good morning your honors me please court my name is kevin shad appearing for the poet john cook i'd like to reserve few of my minutes for a bottle if i may thank you your honor is i'd like to focus this morning on the sentencing issues which i raised in my brief and then i would leave the balance of the issues to the briefs that were filed unless there are any specific questions and i think i need to start out the sentencing issues by by addressing the issue of which guidelines manual should have been used to sentence mr cooke and i think it's clear and i think it's clear from the u s supreme court case that came out after the after this case that in pew versus united states the correct guidelines manual that should have been used in this case was the two thousand and eight guidelines same for two reasons first in and by the way as an aside i do contest the cross reference to the murder guideline but in this case the judge appeared to have provided for a downward variance in this case because if if you if you take into account the cross reference that was used i believe the government said that the with the cross reference and then the four point level enhancement for the leadership role he was sitting in a basement level forty seven three which would give you guidelines range of life not three sixty the life but life of the court in its case gave the sentence an effective sentence of three hundred fourteen months in this case which represents a downward variance in the guidelines one would assume that the sentencing judge in this case would have at least considered what the guidelines would be absent the cross reference because they had a lot of discussion at the sentencing hearing about those other guidelines and those other enhancements regardless of the cross reference in this case  so the district judge in this case would have and could have and should have under thirty five fifty three a factors considered the effect that those other guidelines we have had in this case and therefore in this case it makes a significant difference because his guidelines under the correct version of the guidelines i believe go down to ten to two hundred sixty two miles only if you don't do the cross only if you don't do the cross or if you send the propriety of the cross reference aren't the applicable guideline range exactly the same if you assume that the if you assume the cross reference in you assume that he found first degree as opposed to second degree murder which the cross reference allows either and there doesn't appear to be any discussion whatsoever in the two thousand and eight guidelines there's the he could have cross reference first degree murder or second degree murder we're talking two thousand and seven vs two thousand yes that's correct that's correct and and there wasn't it was just i think an assumption that it went to forty three then  seven to life for first degree and so at the very minimum the court should be concerned should at least have a remain and say ok even if the cross reference applies maybe i should consider first versus second degree and see how that applies and then with the obvious first just a second you're quibbling about first degree second degree right yes and the question there is premeditation yes your guy orders his gang members to go out and kill somebody and it just happens that the person or one of the associates gets killed in a car rather than getting killed that the other competing drug house i'm here under what strata stretch of imagination would that the first degree murder well two two reasons number one that was put before a jury he was acquitted of that conduct so we had a we had a jury of twelve listen to that evidence and find that he was not guilty of committing that conduct in any event whatsoever using a higher stand using using a higher standard of proof so we so we have that second the only we have a whack of findings at the sentencing hearing which would support this cross reference in the first place we the judge the judge says well i find  evidence and i find beyond a preponderance of the evidence that he committed he was involved in this killing and i do admit that the record says that but there's no analysis of what facts the judge was relying on to get to that cross reference and that gets to my issue that i raised in my brief with regards to warrick's and works as a case that came out after the white case and talks about the use of acquitted conduct when it's used to enhance a sentence and you know  standard is you have to find by preponderance of the evidence if you're district court judge that the acquitted conduct actually occurred and so the clip in this case at sentencing said those magic words but you'll find that if you review the sentencing he hearing transcript there's a lack of actual findings to say ok well i find that the only person that testified about this matter was mr newsome alleges that yes the court says quote that this defendant ordered mr neuman and the others to go and shoot up that house and kill whoever was in it yes what more of a finding do you need than that that well the he he made it he did not make any findings with regards to mr newman's credibility and mr newman was the only person that testified about this crime there's only did the only real substantive evidence just prior to that the court says this court in looking at the cross reference has no difficulty whatsoever by a patterns of the evidence truly buy much more than that but i believe the standards would still be the per pound or it's that this defendant ordered mr newman and the others absolutely they can't get much more clear than that can and i deny admit then i admit that he made those findings that it was a province of the evidence but there are a lack of findings really support that mr newman was a credible witness in this case ok going on it is absurd absolutely absurd to think that this was not the result of mr cook getting these individuals to go and do this and it is confirmed by the fact that he paid for this he told them about burning up the car in the end that is directly contrary to the jury's findings in this case but in if you go back a little bit further in the sentencing transcript they have a discussion about the findings of fact with regards to the amount of drugs involved in the offense and the prosecutor in this case tried to try to argue even though there was a factual finding by the jury that the amount of drugs was no more