the serve three minutes per republish granted thank you again there was insufficient evidence in this case that the defendant mr mccormick knew that the individuals to whom he transferred stolen firearms would use those firearms illegally such that the that you waive any claim to procedural error with regard to the district court's reference to an quotation from two k two point one b six i do not believe so your honor i believe that the purpose of the supplemental filing i did was to ensure that the subsection b six filing of the district court would not be interpreted to allow for a finding that subsection b five could be imposed it was not intended that should i would hope would not be viewed as a waiver of any procedural objection i would have to the lack of finding under be thought because i do think that that is a critical point although not the most critical point if you look at the record itself which i don't think could support the finding in any event and if you get to that stage where you actually assess the record and you start with the principle basis on which the b five unhandsome it was alleged to be imposed or applicable by the government alone that was because of transfers from mr mccormick to at least two buyers of a number of firearms in exchange for money and other services and and they purr the issue at the dis court level was whether those buyers could be found to be people whom mr maccormack knew to be engaged in criminal activity but would use the firearms to engage in criminal activity and there was no evidence of that sort the only evidence you have in the pertinent record is in the pr sentence report it's a paragraph for which states that these fires at least one of them i should say was known to investigators to be involved in drug trafficking the critical point for these purposes and the one obvious lead made in the briefing is that at no point this in the no point in the pre sentence report is there an allegation that mr mccormick's knew that these people were engaged in drug activity or anything else and more importantly perhaps there is no description of any of the transactions how they occurred when they occur why they occurred what mr maccormack history was with these people and so you cannot make any inference as has been done in prior cases that maybe he should have known or had reason to know that these individuals were engaged in drug trafficking for instance you put a lot of emphasis on what's in the p s r but you know what your client admitted when arrested it's better that the sentencing court is entirely entitled to consider any number of things beyond what's in the p s r and so what's your response those d things appear to support the inference that your client's arms were being trafficked for his purposes yet i think your question your honor the what you're referring to i believe is the motion for downward departure in which there's a number of representation made by the government and the prosecution about what mr maccormack may have said up after the time of the arrest that was never entered into evidence that was merely the motion that was submitted there was no affidavit attached to it nothing of that sort because the rules of evidence don't a my next point was actually not part of the record that was ever considered or submitted with respect to the b five motion the governor never suggested when that motion was on or when that enhanced that was being considered at the nd part of the sentencing proceeding after the downward departure motion had been already a never suggested that those allegations should would could be considered by the district court but i'm not aware of any law that precludes the court from considering i mean williams which is united states still good lol and there's more here than there was in williams about what happened there i think you have to consider what that government submitted in support of its unhandsome and nothing in the present report refer to these allegations nothing the government submitted at the sentencing hearing referred to them the district court never worked with them so i would submit that the record considered by the district  court the one that should be considered on appeal is only that that was considered at the sentencing hearing itself that's the pre sentence report in the play calling but if we take it a step further and this is getting to the more fundamental problem with considering that particular motion i believe beyond that it's not evidence beyond that it was never submitted it's not part of the record is that actually it's precluded arguably under the rules of under the guidelines as well as a plea agreement subsection one be one dollar a provides and so does the plea agreement that self incriminating information provided pursuant to a cooperation agreement cannot be supplied cannot be considered does this provided pursuant to a club or a should agree it that's that's the question and that's the problem in order to allow for the doesn't that information to be considered there would have to a finding under a one of that particular provision of the guidelines and as of the plea agreement by the district court that in fact this information was known to the government prior to the cooperation agreement now here and in evidence we have a plea agreement that was executed in november of two thousand and seventeen the were proffered agreements that are not part of the record that were executed before that we don't have any record of them because this was never an issue with the district court and if the government wanted to introduce this information as information it knew before based on admissions of mr mccormick that it had an obligation at that time to submit it and to offer proof not only that the information was