after he had been transferred from mexico to the united states to serve a sentence for an aggravated kidnapping that he was convicted on let's go now to another issue here is what is the proper standard of review for this court to use in assessing the parole conditions determination and that turns on the language of the sentencing guidelines with respect to the enhanced minute issues here the pro commission applying the handsome because they quote dangerous weapon was used in the there this court has addressed the distinction between otherwise used and brandishing in another number of cases principally under the robbery guideline that the same definitions apply here in short in order for  firearm to be otherwise used as opposed to merely brandished the firearm does have a president and it must be used to make a specific verbal or physical threat against the victim it's not enough that the firearms present and that the victim was intimidated by the presence of the fire has to be that specific threat now in cases involving a robbery guideline this court has applied pretty much every standard of possible to the decision whether with us on that and that is certainly their praga to it but under our case law which is what binds us absent and i'm not aware of something pending that's going to come out today or tomorrow from the supreme court on this this is the world where in which is facts that weren't challenged in the trial court or that whatever is being appealed can't be plain air various law can be player so if the judge gets the law wrong nobody objects we still can review it under the that's the point that you're concerned about right that's what you're arguing so you're saying is this a factual conclusion that it was brandished versus something else or is this a problem of the judge didn't understand the legal standard or the parole officer here the pro commissioner didn't understand the legal court is the best body to make those factual determinations in the first instance because there is the opportunity for the parties to marshal evidence for the court the way it for the district court to assess witness credibility and so the district court is in a better position than this court as a reviewing court to make those calls but the parole commission doesn't do that but the pillow commission does it is more akin to what this court does in reviewing a record from a district court because what happens when a when a prisoner is transferred from the foreign country at least in this case the the mexican judgment was translated in english and that judgment contains all the relevant factual findings in this case and the what happens is a a probation officer who actually works for the district court in the relevant district prepares a coast sentence report which is just like a pre sentence report in federal cases and based on the information from the foreign court documents applies to sentencing guidelines so there's no there's no opportunity to call in witnesses i mean there is a provision under the procedures in these transfer cases for the defendant testified he wants get the transfer hearing and with prior approval to present the testimony of interested parties he testify here in front of a hearing officer and for the hearing officer yes and the hearing is really an informal process very hard to read though because he's the so much one sort of predicate question because i was unaware of this whole treaty transfer system to educate you told me it actually is pretty it's used a lot is rule thirty two followed and yet and we're pretending this isn't a sentence this is a release determination well just by statute this court views the release date term nation as if it was a certain i know forty one zero six says that but then the treaty article six says we can't modify u s courts cannot modify the sentence is the way they get around it they being our court and you probably know this law i traced it back to a case called canon that if we were to find error and it's not a recent unsing and the commission doesn't even have authority to give a lesser sentence they'd have to adjust the supervised release to equal the total twenty years is that how it works i just seems flat contradictory to the treaty to me well the law as well stabs of the court can do it and i can't remember if there is a specific i thought the only way the law got is there would be if you reduce the prison sentence but enhanced the for the commission thankfully reduced the prison term transfer experience torture and abuse in the foreign prisons i think the idea is if you were abused for a week that you count as two weeks so t to judge you can since point you are serving the term but because your imprisonment was so horrible it's like a weak ounces to it's like it's a better way to i don't know that there's necessarily it's not any drug trade off but the point is you're being credited because the intensity of the of the service of your prison sentence was so horrible you're being credited as if you served a little bit longer that's how that's treated the abuse in the foreign prison right so that more it's like if i work really hard and i do more than somebody else in the same number of hours maybe i get paid a bonus because i was much more productive in the same number of hours so it's almost the negative equivalent of that it was so horrible that we should give you really some extra hours credit for that time that's how that's handled in my case i mean i don't have as much experience as judge king at that but that's how i've seen it for the that we would look at it but if i may be getting back to the matter at hand we still even district judges while i agree that the sentencing hearing is you how you typically can put on more evidence and whatever but we have a lot of sense in hearings that don't involve anything other than maybe the