all right our eighth case for this morning is united states against jacqueline brewer mr henderson morning may please the court i'm peter henderson i'm here on behalf of jacqueline brewer let me start the so i'd like to dive into the merits the this isn't a complicated legal question i think the one legal principle the court should keep in mind is the government has the burden to prove and finance minister the science ago i want to circle back to waiver for just a minute because affect something that could have gone up in the first appeal we would be likely to find waivers so your argument has to rest on this brief exchange with the court about saying you know i'm reinstating all of the finding s all of your objections are still preserved well it's it's a little bit more than that because right before the recent thing hearing this verse amid a document asking the court basically to reconsider its prior findings terribly important to the resolution which case but she explicitly asked that this issue be reopened there wasn't any argument and basically the district court just incorporated its earlier finding that might make a difference if in fact obstruction was contested first error preservation at the original but it was it was a remained for a full recent thing so if if she had stuff she submitted this document if the government come back and said judge don't even consider this she has waived this issue she didn't raise it on appeal then we wouldn't be here that that would be a waiver but what the whitlow case and other cases in the circuit have said is that if the government rescind response on the merits and doesn't assert an objection in the district court on those resentencing hearings then the government itself has waived its waiver and this court can then consider the merits that's it that's precisely what happened here and so when the district court you think the government missed a step when she wrote submitted that memorandum should have said that's just off the table because it wasn't part of the first appeal right exactly exactly but the district court to make a marriage determination the government has waived that waivers actually and the wi case i think is it's right on point when it comes after the the actual merits of the claim the the real we've laid out all of the reasons why it's  really implausible that mr brewer created this form as a sofa so i read all of that and i gave you marks for creativity on clear even if you were right the that's one way you could look at it all soon for the moment you are i can't get myself to think that's the only way to look at it and since we're on clear error review i'm not sure how the don't mind i don't think it's just another possibility i think it is in fact very compelling because the types of inferences that the district court threw in this case are just laws for a guy and this woman  spent her whole life you know defrauding people like why not but what in this respect well right but that's not evidence i mean that's that's a well we think she did it and so you know we're we're going to assume that if something looks improper that that she did it but one of the for example your argument about the capital letters used i mean she she could have created this phony document at the time you know where it would have been easy to the way this form is filled out is so sloppy that it it really stretches credibility to suggest that she's going to pay attention to minute details and yet totally fill out the form well it looks i mean i think maybe it was your reply brief that said it looked like a microsoft word document where it tracked changes was left on because you got those things in the margin in the underscores and that this strike outs and all the rest of it i think that made sense to me but but there are various ways you can get word documents well but so the e mail them to somebody well right but this is so this is a social security template and it's not available to the public so either she's found it through some sophisticated means social security doesn't release these sort of templates because you don't want these templates in the hands of ordinary people because they could assert that they're entitled to something and so again it's there if there's a well if it had just probably does have access to social security but it's a bad template it's an out of date template by a for more than a decade right i mean i am by no means any kind of i t experts that there are ways that you can scan things in and get them converted even from p d f back into word and right there well endings one can do if one is actually good at it which is i say i'm not th right well and obviously whoever fill this out was not good at it and that's there's a there's a big discrepancy between the sophistication of having a template and arranging all that and then filling it in tolly there are a couple other salient features that i think are very important one is that we have no idea why this all in illinois addresses on the only evidence about that is that this is a typo by social security because the branch goes between alton and north riverside or off by one mysterious never been dalton why if she's creating this fraudulent document is she going to put an address that she's never been to with the phone numbers of government we have a stamp that comes from the north riverside office and that's  most implausible thing that i think your sister of course speculated about which is to say well she could have custom ordered this thing that that defies reason to suggest that she's going to create a fraudulent form fill in the wrong address and rather than just created appreciate the the track changes and you know many of the contents of the brief i don't want to be glib about the sort of capabilities of word processing but i think everybody can agree this is this is track changes  and all of the evidence points to michael pettis pulling up the wrong form on his computer i don't think that it wasn't he didn't use microsoft word form style he used fillable p d f so well he testified he couldn't remember how to may please court polls or if the united states the district court did not make clear error in concluding that the defendant obstructed justice in this case i want to start though with the waiver argument this court notes the defendant affirmatively intentionally expressed plea relinquished its rights to bring this argument on a second appeal when this case was up in front of this court the first time around well but that's not actually of course as you just heard newsgroup argument of course you're right if that was all there was to it but then when it goes back to the district court i will say in total defense of everybody involved the u s attorney's offices the defendants the district courts there was a period of great uncertainty during the supervised release revolution as to how much was going to go on in a quote unquote full rese she thinks you know it's just abin issue and she comes in with this ten page memorandum about the obstruction point and instead of the government popping up and saying this is off the table it wasn't part of the first appeal don't consider it please it gets considered in the district court says things like all things are preserved so it strikes me that this isn't quite the straightforward waiver case th cases that you're talking about refer to and it's just i think it's an unfortunate consequence of what happened after thompson caps and so many other cases and let me i think it makes sense for me to go through the chronology of that recent thing because it's not how the defendant is portraying it we go back and re sentencing the defendant and