may have please the court since i wasn't district court counsel i also not one hundred percent positive how to pronounce client's name but we're going to go this morning with on behalf of mr tuck juan gullet which is how he's referred to in the district court record honors i wanted to start this morning with the question of standard of review what standard to review said this court apply when reviewing a revocation of pro se status the government has argued obviously playing air i think though that if we look at the other fred of cases it's clear that it's  we have the approach taken in fluent which suggest a no vote they don't come out and say that they're doing it to novo review but they conduct a review that appears to be to nova we also have asked to substitute in a retained lawyer the government said well asking if he's now waiving his right and judge your feet he said no i'm not going to do that and this court said that was you know that was not waived that was sufficient and er has four parts i mean the error part is the structural error first we have to have that there was an error but i mean which i would go back to but i can also continue discussing why this is to no review or what the  what the error is you know he had pro se status so he was granted that present status and the court very clearly in both her stated remarks at the hearing i guess more so than in her written order talked a lot about how you know i mean he wasn't ready i mean i i would not fret it is a minefield for district court judges i get that but that doesn't mean we don't have to be careful and review the cases carefully and in this case she never i mean in her written order what she says is that he seemed amenable and didn't object which is why there's so much focus i think in the appeal on whether we need an objection which why we  the case that he wanted more time and that was denied didn't he say at that point that he wasn't ready to proceed and he was prepared to to go forward so looking at the record what happens is first mr cohen the standby counsel speaks and tells the judge he's going to give her a preview that you know he's not ready and that if the court's not inclined to grant it continues obviously mr cohen that the court was not going to be inclined to grant a continuance trial was set to start and that if that were the case that mr gullet was going to ask to have him represent him it seemed pretty hopeless that he was going to be able to get to the level of co representation which is why i think counsel stepped in and i think that why all this happened as one hundred percent clear and had judge hider said to mr gullit you're you know standby counsel says that if i deny your request for a continuance which i am going to do and it's denied now i need to know what you want to do about the fact that you currently are representing yourself i appointed standby counsel which i'm allowed to do says and mccaskill we get to a point stand the count the court gets to protect its own interests by appointing standby counsel will be ready to step in i did that so i have mr cohen here ready to step in you're currently representing yourself what do you want to do mr court denied that and that was clear and that was we obviously didn't challenge that on appeal the denial of the request for a continuance because the disappointed judge was one hundred percent within her rights at that point to deny the continuance but you know i dispute that he had a number of other continuances in the case do you know i don't dispute that it would have been appropriate for the judge to deny the continuance and to put into his choice because his ability to represent himself his preparedness to compliance with the rule are all specifically not appropriate factors to consider in denying someone their forever rights he's allowed to make a total mess of it i mean i understand why judges don't prefer for add up i understand why it's been cut back in march tina's and in indiana vs edwards it makes perfect sense we had three supreme court justices who dissented infrared out for very good reasons but it's the law the binding law of the supreme court and his inability to represent himself was not the question before the court even though she seemed to treat it as it was the question was after she denied his continuance what did he want to do couldn't he have said i know i want to represent myself he could have said that your honor i will say there are two needed to speak once again i don't think he was given the office you didn't ask him did he have anything to say she said i'll hear from the government she said because the judge didn't say explicitly you want to continue to do you want to continue to represent yourself because the judge relied in her order on his you know lack of an objection to what she said and that he appeared amenable rather than that he said ok then i want the lawyer to step back in or alternatively i mean courts do have the power to terminate pro se status this just isn't a record that supports that i mean if you've been acting out or threatening people or you know misbehaving or throwing things i mean there are many cases and there's one pending in the supreme court right now may versus crothers i think which is exploring the parameters him not proceeding pro se but being represented i mean that is certainly one way to view the record i mean she says amenable to in her written order and that is certainly a way to review the record i mean i think with a strict interpretation progeny you know he was never asked he didn't waive his fred a rights he was proceeding pro se and based on a statement by advisory council he was not h point absolutely are but that and i think i distinguish that in the reply brief it's very specifically has to do with the stand by counsel like appearing at sidebar counsel you know issues it does not have to do with a hundred percent denial of the right to self representation so it says basically once you and your standby counsel are doing that thing that often happens in these cases where you're in over your head and so you don't know how to discuss the jury instructions and you don't know how to make objections and peremptory challenges and you start letting your standby counsel do some of it the case law says now you can't be heard to complain that you let your standby counsel you know go to a sidebar conference where you previously had said it was ok or make challenges when you said it was ok that is not this case and i see that my time is up all right thank you very much may please the court and to speak before the time the state here it's clear that that the defendant not only acquiesced in having standby counsel represent him but that was his choice that was his preference he the court this was the morning of the trial but tell me how it's absolutely clear to point to something in the record shows it's absolutely clear well of course the defendant didn't you know come out and explicitly say i want to stand by counsel