it's case on the calendar united states versus kilpatrick  which it would be disingenuous to argue but the application of the sentencing guidelines in using chewy one point one in a rico conspiracy is improper what i can argue today very very briefly is simply that there is persuasive authority that that committee that's the sense in provision is not mandatory but rather permissive there is authority in other circuits that there's no must although treat is is pretty strong strong but it there is authority that it is permissive and there is no indication that the sentencing court recognized that he had the power to sentence or two to count as criminal as relevant conduct import of the offense of conviction under for a one point one the crimes that he used to calculate criminal history could you just rather explain why application no four is not really a pretty straightforward exception  o for a one to a one i can't explain it it's an exception because rico is different it's not just the underlying crimes it is different but what i'm not saying it's not different what i'm saying is that it's permissive and not mandatory that when a quart is calculating and guidelines calculation as they must procedurally that a court should be able to choose whether they  hand used to a one point one or they can use for a one point one hope i got that right and essentially this court and the sentencing  used it is the were mandatory and because of that i would argue to you today that it was an abuse of discretion to sentence this teenager although the crimes he committed were harsh but it's a teenager seven additional years in federal prison that's his college that's what he's going to learn and that was a reasonable it was plain error and for that reason i would most respectfully request in the best way that this court remand the case for the sentencing my name is andrew frightful when i represent seven months ago on this appeal mysel bargained for the right to argue that the rule enhanced and rendered the plea agreement stipulated guidelines range overstated for purposes of the three five five three a factors indeed as shown by his sentencing memoranda and his arguments at sentencing my sil's ability to make this argument is the primary reason he entered into the plea agreement and as shown by judge sullivan findings at sentencing this was one winning argument not only designer believe that the role enhanced been rendered the stipulated range overstated but the court flat out rejected the a playability of the role and handsome it all the government not sue a sponsor a breach the agreement by arguing for a higher criminal history get history category than myself guidelines range would have been eighty one to eighty seven months in pocket first as united states at footnote for the supreme court held that the satisfy the third prong of plain error analysis that is to show prejudice a defendant must prove that the breach affected her sentence we maintain that myself satisfied this burden by showing that judge sullivan imposed a sentence based on a guidelines range that was considerably higher than the one that would have been found had been asked a question about the application of any and is the government not supposed to answer that question no much as about to assert according to the plea agreement only where increased regarding myself his criminal history category apply does it open the door for the government to make the argument it doesn't say in other cases where judge sullivan makes inquiries and the fact that it seems to me that the fact that this was a girl a defended or a codefendant is really irrelevant to the analysis perhaps the government had appeared before judge so even on a completely different code so much of the government have done to me and they say that they had been before the same judge with respect to co defendants and the  have a duty of candor to a point out the error yes that's correct i don't believe that they had such a duty of candor so in other words because the duty of candor applies equally to both sides does that mean that if the diff if the government's reasoning is to be adopted if under the duty of candor of defense counsel had discovered this quote unquote error he would have had the same obligation presumably of duty of candor to the court to disclose that there was a mistake in that and  is it just assume let's just assume i'm arguing that there was a breach you still have to sign a font satisfy the third prong of the of the plane or test right yes they application note before was raised during several of these he sentences sentencings including one during which the district court brought up to a one point one dollars that is possible but you but this court would not know that without reviewing matters that a day who are the instant record and since this record i argue should be limited by its four corners and not i'm still thinking it's true that there may have been a breach but under plain or right and given what the the district judge judge sullivan said don't you have a high hurdle to overcome with respect to showing prejudice you mean what your children said in the instant case or what you saw and said in a different case when he said and admire sentencing he said that the sentencing was not taking place in a  began i submit that the only way that first of all the government breached in their sentencing memorandum not in the first instance so without referring to other other cases and other records the court is ok i respectfully disagree while he did what was judge sullivan definitely said i'm familiar with this case and i presided over poda fence at no point did he say that this issue has been before me us to criminal history to history category that that particular issue has been before me before and i'm deciding it accordingly the record is is is just as reasonable that it was the government's sentencing memorandum which brought the the issue to his attention thank you observed two minutes any increase of the government specifically about myself before the government filed its july first two thousand and fifteen minor with respect to mr mysel no but as the panel has has has recognized this issue as it was squarely before all the defendants were obviously getting e c f bounces and in fact the governor had met with counsel for defendants to point