we will call the first case which is united states versus walker i see counsel here good morning morning your honor i just have to put this down slightly it's adjustable and we  some of us are not as tall as others good morning or honest good morning gents calibers i hope you feel better may it please the court my name is joey and harrington and i along with martin siegel were assigned by this court to represent mr sean bell walker on this direct appeal i did not represent mr walker in the district court below although mr siegel did represent him as the court is of course aware we raised a couple of issues i'd like to start with the procedural defects in the sentencing before the district court what happened in this case is really pretty simple mr walker pleaded guilty about a year after he was arrested he was yes there were several adjournments  that were requested by the defense and by the government and then they got to the point where it was several years into the case and the government now asked for an adjournment so that they can wait until wrong with that but going back to the what we can start there i was going to start with the plea agreement but we can start there the government was waiting they presented him with this plea agreement that included a sentencing guidelines calculation of one hundred eight to one hundred thirty five months it included only one enhancement for a gun now the government was continuing to investigate now we all know that these are estimates that are put in into into a plea agreement and we all explain that to our clients that could change it could go up the problem is that they were they wanted to wait because they wanted to get more evidence they really didn't need more evidence they had this criminal complaint on the meaning of the were need well the problem is they they start the case with their criminal complaint and in their criminal complaint if we look at it it makes several allegations against mr walker and those allegations included generally speaking that he was a gun toting in general if you're the defendant is postpone for several years the sentencing at his requests and the government now has a trial coming up that will bring to light perhaps new information as trials often do it's so unreasonable for them to say wait trolls over in case your new information well i think that these these two issues although raise separately they are they are intertwined and part of i disagree with you on the procedural one but i agree with you on the other one i have to rule against you because absolutely not absolutely not but i think that a full and complete understanding of the procedural problems with the sentencing is also connected to the problems with the german in the sentence and that being that there were witnesses and a plethora of witnesses who were presented at her on trial  who were cooperative cooperating witnesses and others who presented a whole host of evidence for the government to use none of which was subject to cross examination by by mr walker's  attorney in fact the government once made an argument that it's ok because they will be subject to cross examination by other attorneys including her arms attorneys which i think that's kind of what is wrong with the judge using for sentencing information that the judge acquires and credits listening to what happens in a related trial right we all know that that's the law of the land so of this circuit as well as that's a scream for iraq without another case well and but that's what happened here yes and that that show if your honor is a are our of that mind for that issue i think we can take it back to the original issue of the procedural problem here is that mr walker was presented with this plea agreement they had this information they called him an enforcer in their complaint they didn't know that he was going to perjure himself and he conceded he concedes that he did perjury yes he does in the in the iran case yes he does and the judge took a very dim view of it because he said you know you're you know you you you made an effort to achieve the acquittal of a rather horrible person a big homie of the of the murder bloods or something yes i  absolutely that's what your view of i understand your point at least so far as the original complaint is concerned is that there should never have been at the government has meant for use of violence and a two level enhanced meant for mr walker's aggravating role because all the relevant facts supporting this were known to the government when they entered into the plea agreement thank you very much you as well as the removal of the acceptance of responsibility enhancement and all of this information was included in the criminal complaint and if i'm sorry go i mean i i think you're  trying to argue against the the you know the the perjury issue of your structure of justice and the acceptance of responsibility issues but would that have substantially affected the range without considering and all those things that you say you know of the government it would have definitely would definitely have affected the range but the government a few months ago came to this court and said we need to go back to the district court we need to figure out if this obstruction enhancement was looked at by the district court as a breach of the plea agreement which it wasn't there was no provision in the plea agreement that had anything to do with him this was not a cooperation agreement this was he lived out there were several requirements that mr walker had to fulfill including not questioning the weight not appealing if he got over  certain sentence there were certain responsibilities that listed in the plea agreement none of which included testifying on behalf of the government or otherwise a codefendant trial so to call this a breach of that plea agreement and to give him the obstruction of justice and handsome and based on a breach of a plea agreement which is what they said in the pre sentence report was that this was a breach of the plea agreement and the government admitted in this motion to vacate and remain and that was denied by this court not on the merits of that argument but mainly as a judicial economy issue that we should resolve some of these issues here first and perhaps and we're now saying that maybe we need to go back to the district court and resolve some of these issues but the  in the criminal complaint they say that he carried guns