we have five cases to be presented today on our argument and we entire court particularly appreciate the cooperation of the lawyers in helping us to get these arguments rescheduled under tight as a release of the issue of whether or not there was waiver an inadequate briefing i would simply start by saying i could have done a better job and i meant that i think after looking at it reviewing it i could have done a more thorough job for this court to consider it but i do think despite that i do think it's been adequately raised in the brief and i think it's also been presented for this court to review as relates to sentencing it was you realized it that your difficulty there in terms of waiver is double that is to say it wasn't raised in the district court in you didn't brief planar review on appeal so we have a lot of cases where the first is true but not very many  more were were both are true you have a pretty steep hill to climb seems to me but i agree that obviously it wasn't raised in the district court that was that's why we stated it was plain error for the court to increase its sent e and then also if the court found that we didn't brief it adequately then then it's been waived again and so yes i agree the court there would be an uphill battle but i do think in our letter brief that we did the side of the case u s versus miranda that briefs are to be construed liberally in determining what issues have been presented on appeal and we did clearly state that we believe the district court had plainly erred by not submitting a jury finding as to what specific arm mr suarez was being found guilty of especially as it related to the nine twenty four c since just the simple handgun would be a five to ninety five to life consecutive versus the sawed off shotgun which would have been ten years to life and in the record i don't think he was ever adequately noticed of his the range of punishment on that and it would have been a jury issue that should have been submitted under the supreme court precedent in a and a lane and so it was clearly an error for his lawyer at the district court level not to either request a jury instruction or object to the jury instructions that he had is o'brien not helpful to the analysis because you didn't  reply brief you did found the twenty eight but your principal brief doesn't mention o'brien you've never mentioned o'brien and as i read the government's brief their concession of error here was built to brown o'brien are you not embracing that decision now i do embrace that decision and i the white wine never cited it all i thought i felt that after they filed their brief and they conceded that it was clear that the issue was square squarely before the court in their concession and their citing of o'brien agreed with our position that we had and so therefore i felt it was you know of any any post o'brien case that does tease out this issue in a player context no i don't nod off because would you agree that if if for example your client had confessed to the shotgun as the gun for the ritz there would be no eileen error correct a great i mean if he had it admitted that he possessed it confessed i think that now but i read just in the record there sporadic references to a confession and then there's sporadic references to a letter he submitted at sentencing that is his lawyer didn't want him to submit it was hard for me to find whether where either of those were there was no acknowledgement as to this gun in either of those items but i don't think he he and that's why i went to trial i know but he there was a letter that was given to the sentencing court it seems like from him that his attorney was unhappy was given well i think you know if he gives a lot i don't as i thinks it's then becomes a confession that he waived that er because it's a constitutional error that should have been right in what you're acknowledging from having not objected we are looking at this purely through the final prong of plain error so the issue for us is is there a miscarriage in my question is if he confessed or if he sent a letter at sentencing acknowledging this shotgun i'm not saying he did i'm asking you because you must know the record better than i do whether either of those items exist in this record where before the sentencing court i don't think that that's an issue in the case i can't i don't know it exactly to answer your question directly but i do think that he's then in a difficult position at sentencing you know asking a judge for you know a lighter sentence and then what he doesn't even know that he said i had a jury question as related to which firearm he was responsible for so he's  untenable position at that point to that then waive a constitutional error that he has no knowledge of because it certainly is already an objective it at that at the sentence at either at trial or at sentencing when it was put in the pre sentence report i mean his lawyer didn't submit any objections to the pre sentence report and that would've been a perfect opportunity if he made no rule twenty nine argument as to count two did he did not he basically his rule twenty argument was very specific he simply addressed counts three and four didn't reference counsel want and also i think in his closing argument for lack of for the most part conceded counts one and two and then simply focused on counts three and four and so his rule twenty nine is related to count two was a general what didn't even make it will twenty i guess i'm just wondering does this that inches towards him no miscarriage if the guns inches from him on the mattress the gun in question he virtually didn't dispute it factually well it is a miscarriage because i think because the court has supreme court has always said that anything that enhanced sentencing has to be submitted to a jury unless the