twenty seventeen he was charging three counts in that and superseding indictment on september the twenty fifth twenty seventeen mr kitty entered into a plea agreement with the united states government probation office under probation officer ashland loman prepared a p s r which was published on december the fifth twenty seventeen inside that p s ark she included an arrest that no information had been produced in discovery about this arrest no police reports no labs no photographs of any of this evidence that the evidence itself and that objection years that the judge had it and looked at my correct about i'm not sure what the judge had your honor that certainly there was nothing in the record that was a police report or any sort of affidavit from the officer had changed some now or had been shown it by the time of the hearing as i understood it maybe i misread it that it was never pretty sure there was nothing ever produced in discovery and there was nothing produced at the sentencing hearing i know  the judge that what the judge was saying it was it was available you could have gotten yes your honor i could have gone to the courthouse and pull at a minimum the affidavit from the police officer that would've been used as part of a charging papers says in her if you look in volume three and her response to my objection or you could have done on line to go on the web site right on the court web site and gone no your honor those are no longer available online scanty arrest reports i thought the judge referred to that in the hearing he did make reference to it being available in the public record or not i don't believe he said i could get it online ok there is a information system but they are going to shrink or provides we can look at cases so i could see that the rest occurred but i believe they're taking a lot of the charging papers off of that because it contains people's social security number and date of birth and things like that  o the government claims that i didn't object properly because after we discussed my objection to the p s r the court asked me if i had any other objections and i said no and satisfaction in other words does not employ the procedure that is appropriate you'll get to give the court an opportunity to avoid us revealing that invoice committing an error so why isn't that a problem because in fact it becomes a material matter that they were did do this back mining and then said alright it's time for sentencing well at that point why didn't incumbent upon you just say no your honor you didn't you didn't resolve this in a way that was appropriate you didn't have them present the police report you didn't have them provide a facile foundation for resolving this this is the way i interpreted the court's comment to me was that he acknowledged ahead of objections to the the use of of this august sixth arrest i wanted to know if i had any other objections at that point i didn't want it and feel it was necessary to rehash the objection we had just discussed at some length as it would have been to trial is indicated by the court if i had any other objections out of them the one we just discussed well the one you to discuss correctly then it's well explained to me what was the nature of the object and the effects in what was it to the accuracy of what was then what was in the p s or was it that we had no basis to know whether this happened or not what was the nature of your first your objection my objection was there was no evidence in the record to support the  argument on this it was pretty weak it would be weak if the government had provided some sort of evidence that there was a pistol there but there was no there never was a police report or a police officer brought to a hearing to provide any sort of testimony or evidence so let me ask you about that because i don't think that's been entirely clear this morning you're here at the sentencing hearing and is the judge of there saying something about look i've got this police report here or is he talking about reading about a police report in the p s r he certainly did not have a police report in his hand your honor right and he did the government have a police report and say your honor it's right here in the police report no your honor ok not be asleep you didn't have the police report either no you're ok i kind of expected something like that to happen but that's not right i'm just and the reason i ask because i'm just thinking through the mechanics of a syncing hearing you say i object you know you have any evidence there was a gun it seems that the government is then going to say oh yes we do we have the officer in the back or you have the police report right there judge at which time you could say can i see it because i've never seen it before yes i expected there to be some sort of evidentiary hearing and not heard i was right i mean what besides the r what evidence was there with the judge that day that you could dispute that there was a gun i'm not totally sure i understand the question that there was no evidence  ever brought into this case that there was an august sixth arrest that included my client possessing a firearm and methamphetamine what relief you seek i would like this case rema you sterling we have campbell was a camp oh yes you are in is that a basis for saying you should be able to fix it now oh  that's all i have are for the questions may please the court thomas duncombe on behalf of the united states in this case the sentencing court did not error clearly or plainly in accepting as reliable the facts found in august sixth two thousand and sixteen police report  including finding that there were corroborating facts in the record that were not disputed by the appellant so did the courthouse there were police report up there on the bench when you guys were at this hearing i have to start by thing i was not counsel at the sentencing hearing  but i don't just don't think it's important to know that we have an objection there's no evidence and then all of a sudden there's discussion of a police report but nobody apparently presented  the court during the hearing i am even in the reading of the transcript and i have the same as your no one presented during the hearing but i also think it's a fair reading of the transcript and that was my understanding of the transcript was that the court had reviewed the police report because the police the court didn't say the summary of the police report contained in the p s r appears reliable the court said the p s r or the the police report is reliable but when was the police report here the day the doogan which d o u g am which they cited which seems to me is controlling here i mean in that case it was dispute over police report and the question was the court said we said that  police report is not inherently reliable and therefore there need to be some basis to show that that police report was reliable and we talk about the fact that the police report had to be admitted annapolis not that happen here understand at the end of that footnote the court in this court in dubin assumed for the purposes of that appeal that the sex offense was a prior conviction for a sex offense because the court needed to do that in order to get to its holding on the merits which was that it was too remote in order for the court to have counted it so the court made those statements and are certainly persuasive and the government should have responded to those statements and the record in this case does not conclude we were sworn complaint and then goes on to talk about how that there is nothing on it see here well this is the matters  the matter this matters because not every complaint has sufficient indicia of reliability for use in sentencing and then it cites two are cases by contrast that exist that are already present and there binding cases to support that proposition and so the bottom line is at least doogan panel thought that there were cases out there that supported its premise even if i'm not accepting your argument right now that this list but not is dicta but even the word it  the direction in which our court has previously held not the not the dubin making the stuff up but that that's what we ell and so what you've got is exactly that situation here you've got a police report you've got nothing to  sentencing nevertheless on the question of