because the law on the issues that are involved in this case is is unsettled whether you call it a sea change earthquake a catastrophe or merely i think up in terms of what the u s supreme court is doing there's no question that as i stand here today the we live in interesting times in terms of federal sentencing issues there are some issues that were involved in this fencing in this case that remain issues regardless of what the court does in the book or in the fanfare and cases there are issues in this case there and in a sense it's substantially different warring camps because of what this court has done in the amalie case i interpret in the u s supreme court's decision in blakely from june of this year i'm kind of confused about something in the briefs i was reading the blue brief and i thought she it sounds like the church might have made a mistake by measuring the restitution and the amount of loss by how much the defendant took out of the restaurant but then i look at what the judge did in the  was some evidence that the the problem in the government not saying look at how much he stole from the restaurant but it didn't look to me like that's what the judge did i believe that what the judge did at sentencing was essentially adopt the conclusions that have been reached by the united a prior bankruptcy proceeding didn't the numbers match up to the amount of the loans obtained in the amount of the loans by four well there were a lot of numbers that were thrown around i know that i mean the numbers thrown around i mean the numbers in the judge respect i think my conclusion is what the judge did was the united states trustee prepared a report that was appended to the probation the pre sentence report and was referred to by the government in this case that concluded independently from the the amount of the loans that based on their examination of the books such as they were of the restaurant that the amount of funds that have been diverted from the restaurant to the appellants only used for in excess of five hundred thousand dollars so if i understand the court's question correctly it was not the sentencing judge saying i'm taking this loan in that loan as as the amount of the lost effect the true longs that were remained unpaid as the amount for restitution ozer adopted what the united states trustee had eggs summarized as as the amount that had been diverted from the restaurant to the pollocks own pocket by their conclusion as the measure of the loss and the issue in this case the at one of the interesting issues is that that was not the focus of the party's debate prior to sentencing there was a number of letters that were exchanged back and forth both the government and the appellant had submitted a written sensing recommendations that focused on a very different measure which is the amount of the loans and the amount and the evidence that showed whether or not the appellant in intended to pay those back neither side had looked at the issue of what the united states trustee concluded in her own report or addressed the factual questions that were were inherent in that which is essentially out of the hundreds of boxes worth of records that the united states trustee at looked what happened at sentencing in this case is that the appellate lawyer at sentencing was essentially presented with the judge just conclusion now for the first time that we're going to adopt this report from the united states trust and left with the hobson's choice of either trying to cross examine the person who the government says was quote unquote available for cross examination sentencing or to take the position that he did which is to say i don't have the  means or the obligation to try to duplicate the work of the united states trustee in order to try to undermine the factual questions that are inherent in those conclusions and in fact the issue that's presented to this court on appeal originally was did the court even find by a preponderance of the evidence that that evidence was sufficient to make the sentencing conclusions they did name last year and the amount of the loss are you saying that it's not appellate position at sentencing was that the court should measure the amount of the loss by the intended loss of the argument that he presented in his written submission to the court at the center in court the argument being made at the sentencing hearing was that the court needed to look at all the evidence that showed these were bonafide loans this was a bonafide business that the appellant intention was to pay the loans back and so that the measure of the last i believe their position at sentencing was that it should be in the range of interesting issue there is that nobody not even his lawyers now even the court not even the government's lawyers had considered at the time of the plea that this would be a significant issue certainly was not charged in the indictment he certainly never ever violate a court order certainly was a significant doubt as to its application even to the lawyers and the court involved at the time of the fleet and absolutely it was never admitted by the to sign it and it was never certainly whether there was a violation of a court order as to not objecting at the time to the judge doing fact finding on the issue of the amount of the loss who would have spunk u that time but the law would change as a caps your marriage but i would have agreed with you nine years ago until i wrote a decision in the keys case which is and that's exactly what i said dr klein felt remember this well that we're not going to hold it against a lawyer who didn't object because the lawyer was faced with a solid wall of authority saying there's no reason to object and so i said well based on what we've said we will move against the lawyer we're going to review this question on appeal it went up to the supreme court and i got slapped down by the supreme significant second thoughts about the issues i even raised in my rule twenty eight letter that came out right after i wrote right after the blakely decision because of the way the course of interpreted