defendant did mit's do it right but he he pled not guilty and didn't admit to it and so based on that it should have been submitted to the jury rig i think even regardless of whether he admitted to it in a confession so he was arrested an admitted to it in a confession he still has to agree required to have a jury issue submitted on that because in this particular case you had to firearms a jury could have made a decision and they were only going to based on we don't believe his confession we don't think he was accurate in that and we're just going to find him guilty of the handgun versus the shotgun so by not giving that it's constitutional or other the president regardless i think even if he confessed to it because i think he's entitled to that jury issue being submitted to a jury to decide whether or not that mandatory in that clip was well you're you're you're answering judging since question but you're answering it in regard to the first crime was there or second problem was it playing third prong didn't affect substantial rights but over and over again our court has said that that's not enough that the fourth prong adds an additional element and the question is whether this is one of those rare cases where we would find a miscarriage of justice such that that an ordinary person would would would with would think that the air was so bad that it affects one's confidence in the judicial system that it that it only affects but as a supreme court said seriously affects the in the integrity of our judicial proceedings given that the weapon if there is evidence in the record that the weapon was there why is this case at the far extreme such that we would exercise discretion to say not only was it wrong but it was so wrong that we've got to do something about it well it is a miscarriage of justice because the reason we have developed this precedent the supreme court developed this precedent was to make sure that if someone was going to be held to a that range of whether it's five to life or ten to life especially in this case ten to life and even if they did it in drug on this clearly said if something's going to be subjected to a mandatory minimum punishment that the jury has to make those factual fart so what what you seem to be telling us in response to judge chickens is question and mine which was i was just asking you know a different way is that in this particular situation where it didn't go to the jury that satisfy the first three projects all you have to do and time and time again is that the first three problems are enough if the fourth prong really does add something significant and we've given you two chances now to tell us what what it is that so extremely wrong and so extremely horrible about what occurred here that you should you should be able to ask us for a fourth properly well his entire fourth congress leave because he got sentence based contrary to supreme court precedent that says in order for him to be subject to a mandatory minimum or increase punishment the jury has to make that finding and they didn't make that finding it and if they should have been given that jury charge they should have been able to make that decision mr suarez was entitle to that and the supreme court has clearly said that that is what a jury supposed to do when we come to the mandatory minimums and it's been their presence they've developed over time and that is a miscarriage of justice it should have been a question of whether or not it was included it should have been clear to the parties that hey look we're like he's got a sawed off shotgun he's looking at ten to life if he's found guilty of that on a nine twenty four c a jury needs to find that i think it was very clear so it is the fourth prong in satisfied because the jury issue should have been submitted the supreme court says it has to be submitted because it increases his punishment right but the question i ask you is what tot what case post that decision has been in the player context in other words i could see but correct me if i'm wrong the time you could have objected would have been any time after indictment all the way through jury george you would have said listen this is there's a duplicity problem or there are two guns here but you didn't and then at trial he never really contested the proof of this particular gun being in furtherance then the p s r says watch out ten years mandatory minimum still no objection so over and over again now the defense counsel is not alerted no one can just say well the lawyer just missed it even when it's right in front of his face but what here's the reason that i would think we wouldn't find miscarr would be let's say the lawyer knew there's the problem embedded but he didn't want it corrected because one correction could be the government decides to supersede and charges tonight twenty four c's with the consecutive this is a question to you would be consecutive  so was very smart of the lawyer not to object because you'd have to get one twenty four c's each being a mandatory minimum yes they would have been stacked though so he was very sick very smart to not object well i don't think but i would say he wasn't smart to object because now all of a sudden his client sitting there looking at an additional five years that maybe he did not know was coming his way but he was facing fifteen if the proof is so overwhelming so he's thinking it through well we're not really going to fight this we're going to get consecutive maybe an appellate issue but if i'd actually objected on time with this proof looks like my guy's going away for fifteen years he's in a worse situation  be in a worse situation but i think from a defense lawyer standpoint i think you're kind of the hobson's choice of the court has clearly said you can't lay behind the law well that's right you can't