base numbers one seven three six nine two one seven three six nine four united states of america versus colt aluna and tonio navarro guy tan first argument i would like to present as regarding the eleven soon agreement because i think that said the tone from what transpired throughout the entire proceedings and i think what's important to understand is how hard the parties work to get to that point  crunch was during the holidays we worked real hard during the holidays and i want to make sure that the court understands all the parties involved in trying to resolve this it wasn't just us attorneys it was agents they were involved in the investigation everybody that it's something to do with this case was present during our meetings is a district judge required to accept an eleven thirty one c no your honor they're not and were not and i'm conceding to however i think of the court abuses discretion in denying it it's something that this court can can can now go back and review so if we were to decide that the district judge abused his discretion in denying the eleven thirty one could we order that the eleven c one c be implemented that's what i'm asking this court to do there's no case law to that effect there's no case either way right that is correct your honor but i wan i've been induced for many years i'm familiar with a northern district of ohio i've never had one rejected before it's not very popular no than just who i am but most judges do accept it and the few cations that it's been sort of put on  conditional is because the court wants to find out more about two thirty three fifty three factors there it's to do the percents investigation report and then court reviews it primarily to do that to see what factors are involved in this case and see if this is something that i can live with but in this case what happened i think the court had its own agenda from day one i think the coroner records stated that nobody nobody with this type of charge should be entitled to a minimum rule or safety valve not knowing anything about the  reasons the large amount of drugs which was already taken into account by the guidelines and the other reason was other relevant conduct but he the gun and trying to decide whether we're going to get internet newly discovered evidence came at the very last minute by way the government and that's why we came to the conclusion both sides felt that this was a fear an accurate representation of what the involve what our clients had done and i want to keep in mind that the agents were involved in this negotiations it wasn't just the government it was the agents it was a supervisor it was the supervisor in charge of the drug unit was mr brown we were all there the judge had not privy to those conversations the judge did not know what the investigation had concluded but to me that's why i assume that specific question judge here's here's the thing plead remain the way the guns were calculated and you got to level twenty with a safety valve the minimal role things of that nature he looked at me in the face and said no i don't have a problem that's being calculated and debt point we made a strategic decision well if you don't have a problem the only think left is a variance that's in our mind that's the only thing that was left to do for the court if you want to punish the client more that's what we put the case wondered when i read the record and i might have had some things that a sequence but i i wondered if the district judge had already come to  of years and he had to find a tool to get to that point and it's hard for me to believe that he had made up his mind that they did not qualify for the safety bill because you know one thing about the case he clearly is for the  conversed with the agent he had not conversed with the u s attorney's office to decide whether they qualify for the five program that we had and that's why i feel comfortable that we were going to be that requirement as well as they had and as you know all of them all these safety bills arguments presented before the court typically is the government or the fed to because they the government isn't satisfied with the colloquy that they gave things of that nature i've never had a case where the court having the government presented arguments that a court by not only mr brown but the agent himself in court will the judge judge yeah this guy's qualified because there were minimal rules in this in this investigation in this conspiracy and obviously he felt that that was not sufficient and for the life of me i don't know i thought again it was an agenda and he had to do whatever he could to get to that agenda that the district judge has to explain why he's rejecting the eleventh the one is just plain argument judge of i'm going to deny something i mean no there's no case law to that judge i wish there were because typically they're accepted or they're deny i think if you look at the eleven see case law t consideration in their denial later on least on the facts of the court will explain on the record why they did it for instance cases where once again are pretty much of the thirty five of the three arguments and this case i'm not able to accept this eleven c because your client has a long history of prior records has been involved in numerous things i'm not going to do that in this case and this case was the complete opposite had he done that he may mean that i know and he would have known that the thirty five fifty three fact is a pertains to my client they all heavily heavily to his favor long as it's done before sentencing we're ok and mike kline you know i think the judge said that proffer should have been a person rather than being communicated through the attorneys and i couldn't find  language you need an interpreter is pretty much stance what happened here i'm very familiar with the parties involved i've translated numerous times for the for for the government and proffers and what i want to understand here this investigation was was minimal and involved a few hours and whatever my clients had to offer but we proffer was corroborated by physical evidence and the government had all that evidence in my client explained to him through me  that corroborate it what the got what the government thought and so there was no dispute and no point in time to the government saying to me hold on jamie you clients it a but it could have been because they had a b b no they were very satisfied with this with this  agreement just want to point out that january fourth after we had worked with the supervisors of the of the u s attorney's office the head of the drug unit there and the agent who excepted the said after he had denied my requests for an expert on the question of speed because it was a motion to suppress and gave no reason for that other than you already have another expert in spanish language interpretation but i think that this