defendant's allocution we don't have live witnesses and yet we defer to the district court's inferences so if you could draw an inference from something we defer to the district court's inference from that and we say no evidence when there's really no evidence and here what we have very difficult to get these records but anyway in a statement provided by the victim press charges related that he was at his mother's residence more along would to hit it if it hooded individuals approached him threatened him with a firearm and forced him into a truck so the question is what would be a ordinary person so this isn't we're not about like sentencing guidelines meaning of threaten the time what does a normal person saying when they're threatened by a gun mean and i don't think it's that the gun is sitting in somebody's pocket i think it's i'm threatening you with a gun and isn't that at least a reasonable inference to draw from a colloquial use of the term not again a sentencing guideline we don't think some sense in guideline expert a normal person saying i was threatened with a gun means i was threatened with a gun pointing at me and why isn't that a reasonable inference and we're done regardless of whether this is fact law or something in between a couple  more plausible i would say then that the kidnappers had firearms on the data we got rid of the equity boys rule in criminal cases where the burden of proof is beyond a reasonable doubt we're not going to bring the ecuador's rule back when it's just proponents of the evidence person i mean to me that's not a basis to have to say well you could have drawn a different inference you also could have objected to the spanish translation that's also not in my opinion a fair that's not a fair point because then we can just throw this whole transcript out the window anyway i mean we the whole thing is a translation so we have no idea right we have to accept the english translation you can't it's chaos otherwise and you had to write it below your client did to challenge the translation below if that was erroneous so why can't the parole commissioner draw the inference here or at least it's not plainer for the pro commissioner to do that well the commission because it's acting sort of like a district  and that would be necessary because of foreign correspondents are necessarily going to map all of those that are necessary for application since god is however again i think this is a situation where the way the cole commission operates here is different from that of a district court it's to the extent that any inference was drawn it was by the probation officer who prepared the post and support and just said that the enhancement applied and used the threatened with a firearm language from the judgment and then the hearing that examiner who recommended that the commissioners adopt the pre sentence report didn't elaborate on that particular point just repeated the language from the present report and then the commissioners just signed the the document the term the release date that said that the support was adopt of the un than elaborate on that point at all so to the extent that any inference was was drawn it was just the probation officer looking at the judgment and looking at the guidelines things of his that applies that beyond is the record doesn't reflect that there was any consideration of the distinction between british women and otherwise use of firearm so i had has that seriously affect the fairness of judicial still how do we even get to problem for in this circumstance we just saying well they could have drawn out an inference it's more favorable to your client fine why does it seriously a fact the fairness and integrity of judicial proceedings receive but for that year and we know that from only a martinez and in those circumstances it's very difficult to see how an airplane an obvious error that results in somebody serving additional prison time would not seriously affect the fairness knowledge that the court in a subsequent cases has said different things about whether it's a factual question or a mixed question but deliver us is the earliest case in the earliest case controls so this is a factual question under lopez even play nearer what about his argument that ok lopez is the law for the ordinary district judge sentencing case but should not be extended to be more the different process in this probation office to perform the exact duties specified in thirty five fifty two a which themselves are referenced rule thirty two the probation officer then prepares post sentence report which is a perfect analog to the pre sentence report does an investigation make special findings recommends guidelines ranges and then the hearing officer holds a hearing which is equivalent to the sentencing proceeding and contrary to what counsel has suggested evidence can in fact be submitted at that hearing but crucially is it isn't it are the is the hearing officer obliged to adhere to all of her will thirty two's requirement know that it's not here the hearing the hearing officer is or is required to follow the the regulation and the regulation directs the hearing officer to resolve all factual questions and that's the key point here in terms of locus his application i couldn't find a case where a circuit has ever vacated remained of the sentence or a release date which made me think even more no one's really thought through what happens if there is  sentencing irregularity because we don't really know what would happen if you had to send it back to the hearing officer they don't have to comply with rule thirty two but you're saying it's roughly equivalent i believe the regulations address what would sixty eight there's a provision for what happens in the case of a rematch it says the commission shall reopen and modify a determination that has been found to be in violation