lay behind a log and just wait for an issue to potentially oh this will be an issue on because but i think it's squarely before this court to fix because i do think if it is not dealt i think the issue is presented today that if the court decides not to address it i do think it's going to get addressed on a b s i think he would have a  lawyer but i think the fact that it came up each and every time and even when it got to the pre sentence report it wasn't objected to to say because at that point your honor if he's thinking about it he's going hey look we didn't get a jury issue on it i need to object now because i'm going to save my client sixty months because judge mazak could've said you know you're right or the government could have conceded that point and said yeah we didn't have a jury finding on it so therefore he's only subject to the minimum of five years consecutively so i can't see how it would be strategically advantage to not object at the pre sentence level because he could have saved his client sixty months right there if the parties agreed and i think judge knowing judges and i think he would have said no you're right he mess just really the basic argument is goes to possession whether or not the government proved it by actual orchestra is it true that in closing the argument to the jury was don't trust the child molester correct but then if that's just a credibility call you know yes i mean i understand i would have been helpful had he objected to counts two because if they can't don't find possession of not guilty on three four then they could have been able to find guilty on count two but that was an object too so i do believe that we have presented the issue the sentencing issue court asks as we've already discussed this morning three questions of the government on in the requests for appellate briefs the first one is did mr sorrels waive his challenge to the man a mandatory minimum sentence based on his failure to adequately brief the issue of course as the case law says yes he probably did he could have however the court so has discretion to make that determination  should you consider the fourth area the fourth prong the government conceded as the court is aware based on simply if it if felt like the right thing to do all of us missed it at court i won't miss it again i promise you that you know i've had the experience in front of judges in a sense then he would definitely have not sentenced mr saurus to that type of sense if you could one of the reasons a school history he does not have a significant criminal history judgment zant has shown since then that sometimes he will not know obviously blows that story minimum he can't but he will very down work when someone doesn't have a co history almost regardless of what type of case it is so for those reasons we conce however the court doesn't have to consider that in a world where of that the second question the court asked is should the court consider whether or not mr schorr is i'm sorry decide to climb a plane era where the issue not actually proved with and whether or not the third question was whether the department of justice agrees that the case is decided before this were decided correctly we do it looks like a lot of those were based on a fact specific inquiry which is what the discretion should turn on and what it does turn on and all of those cases so that for those reasons we do agree that all those cases were decided correctly well those cases the ones that we cited to you and you did address and the respondents said they were correctly decided some were published and some not published they they all contained the blanket statement i'm paraphrasing but that failure to brief the for profit in particular the fourth prong is is vital they didn't say anything about being facts specific it was just a matter of laying out what the law is in the circuit about what you have to what you have to raise and that's consistent as you well know with what the government often insists to which is the blue brief didn't raise certain issues those issues  are waved in and i agree with the court and also we will continue to exercise that fact we will not agree to a waiver we will not concede i'm sorry if they fail to to properly the issue in most cases however we would request of the court consider continue to exercise discretion when the facts specific cases specific cases rarely dictate that maybe discretion should be used let me also mention a direct address myself to your your supplemental letter and it was responsive to the three questions and you cited the one exception that you found which was us versus an area which was an unpublished opinion no less just an opinion of his court and you said that there were the fourth prong wasn't briefed but if you had gone back and looked carefully at the docket in that case she would have found that what we did in that case was asked for supplemental briefing because the united states had issued the johnson case and on supplemental briefing in fact the fourth prong was briefed so your your your you letter was was was inaccurate not intentionally so on that point so there are no cases that you pointed us to in which we granted plainer review and fourth prong relief disassemble was was winchester shotgun the mandatory minimum would have remained of five years instead of being increased to ten now the only words that aren't in there are fourth prong or miscarriage or something like that but to me that's a pretty clear statement of what the problem is it is your honor in i agree with that i think mr mr suarez's counsel is the one who raised it on appeal he's the one who noticed the air and then he did state in his fourth raise it did not adequately brief it but raised it and it feels unfair that because mr weiland did not specifically argue each pong