thank you and steve richard to represent frank white morning who seeks to have his conviction for a conviction for the crime a felon in possession overturned on the basis that the trial judge  appropriately allowed in a jailhouse conversation that was recorded between himself and his brother which the court then determined to be an admission by silence secondly or alternatively we seek to have his sentence reviewed for being unreasonable even though it was a below guideline sentence the biggest hurdle i think i face is that this court reviews what occurred the decisions of the court for abuse of discretion there's not in my opinion me ask you this even if it was air there was the well one you know went through and the argument was well i didn't really have time to be outraged that's why i said in the last when i'm not a drug dealer i got i got that and i didn't just say well what what what the error you know why wouldn't the error just be harmless how would a prejudice your client end because your client admitted mr white was in the police car being taken to jail he said i just discovered the gun in the car just before you got here and here it is the conversation that occurred between he and his brother suggest that he knew the gun was in the car much earlier so i think it is very prejudicial if at least as far as his defense was  just discovered it a little while ago went that have been a defense no two so it still doesn't work farm right the issue i mean if his defense had been i didn't know what was there and that statement if that were eris a lot more damning right through the issue that we tried to get across to the jury was that once he has knowledge of the existence of the gun in the car he's guilty it doesn't matter if you put the car the gun there doesn't matter if he had any intent to possess it once he has the knowledge under the statute he's guilt so he could do nothing but under these circumstances we suggested to the jury that his position was totally unintentional and it becomes very prejudicial the discussion with his brother that you know i knew about this earlier for my brother told me on we knew about it earlier but he didn't respond to that comment the an admission by a defendant clearly is probably one of the most important and powerful things or evidence a jury can hear i suggest that if we're going to allow the rules to have someone in the jury here an admission by silence the the trial court ought to have a little more gatekeeper responsibility in other words the rule says he has to hear the comment he has to understand it he has to have the opportunity to respond to it and naturally someone who would would would respond or trial court essentially just say i'll just let the jury decide on those things i think judge should the judge listened to the tape before he made the ruling he did and i don't know if this court has listened to the tape i have it i think we all have it is a parking over yelling at each other the cut is that i think the trial judge says it all occurred rapid fire so i don't know if the judge even had a thought of what's well maybe i should determine before i like the jury hear this which is an important that we should did the judge have to say i've listened to it and concluded that it was an adoptive a mission a mission and then that's why i'm suggest that i don't suggest that he should have made the determination that it is an admission by silence but i think he should have determined it will mean as a matter of law that he made that foundation determination that he was satisfied that it was a proper inference the jury could decide otherwise but at least  what i'm trying to find out would you like to say if we agreed with you that the trial judge has a responsibility to review the factors under the rule and determine that there are sufficient inferences that the jury can get there if they want ok would you would you mind if you were going to address the sentencing issue yes and i realize that for abuse of discretion is it's a it's a tough argument but there is one thing about what the judge said at the time his sentencing the kind of bothered me a little bit which was when he's talking about comparing this sentence this particular defendant's background experience to somebody else who had not would not we who didn't have the same kind of criminal record correct number that statement very yes i do it and under the guidelines he says you know somebody who doesn't have a record for the same kind i fancy you know this got to keep in mind as i factor this sentence is that as i craft your sentence but in fact if you go to the guidelines and somebody doesn't have a record they start out at a base often so level of of twelve i believe it is as opposed to twenty four so what was going on there i don't really know the judge effectively said this guy has a long criminal history therefore the guidelines are appropriate very or depart a little bit from those but the court is focused on exactly what i think was importantly they made an error and that is under the guideline for felon in possession criminal history is counted twice once for the criminal history score and for the offense level in this case adds twelve offenses offense levels because he had two convictions for drug related offenses so his criminal history is totally taken into twice under the guidelines and the judge suggest that well that's not good enough or i don't want to very very far from that because he's got a long history of criminal i think that under these circumstances well he said he said because i was persuaded i think by mrs wix suggestion that the defendant earned that prior criminal record and to ignore that if this is as a significant factor in the sentencing in this case would be unduly create a potential disparity from another defendant who has essentially done the same type of conduct as mr white but the guidelines for that kind of defendant would start out at twelve to begin with greg i think that's where the error was on reasonable in that approach i think he at this point failed to recognise that the criminal history was considered by the guidelines again twice so i think he misapplied the guidelines maybe that's the best term to say resulting in an unreasonable sentence under the circumstances for someone who didn't even intend to have a weapon and winds up eighty four months in prison  which was less than the government we felt the judge was unreasonable the sentence is unreasonable we think the judge should have not admitted the or least the gatekeeper approach on the my name is and wick to represent the united states this court should affirm on both issues that are raised before the court first speaking to the evidentiary issue judge will was well within his discretion to rule the way he did about the adoptive admission and i just candidly have to dispute the characterization of the court's finding what really is at issue between counsel and i is the nature of the court's finding the government's position