document well when i went to look at my copy of the actual docket there is no april th the worker but there is a document that the but that's the judgment so i pulled off the document online to try to see what happened to that number to see anything well now for the st time i notice there's a you can click through and see something so when i did that lo and behold what pops up is a copy of the order that was only disseminated on april th and at the very april th order in as though it had been on file and served on the party on april on march nd so i looked at the look you're looking at the docket again you can see there are two sets of initials which is very unusual and while it's not unusual to edit filings or edit docket entries with the post to happen when that happens is there should be something that the modify text on whatever date and so you can see that d p which is the initials on forty six they've done that in other in st docket forty nine and fifty five but not on this one so i have my contact the operations because i only discovered this by this marbling around this morning but i and i so i don't have permission to ask that from you but i would urge you to look at the docket entries that i cited to you and look at what you pull up when you pull up the new when you go online right now and look at that april th order you'll see what i'm describing it sure does look like someone from the chambers has instructed the clerk's office to be no evidence of it is at appendix nine and it's at the top document fifty filed for nine hundred and nineteen but then when you pull up that you try to find that same order you won't find it there now somebody has gone back and essentially apollo that the cross appeal is right yes your honor i so let me just say i put that in my brief st not because i thought it was strong and because i thought it would be the st thing you would address just logically and frankly i don't i don't know how strong i think that is i know the chief judge of our district raised the rightness issues to a sponsor a one time just sort of in passing so i thought it was worth going down that road i like to walk through them to understand what future points you could litigate whether that would be by a the is or nine hundred and eighty three dollars action because there are some steps between here and there right and so the contingencies i  brief were such as you know st he has the failed drug test and then he has the stale enough drug test that probation said ok you failed enough for you to go into drug treatment as the court ordered and then t defendant would have to say i can't afford to pay and probation would have to turn around and say to him no you have to and probation would have to say i'm going to revoke you if you don't and then i guess revocation proceedings would happen couldn't revoke them on its own it would just recommend that to the court as part of the revocation proceed yes i think i heard your question i think that yes finding on that is it does for issues like this you know they're the ones who can determine but ultimately it would have to be recommended to the court i can tell your honor that probation has never ever revoked anyone for  violation of this condition it's been used here for a better part of a decade and it's never ever charged a defendant a dying under this indigent all be used for is to enable to do things to use his own private insurance if he wants to and the logic is his private insurance often will be better than the contracted for insurance and more than that there is no enforcement mechanism even if probation wanted to violate them because there isn't something like you know in the guidelines i think fifty one point one enables the court to order a condition that says something to the effect you defend it shall offer your financial information the probation  gets probation on request that condition was not imposed here and my thinking is that it's because if you read that guideline that only applies in issues where you have in force no forfeit to to pay for treatment or not better than that your honor because the whole reason i'm mentioning done in force ability is probation has to take his word for it if he says you know i can't afford this then there's no way to prove  can no way to provoke him on it so that's why i need to meet the whole delegation issues coming up on plane air or it's not preserved and i don't see how you can show prejudice more than that suppose for example you can envision a way this could be revoked well under the guidelines i think it's seventy one point one the guidelines say that you always proceed with the most serious revocation serious grade by elation and that controls if there is a violation was here the way the order structured he necessarily has to sail drug tests st that would be a great a violation a violation of refusing to pay what you can for your drug treatment would be great to see at worst so that would be swallowed up by a even if we go down this road in the soon revocation could happen which it doesn't so this condition just exists to the benefit of the defendant and it's one of those rare times i think  rehabilitation is kind of gone by the wayside but it's coming back now and it's one of those kinds of thing where common sense and rehabilitation and what's good for this planet actually all seem to cohen coincide in some kind of harmonic convergence here and so i think we ought to just be kind to that when we can and not mess with it you know but so that's i don't know if your honour's wanted more on the merits of my art our appeal the government appeal here