this because of really looking at that in some of the issues that are coming up in the book or in fancy cases in fact in the united states versus shepherd case which the u s supreme court is going to hear argument on i think a week from yesterday i think there are issues that i could not have thought of or did not think of or wouldn't have thought of to raise in the briefs that if they've come up since then i'd like to reserve some time if i could and have with sentencing counsels that's an excellent question what's the matter with sensing counsel particularly in light of the court's decision in bla generally in tax evasion cases we send people to prison because otherwise the incentive would be too great to evade taxes but we never told each other what we thought sentences should be in a particular case and it didn't look to me as though your brief argued it quite that way as an ex party communication i was thinking of that walter nixon case the judge that got a ph d mississippi because he told another judge to give somebody  break on a marijuana case and i couldn't find any chiefs in the brief that really looked like it dealt with the problem of a judge for receiving x party from another judge on what the sentence should be i wasn't worried about the probation officer because that's like your law clerk east a staff person within the court whose job it is to assist the court in doing the work for tor is a different situation it was the seventh circuit that was a judge and a panel of senior probation officers the reasoning in that case is i think applicable to this case because it talks about the problems of perception that would arise amongst the public and defendants just with the idea that that their sentences were ordained by what happens in the secret council that they're not permitted to attend there are very many cases that discuss sentencing counsels i was  many places that hasn't seen counts exactly i haven't heard of this matter for district in america that have had them at some time is that right that's correct your honor and every one of those cases that appeared to have resulted from congress this decision in one nine hundred fifty eight to to study federal sentencing in general and try to to have councils or work conventions if you will were judges could get together informally and try to apply some of the lessons they've learned from sentencing in practice in the four districts where this has ever been used in the united states the purpose has always been a salutary one to benefit from that the judgment and wisdom of other judges case to a panel of judges who will substitute for the individual charge to pronounce sentence and it doesn't have the x forty aspect because what would be like the sentencing council actually is the sentence or it's not somebody else talking to the sentence or out of school and nor does it have the completely unscripted situation we have here the  doors would that be an improvement and that's exactly the point however beneficial this was thought to be at the time prior to the formal adoption of sentencing guidelines this is a practice was time has passed now particularly in light of  the court's decision in berkeley where they disapproved of a lone employee of the state making sense in decisions that now properly are the problems of a jury making a decision beyond a reasonable doubt i submit that it's even more expensive that  secret meetings of state employees could be making sense and decisions that are not in open court that are not subject to the lawyer for the despite it being present and if i could i would like to i don't see why the secret is the no rule in an appellate jurisdiction or in the u s supreme court that that provides for the exercise of discretion by a sentencing judge the rules adopted by congress and federal criminal me later today a very influential individual perhaps my senior on the court a person to whom i accord considerable deference tells me even though it's not his  case he has not had the case before him and he does not have the responsibility and authority in the case he says to sign to me he tells me you should sentence that person to one hundred one hundred months to one hundred fourteen months and it seems to me that i received the next forty communication from somebody else that i'm likely to listen to and where the lawyers for both sides haven't had it chance to challenge but you have not given me a case that says a judge isn't supposed to get that kind of communication or what is supposed to happen if the judge does get that kind of communication well there are very few cases on th they can't be that few i mean there may be few one sentencing counsels because there are hardly any but on x party communications there's a huge body of authority i'm sure i'm sure there is and i don't think i've gotten one my whole time as a district judge somebody called me up and asked me to give a relative of his or breaks or just recuse myself it doesn't happen much but i think everybody has a sense of what to do in any please the court my name is michael jackson and i represent the united states of america in this case let me address the blakely issues first it is true that the district court found three facts that enhanced the defendant's maximum sentence within the meaning of blake but there are two reasons why the sentence should still be a far first two of the three facts namely that the defendant had sort of sixty days in jail on a prior conviction and the second exactly for factually the prior convictions the third fact it was found by the district court that the defendant had violated if you do order in committing the instant offenses that fact there is no plane air arising from that fact because there is no dispute there will drink and there was no objection there are no fact there were no facts presented that would dispute that fact and there can be no facts plane air review puts only in this in the two products it has to affect the outcome of the proceeding and has to seriously affect the fairness of the proceeding and here where is the reasonable