well welcome to may first sun's out for the next weekend's jass best us polls i'm sure none of you came early for the advocate but any event welcome to the west court room supreme the honor to be sitting with judge taken about and cost and we have three days worth of oral arguments and other cases most of you know the ones of podium of veterans but i would have the main admonition is just to speak up in the microphone you would be amazed at how often we can't really hear it particularly on the tapes so when you're in the mike if you just keep your voice up and india we can hear it occasionally people in the audience want to hear your answers as well but so keep your voices up to read like you understand that system we read the briefs and to a good degree we've been in the record on these cases also so you'll help us out a lot by responding to the questions it does it escape the attention of the lawyer down below is that they're teaching thou shalt not object as a strategy i mean it's a burning issue and i'm not being facetious here on appeal but it's right there right there in the proceedings the record doesn't show that the judge was rushing anybody you know to do it and we say a party yes of the jets is to bring it to the judge's attention so that if there is an availability to correct it you know it can be done if some issues maybe they get outside it but it sure looks like in sentencing that's the prime time to bring some to the attention of the trial judge so it's a judge threw the corrected or not and make an issue so that it happened but yet straight out the gate it's biggest dallas biggest the world terms of being quote plain and ask the court justification for it because i agree that it should have been raised but i can offer the court in my armchair sociological explanations or if you like to hear that well you only got twelve minutes i don't us of the trial bit you know he did it and we've all been there so it would just noted that is really a looming issue out there is some right it's a brooding i'm the presence yes i'd like to just take a minute or two to offer my armchair explanation or whatever it's worth as the court can take judicial notion notice of in the diaz record the d a s hearing ended at four thirteen pm this hearing began at four thirteen pm as the diaz opinion makes clear the judge in the prior hearing said isn't there's a circuit case that shows i have to run this consecutive and the prosecutor said yes just trying to offer an explanation of what happened and i think perhaps rather than it being strategic i think that early liberate a lawyers perhaps gave way too much deference to honor and sometimes they and i think what happened in this case and and i don't think it was a good strategic choice but i think it appears the lawyer heard the judge's position and thus fashioned a position to try to get the client the sentence the lawyer wanted while accommodating the judge's position i think that's why the lawyer said something like all right well we'll take a consecutive sentence of eight months and whatever sixteen months for a twenty four month sentence within the nevertheless the preferable position as we all agree is your honor i object but in the alternative and which he has opinions i think shows to happen the d a has lawyer asked for an alternative concurrent sentence and that's been injured judge said no it has to be consecutive but i think that the better practice as we would all agree is to say your honor i object it doesn't have to be consecutive but in the alternative give me this sentence and as i i said i would hope that this will not happen again and i from my point of view some of the trip tried a lot of cases in the past i don't think there's an advantage to not asking for a the lowest sentence under the law as correctly construed and just letting someone get a consecutive seconds so that's my answer on that we have to be on the on the fourth prong  our own published cases we have some going both ways so just as a matter of first impression the typical plain error case comes to us are a guideline and handsome and crime of violence or something like that got applied in the district court it shouldn't have so the defendant was sentenced under a guideline that was not in fact the correct guideline it wasn't what the sentencing commission recommended here  was sentenced pursuant to what the guidelines recommend the mistake was the judge thought it was basically required to run these consecutive but under the guidelines it was still the recommendation that they be consecutive so what have the results here was actually what unlike most point there are cases was what the guidelines recommend so tell me why doing what the guidelines say you should been and the high end on the consecutive and that's how the court found that there was third prong plain error because the court started from a higher range a higher consecutive range than it should have started from so i think that answers  court's question about you know why howard how does it affect the guidelines in this case because the court should have started i've seen those opinions are one hundred not sure they're right because the guideline is just a recommendation everything under booker is a recommendation now and it is the case that the recommendation is to run these consecutive so what the guidelines recommended here was twenty one to twenty seven months on the illegal re  plus eight to fourteen on the revocation that is you'll concede today that if this goes back if we find error send it back that's still going to be the guidelines that's going to be what's recommended to the district  that's recommended but it is as in other cases like in departure cases the court did not understand its discretion to do otherwise and that's part of the the fourth wrong analysis i would say and second of all the court also looks at the obviousness of the air under the fourth prong and this is going obviousness two thousand and three and third the court looks at the magnitude of the error compared to the sense imposed and here if you use that concurrent consecutive guideline range it's about a twenty five percent increase in the sentence and also under the fourth prong the court here expressed its