it's mistaken belief that mr eichler was involved in a robbery in order to deny his thirty five eighty two marks and second at this hearing the district court made multiple factual findings that were inconsistent with the factual findings that have made at the original sentencing hearing based on information the court allegedly learned in multiple jury trials that mr aguilar had no notice of would be considered before this hearing could i ask you about the this mistake as to the involvement in the robbery is that on plane air or review i believe everything is on clean air review that is the no objections made to that well let me know what word you say that sentencing is sort of quintessentially intrusted to the sound discretion of the district court and we have a number of published opinions saying sentencing reduction motions pacifically are subject to abuse of discretion how just mechanically why why  objection and particularly if if the attorney had said you know mate you may be mistaken but he actually was involved in the robbery to make sure that the sentencing was proceeding appropriate landscape so  even even so if there's the improper alliance question is what's the result and here i mean i think we can if we look at the plan or standard the question is was this did this improper reliance have the possibility of impacting the judge's decision on the thirty five eighty two motion in the language is reasonable probability joseph defines reasonable probability is the possibility of impacting the judge's decision and i think one thing that's important is it's not a question of when the judge have granted this motion in whole with the judge necessarily have gone down to eighty seven months is that even possible the judge would have gone down to eighty seven months if it's even possible that without making this mistake the judge would have gone down one month you know just granted the that transcript a couple times now and it is you know plain as murky water i can't tell i don't see anything you can point me to it please where the judge clearly said i'm holding you responsible for this robbery and as a result of that your the court then in the middle of page fifteen the court is i'm concluding its ruling on why mr idlers motion would be denied and you can cleaving statement is this was a case where they it was a stash house robbery involving firearms and also unlimited it doesn't have to be admissible doesn't have to be a verdict it can be anything the judge thinks is right under thirty five fifty three and i don't see the judge saying in that transcript section you just cited i find the defendant to have been involved he's certainly around people who are involved he's certainly around guns he's certainly around other people in the conspiracy and that's all the judge seems to be saying to me he doesn't seem to be finding quote unquote finding that the defendant participa think i think that's an incorrect reading of the record i think when the judge or when when the court is saying they repeatedly when discussing why mr ideal are should not be granted the motion it's clear that the court is is including and the court certainly can consider anything in thirty five fifty three a that's accurate the court cannot consider something that is factually inaccurate was clearly erroneous tell me the facts of this so he was involved wasn't it his girlfriend's house  why he wasn't convicted in his girlfriend's house he wasn't part of that aspect exactly and no one has ever said he was until this motion hearing when the judge seems to have come to that conclusion aguilar got involved around october of two thousand and twelve this robbery happened about november of two thousand and twelve the records unclear whether mr ideal are and mr cruz the girlfriend the victim of the robbery were living together yet at that point but they were definitely living together for months leading up to the arrests in the spring so either mr eichler was living at the house at the time of the robbery and therefore would also i think considered a victim of the robbery or mr aguilar was dating the woman who was living there and then moved into that house at some point shortly after which of of course you know again there's no allegation that he was involved anywhere that the government concedes that but even if there was a concern he could have possibly been involved it's certainly unlikely that he would have continued to date this woman and moved in with her if he had been involved in robbing her let me ask you was an earlier sentencing the judge had said he was basically a co yes and so that was that's my second point at the original sentencing hearing the court found that he was just a cog and agreed with the on the base offense level thirty four meaning that the court found that his relevant conduct th responsible for was one point five to five kilograms of sodomy and and of course we read that together i mean in terms of the judge's understanding i think what happened i think that that absolutely informs you know what the judge's understanding at that present the defense attorney and the prosecutor in court had not been involved at the trial level and the judge is basically springing on these three jury trials least three jury trials which are unidentified and they are  one and i don't that i don't believe that was done and certainly there's nothing on the record that there was any additional information from probation i would like to reserve a little bit of my guess i mean you can do you have one more question for you sit down so reasonable probability  changed it would not affect his decision and it would probably he would probably have as much chance of winning as it's snowing in imperial valley in august i'm so it was not as definitive a statement as i think the government argues that it is in their reply secondly this court has gotten the sentencing reduction changes in the works they just in acted shortly after this they were in the works and it was a matter of months later that year that they were enacted that's true and and i think that's why it was discussed at the original hearing and but i don't think the court should sanction allowing a district court to prejudge a motion like that two years in advance without having heard the motion and without you know having even the benefit of the change the law that made the motion possible   indictments there were there were probably something around eighty definity defendants at the court heard over the course of a couple years that there were three trials one of the trials was that the conspiracy it was two of the sort of lead defendants in the twenty two defended conspiracy th five easy to see motion along with mr aguilar he was only indicted in the conspiracy case but he was sort of the ringleader of the robbery and upon opening brief they say to the transcript in footnote one of the opening brief the transcript from the trial and i would there is no doubt with mr aguilar was a key part of was massive that it was that the seriousness of the violation hadn't changed between the original sentencing and the thirty five you see here in the corner emphasize a public safety rational specifically with respect to mr aguilar not having nothing to do with the robbery but the fact that he was one of the ones trafficking in guns and firearms and so even if it's unclear what the district court had in his mind with respect to mr aguilar's role in the robbery there are many other factors that undisputedly apply to mr aguilar and justify the district court's decision and because we do submit that this should be reviewed on plane air or the district court's comments at their original sentencing demonstrate that that there is no reasonable probability is no possibility that had the district court more clearly articulated his views of mr idlers role in that robbery that anything would have been different in the thirty five beats you see here and now there's no dispute of the robber the robbery trial there's testimony about him in miss cruz driving north to get a gun because they knew that this robbery was going to happen so when the disregarded talking about public safety there's a good reason to be concerned about m that thirty five fifty three a factor plus the court and many other questions we we took a lot of your time at the end for a question of so we'll give you another minute for every bottle in here and just one point i'd like to address in rebuttal certainly there were other factors that the court looked to in denying this thirty five eighty two motion there were other factors the court could look to such as the gun involvement but i don't think that that means that any reliance on an clearly erroneous fact or unnoticed new factual findings has no possibility of impacting his decision this court has repeatedly held and hammond and also in tapia that if there is any if there's any concern that this improper factor impacted the court's decision that's enough to establish prejudice even under the plain error standard so even if there's other factors the court did or could look to that does not mean that you know there's not a race that of looking into these improper and clearly erroneous facts in this case i would also just point out regarding prejudice this is a case where the remain and would be for a new thirty five eighty two motion hearing that does not even require producing the defendant and this is even less than a sentencing remained here and i think the court consider that in terms of christmas thank you thank you thank both of you argument this morning