case number one six stache six five six zero usa v benjamin robinson case number one seven dash five zero three three u s c various westbury and case number one seven dash five two two zero usa v deon taylor or arguments are ten minutes for each defended thirty minutes for playing tough mr stephan milner for benjamin robinson consider today the first is the application of the guidelines section five k two point two one which basically is an enhancement that can be placed on the sentencing guideline  in the case of a death in this particular case mr robinson pled to one camp he pled to count of distributing a controlled substance which resulted in a serious injury the initial pre sent report basically indicated that there was no reason to depart from the guidelines range the guideline range was in fact the mandatory minimum of two hundred forty months to life to object to precepts reports and basically the probation office changed their report to indicate that there could be an enhancement for a death if one resulted and in fact that count was in fact originally indicted against mr robinson but it was later dismissed we believe that that upper departure that the court ultimately made in this case should not have been done rather than the two hundred forty month minimum sentence which was initially recommended by the united states that it was more of an elements case that the elements have to be proved beyond a reasonable doubt oh i'm sorry i misunderstood you you're right that's the argument the government makes or is it not in there and it's briefed the government says they that case doesn't apply because it was premised on elements rather than a guidelines issue and that is correct when you say to that argument well it's what judge group and so i think i think that if if you follow the logic in this case this is this is aberrated that this has to be pled to an offense has to be pled to or it has to be proven to a jury i think that out of a plot of any enhanced including an enhancement that is done nothing we haven't read the courts interpret the guidelines having i mean that doesn't the supreme court allowed the preponderance of evidence standard to apply to guidelines calculation as opposed to beyond a reasonable doubt in that case the second issue that we bring the court's attention there was restitution ordered by the sentencing court in this matter of restitution for funeral expenses for a gentleman who died from an overdose now in this case the original indictment did have a count where mr robinson was charged with a death that resulted from distribution of controlled substances in this particular case that was dismissed that counts dismissed but the the facts of this also leads us to believe that this is an improper imposition of restitution the detective testified at the sentencing hearing that a female purchased a substance from mr robinson and that she in turn gave it to another male who in turn gave it to mr corey baker who ultimately died from an overdose and she was not present as i understood the testimony of that of the detective when mr baker ingested this so i think that we don't have a for lack of better term a chain of evidence here with this substance she has to say was not presently undisputed i mean it was part of the plea wasn't well part of the plea was that he  fact engaged in the distribution of controlled substances but he did not plead to the death and and in this case we don't know what happened between the time that this substance was transferred from mr robinson to this lady who then transferred it to another man who then gave it to mr baker with the argument that her brewer brewer i'm sorry  i still think that that's improper because there was no as i can see undisputed chain there well his funeral expenses the least of his problems i'm sorry sir this forty one hundred  probably the least of your client's problems absolutely there's no question about it and i don't think he's lost a minute sleep over to be candid but i felt obliged to raise you might help you cite any case that are directly  supports your proposition has to interact to be proper know you are you want to make new law there to well with like to think that the facts would dictate the result we're asking basically asking the court to remand this matter for re sentencing and also to strike the restitution thank you mr molder thank you good morning in may it please the court my name is matthew robinson and on behalf of the various westbury mr west barry's case is little bit different although it involves the same circumstances  entered that plea based upon his attorney's advice that there was no defense that existed to the to the cause of death allegation apparently there were some toxicology reports and the government's evidence indicated that the cause of death probably resulted from the heroine that he had distributed mr westbury is never denied distributing  heroin and in fact when he moved to withdraw his plea agreement it was on the basis of the cause of death determination and as judge griffin pointed out the barrage case makes pretty clear that this is an element the cause of death to that crime and and so in moving to withdraw mr wood mr westbury is one asserting he's innocent two he's deficient because counsel failed to investigate the cause of death determination despite his requests and also underlined that and there really came out on the record it's pretty clear that he was never advised that this the cause of death was an element of his  fense which could explain his if as you read in the brief in the materials which could explain his belief that he was going to get a hearing at the sentencing on the cause of death determination like it was a guideline issue but it wasn't the no meant that he admitted during the plea hearing but he admitted that based upon counsel's advice that there was no defense to the cause of death determination  sixteen days later and that's one of the reasons the judge a judge denied this motion but the defense came in the form of an e mail and a letter from dr stephen fleming to mr westbury second coun saw the medical opinion that mr westbury had been looking for and that opinion from mr fleming indicated that there were other substances in c b s blood that there were other potential causes to the death other than just the conclusion that it was based upon the heroin and didn't know that it was was distributed and because the report confirmed the presence of the fence and heroin certainly it's a double edged sword your honor and the fact is that it was there there's no way to deny