into what i think your first sentence they have a couple questions i just want to see if i can correctly understand in this case you did not argue in any of your griefs a presumption precious your argument has been consistent that there is no need for a presumption or even to get into presumptions because you shown prejudice sufficient to is yours and the same plane or a standard that we've been applying forever is applicable here i mean you cite for the burden alone with his supreme court case  united stay the night asked do with this case sure united states tonight applied just to go back to your question about a line no giving the defendant the presumption cited the burden set for three different ways that a court can review a forfeited error one would be that standard plain error the normal case the ordinary case where the defendant bears the burden on all four prints the area of structural error which is not at issue here and the third area that the court is on point in this case because it just overlapping ranges when the guideline whoa ok yes ranges overlapping here are i know the government uses the phrase overlapping ranges over and over even up to the when you gauge a late letter received a couple of days ago but the ranges here are my view i don't know what let's say now thirty three one months and that was an incorrect range correct and did not overlap with the correct weight the court applied the statutory maximum and found that the range was twenty four months the record is not laid out a explicitly as it could be the range that the court was applying was twenty four months that was incorrect range the correct range if we had been clear in the briefing is twenty one to twenty four months this is not the standard overlapping of course me a source i've never seen an range case yes if this is what it is yes and i fact the overlapping ranges in by this in the supervised release are more rare than in the the guideline where they overlap more frequently they don't the judge found she found that the not simply that in that three months between the twenty four statutory maximum and the top end of the twenty one to twenty seven there is a three month question that the district judge might just been hosed something something less right that that there was a chance within the correct guideline much because i mean between the twenty one and the twenty four sure that the judge might have at least and because the judge believed thirty three to forty one to be the correct range that that did or at least could have exerted some kind of high ground like pressure perhaps it least arguments made it was a very simple sentencing case the defendant asked for leniency because he had accepted responsibility and pled guilty that's a standard reason for granting leniency that's a factor under twenty five fifty  three and and then the government said leniency is built in to the application of the stat back and then the judge accepted the government's argument that but for the stat max the range would be thirty three to forty one the lindsay that was asked for the government said was built in and then different guise i mean just burden of the thirds depth to show prejudice the furnace or show that the mistake affected the outcome certainly here the court began with that mistake and every other discussion of how well that's  my attention frankly was the statement paragraph two of a j i would note as indicated by the government quite frankly if there were no statutory maximums in this matter of twenty four months then you would be looking at thirty three to forty one months in light of your criminal history category which is essentially a career offense now i suppose we could look at that and say this is just another example of her relying upon an incorrect guideline which she acknowledged in the previous paragraph is vital for us on the other hand i think you could also look at it and see that this is a judge who thought this guy was worth every bit of twenty five and the war and his criminal history even with the b violation would have given him guidelines for advisory judges take account of that and then makes a miscalculation we've got to presume prejudice that's what i hear you say that's the important this is a fundamental guideline calculation error that affected the range this it's not what do you mean fundamental this went to the very core of why the defendant was facing the violation of supervised release what kind of violation it was was it an a or b all severity of it not only did it increase the range significantly without the stat max from twenty one to twenty seven versus thirty three to forty one but it went into the judge's reasoning about what kind of europe during it went to the judge's reasoning there's nothing nothing in this transcript suggests that the nature of  presumption and right a presumption that can be rebutted by the record the record here shows that the defendant asked for leniency the government's that leniency was included and the judge adopted that there the judge could have said you don't deserve leniency the judge instead said  found anything sympathetic about him is i believe that acceptance of responsibility and the request for leniency with was valid the mr press asked for something that is granted in other cases and it's a reasonable that the judge would have given some leniency what what enables you to say what in the record made we have very little he asked for leniency based on one factor government says leniency is built and the judge adopts that and goes with that goes with that acceptance of the government's argument to impose the sentence that the judge was absolutely harsh with the sentence on the consecutive mr press ask night is on point which i believe it is this is a case of overlapping ranges