than two hundred seventy nine grams the the government argued at sentencing that it was in the thousands of grams in this case and you'll notice in that case it as to that issue the judge says i have to honor the jury's verdict in that so i'm not going to go above two hundred seventy nine grams so the so the court says i'm when the jury speaks as to this issue i'm going to honor the jury's verdict in this case however when it gets to and the issue of intentional killing where the jury has again made the same finding under the same standard the judge belies that doesn't make any findings about mr nuisance credibility and just says you know i find i find that all these things happened even though the jury did not and so that in one point you're arguing you didn't make the findings now you're arguing well he did make the findings but it's inconsistent with his treatment of the jury's findings on drug cloning well it is it is too i understand what the what the court said in that abbreviated sentence and if that is enough to enhance the defendant's sentence for acquitted conduct in dramatically increase his sentence than this court of make that finding that that one sentence is enough but it we have we have one sentence that says i'm using a proponent of the evidence standard and we have one sentence that says that the basically the jury's absurd i guess is what the what the court saying there and then one sentence that says here here's what he did i only read you two there are actually several there's three yes there's a least three  but even if even if the cross reference applies in we in again we submit that the cross reference doesn't apply but there has to be the judge has to end in a there's a case that i gave to opposing counsel because i just found it yesterday but it is it tough first as united states it came out in november of this year and it it actually deals with ineffective assistance of counsel is what did you give that to us now i just found it yes i can put it in a twenty eight j the court discussed the issue of of this pew and ex post facto and so the issue was in that case well even if this ex post facto applies the defendant in this case received a lower sentence and that whatever sentence was within what would be the guidelines range had the guideline and the correct guidelines range been used had there been no expose facto problem and this court in that case specifically said that doesn't matter because use of the god lines range is in of itself procedurally unreasonable and we don't know what the court would have done had the court had the correct rains in front of it and therefore we're going to remand in that case the court remanded for an evidentiary hearing in that case on the issue of the ineffective assistance of counsel so i would submit that even if the cross reference in this case is accurate if this court fine that the murder cross reference is accurate that doesn't mean that the court would not have considered the other guidelines range mere fact again district courts do that all of the time and in that should be a factor that the court should have been able to consider in this case the court did consider something because we have a sentencing we have a sentence of three hundred  fourteen months here did any did it did either the pre sentence report or the various briefs that were submitted by the parties discuss what the proper guideline range would be and in your estimation had to cross reference not applied the i don't think i that doesn't bar me for two reasons number one number one pew came out after the sentencing in this case and he didn't he didn't for c p u i can rely on pugh because at the very least i can argue that it's that it's new law that's a political on direct review to my client even if he did waive it but and that case of on a stamp what you're saying there was a dispute about the accuracy of the guidelines right here assuming that the cross reference was proper there's really no dispute about gallon range now you may dispute about how far outside of range subject goes but really no dispute about the gallon right if the cross reference appliance there was no dispute in the court below once you got to that point that is correct and we have a case responsibility to impose a sentence that effects what is all of the thirty five here to three a factors but it's no greater than necessary to do so so the judge presumably look at the review to see how the judge got to there and that in and that's kind of the issue here if the if the if the court did utilize the the guidelines but for the cross enhanced month which we don't know whether he did or did not in this case but if he did then we know that those are wrong because of because of the expose factors thank you all right you'll have  give that site forced i do seven three four fifth third six hundred thank you and good morning may please the court regina mccall appearing on behalf united states i think it's important to note that we must start with waiver in this case your honour's mr mal agree in open court with the judge's propose course of conduct and then change the court charged court with era for following the course of conduct in which he agreed to and in this case he did agree to the two thousand and eleven version of the guidelines secondly that was the correct version of the guidelines the guidelines clearly state at the time of sentencing you must use the guidelines in effect unless using the guidelines with respect to the date of the offense would create an ex post facto violation but if you're opposing counsel's argument that it must because there is an issue of whether you can accept the aggravation  and the cross reference and if you in fact decided that the cross reference was not appropriate would you concede that there was an ex post facto problem if the cross reference is not applicable we will have to concede that issue but in this case the cross reference is applicable i think the court found by a preponderance in this circuit has hailed that you can find by a pub ponder its of the evidence that relevant conduct is a political and thus apply the cross reference in this case counts was a little off the judge it by there was testimony from three excuse me four people plus the officers mr newman testified miss wood he testified and miss chapman all testified about the homicide the government found a twenty five page sentencing memorandum outlining the extensive nature of the testimony