times before and it's always a pleasure because he hails from pensacola which is my original home town so welcome judge we appreciate your help with these appeals this week thank you and we have three that are scheduled this my name is amy while i represent rachel pageant to begin with the government reached the plea agreement in this case and agrees that it did the only issue before the court and is whether that is reversible error in this case we suggest to the court that you rely on the case united states versus ramana which is very similar and a presidential value in this case because in that case to the government we reach the plea agreement and this court found that it was when you did that and let's docket things and an account of significant well the significance of if it were mrs docketed the government in this case is saying it was a notice of appeal had somebody had either the court or the prosecutor somebody miss pageant this is not a notice of appeal you need to refile it she would have had an opportunity this was filed three days after the sentencing took place in this case so she would have had an opportunity not only to filed a timely notice of appeal and keep in mind that ms padgett never said oh no this is not a notice of appeal i don't want to do that she was practicing pro se her attorney had long since said he was no longer going to be representing her and she was jurisdiction this isn't really a notice of appeal you can file your motion and then rule on it because she had asked for every sentencing because she had she herself had noticed the breach of the government's breach of the plea agreement and if  government felt this was a notice of appeal the government has an obligation to do justice in every case and so does the district court somebody should have said to her this is not a notice of appeal you've got seven more days if you want to file a notice of appeal or even if it within the thirty days follow motion nobody ever gave her notice of that and that would just as we reliance on the case law to construe liberally and also parties relying on a district court reference to a motion you have to understand that she would have had an opportunity to have filed a timely one of this one wasn't but aren't there limits to our ability to construe these documents liberally i mean these are r three s dictates or jurisdictional in nature correct correct but even jurisdictional documents are construed liberally by this court and apparently was construed liberally by the district court it was the judge not just the clerk's office but the judge in its order who referred to this is a notice of appeal so in terms of fairness it but what about the post conviction consultation certification that was old and her attorney saying i'm not going to take an appeal that seems to be decisive right there not in this case because this document i believe was signed by her and send then prior to that time it was docketed don't write response on the write it was right after the sentencing if she had said i don't intend to but did anyway it still would be a notice of appeal she could put or with her lawyer say whatever and change her mind that the document that is  by the district court is not one that would divest this court of jurisdiction and not one that she couldn't withdraw if you think about it that thing was entered into the day of her sentencing how much of an opportunity she have even to think about it even the so called no i want to perceive collaterally i don't want to have a notice of appeal and had she had somebody brought it up to her she would have had an opportunity to correct any deficiencies but don't the terms that we're talking about that were in her document  with the terms of her plea waiver which suggests she didn't know what the terms of her plea away were were that she was collaterally attacking basing it on ineffective assistance of counsel well it doesn't mean that she didn't intend then to the have this be a notice of appeal with regard to that statement that she files i think the court really needs to look at those statements and look at that ad is entered into immediately after sentencing without an opportunity to reflect on what what is happening and she if she's saying that i don't want to appeal but she has a right to appeal for example nobody said to her the government reached a plea agreement the government and say the government now agrees but that is an issue that is brought up on direct appeal so by filing a notice of appeal that is the only way she can then to kate that issue before this court on direct appeal which is allowable even with an appeal waiver so we are saying to this court to liberally construe that notice and to treat that as a notice of appeal because in this case she filed it pro se and that document that was filed with the district court would not be one to hinder her ability to have a filed a notice of appeal had rewrite it i'm not suggesting that you rewrite it what i'm suggesting is that when the district court construed it is a notice of appeal and the government never said that's not a notice of appeal and ms padgett never came back and said i didn't intend to make this of and notice le she did she does whether she realized how she was doing it and how she was proceeding that was what she filed with the court and that's how it was construed by the district court and it would be manifestly unfair to her to now come back at this time after the district court said it was a notice of appeal and i'm the best jurisdiction within a period time she could have still had somebody brought it up to her when she filed it as i said she found that three days after her sentencing isn't is created by the government it is based on their argument that they made at sentencing to which tainted the district court's view of her which you can read in the transcript arguing and it apparently this court feels that she was playing the system the whole argument was she had a breakdown in prison because she wanted to get a diminished capacity downward departure she never filed a request for a diminished capacity downward departure she never filed any requests for downward departure her attorney never filed one she never argued at sentencing she should get a downward departure for diminished capacity she had a breakdown in prison because she's bipolar and she has borderline personality disorder and she's a very mentally ill woman and at the time she wasn't taking her lithium because it was being crushed and she trusts what it is because she became trusting of the people who were giving her these drug committed a crime in jail she never had an opportunity to challenge that she'd know anything about it till that morning