opinion that defense counsel had made a good argument for showing compassion for th sentence and the court said nevertheless i have to do my duty i have to run the court consecutive he really thought all this compassion what he could have given him a day on the revocation even if he thought he had to run it consecutive there's full discretion in your book or well that's true the burden of proof on harmless error versus plain error addresses that that's why we have the burden of proof on the third and fourth and that for plainer and the government has the burden of proof to show error on harmless but that doesn't stop the appeal i mean they're still rule fifty to be there still an appeal so that we can have an opportunity to meet our burden if it doesn't matter and here i think we do need our burden for everything i've said and in addition because the district judge expressed compassion for this defendant and did not exercise did not know the judge could exercise his his authority i think the proper result is as the district the d c circuit ruled in the head case is to remain and give the district district court the opportunity to exercise its full discretion under the law to impose the sentence the district court chooses not to permit that determination by saying well you know it's up here on plane air and this person has a certain record and so we're just going to affirm my grave address let me hear your response is an address the question asker in a room is on the floor you know what about what he got is going to make someone feel you know this sort of breaches confidence in the system so to speak  raises issues of the compassion is sort of losing out but but to the point of standing back from it you know say this is what he got it was a recommendation and maybe it was an error you get a bite again when you come to the court of appeal that have a tough reasons given to go back down and try to then can persuade the judge to exercise a compassion and do something that he in this case didn't think he could do but he could i say we've denied playing here really to me in cases that are more compelling in terms of the relief well have i guess i would respond part of the fourth from is the integrity of the judicial proceedings and so is the court the integrity of which to me is maintained when people can have an expectation of two people in a court are going to bring it to the court's attention and i have the same issue with the government when i was in a usa and i step in and say my name's called stewart and i'm here to represent the united states government used to mean something and so i don't get a lay down either to not bring the matter to the attention of  we grant a warm is to have this conversation that there's a lot going on the side just picking a number in a guide lines and saying here here here was coming up to us because we get this sea of cases you know wh right out the back of your first question in your ending question was how does the air occur below i don't have the same armchair sociological skills as my friend  the fourth prong which i believe your question is going toward is there there's a lot of factors that go into play and to my friends credit the obviousness of the air is one factor that comes into just forget doesn't object to a crime of violence and hanspeter some other nations and so there's just silence in the district court no one thinks that there's a problem with this enhanced what they got applied here it's a little bit different in that the government tells the judge error i can't explain why that happened it is regrettable as much as i enjoy the opportunity to appear before you i don't enjoy the opportunity to have to defend something like that and we want to greece was wrong but the question is should that factor into the the fourth prong doesn't make it a less fair proceeding doesn't question the integrity when the government lawyer it's not just silence but affirmatively contributes to the mistake again in the d a s case that that argument has more force here the timing is different the timing here in this is at all really one thirty seven for what ever happened in the d a s case in this case mr force's counsel was the first to suggest consecutive sentences after he made that suggestion then there was a conversation between the government and the court and the government again we're not backing away from this we did continue to engage in this area this erroneous belief but then at orally one thirty nine the town mr force's counsel again confirms i'm not asking for concurrent sentences so friend just right in terms of the time the d a s case had been immediately before this one the two other cases happened i believe in the earlier in the following week but the question still passed to be you know the government hasn't retreated and i hope our briefing makes that clear we agree this was air this was clear but you still have to meet the third and fourth progs a plane air and i want to spend substantially affect the fairness integrity or public reputation of judicial proceedings there are a number of factors that go into this and what you're describing is all factors that this court can consider in terms of its discretion let me provide the court with some other factors that i believe this court should weigh again as judge costa said the guidelines recommend this seventy one point three s that recommendation has not change so let me ask you this is this similar of the question i asked mr sokolow i know some of our own published cases treat this is a problem in the guideline calculation i really don't see it that way because if we sent this back as i said the guidelines are going to be the exact same twenty the twenty seven on the reentry and the eight to fourteen on the revocation so it's really not a problem with the guideline calculations or what the guidelines recommend that's a problem with the judge thinking he didn't have discretion on whether them consecutive when in fact he did so it's really to me like a book or problem when booker first comes out all these judges and sentence thinking the guidelines are mandatory in fact the supreme court tells everyone after close to twenty years no they're just  recommendations what were do you know