next base for today is two thousand and twenty one the red sea rose seventy one united states versus joe main and on mr right you make christine thank you your honor and may it please the court my name is matthew right i'm here on behalf of joel raina and today we're asking the court to vacate his federal prison sentence of five years because that since was predicated upon t constitutional violations the st violation was of the ex post facto clause of the constitution and the government has conceded that that constitutional violation took place the nd violation attempt by the government to show that the st error was harmless beyond a reasonable doubt turning to the st error your honor everyone agrees that it was preserved that is a constitutional violation that review vote and that the government bears a heavy burden of proving that it is harmless and we contend the government must prove that it is harmless beyond a reasonable doubt exactly because it is a constitutional error and under discourse precedent the standard is the district court would impose the same sentence for the same reason that is the if are a loon i'm sorry you're about to tell us t interrupted but i could you tell us what our case law is permanently on the statements by the district courts that i would oppose the same since we have a probably a continuum cases and can you tell us where this is on that continuum your honor i can i will say that for purposes of this case the bar luna sets the proper standard the government cited ybarra luna in its standard of review section i think it's on page five of the government's phrase if i'm wrong about that i can tell you in rebuttal and this is a constitutional error so in a near guideline error context the bar luna says that the government must convincingly demonstrate the same sentence for the same reasons here we have a constitutional lawyer and so the government's burden is even higher that is the burden of proof beyond a reasonable doubt now i believe what you're getting at judge all right is there is another line of cases called the richardson line of cases if you twist my arm i will talk about richardson but given that the government has cited the bar luna i would prefer to proceed on that it will come as no surprise to you that we typically would argue in the federal public defender's office that the broadest reading of richardson is no d standard at all it is completely inconsistent with the idea that the government should have to bear the burden of proof that an error is harmless and  fact the government here was in the best position to avoid that situation so whichever standard as you said it doesn't matter because of the nd error we don't have to resolve this problem because there's a due process error on top of this so of those reasons is illegal and so we know that they cannot satisfy that when moreover we do contend the nd error is itself reversible but if i could respond directly to your point about why this error the st error is not harmless the right three reasons i would like the court to consider st the sentence that the district court imposed was within the iranian guidelines range and the court cited its position relative to that iranian guideline range in this bindon the since the court said this is not the bottom of the range but it's near the bottom there was a difference of twenty months from the low end and twenty five months of the high in its nd year honor court the party's probation devoted a lot of time and energy to addressing this constitutional question and you may recall it was an unsettled question at the time and the government fought very hard it because the government knew that the guideline range would edzard substantial influence on the ultimate sentence so if you look to the way the parties the court and probation addressed this this was not something that didn't matter to the ultimate sentence it was something that ultimately drove that sentence and rd as we've argued the nd error precludes any finding that this district court would impose a sin it's the same sentence for the same reasons of course the court wouldn't say it's near the bottom of the range it would be a substantial upward departure and also the court could not say there has been an arrest but not a prosecution in two thousand and one in support of its finding that the criminal record with serious serious offenses because they don't aren't doing simply that a mention of the arrest creates the problem or is there a difference between the district judge resigning certain facts that may be or in the pre sentence report and and pointing out that that resulted in interest i guess to rephrase my question is there a difference between that is because i'd say well i see here you've been arrested on such and such a day for such time as opposed to the district judge saying in other words reciting of acts that ultimately led to the arrest because in this case and i think some of the other ones that you cited the arrest doesn't result in it that's correct your honor and the arrest here did not even result in a prosecution as the district court the district explicitly found now the pre sentence report which was not objected to by you the party said that the grand jury retired a no bill i have not been able to get a copy of that document i'd like to be able to submit that to you but i think we're agreed that nothing went further than the grand jury states so i do is arrange that what else was in the p s r about that no no true bill what what else is a portion of a complaint it's essentially the charging language it is the language that would have appeared in an indictment if the grand jury had returned it now i believe what you may be getting at is there are cases from the th circuit that ha till the district judge that says i know the grand jury said there was no bill here but i find that