with respect to the cross reference and relied on their briefs at that time yes there was not extensive discussion about the cross reference but there was a twenty five page sentencing memorandum and the court she said through the entire trial she h the testimony she was aware that mr cook did order this homicide he ordered his henchmen to go to that house and shoot those people those people got into a car in those which men followed out mr cook orders he paid the individuals for miss chapman testified that she overheard him order to shon carter to burn the vehicle which he had provided for the homicide the court clearly found by a preponderance that the cross reference was applicable in this case and it was applied show under the guidelines as long as there is not a difference in the sentencing then you use the two thousand and eleven version and the court correctly use that version that second degree is applicable in this case the court clearly determined that first degree murder was applicable the defendant was responsible for the homicide of christopher sule in the sheaf and she held him accountable for that addition as i indicated the evidence show cook totally responsible i think the other thing that the court was asking defense counsel about is how the guidelines would be different  under the two thousand and eleven version if it didn't apply it would be three sixty to life under the two thousand and seven version underlays field the court the finish argues that he would be  given the benefit of the new drug guideline well as the court is aware there is a one book rule and under that one brick rule under the two thousand and seven version the dialing range would be two ninety two to three sixty five he would not be allowed it the benefit of the new crack guidelines he would then have to go back and petition the court for that with respect to the hough case i don't think it's a political here i don't think that belies the waiver in that case as the court has already noted the defendant strenuously object it timely and contemporaneously with the use of the two thousand and nine version here there was no objection there was actually agree meant that the two thousand and eleven version should be used the guidelines and booker indicate that the court has to start off making in accurate calculation of the guidelines and in this case judge potente did that she meticulously went through each and every enhanced of the guidelines and calculated them and then she came to the cross reference and determined that apply then she applied the thirty five fifty three a factors specifically the court has to look to at a number of factors in determining your sentence one is the nature and circumstances of the offense the defendant's background his age clearly she relied on the thirty five fifty three a factors in imposing her sentence and that sentence was three hundred fourteen months and it was applicable on this waiver issue i'm assuming there's a manifest injustice standard in there isn't there yes although so far we haven't heard from mr sharon what that would be you know we have it so there is a way around the waiver arguably reference is right the district judge had to of calculated what the guideline range would be with out the cross reference and then taken that into consideration in the exercise of her discretion in determining fashioning the sense in this case i think that's what thank you so to and in that obviously what are you saying to the guy lying range of three sixty thirty years which was the bottom of the two thousand and eleven version i don't think that that's the number she came to i don't think she picked three sixty because it was the bottom of the sentencing guideline range i think she started at life and that's where she started this is life and based on the thirty five fifty three a factors she ended three sixty and then gave him for credit for the time he served in the state i don't think there is nothing in the record that indicates she went to the three sixty number because it was the bottom of the two thousand and eleven guideline version will get back to his argument is there any authority you're aware of that would indicate that you have to do the alternative calculation and then and then state in the record how you aren't taking that into account in connection with your decision based on the  calculation and explain to us how you took that into account or didn't take it into account in connection with the sentence you imposed based on the correct calculation no i don't know of any authority that says that if i understand your question in that you take the correct calculation then you that's what we thought he was arguing but i don't know of any case law that says you have to do that i think once you determine the a political guy lying range and all parties in that courtroom agree to it probation department the judge is specially in most importantly the defendant and so now he has waived his argument i have a question on the convictions issues used about this evidence that was placed on the defendant beating his girlfriend kiki rivers yes i'm struggling to see any connection with his abusiveness of her to the proof of the conspiracy the use of that violence to keep his people in line so to speak i don't see anything in the in the record what what makes the provision of that evidence appropriate i think that evidence is appropriate because if i charged with conspiracy as well as a c c in particular the government had to establish that this was his organization and he was responsible for running it and that he was over these individuals that being miss newman excuse beginning was because kiana rivers was copping dealt from another person and when asked specifically why should intervene and stop it when he testified that she didn't want the same beating it was important to show that mr cook ruled his organization by any means necessary and he used violence not only with other members in this community drive all drug dealers but also to keep his coconspirators his henchmen his workers in line even though she testified that she had no idea why he and i in looking at the record it was just a moment and i should have followed up on that question and really pull that answer out of her and i take full responsibility for that testify that she was beaten because she believed mr rivers was trying to get dell from someone else in mr cooke says you only get your deal for me and you only