good morning my name is margaret cate's i am minutes in federal defender in albuquerque new mexico office and i'm representing the appellant jeremiah's robertson we raise a number of issues in our brief but i'd like to focus on two issues this morning i'd like to talk about the district court judges commenting on mr roberson silence and the need for a clearing convince you have a clear and convincing evidentiary standard when the contested enhancements caused such a dramatic and extraordinary three fold increase to the guidelines so what specifically happened in this case the district court commentator mr roberson silence at the sentencing hearing continues through the sentencing but let's let me ask you a hypothetical question let's say will in just in the context of this argument let's just say i say something like well it's true isn't it that he didn't testify in his own defense and we asked a series of questions over the next thirty minutes and then i go back and i realize well you know really that has no legal effect that mitchell case would preclude me from taking that into consideration and so then when we write the opinion we realize that and now why would a question that is posed why would they have necessarily have any bearing on the ultimate decision because when the district judge ultimately made the evidence you know it was not it well when the court gets ready to make him to impose his sentence he looks at what the evidence was and if there was no evidence from any shores examination of the witness right there was another witness that testified there were no eyewitness there were video recordings of the street there are video recordings on a look the officer all of that is log with the district and i'm not saying they're evidence your honor i'm saying that that gives you some insight into how he was thinking and that it was that he was in fact considering the fact that my client intensify know he was considering the fact that there was no contrary evidence because the unrefuted officer testimony your honor matt matt just read you because he specifically says just if i may because i think it's stream we instructed he doesn't specifically say the words i am going to use your client's silence against him but he all but said that and we have to look at his words because it is it is instructive as to what he was thinking about i referred to the officer i testified i said he's trigger happy violent and disrespectful in the court responded you know i'm very disturbed about the sequence of events occurring so rapidly yes and then i  exactly especially given his history i'm a little bit surprised he's still on the police force he seems like a liability and then the court says i have some serious questions about him frankly the evidence supports that in this situation then right after that you're correct he says but i think his testimony has supported this case and then so he's talking about his concerns about the police officer a he's clearly expressing he has doubts and concerns and then right after that he says this i'm a little surprised that i and there's nothing to refute it and i find that the government has met their burden that's one thing that's not what he said what he said was he was surprised that he didn't hear from my client and then when i responded to him he cut me off and argued again saying he didn't say anything under oath that that's that's a comment on his exercise of his constitutional rights he had my client in a position where either he had to eat the enhancement or he had to give up his constitutional right he specifically was talking about i think we can overlook that and and just say oh he was just looking at the fact that the government presented evidence where you could make the same exact their argument if he had said what you initially said you should have said i don't think he could have you know it certainly is correct well i still would have been no evidence and there still isn't any evidence there was evidence your honor when you went through the evidence there was an eyewitness that we put on who he called honest and he just said that he believed that at that moment that the cop the shot my client that at that very moment my client looked north he said he found him to be honest to he he took that as evidence he looked at this occur and i'm not trying to cut you off but just because there's a lot of pieces to your answer and just if we take what mr benson said mr benson also acknowledged that he didn't say that if in his right hand where were the officer said that he was holding the gun right your honor mr pinson said that and you can see that in the video as he's walking down the street all he has in his hand either an i pod or i or a phone listening to music and that's clear and then when he's in the parking lot johnnie pinson says he does see both as he has he never sees a gun in his hand he says that he when the conversation is between the officer and according to the officer that he's saying that that's when he says that my client has his back reaching over his shoulder at the same time pleading for his like don't you don't you didn't do anything that that's when he gets that's when he gets shot so johnny pinson sees all that i do he sees i'm sure i get the facts right he sees that he's listening to music i think he says but but but then he continues to walk down the street at the point that the officer firearm he says that he puts both his hands out but if i may the i'm not arguing over what all the facts were and how the court weighed the facts that's not my argument i am saying no there was evidence that he had a way the issue is that he in appropriately and unconstitutionally looked at him pocus on the fact that my client in take the stand why would a court say frankly i'm surprised i didn't hear from the main player that would tell us that hey i didn't clearly struggling ok before you go to that argument i just want to focus on this argument so it