morning ladies and gentleman before we begin like to advise appellants if you have reserved any time for rebuttal or wish to reserve any time for rebuttal i'd appreciate your letting me know at the beginning of your arguments and clerk may call the first morning your honors may have pleased the court here this morning representing john coleman on a supervised release violation and i'd like to reserve four of my minutes for a bottle if i may thank your honour's mr coleman had an attorney standing next to him represented him at that hearing given the time that was allowed for preparation for disposition in that hearing the record shows that the hearing started at ten o five that day and at ten o five mr coleman didn't know that mr abel existed mr abell was in the court room but mr coleman had a different counsel at that point mr gordon i wanted a different counsel he did want different i did different counsel absolutely to get different counsel but  he didn't get adequate time to prepare for any for the hearing in this case in this matter lyons own fault and judge who would offer him a continuance your honor he did offer that the case be set off for a couple of days it was already set for disposition a couple days before then and he in judge who did offer that but if this was just a matter of us discussing a continuance i would agree that i would agree that the defendant at least said we might as well get it over with that he did say that at the hearing but what we're talking about here is waiving the right to the assistance of counsel which is different and you can't waive that with an offhand statement this court has said and i  versus curtain case that in order for her to waive the right to counsel there needs to be an on the record probing inquiry so that the defendant understands what it is that he is waving in this case an offhand comment of we might as well get it over with does not constitute what's your what's your principle of the he the balance between what you what you say is is waiving more time for preparation and waiving the complete assistance of counsel assuming with that we agreed with you that that's what it is well in the boundary has to be a look at what the role of counsel was at that hearing and what the role of counsel could have been at that hearing and that's why in effect the defendant's waiver of asking for more time or setting it off till that friday is irrelevant to the court's duty to make sure that the six the minutes up all in defense counsel's duty to make sure that the six amendments up hold in this case and that the part about the way about the waiver or whatever let's go ahead and do it that comes after he's in fact consulted for fourteen minutes or whatever so it's not saying let's do it and then it's up to them how much time he has he has he's had whatever conversation he appears to have wanted and judge judge hood wasn't a beating on them to hurry up and get back that's absolutely true your honor but no counsel could have been prepared for that hearing in the amount of time that was given it was less than fourteen minutes your honor that the record shows that the the hearing started at ten o five we have four pages of transcript before mr abel comes into the picture so that's at least two to four minutes let's say  two to four minutes happens then there's this short break and ten nineteen counsel is back on the record and counsel is saying well we waive everything we're you know we're pleading when he says to me it's not quite that casual he says do we want to have the final hearing next week he's not pressing or do you want to go ahead and have it today and the defendant in his own words says i wanted to get it out of the way and then the lawyer says mr coleman is ready to go forward today and get the matter completed and then the hearing itself actually has a very extensive colloquy between the judge and the defendant on exactly the critical matters now maybe you know maybe perry mason or kevin shad could have helped him some but pretty much what the fuss is about is laid out in the record the nothing much missing there's no that's why i raised it as opposed to raising is an ineffective assistance claim because it is clear in the record but i would submit that there is the the best counsel in the world could not have been prepared to handle the disposition of this comes as the best counsel in the world can help your client and he admitted to using cocaine and marijuana law supervisor elise i i i disagree on two matters your honor first the the word cocaine does not come up in the in the hearing at all until the end of the hearing when the counsel and in the defendant communicate with each other that's the off the record communication it's the first time they meet so in that ten to twelve minutes this new counsel would have met with his client would have reviewed a brand new addition them to a supervis release violation report that adds new charges would've reviewed the file which was handed over to them in court by the prior counsel would have reviewed a twenty four page p s r that outlines the facts and figures about this particular defendant determined with the defendant that he wanted to plead guilty that day determined with the defendant what the mitigation of sentence was that day and then got back on the record in that ten to twelve minutes in adequately performed all of those functions the reader when you said he pled guilty that day had he not pled guilty earlier he actually what's interesting about this is ok i was reading maybe a big big because there isn't a dent into this to the supervised release violation digest it all that and discuss it with his client in fourteen minutes when the case came back on the record that the judge asked the lawyer had he read and review the documents and  review and review those the contents of those documents with his client the supervised release violation report he asked him about that but not the p s r it's so there would have been another twenty four pages he would have needed t r and you look at this client's criminal history he's got a one nine