there is sufficient evidence to find by a preponderance of the evidence that you did that or you did something like that it cetera those are the cases cited in my response to the government's twenty eight day letter that is not what happened here the court did not find that he had committed a sexual assault or an attempted sexual assault in two thousand  time this court said twice not a prosecution but an arrest so the court was careful not to go further than the mere fact of the arrests and in fact the court refused to follow the prosecutor suggested that the court could infer because there had been a modification terms of his probation an extension of the terms and some confinement added you could infer that there was some something some fire there behind that smoke the court said i do that i don't know that they did what the prosecutor says but i know that there was an arrest so and to go back to the beginning of your question is there a difference or what is the absolut court's precedent from pre college lines time says you cannot consider it an arrest alone is not enough for an arrest is fully consistent with innocence and in the case that the court has upheld factual findings in spite of a grand jury which is typically better positioned to collect evidence and to decide on a lower standard this court has done so on the basis of experience is factual development that could have been litigated  that piece of the complaint the charging language that would have been in an indictment had it charge and so there's no motion if i understood what you just said it was almost right from the e s r any type of  actual statements relative to the arrests that's correct your honor because and this may be part of the dispute i have with my friend is that he says by adopting the p s r the district court adopted the finding that the specs were true that would come as a surprise to my colleague in the trial division and would come as a surprise me i'm not sure i would have objected to this language in the pre sentence report because if it's true the complaint does have that language  went no further than that i would also say if we knew nothing else the judge just said you know you had committed another cent well maybe we could say that she was relying on the complaint implicitly or whatever evidence or information by the support that that is not what happened here the court said unrest but not a prosecution and that's it no i find that you did this that is an unusual thing for a federal judge to do particularly twenty years after the events with no documentation no evidence no suggestion of interview of witnesses or corroborating evidence all we have is the recitation of the content of a charge that never well that is basically the situation this court classic case where the two johns is which i get confused ernest jones case in two thousand and seven and robert jones in two thousand and six those are carried forward to more recent decisions going back at least i think one client has a very strong case for a cultural assimilation downward to put her on the basis of the fact that his parents brought him here when he was three and he grew up and went to high school in this same little town with all of that were involved in all of those circumstances back then and it was twenty years ago that that happened all of his family legal status here here everyone is here moreover modify an understanding from previous encounters that he would be in trouble if he came back left the country for ten years and came back for reasons that are lot of will not culpable reasons of all the now we say that nonetheless country's immigration laws and we have the right to imprison you in doing that we are furthering the rule of law and i would submit that the rule here requires vacating the senate because the district court violated two constitutional provision brought in all of those pages of fighting so you have committed that nd of all the government has failed to show beyond a reasonable doubt and convincingly that the district court would have imposed the same sentence for the same reasons now obviously i would love it if you said not only that but you should give him an award of money damages release him immediately but i don't expect that from this court because you are an appellate court you are reviewing with the district court it and it is correct your honor i would ask that the court acts somewhat swiftly i don't have the date but given the five year sentence once he got out of state custody the time started counting against him and so  and and you understand that when i asked this and i'm just asking assuming arguendo i'm not or shadowing or anything like miss but this time problem to the extent it exists we need to be made aware in every case and that's projected release date from the bureau of prisons i think we weren't certain at the time of briefing how they were going to calculate the back time and there was a dispute about that in a court that i'm going to leave that up to the bureau of prisons but in any event i could tell you it's not immediate if not you know tomorrow i not next week i don't even think if next month it may be into next year but i'm just saying there is that given that there are between twenty and twenty five months of delta between the two guideline ranges the bonus time will begin much quicker than  l i can see that i'm running out of time if there's no more questions at this point i have reserved some time for about oh thank you missed it please the court in portugal for the united states the ex post facto issue in this case is harmless the district judge was quite clear on the record page one hundred and four dollars and i will quote i would have given him sixteen months if the ex post facto law had been in place or not that is more than satisfactory for example district court there did not say