there was something in the record about the attorney had called her the night before but i have not been able to determine whether the whether the prosecutor ever got in touch with her so i don't even know whether the prosecutor knew the night before the only evidence in the record is that morning this motion was filed and that he got it some time before the sentencing hearing there was no opportunity to contest whether that whether what she did was a crime it was called a crime the whole time at the sentencing is oh she had committed a continuing crime but have how unfair is the sentencing when you know they have enough it's not even if it's not a crime as i'm not aware of is there any authority out there that a government  offices have this in their play agreement certainly the northern district of georgia does and the plea agreement would say we agree to make a recommendation for acceptance of responsibility and last or as long as whatever language the says post plea conduct can be used to negate this acceptance absolutely but that's not the issue the issue is whether the government breached the plea agreement when it objected to acceptance of responsibility they had said they were in the plea agreement one of the promises was one of the few promises was we will not object to the recommendation for acceptance of responsibility and is as long as a probation officer and the only condition probation officer makes a recommendation which the probation officer did and never withdrew the probation officer never withdrew it never objected to it so the government the government agrees it was a breach we're not even arguing governments as you know we believe agreement but what the government's brief is that the court declined to give her a reduction for acceptance of responsibility not because of the government's i'm granting or i'm sustaining the government's objection so it was tire lay based on the government's objection number one number two if the government described it as criminal activity which as i'd said she never had an opportunity to opposed that and to show it wasn't criminal she wasn't engaged in criminal activity she in fact was off of her lithium and it was excusable conduct she never had any ability to bring in witnesses to say that what they're saying is either not true exaggerated nothing she had no ability to to contest this because she didn't know anything about it which the guidelines and the statue rule thirty to disallow and number three when the court was considering this not only was it considering the ruling on an objection that was the breach of the plea agreement but also it was considering a letter that was written by a codefendant in which the government was arguing what your honor brought up before if i may finish i see my time's  e what the government was arguing that this letter was a part of a plot an intentional plot by her to achieve a diminished capacity reduction and she never moved for one the letter but also the mis application of that letter she wrote not only was it a rule sixteen violation that she had never received it and a local rules have a continuing requirement that it's not stopped at the time she entered a plea in fact this letter it looks it was written before she would enter a plea so it should have been turned over there was at least a week there before she entered a plea with the letter could have been turned over to her but not only was it not turned over then it was used she was ambushed with it and it was used to create this false picture of her trying to manipulate the court which she never did and it wasn't even part of the facts the she denies she wrote the letter there was nothing in the record about her talking about the letter at all none of the facts nothing about the letter she never had an opportunity to say anything about it because she didn't know about it there was no evidence you're hearing no your honor there was no i mean they're part of our argument is when the attorney was saying wait a second i had to have an relevancy well he made a relevancy objection but he two or three times said i am not prepared to respond to this and the court should have seen that as an implicit and i'm not sure why the court didn't see that as a problem to a fair sentencing that how do you get a fair sentencing when at sentencing by ambush the court has an obligation to run a fair courtroom and to say wait you haven't had an option is say this you haven't seen the letter you didn't know anything about this conduct in prison and you did and there breaching well he did nobody brought up about the breach but he did say i didn't know anything let's put this off to give you an opportunity to fairly respond to have a fair sentencing to rule the sixteen been require the government to provide this information to the defense counsel in advance of the sentencing hearing where all sixteen talks about trial it doesn't talk about sentencing but the local rules do and there should be an obligation to turn over something you intend to use at sentencing so one of the local rules of the local rule just says there's a continuing obligation to turn over discovery it doesn't say prior to trial or prior to sentencing the suggestion is that rule sixteen of the federal rules doesn't apply to sentencing and if it doesn't in the event this court finds that it doesn't certainly the local dead and obligations to a fair sentencing in this case it was so unfair and so many different respects the morning you're on is james stooging for the united states there's no question this appeal is untimely the problem is not that she filed a notice of appeal one or two days after the deadline it's that now to more than two years after  she still has not filed a valid notice of appeal on sept on september fourteenth two thousand and sixteen the district court entered the final order of judgment and conviction only five days later mr paget filed two documents relevant to this issue understood and she decided not to file an appeal that's a direct quotation i decided not to file an appeal that same day miss agit filed another document that's cook that she did not give any title to whatsoever but it said that sometime in the future she intended to file a collateral tax in the district court alleging ineffective assistance of a buyer council that does not satisfy a valid no subpoena not in any way a valid notice of appeal mr can now filed a motion to withdraw and so the district court said there's a notice of appeal pending so given that i'm not going to allow you to withdraw that right there defeats your argument that she was the padgett was pro se so yes the district court called it a notice of appeal but it was not in the context of a challenge