well the first one which is sixteen four one six eight nine united states versus sosa mr darion so as the issue in this case is whether the government produced sufficient evidence that mr sosa had a two thousand and twelve d w i conviction and was a fugitive from justice the answer is no because the only evidence before the district court was the first page of a probation violators warrant and that warrant said nothing about the original conviction and it doesn't prove that mr sosa knew of any pending charges but before addressing those arguments i'd like to begin with the government's motion to supplement the record and the standard of review the government has asked the court to supplement the record with documents that were not before the district court this court should not allow the government to do on appeal what ought to have been done in the district court as an initial matter america's panel has the authority to overrule a decision by a motions panel and there are four reasons why this court should not follow the motions panel decision in this case first because the motions panel actually decide the issue or just of you know the side of the issue the motions panel denied my motion to reconsider and then said it was open to consideration by the merits panel but there isn't actually a pending motion in this case the government had notice of mr so as objection and an opportunity to produce sufficient evidence in the district court also the ordinary if you provide a oh here we remained with the government have the opportunity to introduce it in the district court no i don't think government should be an opportunity to really given an opportunity to present new evidence in the district court because the government clearly had the burden of proof the first time around and should be given a second bite at the apple that's what authority says they want because i thought usually when we manned on these issues you can you know say it's the amount of drugs in a sentencing i thought you could the government could put on three new witnesses on a remained to prove what the amount of drugs were if we said that finding was was deficient this court has sometimes permitted new evidence on remand but that's typically the exception rather than the rule for example in martina's parable the court said that the government really should have produced and had obtained and produced all the evidence in the district court but decided to give the government a second chance in that case because of the ongoing out is sort of in flux and so the laws are as to be explored a little bit i think even with the minimum requirement the chip government provides it's clear that the government didn't meet its burden in the district court on appeal the government doesn't argue that even the  approved so we were to go back down presumably you would try to present rebuttal prove to the p s r on that point well i think that the government should be allowed to present new evidence and under floyd it's clear that when the defense counsel makes an objection and requests documentation and then the government doesn't provide that documentation that the p s r alone is insufficient and you see my point there say it doesn't the rule seem to be as l you're saying even though you didn't present rebuttal prove below you still think we should reverse on the conviction when presumably you would now try to present proof that rebuts the p s r we would only do that if the government were able to produce sufficient evidence as the records but the p s r stance officially on the conviction right now i don't think it does i think under floyd it doesn't because the government didn't provide the documents after our objection to not providing the documents and in that case the p s r had similar details the p s r in this case it had the date of the office and and the guilty plea the length of the sentence and even with those facts the court said that that was insufficient and then also with floyd the court pointed out that the fact that the government didn't provide the documents or did the ability of the defendant to provide rebuttal evidence is that a sensing really we you know it isn't back for a new trial we bring wrestling with this when i look at the law including the case you cite ellwood it really is just does the panel scribble in and the record is final and don't touch it then you're right no second by sometimes we presumably district courts got all the discretion it wants if you could make the argument you're making now to the district judge which is hey they shouldn't be allowed another bite but the governor would be free to say hey we have good cause the law was really confusing  the circuit law was unclear dancey and what with the various cases why isn't it just best if we vacate remain a sentencing is a long winded question but a defendant gets up and he's going to allocute again he always gets to allocute again and presumably if he says something really compelling that's new evidence on his behalf i just when you are starting a whole trial again when you're just sitting back for sentencing i would don't see why we would lock a cord in it we would leave it up to the district courts discretion i would bring the court's attention to  case that unfortunately is not in my brief it just came to my attention it's us versus chemical in metal at six seventy seven f third seven fifty it's a two thousand and twelve case and there's a  chemical and medal and the court there said that the government generally that's a physical case it is a physical case from two thousand and it says there that the government generally may not present new evidence when reversal is required due to the failure to present evidence originally and the court there made the decision of whether there should be new evidence well that's what we're really elwood to which you did cite yes but i think that the u s the chemical in middle case is even stronger on that point and deal specifically with the problem of the sufficiency of the evidence the law is unclear on this particular issue right your your client was