submitted at the time it alleged by mr maccormack which is not been proven but also that there was no proffer agreement at this point in time because the because the government didn't take that step never submitted this information under subsection a one exclude exception to one b one point eight there was no record created and it is now waived its opportunity to make that argument let's assume we don't buy this argument but let's assume you are declining to  waive b five b six procedural error argument let's assume we think there's a procedural error but you didn't you know you didn't of preserve it purple should we find that this is plain error such reference to be six is itself an error of that type now if you go to playing there i think that's also going to be plain error and one that affects substantial rights in the sense that here you have a reference by the district court to an entirely different subsection of the guidelines to an entirely different provision made that finding never made any finding whatsoever despite an objection that this protective section be five applied that is plain error and it's most plain sense to my mind granting you that there's error and that there's it is plain and i want to talk about prong three of a but what's the reasonable probability d that you would have had a different outcome here well i think the probability is almost a certainty because if you if you do not applied so if you don't have a finding under b five that it can be applied and you don't get the poor credit for level  ment the offense level goes down by four level and that drops a cent in the brain but then you bring the question forgive me i'm not being very clear what leads us to believe there's a reasonable probability that there would have been a different outcome levels i understand and then you get back to the merits question in my view and you do get to the question that i was addressing at the at the outset here which is to say that there was no evidence in this record that could support a finding that the mr maccormack knew that these individuals would have would be using these weapons illegally and that is because again you go down to the pre sentence report you also go to the police called colloquy with what he admitted and what we admitted was only that investigators knew that these people were involved in drug trafficking otherwise you have no description of the buys no description of the transaction no description of their history on which you could make a finding of that sort and the only other basis that the did in the district court the government offered for application of this enhanced again it never offered that the allegations concerning the in the downward departure identified in paragraph six of the pre sentence report and i would say there's a couple problems with that well three problems at least one this argument was really the find there was never a finding in the district court that a transfer occurred off to these coconspirators or that would support the sixty five whatever these with mr mccormick but there's nothing to say that mr orcutt we know that the firearms that they took would be used and illegal for being reasonable why isn't there a reasonable inference that it would be used in criminal activity i don't i think i think your point that at least here we have some evidence that these coconspirators were engaged in illegal activities so the question is a little bit more dicey than with the buyers because buyers we have no evidence of their history but i think the more fundamental point and this is really the  prerequisite question in this particular circumstance is that there was no transfer here there has to be a transfer to be trafficking and in this case mr mccormick did not transfer these weapons to his coconspirators rather what occurred here  engaged in these burglars took the weapons stole the weapons and then divvied up the process essentially afterwards with mr maccormack taking his and the coconspirator taking their so there was no transfer that would even support a trafficking charge in the st instance and so i think  between mr maccormack on the one hand and his coconspirators on the other that there would be further transfer of those firearms and there would be an exchange for drugs as well well  depends there's information in the motion for downward departure which i don't think can be considered that could support those find those conclusions your honor as far as the record that i see it that was before the district court that was actually considered and submitted by the government no that was not didn't go into that level of granular detail although the assumption can be made of course that mr mccormick was going to sell the firearms for profit and then that some point perhaps share more of the profit was a coconspirators but it didn't go to the point that the transfer itself was going to be somebody with mr maccormack should would could know was going to engage in illegal activity and again so what we have here is the absence of an actual evidentiary record considered by the district court of any information to support that mr mccormick knew or should have known that these individuals would use these firearms illegally you have another piece of information that is the motion for downward departure that was not submitted by the government before that it is waived any right to rely upon at this point in time and that even if considered we don't have a record that was sufficiently developed in order to allow it and again at the end of the day you don't have a finding under b five so very clearly this was a procedurally unreasonable sentence it was one imposed to go back for a new hearing i don't believe you do i think at the end of that i think would you go back