it but the report also confirmed that it was at least confirmed was mr west perr belief that there was a potential defense and now it doesn't show that he's innocent but i'm not sure that shows it depends what i think it does because the defense well first of all in terms of the defense we had the burden is not to demonstrate that the defense would be successful but in mr westbury is mind he was not going to plead i don't care so much about that do we in it's mine i think we do because it's based upon counsel's failure to advise him appropriately if the council honor it is seen here because you see that well is that a legitimate defense would he be successful in raising that defense well we don't really know i mean that the confirming the presence of these drugs doesn't necessarily mean that the interim court case that talks about that but in terms of withdrawing the plea and ineffective assistance of counsel with respect to plea negotiations and defense and investigative defense these things work together and the la learn friday decisions you know do you know work to demonstrate that this is not a situation where you need to prove that he would have been successful instead we need to prove that but for counsel's failure to investigate and provide him with this advice he would have never entered the plea agreement or the result of the police proceedings would have been different so i respect and understand completely your honour's position but i think and i believe that is also position the question i was sorry you were thank you so with that we would argue that you know in essence and i want to get back to one thing that the government brought up and it's and it's prefer first of all this arguing ineffective assistance of counsel is something that this court can consider at this time i understand generally that's not something that's brought up and frankly i don't see the words ineffective assistance of counsel in the record brought up anywhere but i see deficient counsel and i see the use of those word mike and i counsel's performance was deficient telling the judge this and explain to the judge had my attorney done  concerted steps then mr westbury tried to convey that he would not have pled that pled guilty or entered that plea agreement and i think that because the motion to withdraw the guilt and i believe he probably articulated at the at the sentencing of course it wasn't relevant at that point why did your client wait over one hundred days before he brought his motion to withdraw his plea well according to his statements in the record it was because he was waiting for a an independent medical determination he had asked his previous attorney for several months for one and he did not move to withdraw in till his second attorney actually obtained the advice from dr stephen flynn means so i would argue that this was the valid reason for failing to move to withdraw the plea earlier  happened i don't see anything new happening other than he said well ok i pled guilty i've admitted all these facts now maybe i got a second guess that and try to get a second opinion but i don't well know all everything that was known to him at the time of his plea including his counsel's actions at that point and he also he told the sentencing judge or the district judge that he was satisfied this causes representation right and he did say that at one point i  don't see what changed well what changed was he actually received the medical advice from his second attorney because eventually his first attorney who did seek to withdraw and she was granted a motion to withdraw is just having second thoughts about the plea i mean it's not it's not anything i mean defendants have second thoughts all the time but we don't normally one of them withdraw i understand your honor but would you like me to respond or i see my time at this point i'm going to go ahead well my my only response would be yes generally we don't let people withdraw their plea after they've entered it anyway but when you know what i see here is a situation where we can reach it was raised appropriately at the withdraw motion to withdraw he e and instead of a twenty two fifty five motion for example and you know two years later a year and a half later after his conviction is is been established that's much later and in line and things your point would be much more well taken however he did receive the medical testimony he should he change horses he got a new attorney and that attorney did provide him with the information that he suspected was there to begin two minutes for a bottle you may need to start the clock i'm happy to take as much time as the court is difficult thank you very much your honor is this case presents two issues for the court's review both of which appear to be issues of first impression one is whether five k twelve first impression for this court one is whether a five k two point one in handsome and carries with it a requirement that there be proof that the death which occurred was either intended or knowingly risked and to whether a five k two point one enhanced when should be demonstrated by proof beyond a reasonable doubt rather than a mere preponderance in order to reconcile this court's holding and resonant with proceedings on the five k two point one requesting that both of those questions be answered in the affirmative and that the case be sent back to the district court for further sentencing proceedings as to the first argument about the requirements of five k two point one itself we're requesting that this court follow the analysis of the second the seventh thirty fifth and eleventh circuits that have all held in some form or fashion that whenever there is a five k two point one departure it must be substantiated by proof that the death to curd was either intended or knowingly risked in making so the reaction my reaction being from ohio and seeing the scourge that has has rocked the i mean i'm i'm wondering about where that fits with the intention or the recklessness were the two intentional or it's either intended or knowingly risk knowingly risk ok what are we saying about that everybody knows those drugs are killing people i think it upset them excuse me that i interrupted you but they are killing it's killing lots of people so let's talk about that it's a matter for proof it's sentencing and i understand what we all know in terms of common background knowledge in terms of drugs and in terms of things generally however five k two point one should require that specific showing because if we don't if we allow mere participation in a drug