of the law or have been imposes  it's a weird world but i mean the biggest provision that looked totally inconsistent with how we sentence people is when i look at the treaty the hearing officer can refer to quote any documents provided by the transfer in country so it looked to me like if mexico sends a letter saying yeah the gun was visible and going to that the hearing officer could rely on that letter they were here to look to consider all the documents provided but the hearing officer still and again that that could the last question on this because you both know this much better now i do am i right that the only way we have here to we can't modify the sentence is that the supervised release has to be a little gauge or is this is the point that my colleague made which is we can sort of construe torture in prison to add months or reduced months and i write the got that the treaty itself says we can't do less than mexico impose i read this regency that you cannot exceed what it says or set aside or modif doesn't that exceeding provision is totally separate you know in article six it says you can't modify or set aside the the reason i'm struggling with this is because this court has said different things and i can and said that you can't you can't couple yes but i've seen cases in this court where lower sentences than have been affirmed in a furred it's always i think when you add the real surprise release you still get to what the transfer in country had i thought that's how we were doing it i've seen one case where that was interest not corruption go ahead it is a much shot but it's this issue with the torture or is it something else so it was something it was something else it was i thought well in this case that the torture was used to reduce the at least the prison inferences the word threatened with a firearm to me in just the ordinary coakley and again we have to accept the translation process what we've got is pointing a gun at is it possible the gun could just be floating around someone and someone somewhere and someone feels threatened yes but i would say that's the less likely construction of if somebody came running in the door right now goes i was just threatened with a gun in my mind i would vision a gun being pointed at that person that's what i would see as my very first inference of that and then if i wanted as a lawyer to parse it down and examine it and come up with ten different things it could mean yes i could come up with other inferences but i think the problem really for mr vasquez at least to me the most logical inference was pointing absolutely yes and i think any person on the street looking at the petitioners own statement that we intercepted the victim and using firearms physically forced him into the vehicle or the eyewitness who did man force the victim into the vehicle with firearms or the victim i was threatened with a firearm that it's being pointed at the person that's the most not just sitting in somebody's back pocket your best dangerous weapon enhanced that that's it the it's two to two answers to that one is the guidelines definition does brandishing is displaying all or even part of a weapon in order to intimidate  so threatening on its face implies something more than simply what is invisible and the best case is probably the case that you're on or pound sanchez which which recognizes that what is required is a direct physical in the absence of a verbal threat i'm going to shoot you in the absence of or with that otherwise used requires a direct physical threat caused by pointing or otherwise targeting so it's not just pointing it's otherwise targeting and all told sanchez says there was in that case there was also no evidence that the fire was even directed toward the victim so here where we have where we have that's the testimony that i'm being threatened it's seems easily to fall within the notion of a direct physical threat of some kind whether it's pointing targeting directing and in terms of the case analogy the best case is is probably the seventh circuit case that we cited kruger where the defendant held a handgun on his lap in order to keep the victim in the car  creating an implicit threat i'm going to use this against you unless you are in the sustained car in any event what we have here is a provision officer inferring that threat that victim was threatened quote threatened with a firearm while being physically forced into the truck that is a reasonable interpretation of the record and it's there's nothing to suggest that the probation officer or the commission misunderstood the definition presumably speak spanish i don't know maybe doesn't i don't know how that transpired but if whether he does or doesn't someone could and he could have the that person examine the translation and if that word in spanish actually means something closer to brandishing could have made that you know he didn't make the objection at all but certainly could have objected to the word i mean i presided over a lot of trials where we had translators often spanish but sometimes other languages and i always adored our the jury on the premise that even if you speak this other language you have to accept the english translation because we have to all be on the same page and i have had people challenge you know since the lawyers come up there that they're not translating it right whatever we resolve it so there was an opportunity here ok and just like a normal sentencing if the defendant objects to the post sentence report then there's an opportunity for the probation officer to go back and file an addendum addressing that so here had there been an objection to the translation of the documents that the probation officer relied on that objection could have been made in response to the person's report that didn't happen so here we had two specifically agreed that this