probation officer must give the pre sentence report to the defendant but authentic attorney and the attorney for the government at least thirty five days before sentencing unless the defendant waives the minimum period there's no dispute because there were discrepancies in the discovery that mr phaeton was trying to bring to the attention of the court the discrepancies basically the fichu ation was that a cookie of cocaine was recovered and loose amounts of cooking were recovered inside the apartment that mr facing was found the thing in the cookie at trial was described described being recovered from a pair of shorts on the floor next to a bed he was sleeping on without clothes on and the loose cocaine was recovered in a cabinet in the kitchen that any additional concerns i'm having trouble seeing what the you know what harm well he did tell his attorney and his attorney described to the court what mr face and claim was at sentencing  describes to the district court that mr facing believes that the amounts were switched and the attorney says that he thinks that this is a proper issue for a twenty to fifty five  troubling what's troubling from our perspective is that the attorney had the discovery and had the discrepancies before him and didn't tell the court that and then when the court was asking the parties is there any evidence of this switching there's no well with the courts with the film there was no evidence of switching the court so there's no evidence of switching and mr faces attorney didn't say anything and in fact the government said there's nothing in the record that supports anything about switching this is on page forty of b appendix and presumably i get to give him credit maybe he was referring to the trial record  that's correct but the discovery all of the discovery materials from you know the report of the investigation the affidavit in support of the complaint the detention hearing all of these  reports and transcripts from right after the arrest have the cocaine that gives mr fail safe in a mandatory minimum sentence of ten years in the other room that he wasn't arrested and so it's important and mr facing was trying to bring this to the attention of the district court and gradually i come to a little later than my my two colleagues on this panel but you had already finding a trial twenty eight or more grams more involved in this case right yes that's correct so there was no ability to argue in terms of the sentencing proceeding less than twenty well the jury found that the per the jury found it and the second circuit found that there was sufficient evidence to support that so i'm not sure how either of those matters get relented gated on sentencing and that's at least one of the ways in which i'm having trouble finding finding how the five day delay prejudiced your client so help me out lvalues question if you'd have if we remain and for you to get the pre sentence report and argue whatever it was you would argue what would it be because i guess what i'm suggesting to you is what you're implying to us which is that the conviction can't stand is not something you could have argued on technically from the appellate court's perspective i agree with your honor but if i do i believe that we believe that if the judge who was asking the parties that the re sentence is there any evidence of switching and all the parties who knew about it mr facings attorney and the government's attorney should have known based on the discrepancies and in the in the transcripts and the  police report the judge asked is there any evidence of what mr faison is saying and they his attorney said with their faces attorney said this is proper for twenty to fifty five and the government stayed silent in fact said no there's no evidence of this and it's not true it was technically yes it wasn't in the record the trial record but in the police reports that the government has turned over and discovery there is strong middle here the government at this time thank you ok thank you morning good afternoon good afternoon judge for mary catherine baumgarten for the united states this is one of those situations where you sometimes wonder if you just shut your mouth and sit back down because the courts asked the questions that are really the thrust of argument here on behalf of the government with all these people who've turned to your returns i think he does know and i do i do get they i wholeheartedly disagree that there was evidence of switching there's no switching whatsoever what there is is some ambiguity in some of the reports that gets reconciled and gets explained by the various witnesses at trial but judge raji hit it square on the head when she asked the question what would you say differently at that come from the other side is even though you make a persuasive argument that that that there's nothing that can change it's unlikely that anything can stream  unlikelihood anything can change when you have a categorical rule that says you've got to give the defendant thirty five days with the pre sentence report why not give the defendant thirty five days with the pre sentence report  you know the supreme court decided a case i was thinking about it in the last half hour and i forgot to look up to if i have to get the correct name i think the name was carlisle but but that might not be right it was an opinion by by justice scalia and it was a case in which the defendant moved to set aside the jury's verdict eight days after the jury's verdict to set it aside for insufficient evidence and the court concluded that there was indeed legally sufficient evidence so the defendant was constitutionally entitled to have the verdict overturned and b and the court of appeal the supreme court said and the rose says seven days seven days is not eight days and i know the defendant will will have to raise that by twenty to fifty five and so here we have a rule that says thirty five days and the defendant said before sentence was imposed judge the rule says you've got to give me thirty five days and the judge said no i'm going at now thirty days and and is is that something that is that something that the judge is allowed to do even even if even if the arguments to change the sentence are extremely extremely maybe maybe impossible to five more days i think what the the way that i looked at the and i wasn't a the trial counsel the way that i looked at the transcript is you can see that right out of from the outset judge lehrer is inquiring directly all of the defendant also because of the tremendous amount of time that had elapsed not only from when the court issued its decision in february but when the mandate comes down and then there's a status conference in may the defendant himself concedes i knew there was an issue with this i knew it at the time of trial i also had initially part of the reason why he raises the error is because he says he needs the trial transcript to prepare the argument i think the transcript contains an excellent stand here and say that it shouldn't of it should have been thirty five days but when we look at it under all fifty two a it does fall within the parameters of the harmless error and when you