judge michael moore he drew the tough duty he's here helping his case woad in southern florida and a week where we have thirteen cases but it's four on tuesday and four on wednesday but only three on thursday and and three on friday he's got the two days before so we really appreciate him coming to help us this week and here this morning we've read your briefs the authority cited in your briefs at least portions of the record so in the limited time it's a buyable teacher to all of the fifteen minutes assigned you should get straight to the heart of your argument and please don't treat the red light is aspirational pay attention to that and when a chance it's time to wrap it up if you're answering a question from the court  when the district court upwardly buried substantially from the guideline range it relied upon a lot of facts and the pre sentence investigation report that you had to that your client had objected to  ccasion i think once they agreed and that was the record well i do and the government said we would proffer who we proffer this this is what we would show right and we would we would offer evidence that would show us but they you're not challenging as i understand at the application of the vulnerable people victim enhancement you know what you're challenging is the fact that the district court relied on facts and the p r side that you were objecting to i did you have a question i'm sorry well i was going to say he admitted in the factual proffer to many of these this conduct and so like i was he had plenty of facts that would support the vulnerable victim enhancement if i thought from challenging that enhancement what you were challenging were the other of the facts that the district court sided  basic federal sentencing law that if there's an objection the government has the burden of proof by a preponderance of evidence and have to present a clear and strong evidence to support the government's position they didn't do that in fairness to the district  judge he took basically kind of went through a catalog and he was you know urging everybody kind of go through just one for the record to catalog and he told the government that he would give the government whatever time they needed to present and in fact at  the proper proper time in the sentencing proceeding to turn to the government and offer them the opportunity to present evidence expecting i'm sure that they were going to present something for whatever reason it's not clear to me from the sentencing transcript that he really follow the way it did you asked for one hundred times the bottom of the guidelines the government asked for one eighty eight it seemed to me there was more than district court was between one eighty and one eighty eight perhaps the government didn't think that it needed to prove more but what happens up happening is there's all this other stuff in the p s that the district court  for whatever reason the government chose not to present any any witnesses also i would respectfully submit that it was procedurally reasonable and and then and again it's a bifurcated so i don't believe the court has to get the substance of the results it's a sex traffic d it's not clear to me that this judge if we were to vacate and remand if there's anything in the record to suggest that the district judge couldn't follow our disputed facts that would more than support the district judge saying those sorts of things trying i don't believe a judge necessarily should be saying that type of thing in the sense in particularly plan to go above the guidelines i just in terms of a different judge i don't believe that a planned standard out that you have to find and that the judge was bad or or had some bad and i just don't think any reasonable server believe a reasonable person would believe that he could put what he said aside and and resents anything less than what he already did and based on the fact that the government didn't present evidence on the floor generally the general rule is if they didn't present it they shouldn't be allowed to get a second ballot at any nuisance and so i would ask that the court bar well but the it seems to me the problem with that is that where the government was only advocating for one hundred eighty eight lines and you were advocating for one eighty and what the you have the pre sentence report and many many many of the facts in the presents report or undisputed you also have  transcript goes on for several pages and includes a lot of i mean really horrific facts correct and very specific facts that are neither articulated in nor can be in the factual proffer nor from any other aspects of the p s i i that have not been objected to that that's what the problem is there are other parts of the pre sentence investigation report there were the victim witness but even so the victim witness statements are also awful but again if you look at what the district judge said during the sentencing and what he attributed to the different victims those things are not do not come from the victim witness statements those things come from the p s i i in the parts that were objected to and the problem is the specific specificity of the statements that he attributes to the victims cannot be inferred from the victim witness impact statements that's the problem ok regard to say the issue of the abortions whether they were forced out and also the defendant and defense counsel made certain assertions during the sentencing hearing which support things the district court specifically mentioned at sentencing ok whether the defendant brutally raped a w whether he forced violent sexual acts on his victims which included whipping and choking whether he forced his victims to get abortions whether he was rough with hitting or slapping her for any perceived disrespect and whether he choked or whipped her with a chain and a dog leash and forced her to have anal sex whether he tricked of victims with false promises of modeling opportunities and whether he forced his victims to use xanax to help them continue prostituting themselves these are all facts mentioned by the district court when it of partly varies from the plan range to each degree that were disputed aspects of the p s i i right that's correct well prove those facts if they want the district court to rely on those facts in fashioning a sentence isn't that just basic well first of all as as you noted just prior when we came to the sentencing hearing we thought our obligation was and our duty was to defend the sentence that we were advocating we had agreed that we were going to recommend a sentence within the properly calculating guidelines range and the defendant stipulates in his disputed facts in the side the government didn't say at the sentencing hearing oh wait a minute your honor i think we need to make a record to support some of that nor did the government wants the appeal  was say in its brief you know this is this didn't unfold the way we expected it to the district court relied on a lot of facts that we didn't think we needed really to to prove this obviously error that that's my problem i don't understand why i don't fold it like that well one of the reasons why i don't vote like that your honor was because we did proffer what we would have established and when one proffer doesn't doesn't satisfy your burden but we proffered what we thought we could prove what we knew we could prove and which some