they're familiar faces transitions good morning may please the court my name is peter hundreds and i represent jason galloway jason galloway was sentenced on the basis of it plainly erroneous guidelines range so we've asked the court to conditional in particular that mr galloway would not be able to appeal the sentence only in the event that the court sentenced him to a sentence of higher or lower than any recommendation of either party  i don't see many things where this would not be triggered because in almost every sentencing the government will recommend a particular sentence or the defendant will recommend a different sentence and that would necessarily mean that th e appeal with be waived but in this case mr galloway did not recommend a particular sentence i don't know if that was strategic or just happenstance but what it means is that the district court sentence because it agreed with the government's recommendation was not higher or lower certainly than the government's recommendation or that a non existant defendant recommendation part of the controversy in this case is well what does it mean to say a recommendation federal court when it comes to sentencing we've illustrated that with a number of cases it's you know i don't want to testify myself but if you ask me what's your recommendation i'm going to give you a number and i think if if we were to ask in the federal system what was the government's recommendation in this case the answer would be one hundred twenty months it wouldn't be that the defendant is a danger to the community and that he has a lengthy criminal history etc that's that's maybe part of the recommendation of the for recommendation but the recommendation is the particular length of the sentence or the range you know you can also recommend a range all of those are numbers and that's that's why the police remain language talked about is a sentence that is higher or lower than the recommendation for a thought experiment in this case for example what sentence would be lower if mr galloway made a recommendation what sense would be lower than that recommendation with eighty four months be lower than the recommendation which seventy two there is no recommendation here it's impossible to say certainly any defense lawyer mr galloway wouldn't want a statutory maximum so in that sense i suppose that sentence is higher than what the defendant wanted that doesn't mean that it's higher than his recommendation he didn't make a recommendation what about a situation is under some of the government recommends hundred twenty months defense does not recommend the particular  link with regard to imprisonment governments recommendation with regard to the government makes a recommendation with regard to supervised release even though supervised release is not required by the statute what if that were the facts or consensus here well it would depend if the court so if the court imposed a different term supervised release from the government recommended for example i think it's probably the appeals probably waived there there i would certainly make an argument that there's ambiguity but that that type of recommendation that is a recommendation say we want three years of supervised release the court imposes two that's lower than the recommendation of the government that's why this provision doesn't make a lot of sadness when i first read it i thought ok it makes sense if it's higher than the government's recommendation you can appeal it otherwise you can't of course that's not what the language says i don't know if that's what the language was intended to say have you seen anything like this before only out of evansville third there was one one other case that came to this court from evansville that the same language so it must be a local whatever they're drafting will ask mr rights in any event  very straightforward appeal this follows directly from united states versus state the only complication comes with what kentucky law was in two thousand and it's clearly cited as the great case in our reply brief i think that puts the the issue to rest before the two thousand and three decision in kota law kentucky allowed for convictions based on the possession of any chemicals after two thousand and six it's two chemicals and so we assumed in our brief that they would need to prove two chemicals that's not the authoritative interpretation of the statute but two chemicals that could be proved are anhydrous ammonia and with them and so this is categorically overbroad we made the point our reply brief as well that again this is criminal recklessness and a two thousand and ten criminal recklessness the second of which was with regard to the description i think the debate as to case didn't count for points and so it would not count as a crime of violence or controls of your crime of violence because it's too old because the age to twenty ten conviction there there is some question in this court about criminal record listen this in indiana i would refer the court to the smith case this is a five forty four federal third seven eighty one where the court i think correctly found that it does not qualify as a crime of violence because it has a comment re out recklessness there is another case called clinton that came two years later and that's it five ninety one federal thirty nine sixty eight where the court found that government's waived any argument that that's a crime of violence they haven't raised as i feel i know the court has concerns but i think it's waived but i do think if we were to brief that i would be able to produce evidence that th it's an indivisible statute in terms of the men's rights i believe that the state of indiana charges recklessly knowingly or intentionally and so it's it's not as if you can look to the facts to see what actually happened it like anything that you know judge does