because the time showing is your total time remaining thank you for the district court violated appellant eugene temptin fifth amendment rights to due process by making factual findings and adopting factual findings from the pre sentence report regarding some on charged conduct and use those findings to greatly enhance a pounds ten can sentence in this case why didn't you tell the district court about it your honor the mr ten can specifically objected to the factual findings that were ultimately adopted and you have acted to what things in the p s ar reflected what you should yes had to it ruling on whether it should take in findings of hearsay or hold a hearing and never was told case were basically the reason were basically the results that the court could have used to make a clear and convincing finding in this case had the court and why did you did you ever look at  although apparent didn't specifically use the terms clear and convincing evidence we believe the request that he made put the district court on notice that it had to do more to make factual findings in this case than merely adopt findings from the p s r because  specifically asked for an evidentiary hearing an opportunity to cross examine the witnesses which would have been the the remedy to make a finding of clear and convincing evidence in this case there was really no other way because the evidence that was being offered by the government to support these allegations were just some transcripts some alleged testimony by a cooperating witness who was in custody and so really the only way for the district court to reach the clear and convincing stand there would have been to gr t the evidentiary hearing and at least some sort of general you can make these objections to the p s or and the district court can decide this on a preponderance of the evidence under that's correct your honor that and so therefore given not telling the record anything about it they would then determine it on a clear on a preponderance of the evidence standard and that's what they did and now you want to hold them to a higher standard or review while you're out of the court was put on that type of an adult son yeah have a preponderance of the evidence on it on evidentiary hearings on this kind of stuff all the time that's true i mean having been there i know well that's correct you are you can make factual findings by a preponderance of the evidence through an evidentiary hearing that's that's correct but the fact is appellant express specifically told the court you know we i need more than specifically just adopting the factual allegations and so the court should have known that it should have done more and if the court looks at the sentencing transcript the court basically did not even inquire into the into these allegations beyond just saying i had r there was nothing more done aside from that in considering the seriousness of what was being alleged here and the ultimate effect that it had on the case the court should have done more and the court really did did very little all right  s case that the ready to support the proposition that if a clear and convincing evidence standard applies there must be a hearing what my case is that i don't have a case on hand that says that your honor but it's clear that a clear and convincing standard is beyond what the courts usually use at sentencing to to as as they can to make preponderance of the evidence evidence that that's oregon and that's why we believe plenary review should not apply it seems to me that judge draw and i are on the same wavelength here the clear and convincing standard only applies when the facts have a disproportionate effect on the sentencing and we on our circuit have never applied it outside the facts trigger guideline enhancements and this is not a guideline enhancements case correct it's not yours so therefore it seems to me that the clear and convincing standard doesn't apply unless you tell me why i need to pry it while you are if the court looks at the entire history of the reason that enhancement that stand that was applied in the first place it was a concern for due process now the court is correct the court has never applied it in a guideline enhancement context but it always applies other th correct the court always applies it in the guy i know the side of that is correct yes this is not but but initially in the very early cases that where this standard was what's your best case while you're on of the very early  cases i went through these ninth circuit cases and tried to see where it was i looked at columns that it was not a political on a special conditions for supervisor lisa look at felix it says it's not a in that particular case because it's only a playable when finding triggering a mandatory minimum i look at there says not a political unless you're in an enhancement situation no case that says what the court is suggesting that the court is correct on that side but a parent's argument is based on due process and when this are and when this standard was approved it was it was approved to avoid the type of situation that the court  seeing here which is the good this record discretion is guided by a range of conduct but part of that conduct was not proven that trial and it's of a severity that has an impact on the sentence that at sentencing due process sometimes requires more and that's argued appellants argument in this case the due process in this case for him for the district court to do what it did in this case due process would have required a little bit more than what the court  and the evidence is clear and convincing why wasn't it clear and here's on iran in particular you know there was one instance where after your client told a hit mate that he was happy too he was interested in going along with the assassination and the f b i provided the inmate with false contact information for a purported russian hitman and her around a month later the inmate told the f b i that tempted had mailed to the hitman photocopies of the driver's license of hirshman says wife or sherman's wife and mt pays off driver's license as well as their photo passport photos and soon thereafter the documents arrived at the p the free community five years after this happened and the government never brought this up now that they have some reasons they say justified that but the fact of the matter is there were a lot of strang credibility of this informant was the main concern here and that's why the evidentiary hearing would have been crucial because this was a cooperating inmate witnesses who had many contradictory statements i've suggested to you seems to me to be compelling  informant usually it's the jailhouse informants word and that's what makes his his testimony suspect since he could be making up a story simply to get consideration from self but this was this was extraordinarily corroboree some under calculated defendant's guideline sentencing range and therefore re mandated for recent insane purposes the import of defendants current appeal is that this court's prior decision was in effect meaningless and that defendant should have received the exact same sentence he received under the incorrect guidelines range of course that's not the case he still received a sentence that was five and a half years below a correctly calculated guidelines range as the court has pointed out he never objected to the burden of proof below accordingly this court should certainly affirm the plain error of use standard applies because as judge smith has pointed out the as well as armstead gonzales and rightly all require that a defendant who wants to object to the burden of proof must pacifically do so there's a reason for that of course the district court would like to know if a defendant thinks that a clear about that but when tim can did object to the p s or he did talk about his due process rights and it seems to me like the standard or review is due process right and therefore reading what he said as wide as maybe i need to i'm again trying to figure out why i would do plainer and i'll let you respond because i really tried to say to him you need to detail the judge but when you say due process of by if i put that is why it is may be the standard or views right there that's why i like standard or review so your honor i think that no case has held that merely objecting vaguely to due process or using the words to process