time will hear united states versus tr d think it might be good afternoon by now your inner city my name is paul silver i appear on behalf of the united states the district court was without authority of any kind to deem the government to have made a motion pursuant to section thirty five fifty three of title eighteen in order to authorize the court to sentence mr trimble over the fifteen year mandatory minimum is there any question that that she did everything she could no and is there any question that she did everything that you knew she was going to be able to do at the time you entered into the plea agreement i'm not certain of that but assume for the record your honor that essentially we knew we wanted mr him to testify in the in the trial where she did and she did and she testified truthfully and completely right yes so  so there's a there isn't there some unfairness in dangling out the carrot of the five k one point one and thirty five fifty three and then saying when when after she does everything she's supposed to do no your honor because the contours of what is going to develop whether the defendant does everything that's expected does less does more those are things that we can't really know when the plea agreement is entered into in the pleading the language of the plea agreement is clear that we may value your cooperation in your sole discretion you say that half a dozen times to well yes and it is our sole discretion in the only question is you do know at the time of the plea agreement that there is a lid right the if she does the most she can do as apparently she did as w expected there is not going to be a thirty five fifty three emotion with her he did everything she she could possibly have done we don't know that your honor it may be that the assistant united states stern who handles the trial says in a memorandum to go up to change her testimony was unbelievable she was a great witness she withstood particular cross examination extremely well therefore the cooperation is worth more than what happened to have been i suppose one other thing that is a factor that could bear on this and i i think you mentioned it in your brief which is there were two witnesses here and what would happen if one of cooperation had been worth a greater departure perhaps because she would then be the only thing standing between the defendant and acquittal which she was not well mr trim was the only witness who could testify to the or count yes the other witness i mean if the other witness was not there we would be left with this count and yes it would have made her cooperation more significant and that's something you can't know in advance i suppose i mean you really don't know much in advance the bottom line i suppose is given the language the plea agreement given the language of the a denim and given the clear law the question is is it bad faith to put a numerical value on cooperation that doesn't go below  what was her finding a bad faith no with the district court said someone i'm led to call it somewhat yes or i mean in the context of what was occurring and i would view it and there was a significant and lengthy discussion about whether or not the government acted in bad faith and it was clear when the district court determined it was going to go under the fifteen year mandatory minimum it said i you know i want the record to be clear i'm not making a finding of that face and i interpret that as rejecting the defendant's request so you know yes that the district court didn't say i find the government acted in good faith but in effect that that i don't i'm not troubled at all i may be missing your point the court the court varied even below the guidelines myself usually in my other job and i always understood that if i if i did a five k one point one in a thirty five fifty three departure that that was as low as i could go he went lower yeah ok next time i sense can i can i go lower i think not because when he went below the statutory if the government had made the section thirty five fifty three emotional then the only the only consideration that the court can have to determine the maximum allowable departure would've been the value of the cooperation of the value of the cooperation but you're not contending that when the government says we rate this as worth five levels that that's binding on the district court no no just because it can't under richards and say well the cooperation was not that great but thank you for exempting me from the guidelines or from the mandatory minimum because now i can do whatever i want on the other hand isn't that a little bit academic when the guidelines are only advisory anyway well that once you're freed of the mandatory minimum the district court is it seems to me at that point under a post book er regime free to give what it thinks is the appropriate sentence even if you didn't make a motion for under five k one the district court would be entitled subject to the mandatory minimum to give any sentence it thought appropriate applying the thirty five fifty three a factors that was between fifteen years and thirty years yes and once you say because of cooperation you can go below the mandatory minimum is not the district court today free to do anything between zero and thirty years that is substantively reasonable taking into account the thirty five fifty three a factors including the guidelines that would otherwise apply i think not your honor why not i think when a motion from the government allows a court to depart it usually arises in the context of well when when when a motion from the government is what authorizes a court to sentence below an otherwise applicable statutory mandatory minimum penalty it is only the value of the cooperation by virtue of the language and in section thirty five fifty three itself that the court can take it or go below the mandatory minimum it's only the cooperation agreement and the nature of the cooperation that lets the court come below the mandatory minimum right and it will and it also sets the limit on how far the court can go below why because