and this time we'll hear united states versus good morning honors part allegro glasshouse or representing mr letterman the government drove him to the store the government gave him the money the government recorded the video the government encouraged him to continue after he considered stopping a menu a lot was a severely mentally ill young man with no resources to plan any attack without the government this conspiracy was not close to fruition without the government mr love to be close to fruition with the government the conspiracy pride and a member of the terrorist organisation but without the help of the government informants he wouldn't have gotten anywhere that he got here the government needed to help him at each step of the way and when he was arrested he wasn't about to complete the crime he had no weapons on him he wasn't near the location where the planned attack was it wasn't the day that planned attack this isn't a appointment where you have to show up at a particular time the police can show up and stop the process from going for you so happened they knew all about it because they were so tiny of course they can your honor but when that happens when something is stopped when it's not when it's a conspiracy rather than a completed crime the person gets the benefit of a guideline reduction under the conspiracy exactly and that that's what mr watchman should have received here he should have been entitle to that guideline reduction here the difference between those two guidelines was pretty wide and the parties clearly thought it was something that was important the court in sentencing relied on his decision that the conspiracy was so close to completion that it had would have been completed but for the government today yes your honor what was the gap between the arrest and  plan it was the next day or on or he had picked the day i don't know maybe three days before and this is a very short time rest of the day before on and he's the day as the day that the video pledging his allegiance allegiance to isis that's true we talking about just that it should have been a little within the twenty four hour and between the two we're not talking about happen not saying that the police did something wrong in arresting him at that time we're just talking about his guideline calculation and the reality that mr laughlin was not about to complete anything and wouldn't have gotten anywhere without the government he didn't have forty dollars to purchase a knife he had no resources the owner of the location of the planned attack said he was a panhandler this is somebody who was not able to to make any steps are as we all know the lodestar of where the court starts when deciding the sentence here the court started with a guideline range of three hundred sixty months to life which is an extraordinarily high guideline range and made it exceedingly more likely that the court would find that the statutory maximum sentence was appropriate instead of something lower i think that that guideline range obscured that this was far from the most severe instance of a conviction under this statute this was a five day conspiracy the confidential informants working with the government had started speaking to mr letterman before the only coconspirator they did so at a time  recovering after an attempted suicide attempt where he had cut himself open in the stomach with a knife he was in mental health treatment at the time trying to get better and deal with his very severe and long term mental health issues when he was approached by government informants at some point during the conspiracy the five day conspiracy he tells one of those government informants i'm thinking of stopping because one of the other informants who didn't know was an informant had i can't know how the court would have considered his case if he had given it a three level reduction but i think that this court has to assume that it would change the sentencing analysis because this court in the supreme court has made clear that the guideline calculation is an important and essential step of the process and if it's calculated incorrectly or remain and is appropriate for a sentencing with the correct calculation there's a sort of unusual case where both the the guard line they say apply and the guideline that you say you both exceed the statutory maximum it's unusual and that's correct your honor although i don't think that's unusual in these types of cases because under the material support statute and the guidelines because of the terrorism enhancement they're always above the statutory max is my understanding so the guideline range does matter when the court is considering whether this is one of the worst versions of this of the conduct under the statute or one of the lesser versions of conduct under the statute so i think that the guidelines are still very important and both parties recognize that this was an important issue that the parties raised with the did you want to take a minute and tell us about the appeal waiver yes your honor this is exactly the sort of case that merits this court looking past the appeal waiver this was an very unusual plea agreement because mr lukman gained nothing from it all he did was waive his right to appeal which is an important right and this court has written eloquently about how it's an important right he waived his rights to the statutory maximum no counts were dropped the government made no agreement not to prosecute him for something else they also made no agreement to guideline range for example they actually disagreed on the one area that could have been a potential benefit this three level reduction for conspiracy and they stated they were going to ask for the statutory maximum sentence no rational person would just sign this agreement weaving right gaining nothing in return and so this is a situation like goodman where this court found that a plea agreement that waived appeal up to the statutory maximum with no clear