to meeting the requirements under rule three no one ever raised that until i did in my motion to dismiss as soon as i got this appeal so it's not accurate to say that district court took looked for filing and measured against the requirements of rule three and said they match that's that's not what happened at all and anyway there are there that's not really that the district courts province there are dozens of this court's opinions in which this court tried to withdraw so but again that's long before i raise the issue no one had ever contested at that stage i mean i don't blame the disappoint or this court for just glancing at the docket and seeing that the deputy clerk filed this as a level should have said this is not a notice of appeal let's get this straight no i'm not aware of any authority in that requires one party to monitor the opposing parties filings and and see whether they need all the requirements well the attorneys know the significance of a notice of appeal don't there's no need for the assistant u s attorney to even monitor that i mean if it's a notice of appeal then the court's going to deal with it at such i mean this there are there are dozens of opinions in this court saying that what purported does not offer that's on asking this court to do and in again and again the three requirements of a notice of appeal the first is intent to file a direct appeal the her filing never said anything about that in fact she said i decided not to file a direct appeal the only intention expressed was to file a collateral tack against her attorney raising ineffective assistance that pleading never mentioned the breach whatsoever you can't a collateral tack is different from a then the government obligated to abide by its you know obligations under the plea agreement why couldn't the government have simply recommended reduction for acceptance of responsibility and still bring to the attention of the court the fact that it was padded engaged in this conduct government could have done that your honor we're obligated to abide by our obligations under the plea agreement however we would like to bring her conduct to the attention of the court why couldn't the government have done that your honor to be correct we could have we could have done that in fact that's exactly what happened in the course of all the horsfall case and i've cited that case actually helps my in my position here because it shows the distinction between the breach and the reason the district court didn't the government provide this paget's attorney advance notice that it was going to breach the plea agreement why did the government have to ambush and sam sandbagged this page attorney by surprising him with this information at the sentencing hearing that does not seem like something the government ought to be doing in the senate saying hearings at the sentencing hearing the prosecutor testified that she learned about it only the day before and that at that very moment she called defense counsel and gave him advance notice and that was as much as possible as far as the record should tell that are in advance that the government know that it was going to bridge the sentencing hearing well actually that you know and there's no evidence in the record that the prosecutor knew she was going to breach the plea agreement i know but how far in advance of the sentencing hearing the government know that it was not going to abide by  obligations under the plea agreement one day one day the very day of the day before the sentencing that's when the prosecutor learned about missed agence post plea crime and the prosecutor then immediately called mr canal defense counsel and told him so it didn't know until the day before the senate hearing yes that's exactly what the prosecutor said at the sentencing hearing that's what he said that is that how how far in advance of the sentence in hearing that this conduct take place  a about six days the conduct at play september seventh i believe and sensing hearing was september thirteenth so the government so the court declined to give her acceptance of responsibility because she gauged and post police crime that's correct what was the crime the crime was the state law crime of attempting to deface government property was she ever charged with attempting to the face government actually that could not have happened before the sentencing hearing i don't think as a practical matter but even if it did it doesn't matter because at sentencing the burden is preponderance of the testified about her conduct and one of them testified that this was miss paget's handwriting that when this was said she was very familiar with it because mr paget wrote a lot you know there were a whole series of problems at the jail leading up to the events of the stopping of the toilet and all the facing of the sale but yes you're telling me that the government was in the word that that was going on until one day before sentencing that's what the record shows if that were incorrect then padgett should have objected and should've and should've raise more of an issue about it but she didn't and because she was ambushed on the day of sentencing here again she she had one day notice which was as early as as we knew about it as far as the record chips if you need more time why didn't she just object if there were some and first place the just a court allowed her she could have called pageant defense counsel  herself if the letter were inauthentic or inaccurate or any of allegations about her the crime she committed in jail so we're inaccurate magic could have denied it she could have explained it was the letter provided the day before to pa counsel you know the letter was provided the day of sentencing was the letter mentioned on the phone call or just we've talked about the defacing of the cell what was mentioned on this phone call with defense counsel i believe it was just that the  was a surprise i believe that's correct but didn't how did the information good to the assistant u s attorney and the court was it through the probation office yes to the probation officer who contacted the court the judge and the prosecutor i believe the the evidence at sentencing was the probation officer contacted only the prosecutor ok whether the probation officer actually contacted the court beyond that i don't know and the probation officer did not simultaneously contact defense counsel i don't there's no indication that the probation officer did that the probation officer contacted my colleague and my colleague contacted eleventh so that's three weeks later and then at what point the prosecutor got in after that there's no indication in the record with the letter actually delivered to the codefendant