hundred eighty six robbery after that there's a lot of public intoxication there's a lot of he's got three offenses that he gets for criminal history points for for stealing meat from cro r those are is those are some of his offenses that are like in the mid durley to thousands there's no crimes of violence there's no there's nothing going on in the in the in the past ten years of his life and it's clear that he has a significant substance abuse issue now then the great line that's what mr coleman and the judge discussed in great length the counsel absolutely deferred to the judge knowledge of the case there was no there was no mitigation there was no argument by counsel as to why this defendant should get a lower sentence and keep in mind your honour's what happened in this case was not only was there was the sentence imposed but it was an upward variance from the guidelines range three months above the top end of the right in the in only six months below the statutory maximum sentence this going back to what you said about the den as i see there's two a dated july twenty seventh so that had already happened and i'm sorry i got that backwards so july sixth there's like two and a half pages of text the rest of it's a form and july twenty seventh there's basically a page in a t lee says there's probable cause to go forward on the allegations today that's what counsel says which isn't even the standard for disposition of a supervised release violation it's it's to whether or not to hold a guy for a supervised release violation at the beginning of the charges but but there's no comment there's no question as to directly to mr coleman you know have you reviewed this new allegation about the cocaine and do you do you agree with eleanor what that there's there is a reference to cocaine on page ten back earlier in the place judge should says you can win by not smoking marijuana you can win by not doing cocaine and and i think i reference that my brief but earlier said here that it didn't happen till the end ok well i guess the it's opportunity for a continuance or that is that is correct your honor but your distinction is that it's not it's a distinction without a difference because you're under the the right to the assistance of counsel is a right that is required to be borne by the the judge in this case the judge has to ensure that number one either defendant has the assistance of counsel or number two that he knowingly and voluntarily waives the right to counsel to i think i sort of muttered this question and i dropped it but what's the what in your view is the standard between counsel that you're waving and no counsel you think fourteen minutes or ten minutes is too little half an hour one hour three hours well there has to be enough time to do several several things and i'm see my time is up and i can yeah so the in order to in order to represent a client in a supervised release disposition you have to have at least read the supervised release violation report you've heard of read the p s r you've had to discuss with the the client whether or not he admits to the charges and whether he wants to go forward you have to at least as turman you have to determine state court proceedings in which the state court defense attorney had no federal practice and got the guideline range wrong had to yell in the bullpen to talk to her client  d surrounded by other other defendants other counsel and then the judge demanded a plea or not that very day that isn't this case here after that recess judge hood gave mr coleman the option to defer the revocation hearing until the date that it had already been scheduled on this week later and mr coleman said he wanted to get out of the way you have any case and support your position that this is ok well frankly i think morris supports it in the sense that that is the kind of clear dividing line those are circumstances under which this is not not an unknown practice in state court i don't know if it if this tends to happen in federal court but to pull up a lawyer and you know give him ten minutes half an hour or whatever have you had any experience of this happening other times in federal court not the although the constitutional standard would be the same i suppose and mr sharon is sort of arguing i take it for constitutional standard that you cannot have you can't waive cases but it you know is this a practice that you've seen happen or heard from you're a usas in other districts where people get pulled up to be counsel on short notice i don't believe it's a regular practice now however i'm sorry scots the contents with the client and permit him to make an informed decision about what he wanted to do i think in this case it is as judge barnes pointed out the violation report even with the i'm is only about five pages of text and it sets out pretty clearly the violations for which the supervised release is being revoked and then we have to look back at the circumstances this is his second revocation a supervised release his first graphic he was released from incarceration in september of twenty four teen he was back before the court in november because he tested positive for cocaine he was sentenced to six more months and then he had three months of a substance abuse program he got out of that what's the significance of this being his second i mean this is not a career criminal who's in front of the court all the time in these back and forth these two terms in large measure seemingly because of a substance abuse problem which the judge may want to preserve i would guess to know quite a bit about to take into account and as he fashioned the think that goes to to what i was what i was saying is that this is a recurring problem with his abusing the can dare violating the conditions of a supervisor released by taking drugs he was in that the substance abuse program for ninety days and two days after coming out he admitted to cocaine and then he testified he made it to smoking marijuana and then four days later he admitted to or he tested positive for cocaine and a difficult for the judge to fashion an appropriate