the government cross file sentencing briefs i say nothing in the government's mission about the obstruction point i focus entirely on supervised release the defendant makes if i remember three or four new points that she didn't make in her submissions at the initial sentencing hearing points about how she was mistreated as she claimed in the b o p s how she wasn't getting treated treatment for gambling addiction etc those are absolutely new arguments that she didn't raise some of those arguments she could not have raised at the initial signs because they were right post sentence in two paragraphs if i remembered about a half a page the obstruction issue in that response again focusing on those other new arguments that the defendant had raised so it says nothing about that i'm reraising what i've raised before correct ok and also importantly in another argument in response to ms brewer the government makes clear to the court that this is a sentencing remain and based on thompson and saying anything beyond what the supervised release conditions what has to do with supervised conditions is in violation of what the defendant represented in this court on the first part that actually wouldn't be the case because the whole reason we were sending things back on full quote unquote full reset and sing was because of the notion and whether you think it's right or not that there's a certain tradeoff right wing how long supervised release is and how much time somebody spends in prison that's exact so the district court could have changed the prison term and might have taken and then the question is well what could the district court take into account in assessing what that package was supposed to look like there wasn't some notion that the package had to stay the same right it was whatever the district court wanted to do and remained absolutely but but here's where it gets tricky for their friend and on the reply that she  files in response to the government's response to her submission she says nothing about a structure of justice only focuses on those new arguments that she made and then at the eleventh hour just a couple days before sentencing s sentencing submission where she again raises obstruction it's not on pages it's two pages it doesn't raise any new arguments it doesn't assert anything about any new evidence and then we get to sentencing and there's no anything when she filed the two page i'm sorry those ten but anyway two page document no but it came just a couple days before the hearing and after the briefing had been finished it again it was this eleventh hour file and i thought that there was at some point along the way either a filing or a statement on the record invoking waiver at least to the effect of you know anything that was not raised in the us initial appeal is obstruction but it was a general statement exactly as your honor is pointing out that this recent and saying was meant for adjusting supervised release conditions and then adjusting as your honor is pointing out the prison term to account for any changes in the position that this is not an opportunity to revisit all the guidelines calculations it's just a revisiting of the supervised release conditions and perhaps adjustment of thirty five fifty three to account for any changes and that's exactly  guidelines and that's exactly right your honor i do want to point out that although that's in some tension with some of our cases that discuss what a full resend it saying it is in some tension with the thompson cases yes yes i do think that there is a distinction between the what look a cited by the defense and even the lawrence case that the government cited in its elop brief and this case here in both willow and barnes there was a lot more activity that happened back in the district court on than what happened here in wicklow the government didn't fact argue the merits of new arguments that were raised by the defendants on re sentencing the government doesn't do that here government doesn't say anything about this issue on re sentencing in barns the government does invoke a waiver i think i don't know how much more expressly than the government did here but again there are new arguments raised by the defendant and between what happened here and what happened in any of those other cases i haven't been able to find a case in the circuit that talks about this situation where there's no new evidence that's presented no new arguments that are presented in the reset and saying and then have the case come back up on recent sing and try to argue the merits of the position that could've been taken in the case before and i don't know how all of that said does this make any difference i don't think so i think when we get to the merits just report absolutely did not commit clear error and making the decision that it did just report listen to testimony of three individuals who worked at this north riverside office  mention talked about the availability of electronic forms at that office talked about that it was just this fillable p d f it wasn't a word document also talked about how the people who interacted with customers of the s s a met with those customers share station when it was not back at please own personal desk space so this was a shared computer where pettis met with the defendant in july two thousand and twelve so he would have somehow had to go find some form that no one says existed in word format and produce the document that ms rouer submitted there's no evidence that that happened and fact the evidence was exactly to the contr only evidence that was supplied to judge chang at this hearing and again judge chang heard mr pettus testify testified about what he did at the office he testified about the document and why he knew that he did not create this document and judge chang made at credibility finding it's at page one ninety four of the sentencing transcript where he said i find that that is testified credibly that he did not create this document one piece and i'm sorry that i didn't highlight this in the government's brief in this court that was missing from the hearing is that there was no testimony from the defendant now absolutely that the government had the burden of proving the obstruction and hence meant that this was the defendant's own document this was the defendant was sponsoring this document in front of the district court and ultimately this came down to an authenticity question about whether or not this document was in fact authentic she did nothing to provide the district court with any evidence any support saying that this was in fact an authentic document i see my time is up government asked this court to affirm the judgment of the district but i thank you very much anything further mr henderson want to share my thoughts on this on the record what happened below as the government asserted what had happened procedurally and said they didn't raise this on appeal and so should be considered with regard to mitigating circumstances regarding her gambling addiction not about guidelines not about anything else it wasn't a widespread she's waived everything else so this is in the if we go look at the dow right so that's you're going to say it was limited to the gambling addiction that's right and that's that's and that's a document number ninety seven a page three where they discuss that in document number one hundred one that is miss brewer's assertion and she says defendant request the court reconsider the issues of obstruction and loss of acceptance and then elaborates on that along with the medical news of the us apart from that unless there are further questions we think our brief makes a perhaps a more compelling case