sell for me and you only work for me and if you don't i you and so that was important testimony in closing argument we argued about the violence and it was important to come in again a closing argument can you address the disregard to duty statement i'm sorry can you address the statement yes guarding disregard the duty of the defense counsel is or the effect or the goal of defense counsel is to have you disregard your duty yes i will address that again in our fully state it but at that time the government was responding to six different arguments excuse me five different arguments from five different defense attorneys so in doing that we were responding to several statements it was not flagrant it was an isolated incident it was two statements and it didn't mean that it was quote unquote their duty to distract it was some of the things they said were not evidence and were a distraction in that the government did say that but the government is given y latitude your hon r it was permissible though in earth and we don't believe that it was intended to mislead the jury it was isolated it was not deliberate and it in no way prejudice the  jury the government was responding to things that the prosecution may forget certain facts to bolster their case page id thirty six seventy the government has a hypothesis and they just sought out witnesses to support that hypothesis page id thirty six twenty one is hard from the jurors from the suburbs to pass judgment on people who live differently from you page id thirty six forty seven so in responding to those things the government just meant that those were things that were not in evidence and again it was in our fully state it but in no way prejudice the defendant and it was not flagrant was that that evidence came in to support this allegation in the indictment it did it came in under both theories c c e as well as the conspiracy so the government stands by that it came in under both theories if there's no further questions in conclusion there are no other questions in conclusion the government would just ask that you affirm the convictions and the sentence in this case thank you thank you honour's there are three brief points i'd like to make first in response to judge mckeague question i don't contend that a court they just court must necessarily make that alternative finding i don't think that there's any case law to support that requirement but in this case there was a variance that admittedly a variance in this case and there's obviously speculation as to what that variance is based upon because we can't even find in the record where the court made the finding ok the guidelines here life and i'm going down to three sixty for this reason and then i'm going down to and we do know that they're right up there with some discussion and and my making this some discussion of of his age there w twenty three there was and the judge was indicating you know i want to give i'm sending you to prison but i want to give you some hope that you would at some point in your life be able to be a free man again absolutely that the court did make that finding and made and talked about of the thirty five fifty three findings but then didn't tie them to how the court got to three sixty five in we don't you know if you take if you accept that the court discussion of of the age gets us to three sixty then you also must equally accept all of the court's discussion about the guidelines calculations the alternative guidelines calculations of which there were pages and pages and pages of discussions about that that's equally as viable reason on the record and so that's that's my point there the with regards to the issue before you leave that one i think you raise at least an interesting argument in the beginning of guideline sentencing the the guidelines in the courts were seemed to say if you're going to depart you have to go through an articulate on the record every single upper or lower guideline and why you're rejecting that one except during the next one and then everybody just threw up their hands on that that was completely unworkable so that sort of went by the wayside is there any suggestion in the case law that you're aware of when you're doing a variance that you have to say more than this particular judge did as to exactly which of the fifty i five fifty three a thirty five fifty three factors and how much weight they were given or is it sort of u p a jumble it's a package of things that produces a result at the end of the case that comes to mind is actually the two cases of the best line case where the courts overturn the sentence twice now on a child pornography case based upon an appropriator lack of correct thirty five fifty three findings in the first time through what is a right going from multiple multiple years to one day or something it was but the analysis is the same which is you know whether or not there's a sufficient appellate record for us to determine how the district court got under thirty five fifty three to where they got to and that in so whether it's a day or whether it's one hundred years the analysis is still the same if it is that i thought there was a case fall that play out and i think so it would be that much of a variance in this case turning to the issues of of why this court should even consider this and it's not waived again i cited to the pugh case which is an intervening case which i think gets me over the but over in that if you take a look at the sentencing hearing transcript after the after the defense counsel concedes that the two thousand and eleven trend the guidelines are used he then goes on and i see my time's up if i can just finish this thought he then goes on to challenge the two point hands but for maintaining a drug promises and he challenges an ex post facto grounds that the that this is an ex post facto because of the two thousand and eleven guidelines and that's after he concedes it confusing but i think it maybe helps me get over the hump of what he really didn't concede if he's making that argument and the court obviously denies the ex post facto on that basis and it's important because to be i disagree with counsel counsel says that you can only use one of the other and that you can't mix and match well if you use the two thousand and seven guidelines manual one b one point ten says you can also use any guidelines that were explicitly made retroactive which the new crack cocaine amendments are and so it still can be