that's what thirty five fifty three he says the court and richardson the court can value the cooperation greater than the government recommends but it is only the value of the co op cooperation that allows the court to go below a mandatory minimum following a governmental shows the court says when i take into account all of the thirty five fifty three a factors i and granted this would be if it would have to be a very unusual case i think that taken all in all the correct sentence would be only probation however there is a two year mandatory minimum under this statute and so i recognize i would have to give that but the government has said that the measuring minimum is lifted because a corporation the government also says they're asking for a departure from the guidelines which might have come out three years or something  know and i handled such a case before this court i believe the defense lest name was leslie i could provide that i don't think that's before us here we have not  that additional variances that were different europe europe has its position is it needs to be a fifteen year sentence at least yes thank you thank you may please the court george hildebrand for hillary trimmed the government signed a contract with hillary trim that contracts provide for obligations on both sides and this trans behalf a required that she disclose all information of the government requested over during any matter that she testify truthfully in grand jury and at trial for any matter she was called to testify that she not withhold evidence from them or try to shield anybody from prosecution the agreement also provided for some obligations to the government first that it disclosed to the sentencing court the nature and the extent of the defendant's cooperation and secondly that in the exercise of good faith it move if appropriate for a downward departure pursuant to section five k one point one and most relevantly thirty five fifty three that discretion while it's soley rests with the government is not on the federal government has to exercise that discretion in good faith in this court's prior decisions make clear that they can withhold that good faith only if they are honestly dissatisfied with defendant's efforts was that really what what the case law says honestly dissatisfied as opposed to make a good faith unreasonably but not to dishonestly dissatisfied but here's what the contract says the contract says that if the government determines that the defendant has provided substantial assistance it may in its sole discretion  credit the defendant in one or more of the following ways move for departure under five pay one point one and or thirty five fifty three eat so so it says right up front if if you to not make a motion for under thirty five fifty three not because it was honestly dissatisfied with ms trans efforts but because it's such the circuit court sensing function and reserve that for itself that's always true when the government doesn't make a thirty  you're saying is whenever the government says we're going to make a five k one point one and or thirty five fifty three and the person and the government five get one point one thereby evidence in the fact that substantial assistance was was was given that there were required to make a thirty five fifty three motion as well as that your argument that's not my argument the government raises that in reply brief and i don't make that argument in fact follow from your argument but no it doesn't i think that a thirty five fifty three emotion and a five k motion are related soley to the nature and the extent of the defendant's cooperation and it might be possible that a defendant could cooperate truthfully to an extent that it would merit a five k motion but yet leave the government dissatisfied that it provided everything the defendant for did everything they could and if i would that why would  that i'm not sure where the spaces between the two standards for that kind of determination was if they were dissatisfied they could refuse to give either you know it's a good illustration is in the eighth circuit i'm sorry  cooperated with the government they made a five k motion and not a thirty five fifty three emotion in the court in upholding the government's actions in his opinion cited to the government's  letter which said mommy's long term and extensive history of drug dealing and a level of respect he enjoyed around the neighborhood suggested he had a more intimate knowledge of the violence around that area and he chose to share so the court found in a case that the defendant had testified truthfully had helped the government out and it earned a five k motion but had not merited a thirty five fifty three emotion is interesting or do you do you think there's something anything wrong with the general practice in the northern district and many other districts around the country of making a specific numerical recommendation to the district court that says yes we think this person provided substantial assistance but it's substantial assistance that's worth about five levels of reduction in sentence under the guidelines is that an appropriate thing for them to do i don't have any problem with that  that if that's what they did hear from i think what the exact number was but they said we think it's appropriate to credit to this degree but that degree does not get you below the  mandatory minimum and that's why we're only making the recommendation that we're making i'm not sure how you decide that cooperation in sending someone as horrible as the defendant in this case to to prison is worth x levels of reduction or x levels of departure but that's what they said it was worth and i'm not sure that there's a reason to say that was a bad faith determination of how many levels it was worth i think the problem is charges that the government conflate making a motion under thirty five fifty three a with this assessment of what sense is appropriate under thirty five fifty three a government could have and should have in this case said we find that her assistance was substantial and she merits