was the this was the correct guideline so just out of an abundance of caution i think don't think that this case should get beyond look as i don't think it should go beyond the second first or second problems  traditional player test but even if you were to get to the final problem there's no there's no miscarriage of justice in this case here the end result of this case was the defendant ended up with a sixteen years it's not since it's a six to sixteen year release date instead of a twenty year sentence there's no obvious effect on the sentence of applying this guideline intermediate clear that she was applying a non guideline sentence she has because of the torture because of the torture and not just because of the torture she o l but you have the home away in a martinez scenario of kind of if i think i'm supposed to be giving you two thirty five and i want to reduce it for torture then i'm gorkin off the two thirty five instead of off of a two twenty or whatever which i might reduce further some and that's the argument he would make but that's a problem three to me pronk or has and again the u s supreme court has this very issue under shocks the conscience before it and may very well say it's automatic in sentencing cases but then that would be eliminating pronk for in the meantime we have to apply from with the guidelines she said it wasn't just the torture she said that the nature and circumstances of the criminal behavior was over represented by the guidelines she said look this victim wasn't injured and was only held for a little while she disagreeing with the guidelines and she said she also said i don't think he should have to serve the entire two hundred forty month sentence in prison she's going off the statutory maximum i think because i think that he is not likely to re offend and i think that he would benefit from treatment in the community therefore i'm going to choose sixteen years plus four years for supervised release that gets you to twenty she was choosing a specific sentence that she thought was appropriate there's no way that any guideline to to put two level guideline bump affected the sentence that she gave so with that and if double failure to object i think it would bogan you say time for home first i'd like to address mr strands statement that this was a variance not a departure that's not the language that the hearing examiner or the commission hearing examiners recommendation at page one ninety two of the record she says because of these factors those the torture as well as the over representation  departure from the advisory guidelines and high i we have people use the wrong word on mad a lot so you look at what was the essence of what they were doing rather than the word i agree the word matters but we certainly have district judges who say they're doing a office or is there deference i'm not sure what their procedures are for i don't know the answer all i know is that the hearing examiner makes a recommendation and then the commissioners decide whether to accept it or not with no no no analysis just it and then judge james i'd like to respond your question at the end of my opening argument about whether we're arguing for an automatic or a per se rule that the fourth prong will always be satisfied them to the first three prongs of plane are error satisfied and the answer is no it's not a person a rule it's not automatic it's just because the nature of the guidelines there is such that it will travel together with the fourth prong in most instances that is when a defendant is serving more time in prison than he probably would have but for the year that is an error that seriously affects the fairness integrity of the reputation of the proceedings and every court of appeals but this court follows that rule some courts use the language of a presumption of the tenth and maybe the third circuit's others don't use that word i don't think it really is meaningful to use presumption of the fact the matter is most courts of appeals will find the fourth process finding the circumstance at mantes interesting because that that very issue is really the heart of what results morales will have to decide obviously you can keep the fourth prong in other cases but if you're going to say that in a sense case an assegai winds an error always meets the fourth prong  mean it is automatic at least in that context maybe not in some other context and well obviously plainer applies to other things besides senses it just seems to come up and i don't know a large percentage of sentencing cases why isn't it a f which threatened with a firearm against this very detailed and specific distinction that the guidelines draw between brandish me otherwise use that makes it difficult to match the finding of the foreign but it it seems to me that if somebody walked up to say to someone with a firearm in their pocket you could feel threatened but you would say you were threatened with a firearm you would say he had a gun in his pocket i didn't feel i had a choice but to jump in  van with them or you know whatever i think you would have said he had a gun in his pocket want to be as witnesses would have said it that way and if they didn't so that's why again i think your inference is not ridiculous i'm just saying i don't think the inference drawn here is ridiculous either that it wasn't pointing well it what i would say is that another thing to take into consideration of the findings of mexican court is that the findings are very detailed they are very specific and these were abbreviated proceedings in the judgment talks about this a little bit which from what i can gather is something akin to the c one seed plea in u s federal court which is that the parties agree to recommend a specific sentence and there is not the the can the contention over what the particular  we will take a short ten minute recess