judge had an axe to grind about this case from day one and it just went downhill from that point on and i want to talk a little bit more about what happened afterwards there's a safety valve was made was acceptable because of the lack of a in person meeting with the government is there any case that says one way or the other that we we did we did cite a case out of the first district in our brief i think it's called miranda santiago submissions by consul are  ok even to the probation department and if it's not objected by the government and accepted by the probation department it was it was it was it was deemed appropriate we have plenty cases that  the attorney is the agent and the party usually that rules invoked to the detriment of the party right and if you look at it if you look at pronk five it doesn't say that the person that the defendant personally has to show up at a you know at a meeting it says the defendant provide truthful information and furthermore that it doesn't necessarily have to have value to the government and i think the judge adams kept thinking that well they're they're not tech talking about all these things that the government didn't know about who the leadership was how the how the trailer got to cleveland all these things he's just assuming that these guys are holding back information which is not true even the government was put on the spot in this case i'm sure you're going to ask mr duncan where where he actually cross examined him about you know what kind of what kind of boxes do you have that doesn't require in and in person meetings and he said well i trust the representation of consul furthermore if i know your time is limited but the bottom line question is once the district judge requires these in person meetings and proffers and so forth does your client pointing the finger at mister  informing in a sense on mr kota luna mr kota luna and i don't think that's disputed brought my client in because he's a sixty five year old guy who has a long history of trucking he has a a license in mexico he has made numerous trips across the border delivering goods to the u s and he knows trucks and he was brought in presumably to company him to the location and look at the truck to see you know if there was what was going on underneath my client never even got underneath that truck he didn't have any grease on him but on the second part of your question was the inconsistency but the there were they really weren't in consistence where we should have had to go back and put somewhat of an illiterate man who had no very little education and without a spanish interpreter in the room with the agent ask questions so he did fear that this at some point before they went to the truck that there was something was not right here something was a raw that i think that he thought that there was a drug situation in this particular matter and that it was confirmed later on so you know he i think the judge was picking on any little inconsistency that he come up with to say the whole process was untruthful and then you go into the allegation  that my client must of bought and in one thousand kilos of marijuana in two thousand and ten he was stopped at the border there was furniture there was marijuana hidden in the low that he picked up from a company they investigated it they let him go they did not arrest him he proceeded into the u s and has done that numerous times since that judge adams on the other hand saw some of the ferias aspect to this that it was somehow a prior criminal conduct that he used to suggest that my client knew more than he was allowing and and then he said i said well there's no evidence as when the crime there and he said well you have been disproven that well i've never heard a federal judge say in my forty four years of practice that you have to prove disprove anything and then of course he talks about the court the medical examiner's office about heroin over deaths of overdoses and that's that he talks about the price of cocaine on the street he he he just goes on and on about judges theory here is that your clients may be little cogs but they're little in the giant huge distributions and here ninety plus keel it's not wrong to use that judge but it's wrong to use it when looking at specific guideline applications because the he could not comprehend that the that my client who had such a minimal participation was kept in the dark that's how the carto work he couldn't conceive that this this man would have a very minor minimal role in this process and wouldn't wouldn't be told anything about what was going on that's how the art works they compartmentalize the process and you segmented approaches and they use dupes to sometimes check on something to make sure that no one's looking or no one's no one's following them and and he then uses his own belief system to decide that they were indispensable that this whole operation could not  come together with these two guys who were really kind of being used and so the idea of the drugs the overdose as is an important aspect of drug drug sentencing but not in terms narcotics that he did that that he lacked knowledge of the cargo that his role was no more than transitory that he was not even able to open the comp compartment because he didn't have the proper tools that he  ask the court to assign a different judge thank honor the government would argue and i would argue that this is not a shifting this is simply the government did agree to a say agreement they did agree to a group b agreement however this case is fundamentally about whether a court can exercise its discretion in sentencing and how this court in this case did in fact properly exercise that discretion doesn't have to give reasons he did and starting from the rejection of the c agreement on january  fourth he gave plenty of reason and plenty of notice that he gave upon the initial rejection other than i don't want to have my hands tied well he he said specifically my hands are not going to be tied when i look at all the various factors i'm going to consider  onesies and he's going to reject them because he wants to look into the facts more as a practical matter yes a case is there again there are words that there are no cases that say that there there has to be a but a specific you can write eleven see just sort of out of the out of the criminal rules in his or her courtroom a district court judge can decide that he wants or she wants to review all of the factors and i think there are there are cases i mean certainly there's actors and then make a reasoned determination as to whether there's a problem with the elevons we're talking about rejecting it up front on this record you don't have any authority that supports the district or judges ability to do that no but he he did give the the reason that he wanted to consider everything about the case some suggesting that not much of