sentence that included treatment and rehabilitation and time and to consider the appropriate time for incarceration or whatever else he needed and you would think he'd need an informed tourney to discuss those matters with the court and how he could get to know the client and formulate all that in and read these documents and formally all that  fourteen minutes i'm trying to figure out how that could be done well i think that actually comes out in the colloquy between mr coleman and the court after he's conferred with counsel where mr coleman says outright he went to the substance abuse program but he wasn't required to go to any of the classes there so he didn't and judge hood really took that into into account when he was on disk when he was discussing the factors on revocation saying essentially if for you know we're trying to help you and it's not working for you to be helped you have to want to be helped so i think judge hood was evidence that he was familiar with the facts here and that he was considering those facts when he you know i mean as he has on the other area the other claim by the defendant is that this was a procedure early on reasonable sense of three months above the top end of the guideline range where the district court gave no actually he didn't discuss the relevant sentencing factors they didn't explain why an up or what upward variance was warranted how can you sustain the procedure a reasonable this of the sons well i think even though he didn't explicitly list the factors and describe how this these circumstances apply to those factors he did describe just the nature of mr coleman's conduct and how the fact that the supervised release release program and substance abuse program just simply weren't working for him and i think that's what he took into account when and that's i think that's what the record shows what case supports your position that this is ok are above guidelines sentence with no explanation given plainer where the judge knows what the range is let me ask you this your adversary said he wasn't going to bring this as ineffective assistance which may ask him why and so on but if this were brought is ineffective assistance because that seems to be what some of the questions you know how could any lawyer do well enough how would you respond if we were looking at it is ineffective assistance i think you'd have to look at at at whether the second prong was mad that he the outcome would have actually been any different and frankly i don't think it would have the justification for the sentence here is the recurring drug use just seen in it like i said as soon as he got out of that substance abuse program he's right back to using drugs and while that's unfortunate and there's not a lot that the court can do about that if he doesn't want to be helped and there's not a lot that a diff that defense counsel can do on a preponderance of the evidence standard which is the standard for revocation when he's admitted to smoking marijuana and tested positive for cocaine there was there was only so much that defense counsel could do in the situation and i think by at least arguing that he has a drug problem and i hope the court will take that into account frankly i think that's the limit of what he could practically have done given the circumstances  thank you you might discuss the also with respect to the second sure good had simply said the range is twenty one to twenty seven we've talked about your problems and i think because of them i'm going to give you thirty that have been enough well no you have to discuss the thirty five fifty three a your least acknowledge those factors at the mob well you don't have to take them off are the case law says you don't have to tick them off them by one but you have to at least that is correct your honor and it gets me back to my the issue of why this is a why this is a constructive denial of counsel issue and not the way that we're looking at it right because the sixth amendment says that you have the right to counsel who will take the case in subjected to meaningful adversarial testing that's that's what we demean the point is he was given that right and he was given the right to have a continuance and your client said he didn't want it now how do we get around or might my client never said he didn't want counsel now matter of fact he was willing to proceed with is short term counsel without giving his counsel more time to think about it well in in it's not that or not it's whether or not he if he knowingly and voluntarily waives the sixth amendment right to counsel which was not done in this case you can't say his exist back to your starting that on the premise that he didn't really have counsel now the counsel was there and of course the counsel could have said i need more time and should've mentioned that which that's what makes it seem like ineffective assistance there but there are two players here there are two players that are balanced by the constitution to protect the sixth amendment in this case and that is the defense counsel and that is the district court judge they are both bound to protect the sixth amendment that wasn't done in this case though your client was not sufficiently familiar with the standard practice or the legal requirements to make an informed decision or or to be aware that is alleged lawyer was not acting to professional standards that he he asked about if you find the sentence is procedurally unreasonable in this case it solves my sixth amendment problem i would be convenient it would be and we will take it how we can get it and then we could see if the give them the extra three month i  will personally call whoever the new council is to make sure they look at the record and your position obviously is to record it is sufficiently fully developed that we can dispose of this on the rect appeal we don't have to put this off for a b s absolutely they did the the numbers just can't add up that we would submit that this is effective assistance or that this is the assistance of counsel in this timeframe leave the word perfect yes absolutely