to vacate the judgment tatchell on behalf of the united states i would like to st of all correct the record here the sentencing in this case consisted of two parts the st part dealt with a motion that was filed by the united states and in that motion the  government laid out in copious detail the defendant's use of the guns and transfer of the guns to other individuals who intended to use them in connection with drug crimes specifically drug possession and drug trafficking  the five objection based on the defendant's objection the defendant's argument at the sentencing hearing and the defendant's sentencing submission it's sentencing memorandum which were what is the harm in sending it back i don't recall maybe it's happened but i don't recall it happening in my experience that the district court cited the wrong guideline there's no dispute about that so isn't the prudent thing to do to note that fact and just didn't have the district court do it over again what i understand your argument to sort of be well yes the district judge mentioned the wrong guideline but we all sort of know what happened here it was just a  he misspoke so trust us he misspoke but isn't that a little imprudent isn't the prudent thing to do to send it back and say well tell us what you really meant i think that would be prudent that would be on the high end of the prudence scale d we submit that the court does have an intermediate option to to simply affirm here basically because the district court never had to rule on that the six objection because the defendant never objected to the application of the six at sentencing the only issue that was on the table for ruling was the b five trafficking objection comes up we'd have to have a lot of confidence that they misspoke but the words the court used could have referred to be five or be six they're fairly similar and have since they have different requirements let's assume that we think this was an error and let's assume that the error is playing do you have an argument for us on prong three which i was asking your friend mr sort of smell about why this wouldn't have affected substantial rights we don't think it would affect substantial rights for a number of reasons st of all the sentencing record  say there's no reasonable probability d of a different result your friend on the other side says there was nothing in the p s or he raises doubts about whether these might have been self incriminating statements or board because they were made under cooperation that was a fact finding a bill you know that would overcome a lot to be one point eight what do you say in response to that why is it that there's no reasonable probability the judge could have gone the other way well we think that the district court cited factors that certainly supported a b five and hand spent and they related that can argue and we think it's a reasonable imprint to the st part of the sentencing record the admissions made by the defendant of the court referenced the quantity of stolen firearms called the court reference to multiple sales to the same individual who we submit just looking at the plain language of the defendant's admissions would be y big and that the individual was a known drug trafficker that doesn't seem to be in dispute that ruling even if the disk just record in this case committed what we would submit is a less serious procedural error and miss referencing the a pluggable statute the court can still affirm based on that you know you sampson interesting case because if you remember what happened in za bills we held that the court erred in applying a guideline provision but we still affirm the sentence but we did that because it was essentially a factors irrespective of the guidelines error that she made so the guidelines there was rendered immaterial here it's different because he cited the wrong guideline but you've got some facts to support what the court did but it just doesn't seem that those facts were properly presented in adjudicated in the defendant didn't have the opportunity to try to meet those facts and  at the hearing diddy well now we he didn't because given the given the nature of the motion i think there was some level of circumspection in the nd half of the of the sentencing proceeding  circumspection that of course benefits the defendant because of his cooperation that that's correct  and our position is that the district court in the context of its ruling was ruling on b five there really is no we don't think there's any reasonable basis to dispute that although in the interests of being prudent  the court could send it back that's that's not our position and we think that any any thing findings that if it was sent back will simply perhaps add additional layer of detail but the core findings that the district court made the factual hynix not the legal conclusion would ultimately be the same so the defendant is really not substantially present prejudice if the court would decide to affirm based on actually and they have to rule upon that factored into that sentencing calculation if if if the court has no other questions judge greenaway do you have any questions for m a complete mistake complete error that certain i presume you'd have no objection in fact you didn't doors sending it back well if it was going back for the specific purpose for the district court to clarify that i think that would that's certainly an option at the that would be reasonable under the circumstances would be in that circumstance it's hypothetical well no because i think it would be clear in that circumstance that the district court was perhaps fatally mistaken about what guideline he was ruling on here we know that the court knowledge that it was  the five objection at the beginning of the sentencing nd part of