a reason but but it is it is a reason and blanket reason it's not particular to the case would be one thing if he had some specific problem with this particular eleven c one c and the only other thing that i see that he said was he said we have what ninety plus kilos of cocaine i have other relevant conduct well i had a part and parcel of the case i don't know what he was referring to there your honor the government would suggest that perhaps based on other comments he's made he made at other times that he was interviewed the complaint that had been filed in the case where the  luna's prior history was mentioned and the sort of facts and the circumstances of the underlying case were spelled out in support of the arrests of the defendants he did make mention of those in subsequent hearings and and those may be the the sort of general fact relevant conduct is that truck that was found at the border with marijuana in it is that the relevant conduct in part but also the relevant conduct of the truck with ninety two kilos being approached by the defendants at five am in the morning that they were observed underneath the truck is that using the word relevant conduct in the sentencing guidelines way that because that well  i think you would pertain to i think using it more broadly in the eighteen thirty six sixty one way which all all facts can be considered by a sentencing judge of time of sentencing to to fashion  sentence that that's what the government order argue based on his subsequent discussions his subsequent actions with the sentencing because the word of appeals if the court of appeals believes that thoughts on the subject your honor i would argue that based on the facts of this case and the extensive record that the judge made both in is what i want to see the june fourteenth  opinion in order and then also at the june fifteenth sentencing hearings but in addition of may to that this that course of action would would perhaps run afoul of the holding from united states z and it's cited in in the government's brief words as the court of appeals must respect the role of the district court and not substitute judgment of that for those of the courts on the front line and the court did look to the specific facts of this case and applied the facts the government will concede applied the facts and gave weight and balance to the facts differently than the government did certainly differently than the defense council did but he he  looked at all of the facts and all of the the conduct in this case and he also looked at the larger policy issues what do you as to whether the defendant himself has to provide the information as where he interpreted that the the defendant has basically an affirmative duty to provide that in this case i will  no in person requirement now it's a lawyer well it could be and in this case the government did because as mr surat outlined and i think mr gilbert also outlined we did speak extensively in person over the phone via e mail probably with every type of communication from right before christmas through new years up until january fourth we had meetings at the u s attorney's office telephone conversations meetings at the agencies are saying these meetings meetings with the defense lawyers or meetings with the defendants with defense counsel and that's why when we originally did an attorney proffer which is not normal but it's not barred were prohibited by our office it was because it was in the context of those extensive meetings because during those meetings we talked about not just please but also the basis for please the weight of evidence the strengths of roe your breathe and that the district court was wrong to say that it had to be an in person meeting of the defendant himself with the government well the district court said that on may eighteenth and when we had journeyed that hearing we in fact then went back and had in person meetings with the fact that you didn't have them originally means that you didn't think that they were necessary correct but are you saying that you were wrong or is it the district well the district court i believe i believe the record would show that on the fifteenth of june the district court did not rely solely on the in person or not in person quality of those proffer is a but the nature of the information and the taken in context as one part of a number of considerations about the defendant's sort of presentation to the court the that that supported a sort of a lack of consistency or a lack  of truthfulness or trying to would not be proper for the district court to rely solely on the fact that it was not in person and i don't think it relied solely on that fact i think that was one of several factors that it looked to  i mean as you point out there was an in person meeting before the court imposed sentence correct and i mean unless i'm really starting to get everything as i get older i believe i wrote an opinion which  that the sentencing hearing is that terms used in the criminal rule is the hearing at which the court pronounces sentence which would be which would mean here that they did in fact provide thing is an invalid basis it would appear for the court to have rejected the elevons this whole defendant in person well i think the eleventh he was a separate there were other factors that the court considered which again if if there was one one factor to rely upon my understanding and correct me if i'm wrong is that the district judge primarily relied and the the court made the finding or where he held that he did not believe novara get on with a minimal participant in part because of as mr gilbert outlined his background of a trucker the  the the court looked at that and weighed and applied those facts again differently than the government or or other party and he said well because he was a trucker because he did not look physically look like a normal drug carrier he was older he had multiple border crossings but he had a specialized knowledge of trucking or an ability to cross the border he had knowledge of how trucks work and are put together within the context of the needs of a cartel he becomes more than just a minimal participant he is a very valuable type of courier he might be cabin dop he might be walled off from the larger conspiracy the jets have some information that this fellow was a regular kuria you a regular carrier courier he knew of the was no information that he was a regular not real because the government agree with this counsel that he was not a regular curious correct correct and i'm not changing the government's position what the court said was not that he was a regular courier but he had the type of knowledge or expertise because it was fort rucker right that for carrying another ninety two kilo load of cocaine that was apparently ninety two or ninety six percent pure  they would need somebody with a more specialized knowledge