convicted of selling a k forty seven to the bloodier obliterate serial numbers right so the question is does he get this automatic twenty level because he's a pretty bad person right and then we look at one twenty two g and i don't think you dispute that our law says as to other sub sections it's just straight step no mens rea right but your argument is as to this one we have to show some level of knowledge or intent that he was right and i don't think the government disputes that either there is a circuit split on whether the person has to know that they're they carry the status as a primitive person which we haven't argued is the standard and there's also the debate about whether the person has to know their pending charges or whether they have to know that the charges are substantially certain but i think even at that substantially certain level there is mens room fired wouldn't can't we unify all the cases you use a split that's a serious suggestion don't all the cases unify where the court just says well let's look at the definition one twenty one contemplate some some volitional element and the rest is just can we infer from the circumstances how serious were the charges where is he how long has he been there isn't that what they're all struggling with yes and i think that the and i think i was trying to make the point that you're making that the whatever there is a split on doesn't actually affect the bottom line in this case and even if of course you can use or circumstantial evidence to prove something that is a change but what's the clearest circuit decision of what the mens rea is in your mind what did the minimum you have to know each case best describes exactly what a sentencing court would have to fight side of the balance case out of the seventh circuit there's also the court case that's an unpublished case from this circuit in the comes in that would be enough to infer that he knew yes it does really turn on the proof that's why you started there right exactly that's why i think supplementation of the record is so important and i do think that in this case there are efficiency concerns and reasons to not have the government be able to try again because we did make the objection in the district court that the documentation was insufficient to prove that he was a prohibited person in the p s r it said that he was a prohibited person because he had this two thousand and twelve d w i conviction and because he was a fugitive from justice so it's clear from the context of the objection that both of those things were at issue in the district court and then by the p s the probation officers said in an addendum that she had made a third request for the documents and would provide them as soon as she received them but then by the time sentencing came around it was only the single page of a probation violators warrant and so we renewed our objection to the sufficiency of the evidence and asked for a ruling on that so the government was on notice that we were making an objection to the sufficiency of the evidence and as this court said in floyd if the government doesn't produce the documents that thwarts our ability to provide rebuttal audience and as far as additional economy as well this appeal would not have been necessary had the government medics burden in district court i could also discuss the standard of review i do think i've touched on this a bit already but i do think that novo the this court's cases say that the obligation is to prevent to present the essence of the objection to the district court so that the district court has an opportunity to correct the  and i think we met that standard in this case it's permitted under this court's cases for the district court objection to be in artful or the objection to be refined on appeal so long as the government of the argument was presented to the district court and here we made a officer one page warned suffices it said to me i were getting a third request with north carolina for the documents and we'll provide them as what you would say should have happened is the government should have said let's continue sentencing yes the government could have asked for a continuance if the documents that were still the only thing that had come back at that point was this incomplete probation violators weren't they didn't have the underlying conviction at all or any information about the conditions of probation which is one of the government's arguments on appeal is that now that we have a complete or a more complete record we can see what the conditions of probation were and that the probation officer says that mr sosa violated certain conditions but without the rest of the document and also that he has the two thousand and twelve conviction but without the rest of the documents we don't it's just a cases we didn't just have the p s r in goma's alvarez there was a felony complaint and an abstract of judgment that was also in the record and in marching as human as there was a letter from the supreme court of new york signed by the county clerk that corroborated the conviction details so as those cases do discuss the line on the p s r but the actual records in those cases had more than there is in this case and finally if i could discuss harmlessness the district court in this case importantly never considered the correct guidelines range and so that means that the government bears a heavy and difficult burden to show that the guidelines didn't influence the sentence in any way and the range before the district court was nine to over eleven years but without the prohibited person han the range would be only fifty seven to seventy one months and without the prohibited person in hanson in the criminal history points in the range of the fifty one to sixty three months the government relies in particular on the district court's remark that the five years maximum applies in this case and that was very troubling to the district court but the context of that remark shows that it was actually influenced by the guidelines range in that very same sentence the district court mentioned that