good morning i'm jennifer cough and i'm here today on behalf of any tailor who appeals the district court's denial of his motion for a sense reduction under section thirty five eighty two c two tightly in her concurring opinion in freeman just assume i or set forth describe to two ways that a sentence imposed pursuant to a binding plea agreement under who eleven c one c could be based on a guideline range of likable to the offense to which the defendant pled guilty the first way is if the plea agreement calls for the defendant to be sensed within a specified guideline range the second way is if the plea that the basis of that specified term is a guideline range of pluggable to the offense of convicted conviction and that term is evident from the terms of the plea agreement itself in freeman just assume my are applying case the only difference is that any taylor's plea agreement does not contain an anticipated criminal history category but that doesn't mean that his plea agreement necessarily doesn't show us that the basis of that eighty seven month sentence that he agreed to was based on a guideline range of political to his fence the first major clue and the first piece of evidence is the fact that the greed to a sense of eighty seven months the number eighty seven is a very specialized number in the world trade the industry so to speak of federal criminal sentencing it doesn't appear anywhere at all in the entire federal criminal system except in the sentencing table in chapter five of the sentencing guidelines what and when you look at the terms of his plea agreement which contains terms that show us that make it evident to his offense level was this base offense level based on the drug quantity was thirty and that he would get a three level downward adjustment under section three a one point one another guidelines provision his offense will be twenty guidelines or policy statement or sentencing factor does or does not apply those are two different things i don't think you can coherently have both so which one is that in this case this case is a case of one it's either it's either a it's either first a specific sentence or sentencing range or second a particular provision of the sentencing guidelines or a policy statement or factor does or words in paragraph eight are coherent because they're just plainly inconsistent with eleven see first right it says the together defendant acknowledges that the sentencing determination will be based on the entire scope of criminal conduct dependents criminal history pursuant to other factors and guidelines set forth in the sentencing guidelines and the factors set forth and thirty five fifty three if you right that this is an eleven c first part of the sentence i thought isn't that language  in frame and they were they had to figure out what that sentence was and so they went and looked at the building blocks for that sentence in order to figure out what the sentence was agreed to hear the sentences agreed to it's eighty seven you don't have to figure out what the sense is according to your reading of this as a first part of c in eleven c it's a sentence of eighty seven months which means it's just not true that the criminal history of criminal conduct and all these other factors are going to be taken into consideration because it's either eighty seven or it's back to the drawing boards right it could be the district court can decide all this stuff whatever it wants but it's got a say eighty seven or back to the drawing boards or what am i missing why it's not back to the drawing boards because the district court actually accepted the plea agreement of eighty seven of eighty seven but in the effect of the agreement is that this language is meaningless because the effect of the agreement if i understand lindsey i mean you're the expert  you can clarify it is you go to court the court is presented with eighty seven the court takes into account what the court wants to take into account or not and says yes or no if it says yes then  extent that it may and obviously our position is not that it does but to the extent that that language somehow create some kind of internal inconsistency or incoherence that should be resolved in the favor of the taylor why he agreed to a sentence that clearly established an offense level of twice what you're saying then is that it's the that's why i asked in the first place you're agreeing that this is an eleven c one c first type agreement for eighty seven months if you do then these these words mean nothing you could be arguing but you're explicitly not the other side which is these are the operative words and this in section seven doesn't make any sense in which case you would win on the on the on the on whether you win in this case although it's kind of hard are you that's exactly what this meant but i don't see how you can do both or a mixture of the two you've got to make one argument or the other if it's  eleven c the first part of the sentence argument then in my mind i don't speak for my colleagues all of the stuff is just erasable because it's just my own it just doesn't make sense it's not part of it but a lot of times don't you enter those agreements but you still have to go before the judge than judges obliged to take it or leave it but you want to encourage the judge to reach that point and so you talk about the scoring of the guidelines because the judge is alternately going to compare the agreed sentence to the guidelines and so you address the guidelines hoping to move the judge to that point exactly and  in every sentencing even if you agree to a specific specific sentence as in william freeman's