good afternoon and made please the court my name is michael thompson i represent the appellant tyron patent in this matter mr patten is appealing the sentence he received at the district court after he was denied a sentencing reduction for substantial assistance to the government mr patten believes that that motion for a reduction was unfairly denied by the government and that the district court should have compelled them to make that motion or at least approached further into their reasons for failing to do so and they did this article was brought before the district court the district court indicated that it didn't believe that it actually had the authority to take any further action to either compel the government or to inquire into their motivations for refusing to ask for a sentencing reduction and the district court indicated that it believe mr patten had cooperated with the government had provided substantial assistance and didn't record also indicate that even if it did have the power it would not take that action it did but that was after that was at least along discriminatory basis or anything like that your honor is alleged the mr pattens position is that the motion was withheld purely essentially out of spite because mr patten didn't give them the information that they hoped he would was a correct that the defendant was out of contact with the government for about six months i don't know the exact time period but yes approximately that when his wife turned off the cell phone and that was after he was told he was needed for the grand jury i believe he was told he would be needed for a grand jury i don't think he was given a specific date you need to come in in two weeks or on march thirteenth or anything like that your honor he was said your testimony will be required you well be charged actually with a crime following that time he underwent a surgery during his convalescence his cell phone was turned off at that point he didn't contact the government he didn't take any other steps to initiate that contact but neither did they come to him he was recovering at his mother's house after some time passed he did recover eventually not right away but eventually he did re make contact the government  at that point no further steps were taken to to i guess resume the cooperation he was eventually charged he did not enter into a cooperation agreement formally after his charge but he did plead guilty after failing to reach an agreed plea agreement with the government and the cooperative efforts he had already undertaken were used to successfully prosecute multiple  people and get convictions on charges for which he conducted under cover by firearms are removed from the streets and all that was possible because of the steps he took in an effort to cooperate with the government effort to assist them and while the government wanted to get people that were our people they view it as higher up on the food chain i suppose of the criminal undertakings and the way to run pretty large scale dealing with the deals that mr patten arranged for the government totaled approximately sixty firearms and then i meant the end of the drug trafficking the drug trafficking also yes we're fairly i don't remember the exact quantities that were found but it wasn't small time the cooperation was mostly focused on the firearms mr patented was also indicted in a separate firearm case they were sort of like together were it wasn't that one of them came after his cooperation or anything like that the the the reason cited by the government were one the lack of contact cited for denying the motion for substantial assistance for one the lack of contact after mr pattens stopped communicating with them and to the fact that he supposedly intentionally withheld the higher criminal parties from i guess from detection by the government by failing to record conversations with them when he arranged the deals or by failing to disclose information that they thought he had about them and if that happened there's no evidence that it would've been intentional on mr pattens part  he's not out there when some cooperate with the government are given specific instructions on what to do if he was told to set up a deal and he did so and there's nothing he's doing to hide anything it's not that he was told to make a recorded call and then he just didn't do it he just wasn't given sufficient instructions to satisfy but the government thought they wanted and that's not a reason to say he wasn't fully cooperative certainly he could have taken more steps after his surgery to try to re enter contact the government he didn't do that but that isn't evidence that he intended to not fully cooperate mr patten knew all along that his eventual testimony might be required if he was never going to testify against anybody he would never started cooperating what's our standard of review here i think it depends your honor because it in part the court failed to recognise its authority to even enter into an examination of this question and i think for an abuse of discretion because the decision wasn't based on a complete review on the part of the district court that it wasn't even really an exercise so i think the factual determination would be reviewed for plain air except that it was based on a state of law which is to know t how the court analyzed this it didn't have authority unless a defendant not only makes the allegation but makes him carries his substantial burden makes a substantial throws showing that the government was acting neither motive was either on constitutionally based or was not related to any legitimate government and that was never even alleged it said and say there was no allegation the cover meant was acting unconstitutionally there was no allegation that it was an acting to forward a legitimate and that was raised for the first time on appeal before the district court the argument was slowly this defendant has cooperated the government therefore must make some kind of motion here it got drugs off the street i mean got guns off the street and it made these cases and under that allegation the district court was absolutely and completely correct in saying it did not authority under way versus united states again not cited by the court but the court didn't have authority to inquire and further and the court was correct in saying to acquire any further would require me to have a court commissioner and explain how it was doing this way of his