you're familiar with our routine here is what up with rehearse it but you watch your time ok yes your honor and i would if if i go over to reserve at least a couple minutes for rebuttal ok i'll try to remind you but thank you like you're on there is a trap door case began with the court the district court acknowledging that there had been objections filed but the court stated i decline to rule on those objections they will not affect the sentencing but in fact that eventually did rule he did yes he did rule without the benefit of ruling on the objections if the court is saying that implicitly he ruled on the objections by a venture leave saying he accepted the pre sentence report factual findings my concern is that it's very specific in the rules of federal procedure thirty two i believe he did because not only does the rule kind of give and out in the sense that it allows for any worthy objection but they did he did file written objections i understand that they were written somewhat late and perhaps then the government has argued that they were not specific enough but where and were that i probably ambiguous to me and i'm struggling with how he triggered rule thirty two  if well first by filing the writing and second of all of this notion of lack of specificity or timeliness is first brought by the government here on appeal nobody objected at the trial court level to them being untimely if they viewed it as being insufficiently specific well then that should have been stated on the record and then given the opportunity to counsel to make them more specific both under the escape clause as i call it in thirty two that allows for any reasonable objective objection to be allowed to be brought war perhaps a continuance because the court did not have didn't think that it was made with enough specificity but i think that in an oral argument he didn't actually contest the facts he didn't say oh but your honor they're what they're my client didn't know about the methamphetamine or i know they're really only worth three these other five names didn't count i mean they never actually accepted responsibility but he also he also stated that there was there was information provided about that that could have been for a different person this is part of the san diego operation the defense attorney said that the defense attorney said hypothetical kind of way he didn't like proffer a factual dispute my client didn't know about the math or the math was for somebody else it wasn't for my client i mean he said that could be the case yes  dispute wouldn't have to actually proffer that that was the case well i think by putting it in play in the written objections and then stating that by all accounts both sides of the  government that and the defense saying that he only took responsibility from the government side but what he said he did he say directly that i am going you know that we factually dispute this i think he pretty came pretty very ambiguous the only specificity that i see that he brought up was in progress trying to concerning the handgun and paragraph fifty two to make certain that the court knew that the medication he's taken was not for genital herpes but where there was for shingles you have that's interesting that the court addressed those two the only specific things he raised right well he he rates those both in the sentencing memorandum and in the  court he would you agree that he has the burden of specificity here to trigger rule thirty two i don't see any case law that says you have specificity there was some out of circuit cases but the ninth circuit and the rule allows for those objections to be able to be made at the time i let's assume for a minute that it's unclear and say that the objection was properly made under united states versus gadson doesn't doesn't make any difference here  fact we have a harmless error oh you know how i do dislike that phrase but i don't think it is harmless error of it's certainly not harm and so mr snowden because he's ending up spending more than five years extra in custody but once again this is first raised on appeal if there was a real problem with specificity why wasn't raise the court level as defense counsel we're always concerned with making sure that we have the complete record because we know that when we get up to the court of appeals they're going to say it wasn't raised in one way or another and then they're saying when i just raising that for the first time i want to appeal so we can move on to say there's no  united states versus three after the objection the district court and relying on the p s r with out you know when there's no specificity in this case the court relied on the p s r right but there were objections but not specific it was appointed your your clients objections were almost metaphysical i think doesn't have to he's think what did he object to and that's where i'm that's what i'm trying i understand i understand what the course  don't think that the case law is it is specific enough about specific specificity and if it was then the court as often happens the district court should have brought it up and said i don't quite understand your directions there metaphysical so i want you to be more specific about them what gadson and let's assume you're right say he raised enough and the court didn't adequately address it as a harmless error analysis under god here's my concern about any kind of harmless error analysis is that as the court asked for additional briefing from the supreme court we do have an erroneous guideline because the failure to make the facts and to rule on the facts as laid out in the objections stating that they would not have any effect on the sentencing which is turned out was completely erroneous it did have a very profound effect on it because the judge excepted it then let's let's turn just a little bit to the analysis you have the government's not putting forth any information remind thank you can do whatever you want i'd appreciate it if the government did not they have the burden on the drug type and the drug amount they didn't proceed in any way to meet their burden because obviously they were bound by the plea agreement but that was the agreement so there was nothing before the court other than the notion that i thought we learned from blakely which was just having probation report probation officer read the discovery and then make an opinion about it is  an aggravated rule adjustment before imposing sanctions just give me the base of that's level calculation did it include the two level decrease for the pending or upcoming minus to the  ok yes remind me what was the government's position with regard to the the plea agreement and some tensing because the government i'm assuming the government drafted and then negotiated subsequently the factual basis with the defense and methamphetamine for this particular transaction was not included right that's that's correct ron are there in this case the playground it was a negotiated agreement between parties and defense specifically requested not to include methamphetamine because is aware there is a significant swing in the guideline calculations because of methamphetamine so so the defense at the time of the negotiated plea agreement meant to basically leave the argument for sentencing