that mr suarez should be penalized by being sent i absolutely do agree your honor but here all the brief did was mention the words clear i think it mentioned it in about about three times but made no effort to indicate what establish the first three you don't have to do the fourth our case law says to the contrary i hope you still agree to that i actually do you run either a very case several of the cases say that you can't you can't combine the third from the prying into the put forth prong that's clear time when you know we want to use in this case our prosecutorial discretion simply because it felt like mr sorrels was going to be prejudiced by the fact just despite the briefing he said we can and we can get to that i mean i don't want to cut you off from that you have plenty of time to discuss that but consider the consequences of the position you've taken here if we were to write a published opinion that examined carefully what has happened procedurally in terms of waiver or not waiver and what happened in the district court and what happened here this would be the first case that that i know of in which we would be we would be granting relief where the defendant not only failed to raise the issue at all in the district court but fail to fail to live up to any kind of an obligation to brief player review on appeal i mean that that w substantially undermine the position of the department of justice in future cases and you know it would be cited in every single case in which playing there or if you is race now i'm not go try to tell you how to present your cases but that undermines everything that the united states has done for years and judge higginson with his career path maybe knows this better than i and he may disagree and free  so but it just seems to me that that's that's a dramatic change of course if we were to write it that way is that is is that what you want to do not at all your honor i'm not asking for that not all of it as in the nary a case and in as a quick point out i did not go back into the record notes from however in the every case it didn't it didn't say whether in fact to specifically says the court's not saying whether or not it would have exercised its discretion on the fourth point it's just taking into consideration that the government  conceded in remitted for recent saying that's all we're asking for we're not saying the court can't do it we are not certainly not asking the court to say you don't have to brief the fourth prong at all and we don't want that because we do believe in most cases that we'll be arguing that an app waived it if they don't brief it simply in this case on these specific facts we're just asking the court to acknowledge that the government's conceded based on its prosecutorial discretion and again not come as a didn't area just say we're not commenting on our discretion what we're saying is we're taking in consideration of the government conceded that you've already settled and i appreciate i don't mean to cut you off and i want to give you plenty of time to get to the specific facts is the position you're taking here does it have the approval of the actual u s attorney it does this has are unclear has it has it been reviewed by main justice it has been yes it has gone through my palate chief when when for circuit asked for the department of justice his position is that i don't want to just be promising you saw give you a chance now to address what what is it about this case that would satisfy the the rare requirements of a fourth problem particularly given the fact that it's in the record correct me if i'm wrong but it's in the record that the sawed off shotgun was was was present although not submitted to the jury as everyone concedes so what would what would seem unfair given the potential waiver here of having the additional sentence when in fact the record seems to support the presence of the weapon in which the additional sentence was was based right what seems unfair but what was strange about this case and i believe that it was trial counsel's trial strategy was to essentially tell the jury that counts one and two were probably true accounts three and four w three and four with the two separate sawed off shotguns one of the side off shotgun was in another room that was not the one put in killed to the other one was in the room with mr suarez that what ended the drug making materials in that methamphetamine all those things  that's what makes it feel unfair and seem unfair additionally as far as the fairness of the proceedings of course of this is not going to be a publicized case it's the you know it's one of many however to say that wants the government noticed this problem although the judge didn't notice it a senate saying if for some reason that you know that were presented to the public that yes everybody knew it was a mistake but we're going to go and soon some five years extra that's why it feels unfair and not in the interest of justice so for those reasons it's a little bit different now had mr suarez even not you know just had a blanket i didn't do any of this you know and then the  found anyway which they did they found anyway that he did possess posada's shotguns that might even be a little different because of the the difference between these two i did these two i did it felt even a little bit more unfair it's sort of i mean that logic is helpful to me it is just sort of proves the point the government always should confess when they feel it's wrong but it's still worth briefing out right if you brief out that fourth prong you can hit on each of these points you can say consecutive time a lot of it lo criminal history i think judge specifically said he wished he could have gone lower right maybe then you could brief out what we have to say found a single o'brian error that was excused