conspiracy to satisfy the knowing or intent elements of five k two point one we get into a situation where the exceptions was the rule or a situation where every participation automatically results in a five ten didn't your client admit that he knew the drugs he was selling more quote killing people i don't believe the record is particularly clear about when that knowledge comes into play i know what you're talking about there are specific statements there are specific findings of the district court that say you knew this was killing people and you did it anyway for profit taylor himself even says you know i knew this was wrong i knew it was hurting people but the specific knowledge that it caused the death of corey brewer i don't believe the record actually speaks to whether he has that knowledge prior to or after the death of corey brewer for it after the death of corey brewer and somebody dies i think certainly are in a situation where the five k two point one departure is a much stronger case because you have an antecedent death and then you have a subsequent one but you always have to have risk before you have the risk can't have that knowledge of the death of course the depth is after the selling of the drugs and the ingestion of the drugs right that is correct but i think in terms of a five k two point one departure simple participation in the drug activities themselves can't be enough to satisfy the standard otherwise every single drug conspiracy five satisfied five k two point one and that's not the intent of the manual that's not the intent of the guidelines generally that's not the intent of the specific provision that has the effect of kind of consolidating in almost rendering superfluities the different sections would deal with death under twenty one u s c eight forty one hundred t d one point one five k two point one it takes all that material in combines it into one thing but that's not the point and that's not a joy elements question is is very pertinent what exactly you know you're saying but what exactly did your client admit to oh i can try to get that out of my notes of the record felt like you kind of dodged that well but there are no absolutely not we can embrace that one hundred percent said taylor admits as follows he admits coming from detroit to kentucky for the purpose of selling drugs he admits that he did direct distribution before assuming a supervisory role he admits to receiving packages of heroin to knowing that some of the heroin is a mixture of heroin and fentanyl and that users were america aware of the mix because of the different taste he said all of these things and those are all in the record there's other findings from the court at time of the sentencing he says taylor admitted that he knew the product was hurting people that it killed people it was known to tell of the injuries and death resulting from the product it would be distributed to your knowledge which is just kind of an idea that the activities are occurring i believe that taylor's admissions set it up a little bit further but i think the real findings are from the district court but even with the district court's analysis in no way would tell or try to duck from that almost exact manner that your client stood mute i don't believe it does because it least in terms well as to which point procedurally procedurally or substantively in terms of his the rule with the recklessness or the intent either of those we doesn't matter that your client st mute when the district court laid it on that this is did you knew you knew you know i think it's always the burden of the united states to establish a departure by a preponderance of the evidence and so i think he's entitled to stand it if he wants to now i understand what the court saying in terms of not raising this argument below and we tried to bring that up in some of our reply brief sighting to penny doc of the reasons why it would still be important to address this issue but i think some of the importance of the issues we're talking about the court has already hit upon the already brought it up you know we're talking about the most frequently prosecuted federal crimes in the united states for drug trafficking or drug cases of those the vast majority nearly ninety percent involve trafficking and you know we heard from the supreme court less than ten years ago were not a system of trials anymore were a system of police and it were a system of pleas were a system of sentencing as well we have to be paying attention to those things those become the more important aspects of our practice this isn't an esoteric argument this is a day in day out of federal criminal practice and so when we're looking at issues about what do we require for a five k two point one it's important that we determine whether there is knowledge or intent that's there in the vast majority of the circuits of address that have addressed it rather is have this issue forfeited issues for plain error but that's i think that's our standard purview so i always have to remember the way that the sixth circuit subdivided the waiver and forfeiture because one of the way waivers the intentional really right relinquishment of a known but i mean you agree that this issue is not preserved and ok your argument that we don't use planar is what well i think i have to be candid with the court i mean this particular argument is not brought up at the district court by taylor trial come to the penny dock doctrine which we cited in our reply brief my time's about to expire i go up please please thank you very much so many docs stands for the principle that waiver is really more of a prudential issue and enforcing waiver is a normal standard of review and here based on the reasons that judge cook brought up these are important issues i mean detail or becomes an unintended beneficiary of a positive development in the op it goes his way but the real issue is not taylor the real issue becomes the law itself and what do we require at sentencing and in today's world sentencing issues especially in federal drug cases become paramount in terms of what we need to talk about and so to the extent that there's a problem below with this argument not being brought up at sentencing i think that this court can at least review for an abuse of discretion if not to know because it's a legal issue these issues related to the standard in the burdens of proof are five k two point one departures and with that brief we conclude in your honor we would respectfully request that the sentence of the district court be vacated and that this matter may please