that he was involved in a shooting on behalf of her on in order to earn act aren't there more instances of that that came out of her own trial there was more testimony about that yes more instances yes yes yes there were but had mr this is the part where i think everything gets intertwined is that if mr walker had been presented with a plea agreement that included these enhanced means there's a good chance he never would have taken it so what mr walker feels and what we've been arguing on his behalf is that he was enticed into pleading guilty by the government leaving out these  very well could have and perhaps should have included in that plea agreement but if they had they wouldn't have gotten this on it's a nature of a plea agreement right each side gives up something yes so they gave up that even though they had full knowledge of do i believe that that is i don't think anyone in the courtroom could understand that do you couldn't hear but i don't think you're coming through or you're going in and out ok i'm sorry i apologize your honor i am i think at the end of the day that's what this part of this argument is it was almost like a bait and switch the government didn't include these he took the plea even though the government had the information that they could have included it so he gave up his right to to have a trial where he could if he wanted to test the government's evidence he could argue against it he would have his attorney present to question these witnesses he gave up those rights and he did style with the understanding that the estimated guidelines range again we know it's estimated was one hundred eight to one hundred thirty five and then the government comes b using that information plus the information that you're not if some of the enhancements were justified if these two were not justified we still would have to send it back for reasons  good morning your honors may please the court sam that's for the united states and i was a member of the trial team in the her on trial below and through sentencing but not in the early stages of the investigation and in the case now he's saying try to speak into the microphone ok in the complaint that was filed before any plea agreement and the complaint against mr walker dated october fifth tw ten the government states that walker quote served as one of her and primary security guards and enforcers and with us regularly accompany her into narcotics transactions and carry firearms for her walker would also help to protect her and snore conics territory from rival narcotics traffickers and also help to extend her and star conics territory by for example robbing or attacking rival narcotics traffic so you had before you ever entered into a plea agreement all the evidence that you needed for the hands minsk for the use of finalists and for the aggravating role but you choose perfectly reasonably to say ok we want to plea agreement here we'll give up something will give well so that wasn't in the plea agreement how can you get around that by saying now we can add those on a couple of responses to that your honor first just in terms of the context of that complaint it's a complaint that charges a narcotics conspiracy without weight associated with it there are facts alleged by the the agent in support of that complaint but the charge itself is a drug conspiracy not come back to do with weapons or violence number two the complaint you say you let me just stop you there yes but if you knew the faction knew the facts well so to that point you say you had all the facts you needed we had facts that had come in through a confidential source and through a witness that the affiant was able to put into the complaint but that's not the same thing as sorry your honor did we did not we had it's certainly the case that the government had information supporting the allegation that your honor just read it's an afghan swearing to it in a complaint so that there's no question about that as the defense the appellate of as the appellant concedes here it is clearly true as they say in the reply brief that significant additional information relevant to the enhancements came after the play this complaint is filed in the middle of the hurly burly of a complex investigation into a violent racketeering conspiracy in which witness intimidation fear enter one of her in this primary security guards and forcers and he would protect the territory by robbing or attacking rival narcotics traffickers so does that mean that you can enter into a plea agreement saying ok because we want to play you forget about that and then say oh you know two weeks later is part of this one going hurly burly of a vest a geisha and we failed another incident that we didn't know about where he attacked so and so we're we're going to ask for further enhanced when is that what you're saying i think the short answer is yes there may be a line at which there may be a line at which there is an inference fairly drawn  bad faith if the government were to offer an agreement and as your honor put it a week later they come back to sentencing and they add an enhanced mint where that we're nowhere near the that line here here you have a sentencing that is deferred for close to two years on the motion of the defendant and significant significant is the term embraced by the defense and conceded in the reply brief significant additional information relevant to those  and the agreement as a matter of contract which we understand is construed against the government and there are reasons for that but there is in more than one way it says this is an estimate this is the best we can say now but if for any reason that estimate changes you're still on the hook for the agreement i think the mcpherson closing hypothetically in the negotiations and i know you weren't part of that if i understand correctly on the plea agreement itself where you know that's correct so supposing the prosecutors as we have you did on the water on these two and han there's no question that we could right now if the judge for those enhanced it's but there's a plea bargain each side's going to give up something we'll give up that in return for your pleading guilty to what remains and the defense is ok and you were saying that even when the kind of clear explicit bargain is made you can still get out of it if two weeks later you discover some not something that's totally different and enhanced me which is more evidence