case as a constant taylor's case as by the way antonio going scase his case was consolidated with freeman's the district court still has to actually go through the process of calculated guideline range and the parties make this agreement to this specific term knowing that that's what's going to take place everybody knows that's going yes it could i reframed this a little bit yes maybe to start with my experience because i actually did s and occasionally we would have c one c police but but the problem it seems to me is you're you're you want to rely on paragraph eight to convince us that this was a guideline sentence even though there was in the specific range in the play agreement but paragraph eight as joe druggers is asking about seems to be inconsistent with the language in c one c itself so we're trying to figure out whether you can have your cake and eat it too because they  do seem to be inconsistent when you understand the problem understand the problem but we're so how can you rely upon the end of aid and rely upon the first cause and see one see that's what he's trying to get you to answer the answer would be that when we actually look to see whether this plea agreement the terms of this plea agreement evidence the intent of the parties then what c tells you you can or cannot do in the plea agreement doesn't really answer the question the question is what to the terms say and he taylor and the government together agreed that his sentence and it's not just paragraph eight by the way that he taylor does not just rely on para paragraph it just adds to the the pieces of evidence in the plea agreement that the parties intended for him to be sentenced within the guidelines range that applied stop right there for just a second if you would to go back to the point of the question the judge what was asking the case was i think even in a c one c case you still have to do a guideline calculation and you have to do it correctly yes so that we start with that then you go on and if it's not a c one c something you son said based on the factors and eighteen u s c thirty five fifty three that's what the other paragraph it's us if it's a c once the agreement you don't do that you simply at that point say i accept in this case the eighty seven months or i don't if you accept a done deal you don't accept it or you can withdraw his plea and you can start over if i write about all that's true but that would lead me to say one more thing which is to go to judge rogers and to you together which is that i am not sure that that the parties or any case law states that you can't have a plea agreement that both agrees to a specific sentence and also stipulates that certain provisions of the guidelines will or will not apply those kinds of all the time and i don't know when a piece of this doesn't make sense but how do they make sense because if you go you go through and you either do or don't you're the district court you either do or don't comply with those binding aspects of it which would i would call a c c one second part of the sentence if if after having done all that you still have to you still have to conform to the eighty seven anyway you're kind of in the paragraph nine is where your to my ok let's significant agreement about whether it's sixteen or higher you get a two lower reduction for acceptance of responsibility so on and so forth that's in the guideline calculation but that doesn't determine the suttons because it's an agreed upon sentence of eighty but what our point eighty seven could have been based on the guidelines there's no question about that could have been or could have been drawn out of thin air too that is highly unlikely but maybe maybe so but well what i was really trying to fit in with either kennedy or sort of i'm fitting it in with sort of my own and that is that the paragraph nine is another piece of evidence to show the intent of the parties it doesn't nessie it shows that the entire agreement is intended for it to result in a sentence that's within the guideline range in his case and i see that i'm out of time and unless you have another place why wouldn't you be arguing kennedy county says as i understand that by definition a binding clear agreement is calculated pursuant to the guidelines i'm not arguing kennedy because in this court justice souter my worst concurring opinion is what controls me although of course we also preserve the argument that under kennedy's we argue sort of your because you think make nice tells us to do that but that's going to be determined by  the supreme court holds barred here's to the view in hughes that justice sotomayor is concurring opinion controls and that the terms of the plea agreement are all that's relevant to answer this question i believe that the court will also clarify exactly what that means because bill may lose under mckinney's which is still binding on this panel unless somehow the supreme court says the analysis and mcneese is rock art our expectation is that if if hughes comes out to still good morning your honor please the court bill roache for the united states defendant is not eligible for a sentence reduction because eighty seven month term of imprisonment is not based on a sentencing range that would have been subsequently reduced by the sentenc it's sensing determination will be based on the entire scope of the conduct the criminal history and other factors and god and so forth and the guidelines that's just it's like saying a and b were bound by i am not that can't be can it they are they are contradictory your honor and i mean we're not so what censuses say what does it make to say i'm bound by