he was not saying that none of our get on with your crossing the border every day with a truck is not an aggravating factor for the emphasis in the criminal sentences well no but in the application of the safety valve to this case if it involved a courier based trucking company truck carrying these drugs because it required the ability to get into parts of a sorry that i forget this if you are not a minimal participant are you not allowed to get safety  government argued that in this case because he was cabin off that would suggest minimal participant the court and it has a right to do the funder under anderson versus city of bessemer supreme court for seventy us five sixty four five seventy four where there are two permissible views of evidence the facts under stress cannot be clearly erroneous in this case the government of the position that we stand by our plea agreement and we recognize that there's a great disparity in fences however the district court procedure was reasonable in applying the facts to the case and the guidelines and its and the use of its discretion in fashioning the sentence it did because the government will not you know shy away from the fact that the difference between thirty three months or thirty six months and ten years is extremely significant however it the the job here and there of you here is not do we disagree because we certainly disagree but was there a procedural error or a substantive error in reaching that sentence that requires a reversal and the government here would argue that procedurally and substantively the the process followed by the court and the application of that process applied by the court was a reasonable under six thirty law if there are no further questions i will concede the balance of my my time which is about three and a half minutes but i'm happy to take any well if i understand you correctly you're saying the government is not the government is not asserting there were any inconsistency but to the extent there were or if there were they had a good excuse that was up there that that that would be fair  was not a minimal participant because he recruited were internal inconsistency that he could not look beyond any further questions thank you very much after the sentence i asked mr brown with a second are you backing up out of the agreement or as we sit here today you're still accepting the agreement i said no i still buy by the agreement so that leads me to believe that the agent the u s attorney's office all the everybody there agreed that that's what should have been done that with the court date is wrong but yet he stands here you know he's dancing around a table but he's trying to defend the judge and i just think that's that should be proper he's talking about some sort of institutional reasons that perhaps the courts actions in their view were justified and that it's more about a larger process and perhaps i sympathize with that i think i do want to understand some of you talked about keep in mind my klein addressed that issue and he denied it the court had an opportunity to speak to me about it so if you only facts before the court as far as my client is concerned is a denial by my client in fact that was true you spoke to the court addressed the court the court had an opportunity to ask him that because i brought it up before him that he would a second i spoke to of our time through somebody else and he denied making that statement that's all part of  the record so the court had not brigit is it wait a second is this letter did it has your name is this something you use actually said or not he didn't do that because i think he was afraid of the answer the answer would have been no he didn't do that so i'm led to believe that since the united states of america through the attorneys up u s attorney's office the agents the agents themselves that conducted the entire investigation told the court that my client was not a leader was not an organizer ok my client tells a chord that he's now that but yet somehow he someone and he's declared on the record he's not believable he's going to take one little sentence out of that argument in find it to be a leader and keep  come out of his mouth this is something that counsel argue that we dispute it i just look at the judge's actions here were violated fundamental fairness equality and justice and i had a very difficult time to explain a family from mexico with no prior criminal justice experience that we had negotiated a contract with the united states of america and somehow this judge for i can tell why he did that he did not follow that kind of it is very difficult to explain to a mom and dad that their son thinking that was going to go away for three years is not due with ten years for no reason whatsoever but i think it's illegal thank you very quick two minutes is not on the time but just in response to mr duncan he seems to suggest that the judge look the judge looked at facts and they through the process from the first sect first hearing of the second here he didn't look at facts he looked he relied on his own belief system in order to challenge and attack any reasonable argument that the government and the  agreed to secondly the case law on this safety bill regarding pronk five all those cases involve a dispute between the government and the defendant regarding the application to say to another was the government said they didn't come forward and were not truthful the defendant said they were truthful and then it was up the cook to the court to be the  to which side to take and which which which position is more reasonable that's not the case here we had we had it in a sense a contract with the government regarding the safety valve it was a good faith effort to present all the information that the government need they greet they greet it was consistent with the facts that they knew it so i just i just feel end if the court looks at the transcripts and sees the reasoning of the court it does lead to the conclusion that he was using facts outside the record and his own opinion and his own belief system and assumptions so we feel that also that at the may eighteenth hearing when we were shocked when the when the judge said  you i'm not going to give the safety valve because you didn't personally meet with the government and the government stood up and said that's not the way we do it we had every reason to rely on the government's representation that they were satisfied and this should never have been we should never have been put in the position and if we were damned if we didn't then if we did if we didn't go to another meeting he then would say well you didn't you didn't have a face to face meeting and if we just didn't do it if we if we just stayed with our position that there was no need for face to face meeting then he would've taken that into consideration in the final sentencing thank you thank