of the facts that we proffer were stated in the plea agreement and the defendant agreed that we could prove those facts beyond a reasonable doubt imo yes not at all and then at the conclusion of the sentencing hearing when the the defense had heard our proffer they heard what the sentencing judge had intended to sense that the sentencing judge had an imposed intent not intended at that point he opposed to sit the judge asked at that point does the defendant have any objections to the sentence or the manner which it was imposed he says then i suppose you're going to get to the substantive reason well as the sentence in the the fence attorney said yes and later on before concluding the present it is not obliged to make any further objection other than the objections he's already made to the p s sock but the but the the the facts that went to the p s i i primarily went to the calculation of the guidelines range at least that's one way that you could find this record let me ask you a question do you agree that the judge relied on at least in part in issuing the sentence again the facts the judge prior just a few moments ago yes but i also put it let me ask you something this do you also agree that those particular facts are nowhere to be found in anything other than the p s i i parts that were objected what we presented as sentence or bit the witness statements which were separate and apart from the pre sentence report and those statements include facts which support the of the despite the specific facts the judge cried about which where were those those were not i didn't see them and in any of the victim witness impact statements maybe i missed them and and if i did then you know be helpful actually if you pointed them out because then i could consider them ok thank you with regard to the statement about abortion which was on one of the things i was trying to get to  first of all the sentencing memorandum itself says this is their sentencing memorandum says that he had created an environment which  created a heightened sense of apply pressure to have abortions so he's admitting that there was an environment which would have been consistent with the idea that women would have abortions in addition to which in the present this report in the addendum at page ninety three i'm sorry doc which is document ninety three page twenty nine which is the sworn declaration of victim losses and i believe it's t r that the whole name is in there and there's a last name there so i believe it would have been t r she said i lost a child by abortion that i was made to do so couple those two things together that i consistent with the finding that these women were forced to have portions so i guess i mean what i'm here is we're not concerned about what the judge relied on that had been admitted or proved were concerned about what had been considered that had not been proved and my so my question is would you have any evidentiary problem if this gets remanded proving up all of those facts that the judge relied on that were not proved no sir you don't have any problem with that but but our position is that that's unnecessary because because it's part of the record there are parts of the record that work that would support the findings of the district court for example if everything so you  position miss rose that everything the district court stated as facts supporting this upward variance that there's actual evidentiary support without a prof or without disputed aspects in the p s i i that you are obligated to didn't put on evidence to rebut the you know to to deal with the objection you're saying that every bit of  every fact that the district judge will ride on we've got an adequate record for what i'm saying is with regard to the areas that the defendant disputed that victim last statement by t r supports what about the xanax and the chains and everything else the judge prior referred to a few minutes ago this the the victim impact statements reference  beating with was a fishing pole with having their hands tied with uses of dog leashes those types of things and the statements also say even with regard to whether or not the women were great that that was disputed and they say that they were victimized in every way physically mentally emotionally and where those who are the them impact victim witness impact statements horn i believe t r's statement says that it's under the penalty of perjury and that's the one with regard to the forced abortions you're telling me th i thought that and jr the victim impact statements generally allege that the defendant was physically and sexually abused but i don't i don't remember anything in those victim impact statements that what was as a result of the mental and emotional and physical and sexual abuse that he committed and he's does he disputing that he raped  you know it's one thing to use a general term like the sexual abuse he committed and it's another thing to have a statement and that p s i i that he forced her to have  he whipped her with a chain and a dog leash he objects to that to that fact and there's nothing talkingto in the victim impact statement that specific about that am i wrong you're correct he said i said that this is incredibly frustrating miswrote i do not understand the government's defense of this i mean this a hornbook law that the if the district quote wants to rely on those facts and senate saying to subordinate upward variance you've got to prove it if they if they're disputing it isn't it a all of them and then the district judge goes off and make and takes those facts as having been established and enters and imposes a sentence that's more than twice the upper end of the guideline range and you defend that so you weren't required to prove anything more i don't understand that just to say that given given what we told the judge that we could do given that the defendant did not object to our proffer we submit that we're at least in plain air and that based upon that offer why would they lie alleging objection to a proper in the absence of you actually putting on that evidence a proper is to say well this is what we would prove though we've cited cases in our brief which say that that is the fish and when the there is no objection to the sufficiency of the proper there's no indication that the that the proffer it of itself there's a i can't remember right now that there is a case that we cited where this court held that the proper was insufficient because of the bennett disputed that we could actually prove what we stated that we could prove he denies any evidence to show that there was no way that we could ever have proved what we said that we were going to prove in this instance they assist the united states attorney told the district court what we could prove the defendants said nothing did not dispute that did not say judge you can't base the sentence on those facts and we submit that in that case at least or in plain air let me ask you something just based on the argument today and everything i mean i understand what your position was coming in but now that we've sort of talked about this and had oral argument on it is it still after the oral argument the government's position that there was no or here or i mean is it something that you might wan you you were court appointed mr hernandez we appreciate your willingness to take that appointment and to discharge your obligation very well