what we were doing as a court when booker came out and you had these all these judges who would sentence people thinking the guidelines are mandatory finding fourth prong that there are no your hon run through third and fourth prong of the plain error analysis and actually judge cost we are getting our brief and we stand by it today that mr force has not shown in fact that this error affected his substantial rights the question on the substantial rights inquiry is is there a probability of a lesser sentence now what but there it was i believe around a one hundred eighty one difference mere sentence increases have never been enough under the fourth prong to get it is a factor but it is not dispositive returning to the third prong i respectfully disagree that molina martinez applies to this case for that reason that you point out judge cost that this was not an error in the calculation of the guidelines ranges it's undisputed that the district court correctly calculated the sentence i agree with my friend he writes in his reply brief that the district courts erroneous belief influenced its decision to impose consecutive stances that hit the reply brief at four and seven but that's a test for preserved there for a preserved for preserved objection and if the government can establish that it's harmless if the error was preserved we wouldn't be here i don't i don't believe because we agree that influenced the decision but he must show a reasonable probability of a lesser sentence in moline is that the panel deciding the three honor that's what he said and the government ruled that well we don't have any information to to confirm or deny what he's saying i will say that frequently in the two  one two context we see defendants come in and they and they attempt to say the reason for my own legal re entry are is because there are problems in my home country the benign reason and that's it didn't say for example all the guideline range is twenty one to twenty seven months on the illegal reentry and eight to fourteen on the revocation therefore it's twenty nine to forty seven there's no evidence of that it's a separate area well in fact these are entirely separate cases it's not like three counts of mail fraud all and in one proceeding when they get their separate case numbers right i mean there's a new a legal reentry case there's a revocation case they're separate judgments and they're separate proceedings they could have been sentenced on on different days it's just for efficiency purposes the court doesn't together but with separate proceedings it does it mean it does seem that the natural default course of things the sentences are going to be separate and consecutive when there are entirely separate cases i believe so your honor and if you look also to orally one forty six that's where after the district court imposes that sentence mr force's counsel objected to its reasonable this and the court responded and said this sentence considers the thirty five fifty three a factors in a given quote quite a bit of latitude within the guidelines it's possible without question it is possible that if this case if the district court had appreciated its discretion maybe it would have imposed concurrent are partially concurrent sentences but it but a mere possibility isn't enough and given those statements in fact if there is any reasonable probability the government respectfully submit it's recently probable that the district court would follow the recommendation of the guidelines to run them consecutively but even where this court to agree with those three cases that this affects the defendant substantial rights going to the fourth problem again to substantially affect the integrity fairness public reputation of judicial proceedings there are a variety of factors the guidelines recommendation has to be a factor i do believe that he's right that that mr forrest his own suggestion that the district court run consecutive sentences must be a factor that the court consider his recidivist pick behavior is something that the court also should consider he amassed seven criminal convictions in seven years he has four deportations and after each deportation he immediately returned to the united states in this case he returned within two months after serving his sentence for his prior illegal re entry and being deported he returned that sentencing and orally one thirty seven he didn't actually tell the court i'm not coming back he said i think i will come back that plays into it i agree with my friend when he says it he doesn't have a serious history in terms of assaults murder but you also see but again it's serious in the form of there are seven criminal convictions in seven years there's a felony drug conviction and there's a d w i conviction where he blew a point one fourth that's unsafe behavior so i don't think you can simply say well because there's no assaults it's not serious again this is one other factor similar to what the district court explained its reasons for that sentence that both are away one forty three it tied  it to thirty five fifty three a factors and as i previously mentioned that are only one forty six explain how this sentence gave him quite a bit of latitude within the guidelines one final factor that the court should commission currently believes is an appropriate sentence for defendants like mr flores under the twenty fifteen guidelines he scored a total often so of all of ten that was a base often so full of eight of four level for a prior illegal reentry conviction and another for a level and hence meant for a felony conviction after a deportation minus two for acceptance of responsibility his guideline range in that case because his criminal history category would be the same it five would jump from twenty one to twenty seven months to thirty three to forty one minutes now again we're not suggesting that he would be subject to this range upon if this case were  but again assuming he were to commit this often to day with this record at the low end it would be a thirty three month sentence that's higher than the thirty one month sentence that he received in this case running the two consecutive well as a reason probably that all of those you know the other cases in here