the statement that joe was in the room at nine pm and the statement that joe was not in the room at nine pm can't be right i mean one of the one of them i agree or are they are in direct conflict with with one another about a better way to say it is your stuck with the language that's correct we're stuck with the language or not we're not running from the language you're stuck with seems to suggest that it was a guideline sub's i disagree your hon based on the sentencing guidelines in other words it doesn't fit within the framework of this case doesn't can't you also read eight is a recognition of exactly what just justice kennedy w say which is that you kill the parties can agree to a specific sentence and the defendant may be able to withdraw if the court doesn't agree but ultimately no matter what happens the sentence is is is ultimately going to be determined by the court and the court uses this information the entire scope of the defendant's conduct the history other factors the guidelines and if it turns out that after going through that analysis eighty seven months great and if guidelines range within the within the four corners or that it just has to be discernable in vastly under this court's precedent be nice to four corners of the police have to contain quote all of the tools necessary so it doesn't have to say it's this it's just you have to be able to figure it out from the four corners that's correct your honor and that's that's what this court looked to in kinston taylor case that defendant relies on similarly reason in general something that you don't necessarily agree upon that at the time you enter into a plea agreement is the probation officer hasn't done the investigation of the criminal history category that's what the government and the defense lawyer think is that told us the criminal history category even though it didn't say the range that was yielded by that information it would probably be enough under so to more so but we don't have the range that and we don't have all the information we need to determine the rate that's responsibility so it's also quite possible that the the probation officer could have determined that the defendant was responsible for a higher quality of drugs and we don't i'm getting us way off on a tangent here understand  that time out we would like to decide cases in a way that just doesn't lead to an inevitable twenty two fifty five right so assuming that this gentleman doesn't get this reduction why isn't this a great twenty to fifty five down the road for in a for ineffective assistance for such a crappy plea agreement when it seems like all other indication is there was a guideline agreement right your honor and that it's a tough question to answer now in terms  this eighty seven month term of imprisonment so you know our position at this point would be that it was a benefit to both parties to to agree on a to agree on us and it's the defendant that was fair and that the united states felt was fair but i'm guessing you can't say in good conscience standing here that that number was just pulled right out of the air as opposed to being the bottom of what you anticipated to be the guidelines i think i'm not i'm not exactly sure i think that the parties probably they they may have looked to the guideline range they may have they may have guessed on what the criminal history category what they thought it was going to be but even if that were the case your honor i think it's still within the four corners of the agreement it doesn't fall within the framework set tools necessary nice question of when you say in your brief that language was inadvertently not straight come well are you talking about the last sentence of eight or also nine oh yes your honor i think the brief only mentions paragraph a bit we would also say into account but it strikes me that they're not there to indicate how the eighty seven was arrived there in there because at the time they were put in there or they were going to be used to arrive at whatever the court might arrive at which is never going to arrive but that's right as normally what you're looking for as evidence of how the eighty seven was arrived at is to say we agreed to the eighty seven because we agree that it has these elements and that under the guidelines that would be sort of my or based upon kind of plea agreement what do you agree with the first part of your question i'm not sure i quite follow the second in terms of thinking part is if if if you had a different kind of paragraph nine that said instead this is what we're  seven clearly directs the court to either so it's a definitive eighty seven months to reject to plead agreement or take the plea agreement under consideration in terms of understand the only thing that i that i want to make sure we clarify and i think this might have been what judge white was getting to you got to do the guideline calculation first the reason why a defendant would want adjustments in the plea agreement even if it's a c one c plea agreement that made that ended up with a lower guideline range even though it's a c one c is because that's one of the things a judge is going to take into consideration as to whether to accept the plea agreement correct so if you had a guideline sentence that said life and you enter into a plea agreement that said six months chances are it's going to be rejected so you're going to want to guide the court by an agreed upon series of adjustments to get the guidelines sentence to be within at least a range or reasonable us of whatever the accepted plea is under c one c m i saying that right that's exactly right you're going to go