it's a tricky thing to spot it's just coming in and all those things could sort of then help us i guess you could even point out otherwise it's a pressure hevia so it's going to take a lot of judicial economy right so if you spell that out that in my future practice is still true as from my days judge smith was nice to remark to that if the government's going to confess in this court error on behalf of district court there has to be approval at some level from washington so in other words consultation prior to our letter request just the fact in your brief you were going to say meant that washington had looked at this absolutely in fact in preparing the original brilliance there are some other cases that better a little bit contrary but we're never officially overruled however we still felt that based on o'brien and some of the other cases that this was the way to go to concede error so yes we did we did we always go through a pilot chief and she always goes through d o j if we're going to concede any issue  you know we don't like to concede that that's is not my practice to want to concede obviously we want to do it right the first time but when it feels unfair it feels and not in the interest of justice it feels like the right thing to do again tracy can't is your appellate chief she's been around for a while she has she has and she's in my opinion very wise so under possession proof the ethical shotguns the one in the next room the winchester ones the one in this room is that correct that's correct what was your best proof supporting counts three and four is it easy just to give a record site in other words did any witness including the girl the flip erica ever say this sawed off shotgun count three this four was possessed by him or demeaning control is right and that exist that does exist as the court mr just a second some point at a minute ago the child molester is the one who who did he actually came across as credible you know  she did say that that was a farm and he was a former marine that came out as well he he worked with firearms so he recognized the firearm and he he could he was adamant that that was a firearm and when he went to make the drug deals in that room that firearm was there when you say that the winchester the ethic or basic of the uptick in the one that was charged in count two and then corresponding to what i'm just wondering about the sufficiency on three and four right right i can was there on the bed you could see part of the shotgun sticking out right under the bed worse for as he was it wasn't three pieces all that are the roots of drug trafficking crime how long would it take to put together well i believe that was just the position the further it's in the drug trafficking crime i believe was the other firearm although it was in the other room at the time it was the one that mr puckett saw him standing up in the room when they did the drug transactions so that one was possession of a sawed off shotgun that was in there it was in there with include the additional five years i think i hear you saying and feel free to correct me if i'm wrong based on what's on the record not talking about what was submitted to the jury but what's in the record that  would not be serving that five years on the basis of something that didn't happen i did a double negative but i hope you're right mike right probably not that's why i wish i would have submitted it to the jury chances are they would have found that both arms reason for this but we don't we don't know that my obvious point is that goes to whether it not only affects but seriously effects brightness of the proceeding and based on how you've just answered my question very candidly and professionally i just i don't see any unfairness here he's he's serving the five years and it's on the record that that's what happened so well i guess i can imagine that we would that we would say that it meets that standard well that's  essentially admitted to the first two counts and then not the second two which makes it feel unfair also you know again it it feels like it's the right thing to do of course i agree with ike i think  first of all i'd like to just take a moment to recognize that the government did concede this and i do appreciate their professionalism in that the last thing i want to say is just clarify is that i'm not disregarding the press and this court said these still have to meet the fourth prong i think under the facts of this case that clearly the fairness and integrity of the proceedings were at stake here because he was sentenced to an additional five years that a jury in this supreme court has said the jury must make that finding and to say even though that we could parse it out and say the jury may have found that he possessed that shotgun and therefore we don't have he didn't affect the fairness of it i don't think that's what the supreme court meant when they said if you're going to be sentenced to an increase and the jury has to make that finding the jury never made that finding it was never asked of me that find it should have been and it wasn't and so therefore their inability or the failure for that to happen did affect the fairness because then we're left wondering well probably the jury could have found that but we don't know and will never know because they were never submitted the issue so i do think the fairness and integrity has been affected mr suarez has been affected and we can't lose sight of the fact that mr suarez right now is going to serve an additional five years based on an issue that a jury never decided  and i think at the end of the day based on the press and that we have in the arguments that i've made in the letter brief that this issue is before the court and the court can decide it and who's good here is the coconspirator she in her factual basis