the guidelines range was way above the statutory maximum and basically without be improper and hence any criminal history points the range would have included the statutory maximum which would have changed the entire dynamic of the sentencing hearing as it happened the errors with the errors the district court had to impose a sentence at least four years below the guidelines range and as i said without the errors the statutory maximum would be encompassed in the guidelines his the sentencing range brings it down to fifty seven to seventy one and then of the criminal history point so i take it down further to fifty one to sixty three months so it is more significant the but if it's a whole package of alleged errors why why isn't it best just to get it right the probation officer is trying to get this extra document just seems like one that's just find out what the facts are is this his prior conviction and were there indeed these elucidating extra facts as to the violations he committed the d until we see it's coming you know and i don't think that was necessary because we clearly didn't bear the burden of proof as far as proving the enhancement in the conviction in the first place the burden is clearly on the government and the objectives of the sufficiency of the evidence good morning in may please the court and record for the united states this court properly allowed supplementation of the record with copies of the two thousand and twelve d w i judgment and the two thousand and fourteen probation violators more and and it as i believe mr sosa now concedes with those documents they confirm the correctness of the district court's guidelines calculations both this  enhanced base often so level under two k two point one a for b and its calculation mr sosa's criminal history category and even where this court to reconsider supplementation however reversal is still unwarranted no matter the standard of review because at bottom any error is harmless turning first to the matter of supplementation it's true this merits panel can reconsider  a decision of the motions panel in united states versus lee the said three sixty eight federal appendix five forty eight so it's an unpublished case fifth circuit two thousand  this court recognized that a merits panel recognized week can overturn a motions panna ruling but has the opposing party offered sufficient justification and there has been no new justification that the three judge panel of this court already heard more to the point that allowing supplementation is is consistent with this court's path when it comes to disputed guidelines in his minutes and state court documents this court routinely allows a moving party to introduce the state court documents in the rationale can be found in far as soda which is cited in the government's motions briefing in vargas soda judge southwick for the court he didn't phrase his explanation in terms of whether the motion was opposed or unopposed or the standard of review whether it was did or plain air but rather just that discord has an independent obligation when it has before the objection on appeal to a guidelines and has been it must examine the state court that door but you either do it by agreement you do it in the district or validates it and transmits it to us or you do it directly to us i think there's also this court has the discretionary authority outside of wall ten and we've cited cases in   government has to prove things to a preponderance of the defendant get a chance to dispute the authenticity of documents well i think so in this case for example the order from the motions panel we started with an order from single judge wright we order yes judge owen granted it granted the government in my way of thinking pulled back and just said this is tentative essentially merits panel you're going to hear it so it be motions and the motions panel said subject to reconsideration by the motion or the excuse me the panel that hears a case on the merits if sosa can test the validity of the documents or there are put the bill in now again i agree the merits panel's not this panel's not bound by the motions panel ruling but mr sosa still had an opportunity at least before this court to contest the full limited of these documents and he has not done so he had an opportunity in his reply brief or standing before you today so we don't have that here judge against an i agree with you the better course of action here absolutely what should have been for the government or mr sosa to ask for a continu probation officer said i made three tries to get the documents and it hasn't you know i haven't been able to do so what's the limits on your view or supplementation it seems like you're trying to say there's something special or maybe there is about conviction documents but take for example we're getting a lot of challenges to restitution on appeal and can the government supplement with victim impact statements that show the amount of loss those victims suffered if they were introduced in the district court what the bigger question is what limiting principle is there on supplementation i'm not sure i haven't studied the restitution issue what i will say is that certainly the limiting principle and in terms of this case is that these are state court conviction dockets and again i understand that the that your question judge costa and that you're seeing these issues with respect to restitution i'm not prepared to tell you just because i haven't studied that particular issue but there is certainly a limiting principle with respect to state court documents in this book in this goes ties back into the issue of remey and what would happen so in what would happen if let's say this court were to reconsider supplementation disagree with the government in terms of harmlessness in vacate what would happen that mr sosa set up here that's the exception not the rule that the government gets to or the parties then get to introduce new evidence relating to the disputed issue i disagree with that and in studying this issue especially with the reply brief this is my first opportunity