how it selected sentence and it didn't say whether it sent was influenced by the guidelines furthermore i think that we have to distinguish between the ex post facto error on the one hand and the arrest record claim on the other hand it may or may what it guideline would be or would it how i mean just before we even get to the arrest record the a bar a little how does that analyze now well the court does say in that sentence scene and all i'll move to that and if i would ask that the court just consider that i'm also speaking now about the substantial rights issue on the arrest record because i think the analysis starts to merge when you look specifically at what the district court explained on the record the st thing the district court said as it was pronouncing sentence and this is at page one of two is there's a then and reciting the criminal history of mr rann or aragon say another sexual assault arrest not a prosecution but nonetheless don't arrest in two thousand and one the district court then says all these serious crimes referring to the criminal history just were cited and he's been here twice that refers to his unlawful entries and united states after removal ok and then the district court after reciting the facts of the criminal history starts in with the statutory sentencing factors not the guidelines starts st with the safety of the community moves to promoting respect for the law moves to consideration or just punishment and then says quote all the other th and fifty three dollars factors that sixteen months is right the judge did make a remark that the sixteen months was not the bottom of the guideline it was near the bottom of the guidelines but then she immediately returns to sa sixteen months is not too much and not too little to comply with the statutory sentencing factors that's critical in this case that the district courts sentences based on statutory sentencing factors the sixteen month sentence is not obviously pegged in any way to the guidelines beyond that one will mark it's not the bottom of the guidelines it's not really in the middle of the guidelines it's sixty months it's five years it's half the statutory maximum  that's just a further indication that the district judge here was considering the statutory sentencing factors and that's what precludes showing of an effect on substantial rights on the arrest record issue but it also w read in tandem with what the district judge specifically said about the ex post facto issue shows you that on the one hand there's homelessness on the other hand there's no effect on substantial rights government does not however concede that there is guideline range so that's you know you just explained it statutory not guideline that the district court specifically relied on its decision within the incorrect line reigns in so can you address that that's just not how i read the record your honor i think again starting with the debt ceiling i didn't lowest end of the improperly calculated guideline rains right but it's not i don't think the the bear mentioned of where it happened to fall is necessarily indicative that the sentence was tied to the guideline range the defendant here was asking for a downward departure and in the alternative wanted the sentence the low end of the guidelines i think the judge was just remarking where the sentence happened to fall  again with respect to the way the district court laid it out on the record continue with respect to the arrest record issue the record here is not what this court referred to as bear and harris and it's certainly not clearly or obviously so it indicates how he often is was committed based on a charging instrument and included a disposition that often it was a criminal attempts at sexual assault the paragraph described how the defendant committed the offense by placing hands on a woman's breasts and unfastening her shorts against her will my friend cries that there was any opportunity or reason to object to that paragraph but if you take a look at the record of page one hundred and thirty one the s the district court adopted the p s r and that's clear from both that statements at sentencing referring to the arrest and in its statement of reason so those are respectively ninety two dollars fifteen cents of the record this court in v one factual issue i want to i want to try to clear up for the court in the appellant's brief when they described the district court saying i don't know if they did what the prosecutor said they did what the district court was talking about there was the prosecutor had made the representation that following the sex assault arrest the defendant's community supervision for the prior sex offense was continued by five years and the the thrust of that point if you read the p s r in tandem pages one hundred and fourteen thousand one hundred and fifteen of the record is that there's there's no other apparent reason why the state would have moved to revoke the defendant community supervision and so with the district judge were saying there was well i don't know why they moved to to adjudicate or why the community supervision was extended she wasn't saying that gosh we have no idea what happened factually what the circumstances of the  arrest i would also dispute my friend's characterization of this is a charge that never was there was a charging instrument here there was a criminal complaint which has to be sworn out before a magistrate that magistrate finding is one of probable state with respect to the the notion that the court should relax its review the court's line of cases including rogers brown how xander lopez especially rogers and brown are not close to this case in terms of the similarity of the errors asserted in rogers the two errors had to do respectively with the idea that there was some problem with violation of the rule of seaquest ration in the