would if we were to interpret what would if we were to say that well it is susceptible of the interpretation the defense counsel given it's also susceptible reasonably of an interpretation that the district judge was simply saying what judge kelly is intimating and that is that the judge was that was his way of saying i don't think that there's any contradictory evidence to dispute the officer's version he sees it if they're all pointing at him you see this almost lanced you know sitting in the corner that there's testimony from him but that there's nothing to contradict was violated that it was an obvious error if the statement itself was capable of two reasonably different interpretations so i think that there are two answers to that your honor because you're  talking about plain air standard and what i would say under that is if the court if the court said yes it is error to to comment and add very make an adverse inference from a defendant's failure to testify  which had fairly similar issues in which the court said that it was clear that it's the government's burden alone to prove the sentencing guideline three a one dollar which is what we have here and in that case it was the same district court use the enhancement in part because the cues hadn't quote unquote we had in present presented evidence to counter the application and this court found that that ruling wasn't sound it held that accused did not need to present any evidence the burden of proof fell on the government to trigger the enhancements rather and so rather than deliberate deliberating on a silence which clearly he was doing to mr robertson's case as well this court said the court should have examined whether the government carried the burden of proving the allegations while respecting the into individual rights and so i think that's the problem even if you say it's ambiguous and the government conceded that it could be ambiguous he took into consideration his constitutional rights and the real there's no ambiguity about that he didn't say you know i'm looking at all the evidence and i feel like the government has met the exactly what this court said in the past the government's met their burden we might have it we could argue whether or not the government the burden but what i'm saying is he didn't say that he specifically said made it with his from his statements very clear he was suggesting that my client should have testified that would be that's it and that's really and that's really the line is t enough to suggest or does the court actually have to say you did not testify and i'm holding that against you i mean that is an easy case and that's mitchell and that's extreme and  obviously i don't actually think this is that far from mitchell he didn't say the exact words but there aren't magic words we can see from the context and we can see from the content of his statements what he was thinking of and in fairness to the court i think the court was struggling court specifically said he was troubled by office with what officer ideas said about his disciplinary history about all of that in the context of talking about how he was troubled by that that's when he said and your client didn't testify and that's my because i think if with the clearing convincing standard which this court has recognized that in case it is of extreme or dramatic increases in here it was three felt it was literally almost three fold that i think if the standard of proof had been what it should abed i think the court i really believe the court would have reached a different decision had he had to get around washington  it with respect to an ordinary case whether or not a preponderance the appropriate standard that door is closed that's what the case that's what that said but i think the important thing to focus on is what it talked about was the ordinary case and all the other cases many other cases that we cited for example gray and olson though those cases decided by this court also recognized preponderance of the the evidence in an ordinary case but said over and over again that an individual would be entitled to increase protections when there is an extraordinary or dramatic accrete increased threefold and it keeps the cases referred to the dog wagging t ail wagging the dog and it's so true in the last thing i'll say because i see only a twenty seconds left is it's just patently unfair that we demand the highest standard of proof for a case prove beyond a reasonable doubt right to convict somebody but then in an uncharged crime that triples the sentence we demand the lowest standard of proof of a preponderance and it's just it's paley unfair and i think this is the perfect opportunity for the court to the relatively innocuous case were the defendant absent mindedly perhaps sticks the loaded gun in her or his nightstand and leaves it there to be discovered at some later point goes out for the night and puts it in her purse or in his pocket or in the glove compartment of their car and it doesn't come out  during the evening all the way to the situation on the other end of the continuum where the defendant unlawfully possessing a loaded gun takes it out point people and ultimately points it at a law enforcement officer not once but twice that's the other end of the continuum and that's the that's the case that we have here today and let me let me just talk to you about the facts was waving his gun around randomly at people in downtown albuquerque judge parker found that call to be credible officer arius was the st officer to respond and video surveillance from a neighboring business that almost immediately after a certain areas gets out of his car he ducks this is not a rehearsed motion  obviously it's the exactly the kind of action that one would expect to be taken by someone at whom a gun is being pointed we're already or that where he's heard that there is a gun present i mean you just get behind whatever you can just in case yes your honor although