that the scope of relevant comment that this pacifist city of the objection was lacking but when the defense stood up at the sentencing hearing and said we never accept that responsibility for the methamphetamine that the government samy thing of that point to say well we meant to carve this out or anything anything like that we did not your honor because we were bound by the play grammont we're very careful at sentencing to acknowledge to the court that we were standing by our playground in a factual basis contain there and and i think that's a very important point that the core brought up because before imposing sentencing in this case the district court commented that it was being asked to simply look at a plea agreement and confine the defendant's drug trafficking activity to a limited set of facts when  reality that was not the case would could you not interpolate the defendant's plea agreement as being an understanding that that would not be considered any more than the homicide would be considered that the that the math wouldn't be considered maybe that's what the defense was thinking i was curious whether this is a common form of plea agreement in the southern district it was a surprise to me to say that if you got up to a certain point you were bound but if you got more than that  you could appeal because in this case if you got more than hundred thirty five months he could appeal on what grounds he would be able to accumulate it seemed like an unusual plea agreement to me or not one that we see in the northern district is an unusual case itself because of the everything that was attended in this case it is a standard play grammar that allows the defendant to appeal if the court gives higher than a guideline sentence and what do what do people think they're going to appeal on just the general reasonable five three factors or yes your honor may i ask you this counsel and you are seventy one without quoting the exact language my understanding is that the defendant acknowledged that he knew that the court would consider the methamphetamine and agreed to recommend that he agreed to recommend the mandatory minimum knowing it was going to be above the guidelines sense is that correct that is correct or are so that somewhat alleviates the concern that might otherwise exist he acknowledged he knew the math was being considered and he knowledge that it is going to be in about guidelines right without a doubt your honor and it's important to point out that another could you explain that a little more and i don't yes at during the the sentencing hearing the defense attorney at the sentencing acknowledged that when the parties were negotiate the playground meant that the parties and specifically the defendant had anticipated that the court may consider the nothing fatima's relevant conduct so the the guideline calculations in the playground men were below the one hundred twenty minute for a minimum threshold and the defense attorney stated that he did greed with the government to recommend the aggravator roll it just meant to trigger the mantra minimum sentence because he realized that there would be some type of calculation involving aggravated conduct well that i remember that with regard to the supervisory role but that was with regard to the methamphetamine as well yes your honor yes under e r seventy one seventy one can you address the evidence with regard to roll the evidence that he exercise control over the othe carolina and then finally the district court also pointed out that the defendant hired money couriers to transport narcotics proceeds to to san diego to the methamphetamine guidelines i think it's important to point out and i think this court recognizes that the facts contained in the pre sentence report that the present report concluded that the four hundred twenty one grams of nothing fattening were being imported half of snow is uncontroverted there was not a specific objection to that pre sentence report finding and as this court recognized united states versus petrie there is that requirement that a specific  objection alleging an inaccuracy is required and second there's an obligation is it to note that lack of specificity it would be that it's on the burner it would be the burden of the party  it would be on the very suburban of the defendant filed jackson's to the present report i understand that but but when they filed what they consider to be objections under rule thirty two the government doesn't think those are  adequate to meet the specificity requirement is that the burden of the government is so indicate you're on to the situation here was that it was a negotiated plea agreement so that the court was heard that the government was bound by the play said recognized court has an obligation consider all the facts i recognize that time as did mr roberts and the court would consider the methamphetamine at least in the nature of relevant conduct despite what we said so here is your point that as far as the is concerned that's an admission by counsel that that was going to be considered and that what was said was metaphysical basically it went to other points and not to this issue yes your honor and i think the core pointed this out before that when you look first off there were no objections filed but even if you look at the defendant's sentencing memorandum filed two days before sentencing the defendant's factual objections and the specificity specificity really focuses this core pointed out defense attorney who says he alleged i do because i don't think it's an admission they discussed it that is why they did counsel discussed it that is why the plea agreement was crafted the way it was that's why he entered the defendant entered a plea agreement that specifically did not have factual basis not in some way to get around the guidelines but there was a lack of factual basis for it that in fact if you look in the in the pre sentence report concerning matt marijuana and cocaine nothing to do with methamphetamine but for our purposes counsel we got the defense counsel knowledge in the cards going to take math into account we have a harmless error analysis that's called for under gadson why is this not harmless it's not harmless error because the court failed to follow their duty in going through the factual basis because if it had been brought up if it had done if you had gone through those objections you would have found and the government would have backed it up that there was a lack of factual basis that the methamphetamine should be attributed to him both from the beginning of the investigation all the way through to the end he had nothing to do with methamphetamine and that's why specifically and that's why he could swear under oath at the time of the change of plea that yes he was responsible for the cocaine but doesn't mean there were five people instead of just three right that he was operating essentially i think the way counsel put it at the court on a c o d basis a cash on delivery he was there as a customer in south carolina people were bringing to him all the rest of the people were not under his supervision even though they were described a complete agreement they were part of it but not under exactly where well thank you both counsel for your argument the case just argued is submit