case versus the actual argument on appeal about a problematic in court identification so there that what the court said who will go ahead and consider the problematic id complaint was based on the fact that the defense counsel was upset then f b i agent went out and possibly spoke with a witness during a recess in brown it was a pretrial motion to dismiss based on expos facto concerns that the court decided was sufficient to allow consideration of an ex post facto issue with respect to the jury instructions so very closely related there  in alexander the court it's not clear to me brown and rogers and subsequent case laws reading of hell xander that that says specifically that constitutional errors are more readily recognize the court the recognized its discretion to decline to review but the court there decided to analyze an issue not raised because it understood that issue to be necessary to resolving the ultimate suppression issue and that question was whether postal inspectors had any thore to effect an arrest all finally lopez lexus nexus had no eight which were sites the proposition constitutional lawyers being noticed more readily  i don't find that had notice ever been cited and other case law that i've seen repeats the language but it doesn't necessarily affect the outcome of the case you during the proceeding you know you readily conceded it here it seemed like it was a complicated explanation that was not do you have any comment on that of how that was i can't comment on that your honor it's not of the record but i'm happy to to explicate for the court but what was going on we had we had challenged in martinez of the position of the federal public defender that this would be an ex post facto violation and we had a number of cases in the district including this case where we were trying to maintain the same position to preserve the government's position that there mr wright yes september about a but i have a question you know you spent some time explaining that you didn't think they are that your colleague needed to object regarding the alleged terror arrest record but when the district court starts saying and he has another one that he got arrested for and in the district and it is considering that in his discussing that it seems like at that point you know we would be danger we need to step in and say no you're not supposed to consider that your honor that so if that was so maybe it wasn't a written objection the p s r but it was certainly east should have been required the time or immediately after the sentence and we talked about that i'd also want to correct one thing that i said before on page one hundred and ninety seven dollars of the record footnote to which was the response or the reply in support of the motion for downward departure you'll find that the council did say there was no bill relying on the b s i responded so there was a comment on the reliability of these allegations at the time but i will agree with you that there was not a few posts announcement concede that we did not do that on whether there are statutory sentencing factors to be weighed against the guideline range of which one guided the court one of those statutory syncing factors is the applicable guideline so every time that the court said it's considering all of those three thousand five hundred and fifty three dollars a factors that's not separate from the guideline range the guideline range comes right along by incorporates why would the parties spin so much time on this issue that was live it was still hotly disputed if it wouldn't matter if they would because they understood that the guideline range in as it doesn't most cases would play a driving for would play an important role in selecting the senate and returns the reasonable doubt standard the th circuit pattern jury instruction after the jury of this which you rely on these facts in the most important of your daily affix i will not deny that there is language in the court's opinion and its explanation read in isolation that supports the idea we very well make it the things in it that the yes but there is so much other evidence that weighs the other way supreme court said the government could not satisfy it there because they applied to new guidelines indicated the distance within the guidelines range is most appropriate since in this case it would fail now i will concede there was not the separate statement  here i would do the same thing but what i'm saying is the supreme court said that language would preclude a finding of harmlessness on that record which the government didn't advance there so it is not obvious or clear that the district court would any will impose the same s by our best claim what's to preclude us from binding on prong or that there is no interest in justice in correcting this i guess because i'm just you know we need we do use the problem for you do there is a refund published cases that you wouldn't use a criminal history for that any more but this court like the district court is precluded from relying on an arrest and it and again even if it were reversible on its own say it does stop you from making the findings required injury barlu which again it has been disputed that's the right standard the judge can't use the same reasons because one of those impermissible the constitution binds this court the same way that it down the district court judge and the the touchstone is deport the law right on the arrests without finding that the defendant committed a crime if that if the court has found that he committed the crime then we could be fighting about whether there was an adequate evidence free foundation and there wasn't and we would deal with the fact that it's directly contrary to either the lack of a charge or the grand jury's no finding but it didn't the court said there was an arrest if remand for that purpose in th