you i wish i could be in jackson all these years i haven't been able to have the privilege of arguing their money's chris curtis and what the federal public defender's office and i represent mr parks and on th one hundred and twenty months which the court identified as an up or variance in the course was the top of the sad story maximum sentence allowed the discord dave essentially two reasons well gave the reasons given for the upward variance was parker says generally parts of his criminal history and his risk of recidivism district court relied heavily on two factors that the defendant objected to in the trial  one factor was set forth in the p s r was referring to an incident where parker sent allegedly attempted to abductors nice this incident didn't result in any charges being filed and w before mr parks and was released from prison in the pre sentence report the probation officer said that mr dunham had actually reached the conclusion or given the opinion of mr parks and was a high risk of recidivism however when you looked at the report prepared by dr dunham if you find it actually dr dunham did not conduct any analysis or examination i'm sorry examination of mr parks and because mr parks in a declined to and further pointed out that there was actually a static ninety nine tests conducted which showed that mr carson was a low to moderate risk of recidivism the defendant also went ahead and took the additional step of attaching to his objections to the christmas report literature it showed that the static no you know is a reliable test scientifically based tests and perhaps the only objective test that's available to actually determine the recidivism of a particular defendant the problem with what happened in this case and it was preserved it was objected to and preserve was the the court of appeal i'm sorry the district court continued to i don't think she went to far your honor and that i was about to get to that she said that she was going to give equal weight to both doc has been in the static ninety nine which wasn't much i think she said not much weight or wouldn't be much is what's in the record the problem is though it if she considered that st opinion at all it's got to have under due process due process requires that it's the st of all the the precess report all it did was take a quote of the statement from the alleged victim we don't have often three ports we don't have or even salt of investigations which the government relies pretty heavily in its case law in its brief what we have is a statement from an alleged victim and the only other thing we have in the record is under oath in from the client or from the defendant mr parkinson who says gives a different story of what up in a counselor but there beads to be there and if she she absolutely i think can consider the the reliability if she gets to the point or the credibility of mr parks and if she gets to the point where she's w credibility of different pieces of evidence or different pieces of information we don't get there because the government doesn't come forward and give us anything else all we have is that rd th hand rendition of the alleged victim's statement sentence report which was properly objected to was properly challenged and we actually have a different version of what happened in the times so they're not it seems to me and that it's own he has not even addressing the instant that she is referring to but he doesn't deny that incident but his say n that point happened relates to the fact that he was doing what leather work the fact that he was protest in berlin they don't smoke in the face of the child and that had no relation whatsoever to her picking him up at a still want to take him home and that that that answer yes your honor understand it i think but i think that point makes the point as well what he says about the incident doesn't corroborate anything she says in her statement and in fact it gives a different scenario i do recognise exactly what your own are saying in that well he doesn't specifically deny making her go to a field and getting out of the car and the things that are in her statement but he doesn't  and we have objected to the reliability of that statement and all the government had to do of course obviously the government could have brought the alleged victim in that would have been the best way to to actually address the credibility  and what actually happened but the government didn't have to do that the government could have brought in given the court the often support disclosed the entire office report what we have here is we have no context of to make an analysis of the indicia of the reliability or the reliability of that particular piece of evidence just says well it's reliable she gave a lot of details it's reliable the problem is that shifts the burden to the defendant  and that's a violation of due process at that point and all it is it and it also shifts the burden of production and that's what's best for that analysis breaks down it doesn't break the th circuit case law in the process that's been established since nine hundred and eighty seven in this court wouldn't work if the court follow the longstanding precedent of that if it's an objective to units in the pre sentence report that's that's good enough that's an industry of reliability but once it's chalons and objected to there needs to be something more it doesn't mean that they have to bring in all that was witnesses and have a mini trial or any of that all it means is you've got to you've got to somehow establish the the reliability of that initial state and that wasn't done in this case and it's routine only not it's routinely skipped over by the district courts in the sentencing process and the sentencing process will work and due process will be served if we require in the face of an objection a challenge that the reliable e p established in some way you can bring that you could bring the investigating officer into court you could to curtis let me ask you and i think what you're talking about may well be a fair proper way to do it i'm not sure that's what the law the circuit is your briefing address is that me ask you  what does that fit under that you're after ms circumstantial evidence of something in light of his conduct in other situations so what do we do with that well and again i think it's an excellent question that is the actual quote of the alleged victim does not establish that there was a sexual assault that occurred that's clear from wasn't just in the pre sentence report but i think that adds to my argument of why or my position of why when you challenge that you need to if you've got to submit information to base that conclusion on that has a sufficient industry of reliability due process requires it and what i what i'm getting at here is we do in a sense have a conclusory we were operating on conclusions to effect this upward variance this drastic upward variance of a one hundred months from  potential sentence of eighteen to twenty four months we have a conclusion that he's recidivate ing again that he is he's was about to commit another one of these acts and the information that we have even if the court's allowed to just accept that doesn't establish that doesn't establish at all and it could be cured plain and simply it could be cured by just bringing in the investigating officer of that two thousand and sixteen instead that's all you have to do if you're the government just bring the officer and say well this is i'm best again this is what i fell hearsays admissible you know he could he could tell what he he got from interviewing other witnesses he could he could disclose why the charges for broke he could disclose why the case wasn't prosecuted and of course that obviously could weigh heavily on the credibility of the alleged victim to start with but there is a problem there that you're reaching a conclusion that's not even established by those starting in my brief starts in