cooperation versus his culpability and that's precisely what a court is not allowed to do under the supreme court's decisions what a court is allowed to do under way versus united states in the decisions of this court is when to defend it makes a success thresholds showing which has to be something beyond saying this defendant cooperated in this defendant made so many cases they need to come in and say the government was motivated by this on constitutional basis or the reasons the government is giving you now are pretext and make a showing that it's pretext because it's not really related to any legitimate and and the first time pretext was ever raised to this idea that is not a legitimate and was in its brief on appeal before the district court that was never raised so any suggestion that the district court was mistaken as a matter of law is simply incorrect the court w absolutely correct in the way to approach this this issue and as a legal matter the court sent i am going to consider and did consider the defendant's cooperation and where what sentence to impose and in fact imposed a book substantially below guidelines sentence upon the defendant his guideline range because he was a career offender was two hundred sixty two to three hundred twenty seven months the court imposed a sense of two hundred forty four months just slightly above the mandatory minimum so the court and the court said i'm taking into consideration his cooperation and that the government agreed the court was allowed to do so very different question to say that the court was required to compel the government or to make further inquiry into the government's to the government's basis especially when the government proffered reasons and the record supported reasons that were fully to fully show the government's rationale was based on a legitimate government  says specifically to punish this very culpable defended who was a longtime narcotic trafficker with prior convictions federal convictions for a narcotic straffing and in aiding a rico enterprises such  a firearms you know and several for and several but firearm convictions and based career offender guideline and a mandatory minimum on a cut cut of that in the case involved here he was involved with the source in mexico  distributing drugs dealing directly with the source there in terms of obtaining the drugs and the quantities involved your honour's were twenty kilograms just in this limited period of time when he was examined  over twenty kilograms of cocaine was substantiated by records obtained during searches and other investigative wiretaps conducted during the investigation as well as three kilograms of heroin just in one deal when they stopped his courier he had eight kilograms of cocaine and three kilograms of heroin so this was a substantial drug dealer and then on the other hand of it he was only providing information of people lower to him  on the firearm trafficking scale in particular page at the sentencing transcript record page forty five his counsel conceded that cooperating witnesses come in and he gives you the information he wants to give you a view as other information he doesn't give it that's not some terrible criminal act that was the defense position it and set saying basically doesn't have to give you any more well that wasn't the government's position in terms of waging this culpable defendant versus what cooperation he was he was providing and especially with defendant the government expects full cooperation not just giving people lower down on the food chain and protecting those senior to you or your friends and relatives as was the government's proffer and was not contested at sentencing moreover this defendant did drop out of sight and again the proffer by the to the government not contested at sentencing was that the officers had tried to find him and had contact look for him at the at the numbers of actresses he had but even even if it was totally true and he was ill he just for whatever reason didn't get in touch the fact remains he didn't provide full cover operation even as to those as to whom he had he had helped build cases because he wasn't there to testify it is tried their trials and he wasn't there to proceed before the grand jury so unless the court has any other questions the government would submit that the record is ample to show that the government that the gov't that the defendant did not be his burden of the stab your honor as far as the substantial preliminary showing us who cerned counsel for mr patten specifically asked the district court at sentencing if there was any other information he could provide to help the court it's a terminations and the district court told him no there's nothing else you can say i don't have enough information about the government's thought process on their motivations so at least as far as the district court was concerned the burden at that point wasn't on mr pat but he didn't believe that it meaning the district court had the power to compel the government to divulge any further information that of course as mr pattens are met as to where the air like here the court should have compelled the government to explain further to provide more information and it was during this same discussion at the district court when the government counsel indicated that mr pattens failure to provide these higher value targets embarrassed and it's there that mr patten bases his argument on this illegitimate interest being the motivation for the denial of the motion that the government counsel probably didn't mean it to slip out that way but it did and i think that provided support ample evidence on which it could have concluded that further inquiry was warranted and that the reasoning behind the denial the motion was not legitimate and as far as mr pattens history a criminal history and the significance of the drug dealing is concerned that's not a reason to deny a motion for substantial assistance the government knew all those facts when they started cooperating with he was always a substantial drug dealer he would have been regardless of whether he cooperated so a drug dealer with mr pattens background who cooperates gets a motion in most cases for substantial assistance for a sentencing reduction he didn't in this case in part because of the breakdown between mr patten and the government to his lapse in phoenix but that doesn't mean he wasn't entitled to the motion that's not dispositive unless there are any further