doubt going to come from if you make take the sent there's no plan could you talk about what the room was of the amount that he took out of the restaurant for purposes of determining amount of loss i think we've established that it had no bearing on the restitution but on amount of loss how did it really relates to the amount lost because one of the guidelines again is an alternative way to calculate the l underestimate the loss and so what the district court judge did was he actually gave the defendant a break because he said i'm going to what was your gain from the loan how much money from the wells did you dissipate from the restaurant finding which was also set forth in the pre sentence report that's where the loss comes in and that's what that's how that number relates to the l could you help me with something else yes on the sentencing that it may be that we never really get to it because there was no objection made two hundred fifty x party aspect worries me and since there isn't any statute or anything i don't know if institutionalization saves it i'm thinking suppose the judges of the district that announced that before they sentenced anyone what they do is they go to a local coffee shop and chat with five people randomly selected and that's come in cases like this what would you put a sentence out of it just to get constance me out on the street reaction i would think even if that were institutionalized we would probably say they can't do that  and here it's very specific and it's people who will have real influence on a judge's mind and why isn't it an impropriety those acts party concerns exist irrespective of any sentencing council you'll always have those concerns as long as you have more than one member of the bench in a district there's no you don't ordinarily judges are quite careful not to receive extra party communications for example if i explain your adversary we and in the district of alaska when i was there we would talk generally but we would never talk specifically to another judge about how that judge ought to resolve a case and no judge would listen in this much conversation had anyone offered it but i accept that but there's the there's no prophylactic measure other than just can't talk to each other that will prevent it i usually want to know about it usually you would you would know about it and you just get a mysterious refusal because judges are ordinarily honorable and those concerns are alleviated by first of all the sentencing judge's comments on the record at the sentencing council gives him all it's only an aid he has teach it retains total discretion why does on i'm a district judge and there's a sentencing council i now have all the other judges in my district and gotten together to tell me i ought to sentence to this particular defendant in this case to such and such so even though i retain the power to do something different i have to be a maverick to do it it's a rule burden of having received the x party communication i have met few judges who are afraid to be a maverick and i think that's important because we're not it's not a couple of people whose wills can be easily overcome why should they receive such communications so why defendant saying the law should be actual last you have the government saying the last should be intended loss you had the probation officer saying the law should be attended last you had all these different legal arguments and the judge came up with his own decision about i'm a lawyer that he'd been friends with and respected a lot in who is still in practice that he used to track with you know go down the hall when you have some interesting and difficult to chat about there would be a much until there's an argument about how this whole thing going to be resolved in the courts as well i appreciate that ruling relating to the lawyers argument and this matter was discussed at something council this morning in a would appear to a number of u to the exact same process that was used by this district almost twenty years ago where the guidelines correct the only that was when the traditional conferences they were popping the sense in council before the guidelines and the problem with star chambers is is that people were operating outside the law but the evidence in this case is that the sentencing court aided the judge and every fact he found was in the pre sentence report uniformity that was the reason for me for the guidelines reason why some people are suggesting for the guy i'm thinking let's say i get my first new district judge i get my first bank robbery with a gun no shots who's the presiding judge or over at the state court and ask small town this is real and really are friends it seems to me like three unethical acts that i've just committed if i make those phone calls and i can't figure out where the sentencing council is different except that they're on my court those those people will give you public information they will tell you in your response to your hypothetical they'll tell you no give me  e public information same each one says what he thinks the going rate is and somewhere might very much want to argue about it and you can go to the public records and determine whether they're right if that is that's a real sentence that's what the sentence is it would be a great disservice to say the sending councils you know well there's no need for them because the guidelines have brought this uniformity there's no longer any disparity there would be a great disservice to stay with that some junior judge can take advantage of a more senior j questions about a person's liberty and why would you take away a source of information for that when they don't have to listen to the information they don't have to agree with the information all you all they're doing is trying to figure out how can i do just on the at least the issue of whether or not he violated a court order because that appears to be a clear violation obliquely as well as a family what i would suggest is that the matter be sent back to respect and state without the influence of the sentencing council