the government looks the government looks too much into markets and packet those are specific procedural cases one involving breach of a plea where the court found that was not the calculated guideline ranges outside of this extreme maximum the range becomes the maximum so in fact when she calculated the range to be thirty one to forty whatever it was that but the maximum was twenty four that the guy likely interest twenty four supreme court case law makes it very clear you have you have to have a minimum and they haven't even decided this a structural ever to have a presumption that having been said oh yeah i mean look for the government's judge perry is correct that night is in apis here then what is applicable in terms of who has the burden and or whether there's a presumption well if not is not a clickable here then i think marking just the run of the any time the government writes a brief like this that takes on one or two of our precedents and argues that they're inconsistent with some supreme court well we're going to take a good close look at yeah i mean i don't mean to there's very little in this record as as i think the prior questioning suggested that that's going to allow the the dependent to meet her burden or his or her burden here what we have basically is somebody with thirteen prior convictions and the judge had nothing good to say about this person and in fairness to the public defenders they really the only thing they could come up with is that he set the responsibility well in a violation of supervised release where the only violation that's charged is that you committed another crime that you've already pled guilty to i don't think you get an awful lot of second tier credit already pled guilty the government could approve that with submitting to the judgment of conviction so there's nothing really here that the judge has said over the admittedly short period of time that that this was discussed that suggest anything other than she said this is a these are very serious crimes and very serious matters and she she seemed to be very concerned about that thirteen prior convictions and so this is gesturing that this would have hit a bottom of the guidelines sentence again the standard is reasonable probability and while that has some play in  it we know that it's more than just your conjecture it's less than preponderance of the evidence but it has to be more than just it could have happened and that's why markets got shot down because the second circuit basically headed up the standard of any possibility and  that that was the government's point we can't if the burden is placed on the government we can't rule out the possibility but the burden isn't on us that i see the burden is on them and that's why i don't understand why it you know as i say i don't want to build it up too much because that frankly obviously is the best argument they have as to why you know she might have she might have done something less severe and we will have to be talking about yeah yes and and obviously i'd like the court to say something nice about punk or as well because i really think that's got some short shrift in the circuit and no offense meant by that but it's something that sort of there's a tendency to sort of say ok well we in market well if you're asking what's on my wish list i'm my wish list i'd like for the fourth prime for the court is to suggest that when a defendant is sentenced within their correctly calculated guideline range it is quite unlikely to be a miscarriage of justice it seems to me that what that the commission said is all the court cases say is that reasonable this is a range not a point but more important to that i'm going back to the very beginning of the guidelines and if you look at the introductory commentary they say that one of the reasons they've adopted overlapping ranges is so that there will not in fact the appeals are there trying to cut down on the necessary appeals now we've lost that entirely over time but i do think when you're talking about a fundamentalist character of justice and you have somebody who sentenced pretty much where the sentencing commission said these people should be sentenced and it's the sentence that the just one more time to put it on the record if sqrt looks at seventy one point four and approach an accurate guideline calculation would be the twenty four months in the twenty one twenty four months of the two guidelines at issue that's my position and that night is applicable in this case i'm very quickly the rationale behind knight is it's very important and consistent with supreme court law is consistent with the law no the government did not indicate that that there are three different ways to review forfeited or one is a presumption of prejudice different than the ordinary burden discusses this third possibility of a prejudice which has been gone into detail and it's clear that there are three separate ones and the cases in the circuit in other circuits that have applied the presumption are clear that there are three different kinds of  are so but but the reason behind the presumption is that there are very important rights that sometimes cannot be proven by the record but are still important to consider and sentencing under the guidelines is the most critical thing for most criminal defendants was very critical here and led to an unfair result more time in prison potentially likely for my client and also the inability for reasonable this review when there's a procedural error this court for its recent bonus review and that's that's a reason under the fourth prong it's not a person i write to have this court remain the case but in certain cases there's no way to review it and that is goes to the integrity of the system it really is the fourth probably the fourth time