stoppel but that's what the april th order explicitly invokes in the last sentence no one raised it and that a finding of judicial stoppel is not a ruling on the merits of the underlying guideline dispute it's a ruling on the merits of judicial stumble so when you read that st paragraph of the april th order that the court explaining why it's ok to stop so if we agreed the two thousand and fourteen and fifteen offenses were related before so we're stop them arguing they're unrelated to anything now that's an error is a matter of law to avoid reaching our guidelines arguments on the merits we were never arguing those two are saying one related to each other we continue to they had then we argued that neither related to the instant offense which is the twenty misconduct essentially so that's why we think remand is needed to rule on the merits the only way you can readers a ruling on the merits is to ignore the phrase judicial stoffel and insert for a one point two eight two which to show that the two priors reader containing the same charging instrument are sent on different days and we can't show that so the only way you could possibly conceptually get to where the court did and this maybe where thought it was going to say well the two priors were relevant to each other in an earlier sentence and therefore one of them doesn't get a point there's nothing in the guidelines certainly not for a one two hundred and eighty two that makes that an exception so even on the merits i mean i exactly the same sentence same conclusion and then read those priors as you just have suggested just saying well under the principles you me kind of got hit for that before i'm not going to hit him for it again it could have but there's nothing in this record that where the court said and i would have anyway under three thousand five hundred and fifty three a so we don't know what would have but you're right if laundry banned it were to the side assuming this goes back to the state if it were to to decide of equity the court could do that there was absolutely no word yet it could that would be the proper procedure for getting the result the court wanted to do there but it would be a procedure allowed by gunter in the guidelines and not a pure i'm sorry i have no no ok all right so i'll pass over that then as far as i think that's really all i have on our issue other than to say you know referring to a ruling at sentencing might suffice if the court's reasons for it were evident somewhere else in the record already but they were there was no tentative findings that listed this so alluding to a clergy verbal allows the court to do and the court ordered him to come tribune amount you can afford that's consistent with the statute and i know mr gardner says well that says courts not probation but you know the courts delegate sure because you think about all the other much more intrusive act the probation can't do by delegation the court probation can order a court can order probation to make sure defendant is supporting is the pending there's nothing in that guideline about in about that's reasonable or what up to what he can afford and those were to sort of back to the court's order of the cost prefer let's see i'm trying to think there's anything else i don't and fifteen proceeding they should nevertheless be treated as separate offenses because they don't fall under any of the exceptions and for a one point forty one point one three eight three i think and then when he was out on parole he's picked up again for four bricks of heroin on the federal heroin offense and those four bricks have the gardenhire distinctive logo on them so that places him in the conspiracy  right those so those were sentenced on different days and then you know all that would really matter is i mean maybe you could say those two i mean the only legitimate way under the guidelines would be to say that one or the other  related conduct to the gun offense but we just don't have any evidence of that so so that's that is our position and you know i can't say what we say on variance or departure but you know in fairness to mr gardner to the court you know just as  the courting nor our arguments on the merits it ignored him i think that he should have the chance just as well as we do to make his case again that he deserves a variance or if he wants to try to say this is overstated his criminal history gardner your honor and i think i'll start with maybe where the parties agree in this matter with course disagree about the government's reading of what happened in this case what part of  a he was guilty of acting in bad faith ten years from now twenty years from now or twelve years from now if that he was say ever applies for a position of public trust oh tries to get is a state judge ship or federal judgeship being even more worthy of a break because what he's been doing with his time in prison and if he's the kind of person that the judge thought he was a sense and he probably can make a pretty persuasive argument it's in the sentencing that he should even get less than he actually let's say i'm wrong about it's not a finding if you ask that person in a questionnaire ten years from now you've got us at least to the attention of the reviewing it's through that some point in time a court at least suggested that you have acted in bad  because the government was on notice and did not object this must be reviewed for plane to air and there are two reasons why the government can't satisfy plane air in this case the st is never even attempts to meet that burden and the  that at minimum at the th prong the government