benefit in count the then become conviction was the only count that they could think of and he and therefore he was getting nothing here the government has not made their concession and  there may very well be other other charges that they did not bring but they could still bring them is the thing the plea agreement didn't cover any other conduct so when you look at a plea agreement and it explains what the government is not going to continue to prosecute for if the person signs it if the government is waiving prosecution for additional charges that's explained in the plea agreement otherwise there's nothing preventing the government from coming back and charging something else i'm not sure what would be because nobody has explained that there was some other conduct here it was a one count information but the plea agreement by its terms does not give mr lucked into any benefit of being secure that there wouldn't be a prosecution for defendant waived his right to appeal any sentence within the guidelines range which was the statutory maximum two hundred forty months that doesn't seem like much that is not in and of itself it's not much you're out in the sense that it was the negotiations than what appears in the plea now we look at is what's in the clear agreement that's the contract and there has to be consideration and the consideration is who signed the contract well there is consideration in this case there's consideration  for right why does he need your permission argue for both typically in a plea agreement judge the parties agree to the sense of guidelines here we let him argue that the guidelines were lower and we also permitted him to argue guideline that into the contract and said the government here by agrees to x and spelled it out and you at least have a better argument the question is also this is anything to say as to what's in the contract that you got so this is all extra record this is actually a record just around right knowledge that so we ordinarily don't pay attention to material that seeks to record well i think it's actually a record to claim that there was no consideration given to mr remarked well i think the argument is that the the the plea agreement does not is not supported by consideration meaning looking at the four corners of the document and i don't two and whether or not judge to raise the properly determined that three level reduction did not apply his findings in that regard were not erroneous and they were based on ample evidence in the record at the time that law enforcement authorities arrested mr watchman on december thirtieth two thousand and fifteen he had already laid out and done everything that he could to further the objective of the conspiracy except for year's eve to kill as many nonbelievers as possible and that's when the plan was hatched from that point forward the defendant took various steps to make that play out happen and that included enlisting the assistance of people who turned out to included gathering knives machetes zip ties and other materials to kill people and kidnap people that location he purchased the supplies for the attack with the the islamic state to vote for him and ultimately help him make his rod or the journey to join the islamic state on the battlefield so he fully intended to survive this attack so that he could make his way to syria and join the islamic state reeky who told him early on in their text messaging to make a recording and which he states his support for the islamic state and asked for the success of the mission so that the islamic state could publish that recording after the attack occurred and claim responsibility for it so he was simply completing something that alan reeky had directed him to do not something that the confidential informant had directed him to do so up to that point where he's arrested by law enforcement he completed everything he needs to do other than to show up and start killing people and i submit that under medina and downey that is more than sufficient for the court to find that but for the apprehension of the defendant he would have completed all the acts necessary to accomplish the objectives of the conspiracy what we're talking about here is a twenty year sentence the maximum sentence and some of the things that the government is pointing to i think that they're overstating first they say that the heap formed the plan before any government informants were involved that's not supported with the record there was an informant that was contacting him in november and december before he even started communicating with this person in syria and that's an arborist the government talks about nine of them machetes it's one knife one machete that mr lupton could not get without the government informant he had to be driven to the store and then he got there didn't even have forty dollars this isn't a situation where he is a mastermind of anything and the goals of this didn't quite make sense either he wanted to go abroad he's somebody who didn't even have a passport he'd never traveled abroad mr lupton is somebody with i don't think you can argue that the court didn't consider it because the court the court did consider it in the court actually seem to think of it as aggravating but you know making it more dangerous but what mr l clearly needs and i think even the government had agreed at sentencing is significant treatment and when your honors are looking at the sentence both the procedural reasonable this and the substantive are reasonable in this case someone who should have gotten that three point reduction for the conspiracy this is not like medina the people are actually literally on their way to the robbery site and he's somebody that should have had his mitigating mental health issues considered as a mitigating factor by the court twenty years is a very long sentence and the maximum sentence for conduct that is not the most severe under the statute thank you thank you thank you both we will reserve