so there is some relevance to putting what seems to be guidelines stuff in there yes even though it's an agreed upon number which might have been based on the guidelines might have been plucked out of thin air but at least then you can relate the two go that that's exactly right or are that's exactly what happened in meet with this court held the defendant was not eligible for a sentence reduction it turned out down the road that the parties agreed on six hundred sixty three months that's it it's was it was based on definitive having a three level reduction for strange assistance for acceptance of responsibility in a two level handsome for being a leader that stuff was that stuff was the parties assumed that would be the case in the sentence in hindsight was related to the guidelines but the plea agreement there was nothing within the four corners of the plea agreement that express and there was no reference to the guidelines that's correct that's correct that there was no reference to the guidelines at all that is one that is one distinguishing factor between the police remain here in the  nice unfortunately we do have paragraph eight it does reference the senate's synod to guidelines in general but nice is not limited to the particular facts on which the case was decided it is controlling the holding is controlling in this case and based on the language of me in that makes the requires the plea agreement to have all of the tools necessary to to conclude that the senate's in the plea agreement was based on  sentencing range our case just simply does not fit within this court's framework and that in the knees and for that reason the district court got this case correctly and we would ask this court to  district court's judgment and i write that in this case from the government from the government perspective that if the supreme court in hughes just simply says so to moyers opinion controls and doesn't further elaborate on what that opinion said you would win under mcneice because we're bound by bindi's that's correct so the way that the defendant to win is either earth the supreme court says no regardless of what we did before we're going we're now agreeing with kennedy what is what what was kind of these plurality opinion right in that case taylor would win would he not he would he would be eligible for a senate reduction but well yeah the not grab but he's really the judge would have the authority to grant it that the judge believed he did not have the authority in this case that is that is correct or are they so if if if the supreme court says taylor  would have supreme court says kennedy it would have to go back for the judge to decide whether to exercise his discretion that's correct or so then the on the other path to win is the supreme court says sotomayor and clarifies what that test do you agree with the attempt at looking into the crystal ball here actually not exactly it would make it a lot easier for eddie taylor to win if the supreme court even if it stuck with sort of miers opinion clarified and you mean in in the nice yes right but in this case we have some evidence at sentencing and although we don't have the transcript because we were operating under the idea that you can't use anything outside of what's in the plea agreement we know that the parties negotiated with the with the expectation that he would get a sense within the guidelines range because of the sentencing proceedings but i think you can win by distinguishing me as well it's put no nine of so oars opinion she said she takes on chief justice roberts various scenarios and she says the only and she particularly says the only scenario that clearly would mean that the defendant didn't wasn't eligible is if the plea agreement nowhere mentions the have an anticipated criminal history category just as any taylor doesn't have a criminal history category and yet according to government that's you know the correct test was applied consent to it was eligible and why would it be that any taylor is not eligible when his plea agreement not only is almost identical but he has that additional language to suggest that everyone was thinking about the guidelines the last thing i'd like to say is i brought up antonio goings who is the case that was consolidated  with with william freeman's case and he had no criminal history category and the supreme court really granted his petition for certiorari in light of freeman and this court and judge rogers and judge wh does say that you have to be able to figure it out from the four corners and that's consistent with just a sort of lawyer i agree with that so where do you get it in your agreement from the identification of the drug quantity which is stated in nothing but guideline speak it only means one thing it's not just that it's an eight hundred seventy five grams it said more than seven hundred grams which is the trigger for base offense le thirty it also said he gets three levels and eighty seven months is at the bottom of just two of the guideline ranges that apply to a fellow twenty seven and mr taylor had a felony conviction the only being  your category one is if you have one or fewer criminal history points so no one could have thought that he would have been a criminal has to put history kind of a one so you can kind of reverse engineer from the sentencing table and from the actual terms of the plea agreement that everybody believed the eighty seven months was the bottom of his political guideline me which i see the amount of time so we would ask that this court reverse the order of the district court the man the case for the proceedings or hold it and wait for hi