it appears he weighs an appeal in less so in last one in last the parties agree on the site and then the judge then impose that same sentence then the sentence would not be higher or lower than any recommendation because there wouldn't be an appeal in that case because i defend the great designs but if one party does not make a recommendation the other party makes a recommendation one hundred twenty months the judge says yes one hundred twenty months is not higher or lower than any recommendation and if we're grappling with regard to what quote recommendation unquote means it's metaphysical it's people's experience it's right we don't have to show the case law works so saying guidelines language us right i mean it is very anecdotal in terms of what sentencing recommendation means i mean we went back to some of the cases you know stemming from sent samples belo for example where the government agrees to sentence a lot longer than that and of course a no that's not a breach they made the recommendation so we certainly think that that's what recommendation means but again the tie goes to the defendant in these sorts of situations with that i think i would be that waiver wouldn't apply but there would be no appeal but i think this case shows that there would be appeal here today because if there is one hundred twenty months based on the a guideline range of one hundred twenty months we would be here for the same reason that mr galloway would be objecting to the controlled recommendation doesn't have to be a particular range so if the court agrees with mr galloway every man's his guideline greinke will be ninety two to one hundred fifteen months the government has agreed to recommend a sentence in that range if the government recommends a sentence above that range but without saying a particular i sentence and the court imposes something above that range mr galloway will surely argue that the government breached the content of the plea agreement and in fact it would be correct because the government would have recommended something above what it agreed to do so despite not having recommended a numerical systems so a recommendation absolutely can be to a range it can be something general it doesn't have to be a particular numerical  henderson josh bolton have this appeal and the court applied the appeal waiver so only two times i've seen it hopefully we won't see it moving forward that's all i can say but it i mean we agree that it is unique and probably not the most desirable but we do think it applies in this case here moving on to the merits issue i think the obviously the dispositive issue here is what kentucky has said about its law so out of respect to the kentucky state courts i think we should which the convictions of something less than that were actually overturned on appeal we think there are cases help us as well because there are convictions there were less than all the necessary precursors they weren't sustained on appeal then there is a third bucket which is sort of the other three cases fall into that bucket and i think it merits looking at those cases a little more closely so there are three first of all by having there is dika saying that could still it doesn't apply retroactively however mr spy  to teach an undercover officer how to manufacture matt he arranged a meeting with that undercover officer with he brought all the necessary ingredients except i can hire somebody and he believes that the undercover agent was going to bring iverson money they went to this location and great unpack all of the ingredients that mr great did not actually possess ammonia however he thought it was going to be brought to him by the officer bring the ammonia fact that was the agreement the exchange rate would teach the undercover officer how to manufacture meth if the undercover officer who course he didn't know was an officer provided the ammonia so great went somewhere intending to manufacture meth with everything sufficient to show a statute overly broad but that that that is broad is kentucky has interpreted a statute which i think as we cited those three buckets show that it's not that overly broad i just question with this writer some with regard to these because it's always think we would agree that if the court has concerns about that perhaps supplemental briefing or if the court remands we can argue that below we think that conviction likely qualifies we didn't argue it on appeal because that's not what the parties were proceeding under but we think there's a good chance that indiana criminal recklessness qualifies but the briefing here or below would probably be necessary for the courts decide that i think and all talk about the two thousand and ten when you have the two thousand and ten i mean that was recklessness resulting in serious bodily injury we know in other contexts a battery that serious bodily injury in indiana it is enough to trigger a crime of violence and hansen's but criminal recklessness it's going to be more about the mens rea of course and i just to pick up on that last point the government's waived an argument that criminal records this qualifies as a crime of violence they've never raised it it's a bit too late now but let me focus too on the description of the of the kentucky cases is totally irrelevant to the categorical approach you know recently this court decided that federal kidnapping is not a violent felony not a crime of violence almost every case you'll not facts and that by the way is the same reason why clinton we think was wrongly decided because again the court dealt into the facts there instead of restricting its view to the elements but unless the court has any other questions  full plea in full sun seen transcripts were not included as part of the appeal no usually those are docket on in the district court which i'm not sure of that i can certainly look into