by a felon but the bulk of mr lasalle sentence is based on enhanced means for conduct which is insufficient supported by reliable proof mr must always neither charged nor convicted of this conduct by federal authorit federal courts are required to base their sentencing findings on reliable information but here  information so we really have no idea what the probation or rely the probation officer relied on when he was preparing the report which makes it impossible for this quarter for the court below to have determined whether such sources are or are not reliable the court should have refused to apply the enhancements but did so nonetheless over defendant's objections the government in its brief does not show or argue that the p s r facts were indeed reliable or based on reliable reliability to permit the district court to rely on it at sentencing now this does not mean that all p s r s are in there entirely reliable and title to a presumption of  reliability what would we do with the defendant's statement it has little i'm sorry the defendant statement at the hospital statement is where where he made reference to where he said that he was there because he was hungry and specific specific statements should be referenced in the us are if the court is going to rely on them we don't know that i'm sorry so i understand that the defendant objection objected to the  application of the guidelines that the p s r laid out but i didn't see any objection to any of the factual assertions in the p s r of the government we have to make what the problem is that he has are doesn't it sentencing the defense specifically the defense attorneys dismisses sickly said the government hasn't specifically offered any proof that he was convicted of another felony or that he handled the office and i'm just and then later he says i'm just saying judge in order for you to punish foundation on which to rely on which we can really evaluate whether those statements are reliable now i just want to go back a little bit to us to serve because the facts of that case are not evaluated the p s r and accepted some of those conclusions and rejected others so that and that's not what happened here very sickly the court without even really going through an exercise of determining if there was any  reliable information or not basically adopted the statement wholesale i made the finding that the enhancements were worse than the word can i go back to judge thompson's question it's been a while since i read this but in my notes i wrote that proof that is is supposed to be relied on there has to be some proof in order to countervailing and the problem is when we when pieced when the sentencing findings are based on on reference and an unexplained evidence or information this creates another problem for the defense which makes it very difficult to determine you know what are you talking about one of the relying on how  know exactly what the sentences were for the thing is that here there was he pled guilty in the state court case we know that much and there were there was an adjustment it appears that there was an adjustment and b in the charges there was an adjustment from the original charges to what he was actually conveyed but until we know exactly what he was convicted of and we see the court documents to know exactly what he was convicted of and if there are specific facts that arise from those conviction we can't there's not anything reliable that we can really change the sentencing in half now i'd like to do a concern you want to what i think is the more fundamental problem which is a related problem in this case which is that the sentence here imposes criminal punishment on conduct which is not part of the conviction that in federal court now the supreme court allows a sentence to be enhanced based on relevant contact when such conduct reflects the manner in which v offense was committed and those are the wit and the watts case of what's cases and what we have learned since time in apprentice and elaine is that it is clear i'm quoting via credit case beyond peradventure that due process and associated jury protections extends to some degree to determinations that go not to a defendant's guilt or innocence but simply to the length of sent sophisticated means were used the vulnerability of the victim extreme conduct in the commission of the offense but here i don't think that we can fairly characterize the enhancements as being pertinent to the manner in which the offense was committed just because for the commission of an additional felony and the enhanced one for seriously injuring the police officer the district court properly relied upon the undisputed facts that were in the us now it's clear  that indeed filed objections to disputes are but those objections were purely legal in nature nowhere in the objections which can be found on page forty three or forty eight in his appendix does he ever reference the are should be found beyond reasonable doubt or submitted to the jury additionally he makes other arguments that the facts were not in a plea agreement that those facts were not included in the indictment but nowhere in those objections or in his oral argument or at sentencing did he ever just used any of the facts that were used to support those enhanced and it would have been counter intuitive because in that same p s r he admits that approximately twenty days earlier in commonwealth corps he pled guilty to aggravated assault to aggravated robbery and to be illegal appropriation of the goods that he had in the house so it would have been counter intuitive to say i didn't do that when he had already pled guilty beyond a reasonable doubt for that conduct so the district court properly relied upon those facts and those facts are on or did include the statement that he made at centro matic which is on page eight of the p s r that you broke into the house that you stole jewelry and that outside he shot the police officer severely increased the sentence with that within the her scribed statutory minimum minimum or maximum range was the tail that wags the dog and this is more explicitly rejected that argument stating that those concerns have been addressed by supreme court of elaine and both in our present because none of those and hansen and all turned either the mandatory minimum or the mandatory maximum and in this case it has been found in the supreme court has explained th for the purposes of applying the guidelines doesn't violate due process because what these enhanced mature are doing are increasing the sentence due to the manner in which he committed the offense this was a continuing offense it's not just when he orderly picked up a gun off the side of the road which he found that's not the end of his possession his possession was more than not his possession was taking the gun was breaking into the house was stealing the jewelry was trying to f porting to try to lie on the ground only to shoot a cop you think so this was a continuing possession and what here the present offense was carried out in a way that warrants that and the supreme court has said that this is so that even though that related conduct many or may not in and of itself constitute and in this case during the sentencing hearing counsel was discussing the same arguments to the court and the court  well what if what if i apply a sentence to run on currently and counsel even said at that moment well your honor as a practical matter it's not going to matter and that was at the sentencing hearing which is that you see three in the hand so this is not a situation where here that the tail is wagging the dog we are in the range of zero to ten years for nine twenty two shey question that's somewhat related i can understand i think generally that in the plea bargaining process sometimes there's a time crunch there are other pressures that come into  play and in so not every single factual detail it may necessarily be brought to the fore considered at that point and i take it there's an assumption on the part of the government and on the part of defense counsel that defense counsel will explain to the client that in a situation like this with this kind of plea that the judge isn't going to be bound by the recommendations and relevant conduct is one thing that the judge may see viewed differently than what the parties have how the parties have viewed it the other is criminal history not necessarily a possible in this case but more and more we're seeing appeals from plea agreements where the parties don't come to any agreement on criminal history usually because the probation department of course hasn't done the full record check yet and i take it there the assumption at least on the part of the government is that the defendant is in the best position to know what his own criminal history is and and that therefore they're not really asking the defendant to buy a pig in a poke but i wonder if that's still true after johnson where lawyers don't even know whether a particular offense is going to change the guideline range it's where mandatory minimum cetera is do you know is your office doing anything to try to cabin these sort of open ended criminal history situations i'm your honor i can't speak  inquiry into the criminal history whether in this case looking at his criminal history the parties in this particular case had a good faith belief that this individual was going to be a criminal history category three and this agreement actually mocks the government and which is one of the reasons why why we say that it was a very beneficial clear agreement because it was not it did not try the government was actually did by the government to a specific range which was effort that the difference here was the basic principle yeah the crown and it's used a total of so but in those cases where there is no agreement whatsoever on criminal history and that's just left to be sorted out later and it ends up resulting in many many many course thank you i just want to make a couple of quick points with respect to the argument that the defense counsel admitted that his arguments were purely legal the purely legal argument is that there was no reliable information on which to base it that is the argument that he was making it was the purely legal and if you look at the colloquy or the statements the defense counsel me when he said that we had a legal difference of opinion that that was the difference of opinion was whether or not there was concrete factual reliable evidence on which to or informational much to in this case the problem is that the enhancements overshadow the sentence for the for the prime jury trial rights are implicated by facts finding by fact finding which goes to in which goes to making a sentence longer than i would argue that that is especially the case here where the enhanced and really