is the district court in the record the transfer  that's been reviewed here restated what the rule was the fact that the statement had to be one that would provoke a response from an innocent person the fact that mr white in this case heard and understood and happened opportunity to respond to that statement he correctly restated the rule he listened to the recording and he came back out and said essentially we're in that circumstance that's his finding of fact as to whether or not the rule conditions have been met for him then to present the issue to the jury and where he doesn't have to make a finding as has been articulated that he does so find as a matter of law that's an adoptive admission what he has to essentially say from the bench is there is sufficient evidence here for a jury to reasonably conclude that mr white did a seed to the statement of his brother but is supposed to make he i don't know how else to more plainly say it just did the rule he didn't he didn't point to anything well first i guess on that score i would say there weren't disputed facts there was no contested issue about the circumstances of the statement the statement itself whether he could hear them whether he did understand them none of that was at issue in the case factually if he stated that had he stayed like a hypothetically had he stated the rule and not listened to the tape would your argument be less strong sure i think any time the district court listens to the evidence directly and then comes out and makes its ruling that we are in the circumstances that the rules intended to apply to i think that's always stronger could the court of ruled on a proffer about the audiotape sure i think my argument would still be the same do i think it's better because he listened to the tape himself absolutely and one response i'm sorry go ahead i'm sorry you know we kind of started the same time just in terms of applying case law i would know that there are cases where the evidence is actually more conflicting than what i just articulated here again we don't have a factual dispute about the circumstances of the statement what we have is a conflict between counsel and i about what the court's finding was on that based on a different interpretation of what someone should make mr white's acceding to the statement and in the cases there are conflicting evidence cases there's one that actually refers to a close close one versus a close call and those cases end up going to the jury you have sears you have i see if i'm saying that right and you have which is another case not over conflicting circumstances but one that's in the government's favor here just in terms of presidential value if a statement at a press conference where the person is essentially accused of the crime that they're going to be later on trial for and the responses next question please that certainly is in support of the facts in this case where mr white said well and then didn't go on to defend himself from the accusation those brother made just whatever however  the judge said of the pretty rapid fire conversation with a lot of you know a lot of nasty language going back and forth not like unlike a president the kind of for instance where you know it's a brother when they're talking on the phone  t the kind of circumstance that one would naturally deny a statement like yeah absolutely you're in you're in jail your call is being recorded before you made that call you were advised again that the calls being recorded and you're talking to someone who knew about your possession of the firearm in the morning and warned you not to and he also talked about the fact that he thought he was going to prison for life or for a very very long time because of his criminal history so sure when i'm being recorded i absolutely want to say i was brilliant when i said the words and i go back and was read or whatever and by go away i wasn't i knew i know these are recorded are being taken years asking him to interject because he knows it's being recorded and say wait a minute  you didn't tell me that have all understand there are some situations where abuse of discretion either way the court rolled we would have to say we would have to affirm maginnis that one of these situations the court could has said i don't think you had a chance do you pat you would have an uphill battle on that but the court listen to it and said well i think you know i think a reasonable jury could so and everyone made the arguments about it and the jury made their decision if the jury had agreed with him i  whether it could even be argued to be a harmless error because he admitted to the officer they had the gun right and that is the alternative position that was mentioned in the brief what about the sentencing do you want to respond to what was discussed know kind of bothered me about that was i didn't include the first part of the judge's statement which was he says let me note in settling upon eighty four months part of me was leaning much towards a shorter sentence perhaps sixty or seventy two wins but i was persuaded i think by mrs wix suggestion that the defendant earned the program a record and so on and he then uses th compares the defendant to somebody who doesn't have that kind of record said would be unfair and i say i still agree with that general proposition that mr white earned he earned his offense level based on his real history and he earned his from a history point that resulted in the advisory guideline range as the starting point and then if you just speaking to the guidelines that low end of the guidelines is the advisory range that speaks to the most minimal conduct that constitutes the crime that mr white was convicted of so in terms of comparing similarly situated defendants that's that's what the guidelines are helpful for is to make sure that someone situated defendants are treated similarly and once you you start out at the store and out under the guidelines that are level twelve he started out at a level twenty four correct but there's a huge range between that first time offender with no criminal history points or convictions whatsoever and and mr white and that the danger the territory that my comments are aimed at and i i understand the court to be aimed at is what about the offender who's guideline ranges one or two levels below mr white and he's in another district of the united states and they have a court doing doing its job over there and that person ends up getting the same sentence that mr white does well then you've got a disparate type of situation i don't buy that argument judge one mildred and my argument is it was well within his discretion to take the position he did and it was a below guideline sentence so it is really hard to there were i said i started out by saying this is an and an opportunity to respond and naturally would have under the circumstances the judge said it was a tough call but he let the jury decide and i think he was wrong thank you thank you thank you cancel your arguments