the court john grant for the united states first of all dealing with mr robinson's argument of course that the court is correct that if it's a statutory enhancement the jury has to find it but if it's god lines as long as the guidelines are treated in nature by the district court and the court is free to make funnies based on preponderance of evidence and that of course it's along the circuit his argument regarding restitution ignores this court's opinion freeman which says with conspiracy counts  it could be based on the nature of the pleas and what they actually admitted to in the in the plea colloquy so i know that because taylor did admit to count one which is a argument attacking the judge's denial of his motion withdrawing his ineffective assistance counsel claim which your inner woven he presents his argument largely based on the testimony of himself which judge ray's found was not credible so a lot of his allegations that he makes in his brief and allegations that his attorney made here from the lectern are based on what the judge pacifically found was not credible he said he then  westbury attacks the district court's finding relating to finding that he was credible at the police hearing but what he said at the plea hearing and what he said at the hearing on his motion to draw were inconsistent so of course it was up to the judge listening to the testimony both at the plea hearing where he said he admitted that the drug that he distributed caused the death versus what he said at the motion to withdraw all hearing which contradicted that and the judge actually made a finding and found that his over three months after he pled guilty we've already moved to withdraw but he says yeah but the reason for that was that the medical report didn't come out till after that that excuse of the law well if the summary of the medical report is river in the record at page six eighty seven in a footnote in the judge's order and on the motion to withdraw in that first of all that's an e mail the person was never supposed to cross examination and this is an expert stephen fleming it's an e mail from november sixteenth and it's basically just speculative it doesn't contradict the toxicology report he just says he could have had other drugs in his system he said jest that the presence of heroin in the urine could mean something but then he said that's kind of hard to use determine the purpose of death and then he says well the blood you know it had the fent knol in it and the toxicology reports said it was two and a half times the legal limit or whatever th to range and he said well that could be to do to post mortem redistribution the record doesn't indicate what that means so that e mail is largely speculative and what's interesting is that when he entered his  first came to enter his plea in june i think it was let's see it was june twenty fourth two thousand and sixteen and he's claimed that he really hadn't had enough time to review the plea agreement he had just been faxed to him the judge said ok we'll set that trial date off give you some more time to review this so on august fifteenth westbury then reappear in court pursuant to a motion to enter and a guilty plea i didn't pay attention hell far what's the timeframe for that the  t was from june twenty fourth to august fifteenth so it was almost two two months yes that he had to time to consider the plea and so at that point it was a standard proceeding he said he understood the consequences he was happy with his attorney he admitted that the drug that he distributed caused the death he did the only qualification that he made was he said that he thought it was just heroin he didn't know that there was an all in what he was distributing but his agent that so or after the death that's not exactly clear when that happened lobby's lot of those details are not exactly clear in terms of precision of when these things happened and then so that was august fifteenth so i mean that would have been the case to say hey you know what i when i said that i that i caused the you know that the drugs i distribute causes death i'm not sure that's trip correct even though we have the toxicology report which says that i mean that that was this time to do and this court has said in other cases with much less delay it is less is seventy five days even seventy five days is too long that that factor alone this is one hundred thirteen days would be sufficient for the district court to make the ruling in the course that the court wrote a lengthy opinion analyzing all the factors and balancing the factors the court said that that there was no basis to address the plea in this court of course reviews that for an abuse of discretion and i would suggest based on that level review there would be no basis overturn that hit but it is good and also that you know the ineffective assistance of counsel of course to review that on direct appeal it's got to be obvious from the record and really that it's it wouldn't be obvious from the record because what you have is you have a clear report toxicology report saying this is the cause of the death and then you've got this e mail where that the agent again was not cross examined there's been no testimony from the lawyer in terms of that the first lawyer who was there when the guilty plea was entered in so really this you know he would course would be free to raise this in a twenty five the wreckers not developed at this point regarding mr taylor's arguments the most important thing to keep in mind is that all of his arguments are subject to player review he did not raise any of these below as a matter of fact when the judge said that he was thinking about departing upward his lawyer did not contest the actual departure he just urged the court to keep in mind that his client had cooperated and that the judge you know please keep that in mind when you decide how much when you will depart or whether you should depart that was his argument he didn't raising these other arguments about five k two point one that's a factor other circuits reject that and say well as long as a definit set in motion a chain of events that ultimately led to the death then that would be sufficient to depart purvey some two point one this court however his silence on that matter has not ruled on the matter so under plane air review if there's a circuit split or there's disagreements among the circuit there's no clear law in the supreme court no clear law on this court then of course there is no plane air because the defend has the burden to show that the law is clear in other words judge