whether the rest are established the sentencing fact by a preponderance of the evidence the answer was yes because there was sufficient corroboration for the facts  response on the gun but secondly there was significant corroboration in the p s r and in undisputed portions of the p s r that this was an organization that routinely possessed guns and traded in guns as part of their drug trafficking organization there was also corroboration p s r about the defendant's prior possession of methamphetamine and there was corroboration in the p s r in one of the paragraphs i believe it was paragraph forty in the p s r that was not contested by the appellant that he was previously arrested and charged with possession with intent to distribute methamphetamine on december second twenty sixteen which tells us nothing about what happened on august twenty sixth seen at admittedly the key piece of information that part of the reason why these facts were not fleshed out to a higher degree at the sentencing hearing was because the appellant objection of p s r didn't really raise a factual challenge to the fact that there was methamphetamine the fact that it weighed a certain amount the fact that there was a gun the arguments in the objection of the p s r were legal in nature and just like as in this case as in this court's case of  warrant there was a single stray comment that referenced the factual standard which is proponents of the evidence but it was at the end of and in conjunction with or or part of an argument about due process that the problem with the police report was of the defendant hadn't previously received the other part of the defendant's neagle argument to the p s r statements about the august sixth police report were that the gun in the produced which links him to the distribution of methamphetamine that's correct but but i read that argument as an argument in furtherance of his point that this is not properly considered relevant conduct because the pointed to the conduct of the conspiracy in general the government pointed to the indictment the various parts were talks about that it was part and parcel of this organization to distribute methamphetamine and it was part and parcel of mr previous rol e to distribute drugs and to distribute about this quantity of drugs and then it was it was only at the sentencing hearing itself where mr for the raise for the first time the issue of we don't know whether this was methamphetamine we don't know whether this was actually seventeen point really disagreed you i'm sure you know the government i mean at that hearing did you say wait a minute judge he didn't raise that in his objecti bringing it up early at the hearing i mean that happens all the time it's announcing herring's no your honor and so to to think to point i want to make on that the first point is the better procedure for the government at that moment would have been for the government to take a step back and ask for a continuance and say your honor we're receiving we're hearing new objections now about the facts within the p s r and so we would like to take a continuance to analyze whether we need to produce additional evidence or whether as in cook statement was raised about we don't know whether this was really math we don't we don't have the bullets from the gun for instance that that was stated at the sentencing hearing the government responded by resolving those factual objections  police report sufficiently reliable to establish a sentence in fact and as these as as this court cases like the warren case make clear if the defendant was unsatisfied or found that factual resolution inadequate he then had an obligation to raise an objection to those factual findings that was the first time there was a factual finding made by the court about any sentence and facts and so if the defendant and warren specifically talks about well the the way it works is if i object to the facts of the p s r then you have to prove it and you can prove it by just relating back to things that are in the p s r you have to come forward with the you know some type of evidence that can be contested there in the hearing and doesn't sound like you did that sort or your colleague at the district c so one one brief addendum i would want to make that i agree with the vast majority of of what you've said but the one the one point i would want to make is it's it's not the government's obligation at that moment to produce evidence necessarily it's the government's to ensure that there is enough evidence in the record like in the cook case where the government didn't produce any additional evidence but nevertheless the source i mean where is worse a police report in the record but the police report not in the record i mean so i mean we're we're relying that you're relying on something that's not even in the record i mean that i mean it well bowled out at the hearing it wasn't there was no opportunity for the other side to contest it to well  the court found respectfully your honor that there was an opportunity for the defendant to contest because the court in addition to citing the uncontested facts that were in undisputed parts of the p s r the court cited the fact that were a  record including the fact of the arrest the criminal case docket the probable cause statement and the record shows as we stated in a footnote in our brief that once the defendant in once m that case requested discovery requested police reports there were eleven pages of documents provided to mr padilla so either mr padilla already had the police report or mr the dia certainly had the opportunity to get  use this i'm highly skeptical of this in part because i don't see how an arrest report dated the day of your arrest could possibly be sufficient evidence that this was methamphetamine maybe maybe you wouldn't you wouldn't suggest that that the a t f agents go arrest somebody based on a statement in some police report somewhere would you that that the a t f agents without examining a firearm without you know determining where it was made things like that go arrest someone for being a felon in possession for example based on public availability of a police report well i would say that the question in that situation would be whether there's probable cause to arrest in this case there is a sufficient amount of corroboration of well you know we're only corroboration of that was that they he belong to some organization that the p s r said routinely used firearms i mean you still you still wouldn't present that complaint would you we could throw that that paragraph in there too i think that it would it would depend on on a lot of things i think in the context of this case where this is someone who is known to have participated in this particular conspiracy you might want to file a complaint and then see what other facts develop but  think that in this case not my reading of the sentencing transcript is that the court had the police report and have reviewed it otherwise the court wouldn't have said the police report very sufficient evidence of reliability an sufficient there's there is abundant evidence in the p s r and in the indictment which hadn't been dismissed yet at the point the sentencing hearing was going on that supports that mr  padilla was a meth user but he objected to the meth related stuff in the p s r he did but but this court respectfully is pretty specific about what an appellant must do at the sentencing hearing in order to squarely raise a factual objection to trigger the court's analysis under thirty two one b which is the court the appellant must at the sentencing hearing question the reliability of the evidence and articulate the reasons why the facts are untrue or inaccurate and that didn't happen here and so i would say to the extent that there was ambiguous at the sentencing hearing part of that was caused by the unclear objection that the defendant was raising and i would say that if if this court decides that the objection was squarely race and that the court didn't have sufficient facts to make its factual finding that the proper result would be arena and for the court to make those findings of fact in the first instance this is not a case i would submit like campbell where there was a patient lee erroneous legal argument that the the government was doubling down on in order to avoid putting