the sentencing proceedings and the parties argued trafficking they argued that the five objection and the crew were made findings apropos to the b five objection but mistakenly referenced be sex thank you there are no other questions i would conclude my argument thank you very much mr i will seventy two counsel below clearly objected to the b five increase but two pages later the district court makes a procedural error and you said well you treated it as if it's preserved because you did mention it on appeal but i thought under floors me here that for procedural error you have to object to it at the time it's not enough like us as with subdivision reasonable is just to ask for a lower sentence early in the proceedings you have any basis to dispute that this was  say he preserved an objection as to whether the five applied but he did not preserve a procedural objection as to whether the court misspoke using the six and see the because i don't think that was a procedural objection that needed to be made what the that was not something we would object to because we were never going to make it be six argument we never did what the court never did was rule on our prison on our objection under b five we had no new no reason to keep on restating that i mean we could have but that's not a waiver that's a simple through district  your friends are given to the other side boils down to all the facts that the district court actually found you know d there were multiple firearms through multiple sales of the same individual and that individual's been known to engage in drug trafficking so we have all those that appendix seventy two don't those equally support a b five argument having made those findings how is there a reasonable probability that be a drug trafficker what that doesn't get to in the fundamental question under b five is whether mr mccormick knew that that individual was a drug trafficker and would use the firearms you never had that funny what you have with this record is simply a statement that this guy was a drug traffic mr record transferred firearms to him what you don't have is the fundamental connecting inquiry where he says mr mccormick knew that but didn't didn't mr maccormack tell the investigators that he gave a gang member fourteen guns that was in exchange for six thousand dollars and ounce of heroin he certainly that was in again the motion for downward departure and i did want to make one more point if i may on that and what kind of fundamental point is to why it cannot be admitted or considered for these purposes and it gets to something my colleague was saying which is you don't you don't have to persuade me  that but but but that raises another question which is it seems like an idle exercise because if we so merrily vacate and remain and then the government is going to put into evidence what i just mentioned even if you talk about the downward departure motion and the point i wanted to make and the reason these two proceedings were separate is the downward departure motion and those allegations were submitted under a very specific exception to one b one point eight and that is a five which permits those allegations to be considered only in the context of a downward departure motion not in any other type of proceeding one is the exception you would have to rely on to get them into the sentencing proceeding itself that's why they were considered at the sentencing proceeding remembered i think there's two types of room and if i heard correctly one of the type to remember would be a real man for clarification or something of that sort that i don't think is appropriate because the record before the district court however you slice or dice it could not support a finding under b five as it stands so there's nothing to clarify even if that this report misspoke even if you consider that it made the timing and i want to make that clear if we consider there was no mistake was just one in a statement i reference b six i meant the five let's take that as a given if this what you're up to do it again please that isn't that the denied i don't believe so because i think if you if you get to the point where you say let's accept for these purposes that the district court met the five let's assess this as a normal normal case in which we take the record as it stood before the district court and see whether it's finding under b five could be supported in this case it cannot be supported the record insufficient to support a b five finding so there is no basis to remember because even if we ignore the mistake we're not remanding because of the mistake we're remanding and vacating the judgment because of an insufficiency of the evidence problem and that's what you have here and it should not be remanded for clarification deficiency the evidence when we're a trial we're dealing with double jeopardy considerations yes we don't send that there's no similar cicero's that the government in the court admitted that there wasn't evidence to support the enhancement but that's what the here that the government's pushing for the enhancement and and the judge said something that i think we all agree was erroneous we're not quite sure why or what he meant by it well i think the answer here is again to get back to the point the government or the burden of course in the sentencing proceeding at the st sentencing hearing to produce enough evidence to subsist and its burden of proof it did not do so on t b five unhandsome it it should not get a nd bite at the apple regardless of what the district court ruling was whether it was mistaken or not that the government already failed to meet its burden of proof and it's and that's a tradition of this court and sentencing proceedings as well we don't just give the government another opportunity