witnesses she could have asked for more time if she could have brought out any facts contrary to the letter in fact that's just another reason why on clean air review this fails because she has even under the the more favorable abus discretion standard she still have to show specific facts she could have a deuced with a continuance that would have disproven the allegations even on appeal she hasn't even suggested any of that paget still makes much of the claim that she was mentally ill that's the reddest of herrings her attorney filed a motion for a mental evaluation at the outset of this case the magistrate judge held a hearing in at the conclusion of that everyone paget her self defense counsel the prosecutor and the magistrate judge all agreed or else for the purpose of determining whether she was competent to stand trial before she entered into a plea agreement with the government and made the same finding at the plea but we have a defendant every day who have mental problems who are not to the stage of being incompetent i mean that's part of the process we've got a lot of m sentencing judge aware at the sentencing hearing or aware of the fact that she was not taking her lithium when she was in prison yes he was in fact defense counsel specifically argued that  but we proved however through our witnesses at the reason she wasn't taking lithium is because when we gave it to her as a pill she held it in her mouth pretended to swallow it spit it out and sold it to other prisoners the jail caught her doing that so then they began to crush her pills so she couldn't do that anymore that's why she stopped taking lithium that was her own volitional act and we got regarding the mental health she reached she did raise actually  sentencing her attorney argued in in support of acceptance of responsibility against our evidence of the crime he argued that her crime was a result of mental health the just the just a court rejected that argument he then moved to sentencing  her counsel again suggested she had to get a lower sense because a mental health and just a court rejected that if there are no other questions i would suspect they asked the court to affirm thank you thank you counsel miss while reserve some time for witnesses say that never happened that she was ambushed by that number two the government had said that she entered a plea agreement in april it was not energy signed these papers that plea was not entered until a week after the letter was written so there was no evidence in the record when the government received a letter but presumably it could ok let me make sure that what you saying there was a plea agreement signed before she wrote the letter in april and of course the sentencing was three months later and when that even when the motion was filed that letter was submitted with it we want to make that point also we like the glue know how the letter was obtained no your honor we know that it days before there's nothing in the record to show when there was no hearing on it but no opportunity to respond to it or say anything about it or even to come up with an argument against it we'd also sec third point we'd like to make is that  putting holding onto its argument that that notice of appeal wasn't a notice of appeal should be treated by this court is invited error by the government because if the government didn't think it was noted that notice of appeal was valid when the court referred to it is one and that order which came out shortly after that notice of appeal was filed that was still within the time period for the defendant to be able to file a valid notice of appeal and went to the district court referred to it as a notice of appeal and said well i'm not i'm divest of jurisdiction and was treating it that was when the government had a responsibility will i see a notice of appeal on the docket sheet i would say well in those people has been filed and i would never have an occasion to look at what government does have an obligation to look at the pleadings that are filed in the case before it and if during a period of time there's a pleading the government believes is insufficient and it would take away a defendant's liberty and right to contest something i believe the government has an obligation to look at the pleading and when the court refers to it as one relies on it as one and acts on it as a notice of appeal i believe the government has an obligation do you concede that the government the prosecutor did call defense counsel the day before sentencing and if so what was said what while you agree was so in the record what it shows is the prosecutor said that she talked to mr canal the defense attorney yesterday which is the day before the sentencing hearing she goes on to say we had one conversation where my position was that the guideline range was accurate and that i would not be seeking a sentence outside of the range but late in the evening i found out about this information i did call mr canal doesn't say whether she spoke to him and then she goes on to say i also forwarded the e mails from mrs mercer to him and then filed the motion as soon as i could to get it drafted this morning so there's no evidence in the record as to whether mr canal knew late the night before about it the only evidence was that he said he didn't get the letter to that day and he didn't get the motion to that day what are the e mails from  mercer and that's not the record so we don't know that so we would suggest to the court if i may banish that not turning that over in the government's breach of the plea agreement that as your honor judgments and mentioned earlier about the argument that this was an issue of an objection not to the court's finding but the fact that the government made an objection to it that this court i'm certain is well aware of the high value given to a recommendation by the government sentencing and how deferential the court is particularly when a recommendation is made pursuant to a plea agreement and in this case the recommendation was supposed to be not to object and instead given the government's very strong argument in favor of taking away acceptance of responsibility that was a extremely important matter that occurred before the district court in one to which there is every reason to believe when the court said i am going to sustain that objection none of that would have happened and she likely wouldn't have even gotten to exceptions taken away from her and instead might have gotten the high end of a lower guideline went up to a lower than that to forty cents that she was supposed to think right we have your arguments and most well i see that you were appointed by the court to represent and the court thank you for your service