look at it overall it feeds right back into the  opposing counsel which is what would have happened differently if the additional time had been given i think when you look at it in its totality and this court having looked at it once previously and issued the decision in amending the judgment and sentencing it is really an opportunity to seek to get back to the merits of the conviction which they've already done once the defendant himself within the recent unsing transcript talks about the fact that i knew there was the year i knew would occur and then it honestly was not that significant to me because i only got a forty one month sentence when it then became of much greater significance is when i'm looking at one hundred twenty and in that time frame he had already been out for a relatively brief period of time right into the calculations but then violated and got was the subject of a violation and he was back in jail and so it's calculated that's the way it leaps off the page is that and the district court who was familiar intimately with the circumstances they it's why i think it would be a fair characterization to say that the judge is sort of pressing the defendant to understand what would have occurred what arguments would you may because he what did you need the additional time for in really that's fleshed out in the recent unsing so  court really has everything that it needs i respectfully submit to the court to make this determination that it is harmless error twenty sixteen words was very similar to the earlier one there were good ones it really related specifically to the appellate history and what is interesting is is that there is ambiguity there isn't consistency with respect to where some of the drug quantities are found within the apartment where the pallant is found by himself when they execute the search warrant but there's also a summary and those are well within the p s r that actually accurately reflect what the drug wait was judge unfortunately i'm not only went ahead after thirty days when the defendant was insisting on right by the rule that thirty five but the judge also said in correctly as it out that the two that the pre sentence report distributed earlier is indistinguishable from the present one except for the addition of of the recent more recent history and that was inaccurate there were also the differences that you're just telling us about right and that's why you know there was a correction of it i i will not even suggest that this is something that should be repeated and for  those it would have been the much wiser course to at least given him an extra five days when you look at the latter that the appellant himself submitted to the court in recent unsing very short before it's curiously undated which there's a lot of litigation with this particular now appellant he sends many motions pro se many things raises many issues but curiously does not raise this precise issue that we're here on right now until just shortly before the sentencing which i think is probably what lends itself to the court's observation that there might be strategic in doing that because you can see from the notary signature on that letter it's notarized june twenty ninth the court does not receive until july eight twenty sixteen and the sentencing proceeding is on july thirteenth two thousand and sixteen so i think there is much time spent by the court trying to flesh exactly that out but to get back squarely to where we stand right now based on the procedural history before that recent unsing on july thirteenth two thousand and sixteen it is a mandatory minimum term of one hundred  twenty months based on the election a count one that had been fully litigated already and up to before this court and then sent back down so when the court looks at it in terms of what the net effect is o the error and what could have changed nothing thank you thank you you know which is why what is the purpose of the government arguing stick with this procedurally procedurally violative sentence if it's to save time i mean is just generating more issues for him to argue about on hey be as is and know what what what why does the government say they stick with a sentence that was imposed in only thirty days instead of thirty when you look at the transcript overall i really think it was strategy on the appellant's part the the defense strategy markedly shifted from during the course of the trial to adopt the post conviction and the rule twenty no way mine at all i just happened to be there and now after the fact after the rule twenty nine that was in part successful and the fact that the government didn't cross appeal all of the conviction now it's  morphed into a new strategy which is my defense counsel at trial should have approached it not just on that but also cross examined vigorously on something else i think really at this at this stage there would not have been anything different the government's position is is that nothing would change that's why we're opposed to the relief we were opposed to it at the at the time but judge of all no one saying that we probably shouldn't have raised it at the time it would have and given the defendant at least another five i'm talking about not talking about why didn't you then do what what's the reason for defending this right and saying if we do think it's harmless error based on these particular circumstances what he wants to argue he'd have to bring in a p s and pursue that way but your your argument is you would oppose him trying to do it on a raid mandated so there's no point is first thirty five days and made it very clear that he wasn't agreeing to the waiver of that particular time but also did some other some other things to try to maximize his relief via sentencing sought the assistance  se that the district court denied and so he was with the assistance of mr funk at the time who was also his trial counsel but still was very active in his own defense for example another thing that i found and maybe others have seen this previously requested that the u s attorney's office withdraw their filing of the fifty one information and sought specifically to have that occur right at his  unsing asked for legal advice from judge lerman with regard to what he saw as a potential potential change in congress concerning the application of mandatory minimums and that he might get relief would it be retroactive and  would say i was wrong in thinking they were the same but then one well he the reason that the judge thought it was not a problem that mr face and didn't receive the p s r in accordance with rule thirty two can show to the judge and the judge was interested in that if this is not a situation where the judge is not interested several pages talking to mr face and about it and asking the parties about it so now mr facing does have those reports because i finally got them from mr funk any at the end of april and it's curious to me that the government says a good fishy was fully litigated because it's not the courts were not before the judge so it's our position that the issue of this which was not fully litigated  and if there are no further questions all the law on the br