out the judge sullivan had raised the issue about the application note and that it made no sense for the government to hide and put its head in the sand the court obviously made decisions and five prior defendants it was the law of the case for the government to sort of ignore it but the government in the position of being basically lying to the court and ignor before and as as runners know the district courts and multi defendant cases always take into account the other sentencings of the taken place they do not take place in a vacuum but we've seen other cases in which i mean the government's held to a very high standard on abiding by the agreements they have made and their way you know with a meticulous attention i think is some of the language that's being used and why it wouldn't have been appropriate to say something that is appears to be less advocacy error the exception to for a one point two it's very complicated rico obviously is a isn't that it has a different way of calculating the guidelines and just to back up this was a i think more than a dozen defendants entered into similar plead reams of the government not one defendant said you're missing the application of everybody thought we had got it right and everyone was acting in good faith judge sullivan raised the issue one of the early sentencings and all of the parties went back and said judge s obviously has has had is has a different reading than the government and just to point out mr kilpatrick and mr myself disagree as to how this application that should be applied so it's not as though the government somehow misled defending this as is being argued and the government does have a duty of candor and we pointed out in multiple occasions in our sentencing submission that we were raising the issue in response to what the court had raised for you we think the court had raised this issue in what context in the sentencing the fi we should just look at the proceeds with regard to mr myself and the four corners and not look outside those to the other defendants why is he wrong what is wrong because that that's not how sentencings works i believe there was a  reading the c f c and i personally met with defense counsel and in these cases i've taken over the case for sentencing part of it and said this is the issue and we all set and i said i am bringing this up defense counsel never said well breach ok and during the during the sentencing this judge delavan said does anyone disagree with my calculation and defense counsel said no defense counsel did not say breach so we do not think it's a it's a fair argument say it did not come up in fact this is exactly what the governor supposed is basically what you're suggesting now is is that a change in the government's legal position right as to the application of the then you can you can know that the judge is not going to buy your interpretation application oh you could sweet talk a defendant into a deal and then when the judge says no i disagree with you that involves no net you just say well judge you have to do what you have to know i don't get it why didn't you just why didn't you just say to just look judge we know you've made that ruling we've taken the position with regard to the negotiations and i'll make you really why do you have to please the judge well what is is is that a difficult guideline both both the parents and i understand it's a difficult guideline but you didn't answer my question did sullivan convince you you were wrong so even convince us that it was it was a reasonable interpretation in the circuit of my commission that he was going to buy your argument that's what he did and that the government i mean the government standing up before the distant you just get up and say look this is how we calculated it this is how we calculated judge we understand you've ruled the other way a couple of times you have to make the decision yourself because you the plea agreements as if that's your decision anyhow so i mean that is what we did we said that knowing you told them that you you told them that your calculation was in error didn't you our job is to tell the district court after we after an issue has been raised how to do it is reviewing incorrectly calculated guidelines and i recognize that the defendant thought it was going to kathleen one way and we agreed with it but once the district court makes a ruling we're stuck we can't keep going back over and over when he judge bolton was firm on this that it was his and then with respect to the role argument i really i really don't think there's any basis for the government simply asserting was arguing based on what was in the plea agreement the fact that judge sullivan decided not to apply the role and it's the agreed on range with regard to my only give him a break on something else right correct when he when he when you when he moved things around effectively moving offense conduct from the no rico side into the criminal history when you move across the t you i did speak with tribal council a case to be sure i never asked him did you ever meet with the government to go over this and but he never told me at any point that i met with the government to discuss this issue and of course it's not within the four had the government not breached and had judge sullivan not taking up their invitation to put my client in a higher category than he was ultimately placed his range would have been eighty to eighty seven eighty one to eighty seven so and for the for the government to say that it's essentially harmless because my client was sentenced to ninety months which was the bottom range of his of his stipulated guidelines range  is really beside the point because what happened was is by virtue of the breach mysel was deprived of the opportunity to argue that the thirty five fifty three a factors  rendered the stipulated guidelines range overstated and indeed judge sullivan agreed to the extent that he thought that there was no role or just so i emphasize that and also my adversary said that the core of the police agreement is the stipulated guidelines range i respectfully disagree to to myself and as shown by the record of the core was his ability to argue that the thirty five fifty three a factors re ndered the rendered the stipulated range overstand thank you thank you off your arguments the court reserve decision