to respond to that i was looking at this court's precedent on explored this court's practice on remit and it said it first that we used to have a generous view of remey and that kind of it you know anything goes but since then we've taken more of a middle ground approach and this middle ground approach is to allow evidence on the vacated issue unless this court unless the circuit panel issues limiting instructions and here's a here's a quote it says in the absence of space of a specific mandate and in the interest of truth and fair sentencing the district court may consider any corrections and additions relevant to the issues addressed by this court on  but that's what raises my concern i guess about the scope of supplementation because i think what you're saying and look at makes a lot of sense from an efficiency standpoint is look if we're going to remain that and then the government is going to introduce these docs state court documents that everyone agrees now establish that the government needs to prove what's what's the point it's inefficient to remain but if that is the standard of we're going to supplement when it would just be few tile to remain and it seems to me that opens the door to supplementation not just on criminal history convictions but on restitution on drug quantity because it's often the case that the government after that on appeal is going to be able to come up with new evidence that would make the issue a pretty easy want to remain and i think you know the difference of victim impact statements in you know that  documents i think are different in this court has recognized that and again mr sosa did have an opportunity to contest the validity of these documents so yes i mean getting back to the inefficiency point absent this court's giving instructions and agreeing with mr sosa that the government should not be allowed to introduce evidence it's going to come back and the government's going to introduce these documents what's interesting one of the cases primarily relied upon by mr sosa is the floyd case which is more relevant to the criminal history category it's employed the objection was the defendant objected to his criminal history score he said he didn't have a prior conviction if ur medically denied that the government didn't do anything just rely on the p s r went up on appeal this court said no that's what you've got the objection and to you know and the defendant has denied it that's not enough floyd didn't remain and with instructions that not to consider any new evidence it was just a general remey and and driving aguilar which is a case cited by mr sosa in his opening brief on the first issue that's another case where course is to allow you know absent again limiting instructions to allow these to allow evidence if the district of course the district court has discretion so if this court gives no limiting instructions it's just a general agreement the district court would have the discretion to say no government we're not going to allow you to put the said but the normal course is not for this court to direct that and i know your introductory remarks you said you started off saying we should stick with the motions panel on allowing the supplementation then you said even if we reversed that and don't allow supplementation you win because of harmlessness what your position if we don't allow the supplement forgetting harmlessness is there enough in the record to support the prohibited person finding without nothing there's nothing we we can see that on that one page of the warrant for the reasons presented by mr so against him but i still think this court needs to consider the harmlessness first instance based on something meant a record no not so this is if the court were to reconsider supplementation so let's say that the court were to go off of the record as it was before the district court in that case we concede that there wasn't enough to apply the enhanced base often he drops down in the government's view to a twenty three three  he did not object he did not object to his criminal history score calculation below he did not deny the fact that d w i conviction and that one point is enough to put him in a and a criminal history category three so the twenty three three it drops down to fifty seven to seventy one months that seventy one drops to sixty because of the statutory maximum even if you were to agree with mr sosa and that it should be a twenty three t it's fifty one to sixty this is not a typical call guidelines case in the typical guidelines error case you know it's the guidelines range is you know in this case one way to one thirty by incorporating nine twenty one in other words it is not like dancy and in what's the other case butler so right because this case presents two big questions one is the mechanics of re man rule rule ten supplementing but separately lurking here is let's get let's figure out for district courts when they get to impose the fugitive in the end i think there are some circumstances so it's not that the diff seems like the parties agree that the defendant may not have knowledge of his prohibited donahue which is an unpublished case from the third circuit you know in which the defendant knew or reasonably should have known that prosecution was substantially certain to fall so i think there is knowledge on not as to the fugitive component but yeah i mean kind of working in the background if that makes sense it's all that makes sense to me as i thought i heard them embrace donahue and i hear you embracing donahue so i need to reread donahue but that would sound like instead of a big split out there with people disagreeing there's a there's a general consensus that g two is different g two the government has to prove by a preponderance that they what's the exact word fled to avoid prosecution which sounds intentional right i would would actually on page warrants not going to do that correct it's the details in the war and so if they were those here unless  correct correct and just i do agree with mr so said that there actually does appear to be a circuit split