on this case regardless of whatever else the f e d s office done any other case but i do think it's an issue that we see time and time again and don't see as much from other f p p offices and i think that is a concern appellate attorney for that office needs to address with the people there so that yes these errors are dealt with if they are errors at the time of sentencing and handled as they're supposed to be handled when we are taking steps to do so judge appreciate the advice and i do believe that this does seriously affect the fairness and integrity of public reputation and judicial proceedings because it was the government's burden in the first instance to come forward with scant evidence some evidence an iota of evidence and if there were any evidence in this record i wouldn't be here on playing your review however there is no evidence the row evidence it is fundamentally unfair for the party with the burden to spatial requirements of the guideline lastly the obviousness of the air is another issue that this would raise if i can conclude that the government has failed to produce any evidence to meet its burden the record is devoid of that any evidence to s precedent in use of lopez in this case in terms of the entire appeal is based on and an objected to that and second that there is evidence that this weapon did meet the guideline of two k one first and with regard to the paths as you know this court's precedent of over twenty five years is that questions of fact capable of resolution by the district court can never constitute clean air and i've heard a few than the r d mentioned some of the reasons why is that we're not summary of everything known to all the parties in the district court is entitled to rely on that p s r is sufficiently reliable and so the defendant shows that it is not it is actually his burden to point out things that are inaccurate in that report and at that time then the government the judge would flesh out those back issues in this case both parties have the p s r for eight months after eight months the defense attorney filed objections that had to do with a crime of violence regarding a burglary but there was no mention of the specific facts regarding the dimensions of the weapon at the sentencing hearing and i think this is key in terms of evidence is that the defendant implicitly adopted this report at the very beginning of the sentencing that report he firstly told the judge that there was a mistake and regarding his cocaine use and she said what do you mean he said well the report says that i haven't used drugs in six years your honor that's actually incorrect i've been using these drugs for six years and the judge said thank you for pointing that out this is very important and directed the probation officer at that time in sentencing hearing to make an addendum to the port to change that and then a little bit further later he to the position that the government took on him being a gang member the piercer dictated that he was a member of the mexican mafia in the defense said your honor i was a former member but i'd like you to know take that i'm not currently a member so this that heighten your need to kind of go through this with a microscope or a magnifying glass wherever the right analogy is and really look for this kind of stuff for example do we have all the evidence we need on this bushmaster issue do i need to bring in the owner manual or what not or argue that the commentary contradicts the guideline or anything else that doesn't this kind of heighten just as a matter of adversarial process the need for you all being vigilant because you don't need to look for this stuff to i understand your point completely your honor in well i don't think there should be a different standard for people who practice in different districts this does continue to be an issue and i think when you look specifically at the p s r the information that everyone was given it's very specific it's very specific in terms of the the gun but the model number in the serial them and i think at this point because there were no questions everyone was operating under the same facts about this assault right it does sound like an assault rifle and there's actually a case off from this circuit that discusses this specific to twenty three caliber bushmaster and says everyone knows this is basically a civilian in sixteen everyone is capable of knowing having the knowledge about this gun it seems the argument at least if we're going to credit the commentary we're looking at wrong too is that you could remove the magazine is that the idea i think that the commentary is either or that it should be attached or on the car because it typically would have it even though it is removable what is the case with this particular rifle is it typically going to have a magazine or is that something that is typically removed that's what i'm trying to say i think it typically has one and i think this isn't in the out below if there was a specific issue about this weapon the caliber if it was next to it if it was by at all it had or argument on the commentary altering the guard on me and i think that it if it does alter it in a way but i suppose it's trying to give further explanation to people who don't know what that term means is it a scrap of semi automatic it just says of weapons and because no one objected they all knew what they were talking about is that also impacts wrong you know that this is something we're this is kind of a big bad weapon and the idea that this enhanced minister who aid people in this situation having such a big that weapon and so even if technically the magazine one proved to be in the vicinity of we don't want we're not going to angle that's another problem in terms of why we would want to exercise a fourth paul and if the idea of the guidelines is to separate out among people who can commit the same crime but who have different backgrounds and this one handsome and is it as i said a felon in possession could be the least harmful i mean i don't know how you can describe it that way but the least harmful hang on a release likely to cause mass destruction kind of handgun versus the most himself and hearth and home and all that happens to be a felon versus someone who's got a big bad rifle he stole from a police officer they can go up and shoot up a ball field full of congress men and women right yes and the fact is this weapon wasn't recovered so it is out in the public because of his actions it was taken it was moved to a house it was moved within two days in the police officers could not recover it so yes that's another reason this weapon is now out there because of this defendant's actions and that is why his  base of ins level was a twenty six instead of twenty four was that we do look at this as a specialized problem if it's even have the knowledge of these weapons to want to move them sell them is a big deal and it doesn't come within the realm of the normal crimes that were prosecuted and with regard to the clear and obvious error i think that even if we were to get to the work it's clear all of these parties were operating under the same definition about time in a perfect world would have been perhaps better to have a little bit more information yes i think the government we could see that possibly would be a better practice however if it's not right to anyone's attention after everyone has a p s r i think the judge is reasonable and depending on the defense attorney not objecting that actual only reissued to correct a typo in the in the dissent as you may have noticed but but you also noticed that the majority in that case was careful to say they talked about the degree of the disparity under pong three but they said so under those facts we decide to exercise or discretion the panel did not treated as automatic i thought it was fairly careful of whether or not the result was close was correct  panel did treat the fourth prong separately and unfortunately we have some some panel opinions that blur that even after escalante read and it seemed to say well if you just bertie's begin to the third prong we've got to actually give give relief under the fourth and we all know that's not the law it's your discretion to decide whether to exercise in this particular case based on the facts and that's why i believe it's important that in this case it was the government's burden to come forth with was it ever since but the problem you have is your client is hardly a very sympathetic person to exercise discretion on i don't mean sympathy in baseball or my mean in the fact that you consider the kind of thirty five fifty three a type fact he still has a big bad weapon as i've been calling it from a police officer and then now it's nowhere to be found and available to some other criminal to go out and do harm with it and we've seen that the these rifles are very powerful  judge the district court here in indian crews this was an issue as well as as well as martinez reading yes the district court here went through a lengthy sentencing hearing she took in the she talked about his criminal history the crimes for which he was getting points the crimes for which he didn't receive points she talked about the fact that drug addiction was likely the cause of these just in comprehensible crimes and string of her and still she decided to not do as the government suggested which was give the upper part of the guideline range and she gave the middle both key in cruise and martinez rodriguez speak to that that issue issue cannot be less plain because the defendant in front of the court is a worst person a but it is a basis but it's it's whether we work whether we're going to exercise her discretion i think we can take into consideration the totality of this defendant's conduct and i agree i agree and i would throw in there that in the transcript there were efforts by this defendant to assist authorities as well and i think that that's important and that's a factor that the court probably took into consideration i think all things considered judge judges  honors there was a mistake made nobody there wanted to make the mistake and when the court decided to since this defendant she chose a midpoint of what she believed to be the correct ra i think she'd like a chance to see whether or not the government can prove there was a magazine they've supplemented the record to put in shepherd documents they haven't supplemented the record for this and it would not be a great cost on the court thank you very much