one thousand nine hundred and ninety i believe is the earliest case that i've read gone to if you follow the true binding authority in this circuit then once that's been challenged the government has to do more than just sit on the sentence report and the government does it over and over and over again in this district they just sit on the pre sentence report and don't come in and further establish the reliability which puts the burden shifts that burden to the defendant to have to disprove something that they don't even have that we don't have the detective or anybody who are you arguing here for us to adopt a broad rule that would apply to a general practice of the of the u s attorney's once if you're relying on a fact in the pre sentence report once that's been challenge find objection then the government has to do more they've got to bring something in to show that that information is reliable the it and often support which they could have done in this case they could have just introduced the office report be it the investigating officer or be the be the with the witnesses to the office itself they could prove it that way they can do that but they don't have to go that far so it's a pretty simple solution and i think it's it's a solution that's already provided for under this court's precedent thank you all right miss williams will your your response to all this any respect later on or i do not believe that's necessary i think the case law is clear that the defendant has the burden to produce information to rebut that p s up are and yes the information yes that must s r and the facts relied on their end must just be reasonably reliable and have sufficient in addition of reliability and this court has several times an infant has and harris namely and held that a offense could have he could have called the victim as a witness and he simply didn't do that all we have is his argument m p s are objections at senate saying that this is unreliable and then finally as allocution after the district court has ruled he attempts to give his version of that so to the extent that he is that can be considered or a bottle at all the district court then was faced with a subpoena recognized earlier when the credibility of the so what we know there is the victim's story and indeed there's nothing in that that directly states that he committed an overt sexual act towards our however we're going to caucus and was and we get it   with intermediate periods of incarceration between that he gets out he commits again and then what we also know is that he offers no other explanation he doesn't say well we were going to this field together because my family own and her mom actually reports it and that he you know why she decides to leave to get out of the car he chases so there's something going on besides they got to the middle of nowhere and simply had a disagreement about with which to day  and so judge boyle is certainly within her discretion in looking at his prior history and saying even if we give very little weight at all to the twenty six dollars eleventh's that he is the twice convicted individual of aggravated sexual assault of two rapes he serves to prison sentences the st is two years the nd is ten years he gets out of prison and not only is there this two thousand and sixteen assault allegation which we believe is credible evidence but he fails to the the salt was not the one is a no offense after not one of the registration of sims that is the only one he's been convicted and something such as just sixteen whatever that was i mean whatever the event is there's no reported sexual assault or attempted assault after ninety one dollars except for this on whatever you want to make of the two thousand and sixteen report there is no conviction judge boyle looking at the circumstances and listening to the defendant in reading the victims or or believe that that was on its way to another aggravated sexual assault that even before that i think it's important to note our person has seven prior convictions in the st one is actually false imprisonment reduced from assault to commit rape he's got several other convictions after that so he's certainly not even twice offender he has multiple others as well as sixteen arrests several of which are related to sexual assault so he's got a long history of that she's looking at and what she's saying is this individual  minimum as shown that even once sentence serving time for for a rape he comes out and he does it again so we know it's at least act in the end and then we have what she views as a credible report that he's on his way to commit also want to address the t v c j evaluation as the panel noted earlier i think the district court is quite clear that it gave minimal if any weight at all to this the valuation and instead the district court was focused on his evidence by just display or criminal record such and it to the extent that there's an argument that the district that the government was required to put forth the actual offense or or that the incident with the niece was unreliable information do you concede that we would reversal would be required yes if the court determines that it is procedural error then it need not go to the substantive reasonable astroland but here there is no procedural error so the court can go ahead and proceed to both question simply this is a problem that is simply solved but it's a problem that's ongoing and it's a problem that results in cases where a person who's facing an advisor imprisonment range of eighteen to twenty four months it's a statutory maximum sentence one hundred and twenty months without any real reliable fact finding in the district court because the government just sits on the statement in the p s r they do it over and over and over again in this case i  all the government had to do in this particular case was get the office reports and submit them to the core and smith and probation and let everyone see the full context of what happened because patterson from a little to the date right now we're not into previous year really we're much thinner information than we have in the present case one was in the p it relied was something similar information the a usa got but we don't know what that information was but some recommendation was made on that here we have a very specific comment i will restate it we have a detailed allegation by a named individual yes we know who it this was all the government had and if it's conclusionary in the way that oh it said they need something else but you're trying to create a new rule for the circuit has says when this contest is made in the end the defendant says this isn't good enough so some sort of automatic obligation on the part of the government isn't more that may be consistent so long as a challenge may be consistent with the circus but i don't read elwood that way homie if you want to win on establish the additional reliability and just just the mere you know boilerplate objection is is not going to teach us up if you will that situation would be for example in this report actually says what the investigation what the investigators told the probation officer for example if you used it in the in the context of drugs if you objected if the probation report said well there were one hundred and eighteen kilos of methamphetamine and the defendant objected to that and the probation officer went back in so well i interviewed i call and interviewed the d e a s him a stand and here's the facts i got from them and here's why i came to that result then i think you're ok but in in this case you don't have that you don't have in the st instance the probation officer saying this alleged can mate an analysis of the reliability of that statement what we have here is when you just have the statement in there and it doesn't matter if it has the details that the state has in it i mean in fact the details are a little  we may see you both again on something else think your own right