on the knowledge i mean the ninth circuit seems to be pretty clear that not that the defendant has to know day you excuse me they use knowledge of the prohibited status so that's where that's where the split arises you know in buckler which you know is not nine twenty two g two but g six this court said it would be a logical to impose a men's rate requirement on one of the subsections and not the other i understand it's kind of a complicated task because we're saying there's not a knowledge requirement as to prohibited status but there is some knowledge requirement or you know reckless disregard what have you related to the intent to flee but actually the prohibited person part there isn't thinking about it in terms of the guy was she imposed this as a statutory maximum and this is that or a way ninety five and when you go before i had cited the you know the three point three plus page called the ninety three and ninety six she goes on at length about how bad this crime is how is this crime kind of goes outside the heartland of you know obliterated possession of firearms at the border raid serial numbers based on th agree just facts of this case and then she says an hour away ninety four that very frankly she was troubled that she was limited to the statutory maximus now it's true that she also said before that the guidelines you're way above that thinking the one away to one thirty five but that very frankly and troubled i disagree with mr sisson when you read that in context it's clear you know she was probably the fact that she was limited without them and were if you pointed out it were shifted down there would be a great do i so although the judge operated it assuming you were to find an error under the allegedly incorrect range again when impose when actually imposing the sentence she imposed as quote a statutory max focus was on the statutory maximum based on the egregious facts not the low end up the guidelines the high end of the guidelines the statutory maximum that's a judge alvarez wanted to impose and in cases like  the court i'd like to begin by discussing the donahue case it's out of the third circuit in there the facts of that case actually showed intent to flee the jurisdiction to avoid prosecution the defendant in the case had been sentenced in order to surrender the next month he failed to appear and he had actually signed a something that said if you fail to appear when you're on your date of surrender you may be for their prosecuted and then he when he was found a couple of weeks later he actually had materials on him about how to flee how to be a fugitive from justice so in that case it's clear that the as much as whatever the court said about the standard the fact supported the actual intent to be a fugitive from justice and as far as the supplementation issue  i do think it's a significant that most of the cases the government cites as far as criminal cases the supplementation was unopposed as judge higginson pointed out will tenure permit supplementation on the stipulation of the parties and as far as the cases involving plane air i think that is significant because in those cases there was a brand new argument on appeal that had not been made in the district court at all as far as challenging a sixteen level enhanced smith and this case we did make are in objection to the sufficiency of the evidence and as far as the government's civil cases as suckling on the supplementation question in ecuador in plaintiff's court actually decided not to allow the supplementation in that case because the party had provided newly obtained evidence in the g h our energy case the document at issue was actually a notice of appeal that had been before the bankruptcy court it didn't make it into the record before the district court but it actually had been before the bankruptcy court  court could not have imposed a guideline sentence of one hundred eight to one hundred thirty five months she had to depart downward from the guidelines by at least four years you know going to comply with the statutory maximum and i think that context is critical for understanding the district court common and they're perhaps of the guidelines range of only fifty seven to seventy one months or fifty one to sixty three months the court would have been more receptive to the mitigating arguments in this case although this crime is a serious crime the other crimes in mr sosa's criminal history are all mr beaners and perhaps had the court not been having to having been bound by that statutory not some to come down so far it would have really been a very different and here in the district court gave the two k two level twenty because it both the proof was sufficient grech yes but but the error there you're saying is it thought it was sufficient but it applied an incorrect standard it just automatic status like she wanted the six subsections and then since it was legal error we wouldn't normally say but you can't consider facts relevant to a standard you didn't know had to be applied and i think the umbrella over all of that is the fifth sufficiency of the evidence question and it is clear that the government or the burden and the right but you see my point sufficiency depends on what you have to prove and if everyone is under a misapprehension or the just what actually aired legally in terms of what had to be proven we wouldn't normally say well revealing the district court ruling and if we see that it got it wrong legally that's sort of a simple way to say get a right legally and district or by the way you have discretion to accept or not if it looks like the government was is getting a second bite somehow you don't have to accept it it would be sort of doing what the motions panel did us you know who are not going to lock the box up i do think there are concerns about letting this all happen on appeal though in this case the government did further investigation to get these documents that was not done in the district given a second chance in the district court for those reasons that i ask that you vacate and remained on a closed record thank you