reeves totally missed that he should have noticed this him self and said hey i can't do this because the law is clear the six circuit in the supreme court it's not clear now that the case that he cites it's a civil case about waiver of course judge griffin as you said this is not waiver he didn't he didn't when he didn't although in the age he are just the court to consider his cooperation he didn't affirm we say we're not challenging you know so it's so we don't case in which he says that under two d one point one eight two the redmen court said that that relates to it to apply that god line you must show that the person  conviction so that he would have had to pled to the actual count which is related to the death in this case you know it so that's what the the court looked at that in terms of whether that guideline has been applies here when you're when you look at two k five k two point one it simply says whether death resulted it's not limited to the actual count that that the person would do and once again that's a plan to review he has no case to support his position that redmond should be applied to god line that redmond didn't apply to him in the reading case what about you what is your response to the argument that there's though insufficient evidence that they'd knowingly findings that it was knowingly arrest because he relies on the agents testimony which is on page ten sixty one of the record where taylor admitted that he knew that the drugs were killing people and so all the all the evidence was is that you know there was a clear structure to this organization westbury at the top taylor in the middle rama symbol oh that that's the that's where the drugs came came to a lady comes to  meets with robinson gets the drugs and the two other people are out in the car she takes them she takes them the drugs and the other guy goes and o d s on the drugs the toxic toxicology report is clear that it was that knowledge killed him so there were there were the agents actually got phone records that cooperated this that the defendants made numerous admissions about their criminal liability it's all in the records so they were they laid really didn't contest those facts at the sentencing so i think the judge reeves found that even if you know even if this court would have required that knowingly risk element to get the upper departure judge risk juries actually found that or finding  an affirmative factual finding about it was knowingly wrist and that was i mean counsel's argument is i didn't admit that and there was no evidence to support it but that you're what you're defendant claims as counsels inaccurate advice caused him to accept a plea the defendant can show prejudice by demonstrating that the outcome of the plea process would have been different with competent advice and that's followed up with whether or not a defendant would be convicted at trial had that defense been raised is not a factor in determining prejudice and that's a two thousand and seventeen case leave versus united states one thirty seven supreme court  six through sixty seven and in essence it says in accepting a plea a defendant has more to consider than the simply simple likelihood of success at trial so with respect to the ineffective assistance of counsel you know when you really just didn't talk about counsel then we look in scrutinized the evidence that crops the interest in withdrawing a plea it's the e mail that scene ingested other drugs nothing that those other drugs were or deleterious kinds of drugs that would have killed him her him and i would i would simply point out that the the toxicology report versus the the e mail from dr fleming and that information it is arguably inconsistent i understand that there is thin on both but there is a an argument to be made that that you can't show that was the but for cause of his death when you court your honor thank you again just a brief response to a few of the arguments raised by the united states terms of forfeiture waiver this idea of pinney dot being a civil case in terms of what standard of review this court would apply to the arguments about five to two point one penny doc has been applied by this court in a criminal case which is us versus allison for sixty two f thirty five fifty seven so it's not a doctrine that specifically raised or reserved for civil cases although it comes out of one in terms of the timing i think the court has using your brief it is i think the court has hit upon an interesting issue in terms of what the record really shows and i think ultimately that's going to be for this court to determine judge gillman you hit upon it to cook you hit upon it too in terms of what really gets put into the record about when taylor allegedly had knowledge that these things were going to either at least for a five k two point one result in death and i don't think my reading is that the record is not particularly clear on the judge below does make a finding that a death occurred and that taylor did it anyway but i don't know if that's a finding that taylor knew prior to it occurring i think it in the way i read it is a exacerbation of conduct because the conduct continued after the death but again that's that's for this court to adopt we're not reserved we're not ducking from that the court says it and tailor make submissions i just don't think that they rise to the level of knowledge prior to finally i've only got thirty nine seconds to about twenty pages of our briefs make it real short in terms of the standard of a five k two point one we're suggesting that this court should reconcile redmond with five k five k two point one analysis and find that a five k two point one has to be demonstrated by proof beyond a reasonable doubt just from a policy perspective which i think i can do in seventeen minutes that's allows us to reconcile to potentially in congress portions of the law comply with the mandate from booker that we have real sentencing based on real conduct and where we have the offense of conduct that's the exact same between the two the one point one in a five k two point one it makes sense to use the same standard of proof so that the standard of proof at sentencing isn't based on what page you turn to in the manual so that you're on as i see my time expired i appreciate the opportunity of a wonderful day all right thank you council everyone some of you are appointed counsel c j and that's you mr milner thank you very much for your service to the court as is mr somers thank you very well done and all of you well done thank you all right the court appreciates it we