a reduction below the mandatory i'm sorry she merits relief under thirty five fifty three to permit the court to sentence you sentence or below the mandatory minimum however we feel her actions were so anus heinous and consideration of the thirty five fifty three a fact is marriage a sentence above the mandatory minimum by making a motion under thirty five fifty three that doesn't necessarily mean that they endorse a sentence below it what it means is that the court can credit the defendant's testimony and perhaps under thirty five fifty three  conduct was so terrible we just were not going to make under any circumstances a recommendation to go below the mandatory minimum that was in the plea agreement that the plea agreement split and i think it was a case where there was that kind of agreement that went to the supreme court in the united states against melendez where the argument was you can't do that either because once you say there was substantial assistance you have triggered both of the  requirements in the supreme court said no the government is allowed to make a determination that this cooperation in light of the defendants overall conduct is not warrant a departure from the  mandatory minimum even if it does warrant something else and i'm wondering why that melinda's they did a somewhat different way a way that makes the decision sort of post hoc as to the balancing the why doesn't melend really control this case and say the government can choose to do want to but not the other period end of story i think long as they don't do it for bad reasons so long as they don't pretend to the court that it's something that you know it isn't  why why is that not allowed i think it is allowed i think the question is one of degree but it's related solely to the value of the defendant substantial assistance it's a different question of what sentence the defendant should get by the government again by the government making it thirty five fifty three emotion is not obligated to advocate for a sentence below that in fact it's free to up advocate for sentence above that and it's also free at least as of the time of the plea agreement to only proffer that it's going to be offered to the defendants going to one thing if we find there is cooperation that's sufficient and valuable and whatever we'll give you a five k one but we will not give you under any circumstances a thirty five fifty three would that have been problematic in your view if that were done in the plea agreement if if the government did that in its plea agreement and the defendant signed it i think senate would be bound by that doesn't that also equally usurp in your words the disparate court's ability to make its own determination of what is an overall appropriate sentence for a cooperator in light of all the facts and circumstances of the case may but that was a congressional decision to do an act thirty five fifty three in court and stuck with that let me ask you this if you would would you concede that it was a mistake for judge her to deem the government to make a motion that the government explicitly refused to me on the grounds the judge heard proffered which in my recollection and my reading was that it was unfair i would say that that is not a lot of ball but not appropriate basis to depart below the mandatory minimum however there are certainly enough facts in the record for this court to determine that he should have ruled that it was in bad faith just to be very clear then what you are saying is a that we could affirm it on the basis you just gave but b at most in terms of relief we should send it back to the district court to decide about  fate but your position we should adopt your position that it would be bad faith if the government somehow took into account the seriousness of the defendant's behavior in deciding whether to make that motion that is my position those decisions are divorced from one another thank you thank you the rebuttal i don't think a re manned is necessary and i think the reasons justifying remember that defense counsel gives now are different from the reasons for the reman that were argued in the brief and in the district court the claim of bad faith up until this moment was the government has to make the thirty five fifty three emotion unless there's dissatisfaction with the extent of the cooperation and now it's well there should be remain to see if we factored in the heinous nature of the defendants about the same thing if what he was saying before is the only thing that you're allowed to consider is the quality of the cooperation and now he's saying yes and that the flip side of that is you can't consider the heinousness of her behavior you can only consider the quality of the cooperation well that's clearly not the law but yes i do and i think that i tend to think that no that's a different issue right and it is the same argument that is making her step ahead of me and i admit that but you know we say that we will make the determination principally in accordance with what's in section five k one point one and all the reasons and so i don't think we are limited under the provisions of the contractual plea agreement or five k one point one itself  with taking into account factors other than the value of the cooperation and then just one note which i and this is again free advice worth exactly what you're paying for it but it might be advisable to make some of that explicit in a plea agreement lest there be some confusion on the part of a defendant that if i do everything they ask of me then that's all they're going to consider and then i'll be golden again that's up to you but i'm just wondering whether if you're saying and other factors whether including the balancing of the cooperation value against the seriousness of the and its conduct will make will make that determination or discretion but that's you know that's a separate question and the legal question thank you thank you both will reserve decision cases of which feel versus johnson is taken on submission that's the last case i'm callin to please that you're in court