although he did say that he immediately did see mr robertson with what he believed was a gun this was an august afternoon clear afternoon and the barrel pointed at him he took cover behind a car and again you can see him almost immediately ducking he then regained sight of mr robertson this is after telling him twice to show me your hands counsel has argued that maybe show me your hands wasn't the exact verbiage that should've been used you can see from the evidence that this happened in a matter of seconds it was a highly charged situation i don't think that officer areas at the time to come up with you know maybe more precise verbiage but he shouted show me your hands twice regained sight of mr robertson mr robertson again turned around towards his left pointed his gun holding the a shot and he knocked mr orcus and down and fortunately mr robertson survived now one thing that's that's beyond dispute besides what i've told you is that mr robertson had a loaded gun he pled guilty to felony possession of a firearm and ammunition so there's no there's no quibbling about two or three feet from him when they approached that's correct your honor in fact one can hear on the body cam officer arius yelling mr robertson when when mr robertson is on the ground to get away from the gun don't touch the gun he's concerned that mr roberson is crawling trying to reach the gun and doesn't want that to happen so so those are the facts you know you've heard about mr pinson who was the only witness called imagery as i say from body cam and neighboring businesses the only witness called by the defense was mr pence and mr pinson was a person  who happened to be in the area he was and surveillance video in evidence shows him sitting down next to a building across the street from this incident reading a book  mr pinson when he testified said that he stood up immediately as soon as officer yes raced up in his car and stopped and got out the video imagery clearly shows that he did not will let me ask you this question because i don't hear opposing counsel saying that the district judge couldn't of made the very finding that he did but the question is did the district judge roy in all of this stuff it even if the district judge did rule out all of this stuff did the district judge also rely on the fact that mr roberson invoked his right to not to testify and so even if we credit your interpretation of mr prince is just of money the video testimony or the video evidence what do you say to opposing counsel's argument that the district judge also specifically said that that they're entitled to make that kind of strategic decision is the district court in total to say well the officer has a lot of buri incriminating things in his personnel file  here's here's what judge parker did judge parker discussed the evidence he actively engaged with the witnesses and so forth and  and he didn't say that he found that the government met its burden because mr robertson didn't testify he said that he found that the government had met its burden because although officer areas background was troublesome to him and he was concerned about that that officer areas testimony was corroborated and it was he was corroborated by the by the objective th just berger said that it was found it was corroborated he didn't say because i didn't hear anything to counter that he said that it where he found it to be supported i believe that's is it ok his exact words and in fact it surprised it's this is a completely different situation than mitchell for me and we can we can all agree with that image of the the district judge specifically said that i'm going to hold your silence against you and yet in this situation there's nothing to indicate that judge parker made an adverse inference of any sort he simply noted there's an there's an absence of rebuttal testimony you know  this is what i have to work with i have of serious testimony i did have concerns about him but i found his testimony to be supportive and and i find that mr benson you know he's a nice  fellow and well intentioned couldn't and didn't see what he said he saw you looking at a book or sitting down or whatever he in other words the video showed that mr vincent couldn't have seen what he said he saw and and that's the sole basis or for his expression of surprise he says he's weighing the evidence and and determined that the government had met its burden because because the defendant didn't testify because there was no evidence there because there was no evidence to it whether or not the defendant said testified i guess we're looking at implicit exactly the same victim related adjustment as this one in that particular case the government did not present evidence of the defendant's subjective intent to  assault that's not an issue in this case in it and so in the gonzales case that the question was the government not having presented sufficient evidence to sustain its burden to prove every element of the victim related and adjustment was it up to the minute to disprove that's not what we have here isn't it time with all with all respect your honour's to to put this issue to bed so that so that it doesn't keep coming up time and time again in this court the th circuit is the only circuit  has composed a six part test to determine whether an enhanced senator proof should be used one of one of the elements is that they look at whether the enhanced sentence falls within the maximum sentence well if it falls outside the maximum then it then of of course it's it's and invalid sense whether the enhanced sentence negates the presumption to be an in cence of the prosecution's burden of proof that could never happen because the defendant's not going to get the sentencing unless and intel he or she is found guilty by plea or or after trial  it makes and it makes no sense to add yet another epicycle to our sensing process we're going to have we're going to continue to spawn a cottage industry of appeals based upon