to represent me but through stand by counsel and stand by counsel said the defendant requested that i address the court and state that if a court doesn't grant a continuance he wants me to represent him that was pretty clear and the defendant was standing right there and the defendant then had the cheek the opportunity to and did address the core of the claim here as a translator no your honor and he did address the court and he did speak to the court and he about the continuance and he reiterated what standby counsel said which was i'm not ready i am not ready to proceed that's why i need this three month continuance and i think it was understood in the context of what was happening and what had just transpired between standby counsel and defendant looking at their statements together that the district court understood that and if they do you agree it would have been better because standby counsel said is and i think his view is that if we are going to proceed today he'd prefer me to represent him and you think it would have been better in clear if the court confirmed with that that was in fact his view of course it would have been better i mean we wouldn't be here if that did happen but i don't think it was absolutely necessary under these circumstances because the defendant you know listening to what standby counsel said in the defendant right one second later could have said oh he's mistaken i don't want him to represent you that's not what i mean at all and he didn't say that and he you know furthermore when the court at some point we're talking about the continuance and standby coun had to ask the court are you revoking his pro se status and the court said yes again defendant was standing right there and could have said oh please don't do that that's not what i what i intended that's not what i meant and that's not what happened  some technical but under for read it it's not the defendant's obligation to say that it's the court's obligation to make the inquiry well that's clear when it's at the initial you know reading of the had a revocation because i think here it doesn't have to be so unequivocal as it has to be when you're waving the right originally you have a case for that i don't but mccaskill seems to support this position casco does say that a defendant's lack of objection or acquiescence in stand by counsel statement you know can be taken at face value and i think that's what happened here do you think which standard view we apply makes a difference in this case i don't i don't think it'll make a difference ultimately i think you know plain error does apply here and the reason why i think it does is the because unlike the cases cited by the defen e which were again cases where especially erskin discoursed case where that was a case where the court was initially giving the defendant his admonishments before agreeing to let him go per se and the court said look he doesn't know what all his rights are and he has no basis to form an objection we can't hold him to that here we have the opposite situation where again the defendant is standing there has an opportunity to address the court does address the court and does not object you know out of the point when he originally was given pro se status was that but through those rights covered with him at that point yes they were in your honor and there's no claim that they weren't i don't know but i'm just trying to remember  first ground which was not raised below but we did raise in our brief was that the court can just look at the counts of conviction counts three and four and see that those were two separate batters one doctor and each count and the the encumbrance that was filed on december twenty ten in california actually impose four separately as there were four separate doubters and the purpose of the enhancement is to say basically that if you're victimizing more than two people then you should be punished more severely and so that incompetence actually affected four separate debtors and four separate sets of property and so we would argue the enhancement would apply on that ground but even if not the two additional liens that were filed would support the enhancement to the second lien that was filed in december of two thousand and ten it was filed on the same day as the l of conviction it referenced the same exact monetary amount which was twenty point five million dollars and two of the same debtors and it was a few hours after the first filing that you know was charged in the time it but we're talking about relevant conduct here and the enhancement speaks to the offense the offense covers relevant conduct so i think that that second december only and certainly is covered under the enhancement and finally even the january twenty thousand and twelve filing is frivolous penalty to defendant and this lien was in retaliation for that assessment and it was filed the very next month so i think timing wise it does fall with and relevant conduct what do you think about the appe argument that that two thousand and twelve filing was quite a bit after the conduct charges in the indictment because there's a note that says that relevant conduct only deals with something prior to or during the conduct and there's clearly here when go between the two thousand and ten filings and the two thousand and twelve filings what's your response to that that's true your honor but again if offense conduct does include all relevant conduct as defined in the guidelines and because so the defendant filed his two thousand and ten false tax return the penalties were assessed until december of tw eleven and so the fact that the lien was filed in january two thousand and twelve if you look at it in that perspective is not so far outside the realm of the offense conduct that it wouldn't be included in relevant conduct just on the sentencing issue your honor thank you i only found five cases on west law that interpret the statute so it's not like we have a lot of law to help us but i do think that it is possible that we should not consider relevant conduct in this situation because one b one point one i says that relevant conduct means what the n s a says it means in less another a different meaning a specified or is otherwise clear from the context and that note that judge drain mentioned discusses scope of conduct to be considered in a very specific term which says you know during the offense or prior to so i would argue it's not relevant conduct because of that definition and what about the would say that neal which is one of the cases that doesn't target the statute talks about the purpose for the two different handsome and multiple counts in this unhandsome and says the purpose for when it's more than two lanes is the additional difficulty in removing more liens which suggests that liens are something you would you know be able to sue to remove and each of those is one in that sense even though there are multiple victims multiple i r s entities named they are one in the sense that they