of the particular details your honor is the portion of the plea agreement at issue here which your honor indicates gives an out for if for any other reason the estimate is different than the defendant is still bound and there are clearly reasons although it says any other reasons that would not be sufficient if it was based on racial animus or bad faith and i think your honor is adding facts to the hypothetical that would support an inference of bad faith and so if they prosecute this is not the case here but if a prosecutor said we have you dead to rights on these enhanced minutes but we're not going to seek those enhanced minutes enter into the agreement and then sometime later comes back and says we've got even more dead to rights now or some version of that there is a fair inference of bad faith to be drawn from that the facts that you've just given but it's very different from the factual context you have here on the record before the court you have a complaint based on a cooperating source and a alleges it's no question it alleges facts that would support those enhanced minutes in a case where there was real concern about losing witnesses some witnesses were lost and so the government is not prepared at that point to burn those witnesses or put them on the stand at a fattah co and does not include the enhancements significant additional information comes and and i think it's fair to say although it is think if i understand your honor and the microphone is breaking up but i hear you to be asking isn't it always the case some level in the context of negotiating a pretty plea agreement that the government is giving something up and that there may be a different mix of facts at sentencing and so because that is always the case and was the case here doesn't this suggest that the government is bound before i answer  plea agreements an act in bad faith would be a danger to plea agreements and this court has written about that and i passed my time but if i could answer further the it is important i think to be careful about drawing inferences of bad faith here there is an attempt to merge two potentially relevant sets of facts that actually don't relate one to the other the first is that the government that the sentencing was del the sentence the government had no delay for the purpose of awaiting additional facts to come back and hammer this defendant the government had no way of knowing that the sentencing would be delayed at the defendant's motion for close to two years or that the trial would be scheduled then or that this additional information would come in what we have here is a case that highlights the reason for the carve out under what is a pen tell based advice to the defendant about the general estimate of the guidelines range when new information comes in as i keep repeating the defendant the appellant has conceded significant additional information mcpherson per curiam opinion judge calibrator your honor was was on the panel in that case there was an enhancement of six points to the offense level when the government it was clear the government knew all of the information before the plea was offered and the court found no plane error i think it's we haven't discussed this yet but we're on plane error review here in part because there is some tension between and in part because of the language of the the plea agreement that the carve out for for this being just an estimate and judge newman in a concurrence i think put his finger on one of the points that we're grappling with here which has to do with what did we know and how strong was it and he said if we start inquiring as to what the government knew at the time of the plea agreement we open a difficult area with the government know of an offense if only the evidence was in the office or if an agent had told a prosecutor about it or if a confidential informant had told the agent about it he's raising this prospect that to look back across the record and look at this complaint and say you had all you need for those enhanced minutes misses that significant additional new information came in including cooperating witnesses who testified about this the conduct relevant to these enhanced mintz that were signed up after the plea information that was not available in a that the trial judge was was very interested in getting in in in in in finding out what was going to happen at the how on trial and and when that when the judge granted  problems attendant to this fellow's behavior part of a much bigger and unfortunate problem so it appears that that this may not be a case in which the government acted in bad faith in order to delay at least a motive force and that i understand your honour's position on that or the idea of that but i think again if that's your position on that then we need to rewind position now i understand that if that's your argument we're playing moot court here yes that if if that is if that indeed was your position on that if we rewind to the procedural de fact in including these enhancement and the government's failure to include them in the first place so had the government i'm sorry forgive me for interrupting that's what the agreement on it's face as the government has pointed out gives them lots of outs new information and nothing certain they will bring information to the attention of the judge  has lots of ways in which in good faith they can bring all sorts of stuff at any stage to the attention of the judge without breaching the agreement my question is to you i knew you weren't trial counsel but the trial counsel to your knowledge ever asked hearing what had been known to the government at the time they entered into the plea agreement i know that there was a ago hearing requested you but i was set on that's question or on the on something i thought it was on the question of mr walker's credibility or something like that maybe i'm i'm not sure i remember now i mean there was definitely a phatic zero hearing we need to go back to this plea agreement there may never have been a plea agreement if the government had included these enhanced plans and as your honor read straight from the complaint they had this information to now argue that this was early in the in the proceedings they didn't have all of the evidence the plea agreement was about a year after that complaint was filed and he you know the prosecutor admits that they were in the thick of this investigation and they knew what they