is sufficient to satisfy the requirement that a specific objection be made to the ordinary preponderance standard that cases that the government has cited all hold that a specific objection to the burden of proof is what is required there are obviously multiple facets of due process that a defendant could be objecting to i do with berger specific to this area of the law which is the burden of proof that guero armistead gonzales wryly line of cases and i think that although it is a question of the law it is actually a question of a law that affects the district court's proceedings significantly because the district court needs to know what standard of review applies or what objection is being made in order to determine whether that standard is and that whether further evidence is necessary whether an evidentiary hearing what matter whether all of the other factors regardless of this one factor would set satisfy the sentence that was or would justify the sentence that was imposed so  i certainly recognize that there's case law and certainly many relm saying that a pure question of law can be reviewed you know about this question has specifically been held to be one in which a an objection original sentence was from the incorrectly calculated range so if anything the defendant got a more significant benefit the second time around what the defendant is arguing is that he was intent to the exact same percentage reduction in his sentence but in rock terms he actually got a greater reduction than the first time and no case remotely holds that a clear and convincing evidence standard is necessary to establish a fact that results not in any increase whatsoever but perhaps in a less significant or substantial decrease that is simply not at all in accord with due process we're really look was two hundred ten months the high end was two hundred sixty two the defendant sentence of five and a half years were below the law and there was no factor that made it extremely just for portion it to any range within the guidelines in fact it was well below in addition as your honor pointed out when questioning appellant the case law from the circuit has how that a sentencing factors are subject to the clear and convincing evidence standard needs to actually result in an enhancement to the defendant sentence whereas this fact resulted in no enhanced whatsoever i would also argue that judge korman is correct in pointing out that the clear and convincing evidence standard was satisfied here  case not only involved a mailing to a monitored p o box but it also involved a recorded conversation with the end made informant so it went well beyond the one person's word against another the defendant's word against a convicted informants it was actually a wire that the informant went in with and recorded a lengthy conversation with the defendant so even if the clear and convincing evidence standard were to apply it was satisfied the only other argument that the government makes is  following back goals the due process regime really should never be applying a clear and convincing evidence standard to sentencing factors and that that is something that the government stands by the  due process analysis house to look at the sentencing regime that is in place under the current advisory sentencing guidelines regime that is not where the clear and convincing evidence standard developed and developed at a time sentencing facts automatically triggered enhancements in a defendant sentence what do i do with the language and vehicles that decision in this spring court's language does not render sentencing procedures and turly immune from scrutiny and of the due process clause it seems to me that if i go and i write an opinion in this particular case or i join one of my good colleagues and i see this language render sentencing procedures not render them immune it would be a tough thing to suggest given in that case we could get there so i  think i would say your honor that the language actually reflects that the due process analysis is severely circumscribed when the court says it does not render it entirely and mean that suggests that in fact it is circumscribed and the court then cites williams right in that sentence that you are quoting from your honor and the williams case is a case in which the supreme court questioned whether a district court judge could rely on the pre sentence report to make findings to impose the death penalty on a defendant under the due process clause and in that case back in one thousand nine hundred forty something the supreme court held that in fact that satisfied due process well if i look at our case that take your honor the government would be perfectly satisfied to rely on this court's precedent that supports the government's position the government's position is that this court at some point needs to begin reevaluating a law that no other circuit according to the briefs that according to the case of the government has cited i'm not i have not done a thorough exhaustive review so i can't represent that no other circuit still applies a clear and convincing evidence standard but this court's now case law is an anomaly in that respect and it appears that the other circuits are in pretty serious agreement that due process is satisfied by a preponderance standard and under back goals the preponderance standard is not meaningless it is still something that due process requires and that should be enough unless the court has further questions your honor the government's i was curious what your response is to opposing counsel's opposition to the court relying on the pre sentence report without  obligation to conduct an evidentiary hearing and while counsel represented that all that was in ad all that was in evidence or that the court relied on was the pre sentence report in fact there were substantial submissions by both parties regarding the post to convey conduct that were made in the context of determining whether the defendant should be further detained pending re sentencing and those submissions contained a large body of evidence including from the government the entire transcript of the recorded conversation with the informant the f b i reports reflecting that the defendant had in fact attempted to mail documents to what he believed was a to that last point i would only note that while while that may be true and there was substantial evidence in the record the district court at sentencing and at the various sentencing zero sentencing hearings only said i'm adopting the factual findings of the pre sentence report that this record in this gus anything regarding this conduct aside from adopting the factual findings of the pre sentence report and so we don't know what exactly this record figured out was was going on in terms of this the side from what the pre sentence report allege specific list record give an explanation of why he was giving unfair that this record gave a very specific explanation and said the first time around i thought about this case very very carefully and i thought a think the first time i gave you six years because i thought i wouldn't do this again and now i'm giving you twelve years because here we are we've done it again so that that's why we made the this argument about that we have real concrete proof that this was a disproportionate impact on this particular sentence it's a worry i mean i realize where he went with your last argument of his real worry that he asked started a totally different range i mean the bottom line is he used thirty two the first time he had to go up to thirty seven and using a totally different range to tend to sue sixty two he still departed down to one forty four which was a departure and what you're suggesting is having just started a different range and yet going down that there is somehow in this record if you will a disproportionate effect and that ignores the disproportionate effect cases from the ninth circuit well you took took into account a vast amount of evidence and at the second hearing the court basically said we're here again and you've committed the con that the again i'm giving you twelve years and i've got to raise the bra i've got to raise the range the ninth circuit bless their hearts made me and so i've raised and i'm still going to go down the court to go down that no no doubt about that you are wrong we do feel though that to go from the six years which