are not presidential because you know there's a different ingredient in each one  what we have here in the only thing i can see is your keep saying well let's just say factors just say factor is you know this multiple deportation times etc and in bill real of the moment because otherwise it's kind of any in and out only these other factors only other and the kind of error here seems to me very similar to garcia and d s i mean the kind of error of the quality of the air if you will is very similar if not identical so it just doesn't seem that you know there's kind of the bright line of ok what is it that makes the affirmation stand out which for me is a good segue back to my ask but unanswered question when you're headed to the podium because we've got things of all the more reason for you know the objection up front to not be in this sort of morass so what weighs more the fact that this guy works he's deported three times  know considered is considered and most journalists i mean there may be a few want the parties to point out you know where there may be a concern so it does bother me and that's why i asked him where was the strategy reasons to not point out you know the ok but i will say this in closing we have addressed this internally because we don't want this to happen again it shouldn't have happened in the first place and we've taken measures internally to try to prevent it from happening we haven't seen it occur and so hopefully it was just happened to this one week but nevertheless we've addressed it and we're hoping that it doesn't occur again i mean that's a fair response and as i was on  tease about language and pain but i think you do get the sense i mean we're going to resolve this case because that's what we do but the point is the institutional issue particularly on that fourth prong and elsewhere of you know granting relief in an instance which is a purely avoidable you've got people in the courtroom in that the public expects that people in there are going to do what they're supposed to do whether that's a gun the lawyers have been with the case plenty of time to get a visiting judge going to help out you know what a busy or a of dockets we all would want to take opposite if i miss something you know someone is going to point out so to get reversed if you will by the fifth circuit you know in a case where nobody bothered you we ask you but let me just ask you you know me just on those cases as you heard me say i mean in trying to look at it in this look grid i have trying to distinguish garci of ask where's yes in all of those i mean the area is of a similar quality but it looks to me the fine difference and they are all garcia you know is the fact of this you know this criminal history the cycle it cetera et cetera it looks like some more and he may you know your client you know he's a mass seven criminal convictions in a seven year period of forty three times etc etc should that way at all in terms of the calculus of these cases or be ignored or what you honor i think this is distinguishable from this case for the very reason i believe as i recall the opinion the judge said a serious or heavy penalty is warranted and that the illegal reentry was  serious or very serious here the district court knew same way knew the client's criminal record and said that he thought there's an important or serious argument for showing compassion so it's it's i directly opposite kind of comment not saying a heavy sense is warranted but instead same that compassion is warranted so i think it's distinguishable i would like to address get the low end of the guy on the did he didn't get a few months  other two months more is just hard for me to say i mean that in my view the standard sentence is low end of a guideline that's are and so if someone gets above the low end of the guidelines that you're saying that the judge thought there was a basis for leniency it's kind of hard to reconcile that you got two months above the rather low into the revocation guidelines so it's i mean if you want to show compassion you could be given two months in addition to the thirteen twenty six i'm given a book or  we think almost a third of sentences now are below the guidelines under booker variance so it's hard for me to say this is a compassionate sentence when it's above the low end but i'm going to the sentencing commission keeps a ton of stats on all kinds of things do you know if there's any statistics on how often revocation sentences run consecutive or concurrent with the with every you know these judges knowing they have discretion i don't know your honor it's my impression from looking at our border cases that there are a number statutory error because the judge did not exercise discretion under thirty five eighty four it's a guideline error because under five g one point three d and comment note for c the judge did not understand that he had the discretion to impose a concurrent sentence so just because the numbers are the same that doesn't mean it's not a statutory or a guideline error it's a misapplication of the statute and the guidelines with the bird the cumulative range the judge said he had to run it consecutive so the cumulative range is obviously the revocation reigns in the thirteen twenty six range i've already pointed out that the judge said he would exercise compassion and let me end with the  final argument that the new guidelines would be higher i just find it ironic to say look if we want to go ahead and violate the constitution and not give this person his constitutional rights then we can look at this other sentence and decide well what this constitutional sentence is lower than the unconstitutional one so let's not correct the area in the constitutional one because if we were unconstitutional he could get even more i find that to be an that but that's also part of the source of the difficulty here is that we have a great deal of expertise that's acquired by the public defender's office who do want to pull jobs and the united states attorney's office and then there is a what would take is a judgment away the insistence upon first requiring the district court to have our all the information before them which requires that all three players there judge on the prosecut