can't satisfy its burden this court has been looking through all cases there is no rd circuit opinion that the court of appeal should exercise its discretion to correct the government's forfeited error finding it seriously affects the fairness integrity or public reputation of the judicial proceedings when th the proceedings the reason that a defendant is entitled to a presumption on the th prompt plain error is that everyone recognizes a single extra day in jail has constitutional significance and so when you get to scream for cases like result as morale as it says what reasonable citizen wouldn't there greatly diminished you know the judicial process and integrity of the court refused a way that you can't really depend so why not just isn't the better practice just to send it back for we sentencing and clean it up once our position that we're still talking about fame playing air and we're that everyone here seems to agree there are reasons the court could have relied on to impose exactly the same sentence number one the single sentence for which the government never challenges and number two there's every reason to read well the district court kind of got it wrong at sentencing but they could have gotten to this other result anyway and under discretionary sentencing the just a crook usually could have got in your office a standard response which has supports is well but then asked the district not our job to guess what the district work would have done we'd have to have a great degree of confidence before we would foreclose that are treated as there's no prejudice if we're not sure the right course to send it back at least resolves lost in both situations one of the boys symmetrical was i understand what you're saying and i'm not asking for an asymmetrical rule i'm saying it applies differently when the government is the one forfeit at the air and air isn't something like a you know an illegal objection when he talks when the judge is talking about what happened in two thousand and fifteen he's actually saying i can look at what judge fisher did and to the tune of fifty her determination that  say my best evidence of defending it is that in the government's appellate free it says it could have argued back in two thousand and fifteen that the offenses were separated by an intervening iraq and on that basis opposed court's relevant conduct determination that's that st step brief footnote seven and in the district court for this instant proceeding the two thousand and one team thing that's the position it t intervening arrest so the judge might have intuited that this changing of positions on intervening arrest just wasn't fair and there's no change in facts and there's no change in law there's no  this is an intervening arrest when is it when do you think the government should have objected to the judicial of couple find you know your friend on the other side has pointed out there's some go along here with an order being  the quote unquote back dating thing in a minute more importantly ten minutes before the court proceeding started there's a text order docketed e c f and it says word for sustaining the defendant's objections here's the guidelines just missing those extra three sentences that are there in the written order parties go on the record in the court specifically asked to pay the benefits fifty four with the court ruling this morning which i understand counsel has reviewed that's the moment that he should that defense that the peacenik government council he had a problem with anything should have said no your honor we didn't reveal it instead he says i want to state our objections in the objection is to for any one point eight to the single sentence rolls and he says i can leave it at that i understand the court has made that rulings which so you think you should stop will have been provided to the government  notice of that had been what will ask you for your friend the republic of s his understanding of the facts because that's not the way it was portrayed in the in the briefs of the record that i saw the government i mean i know this is an error this is a error correcting court not a fact nobody is suggesting that the words of that order changed everything is exactly the same mix just now that order is linked to the same day as the sentencing hearing but the order is exactly the same no text change there's no suggestion that the suggestion that the government had access to this order it's not a suggestion the court says did you review my border and nobody says no i didn't review your order your honor now if something happens on the record let's put it in different terms say there's a charge conference before trial that occurs in chambers is on defense counsel to come back on for the record and say i have checked it something that happened in chambers i articulate an objection to your instruction x this is what i think it should say we understand the court denied but we want to put it on the record that if the complaining parties obligation florence and he had make makes that very clear if you have an objection to some process and here the government suggestion is the bab process was her vide and the parties with this order off before the hearing started your obligation is to object when you're aware of that process the judge came on the bench she said you're aware of my role i'm i understand reviewed it not even you had the opportunity to put it up i understand you've reviewed it the obligation is on the parties to say i didn't review it or hit judge we didn't quite understand  before they came out on the bench the opinion was then showed the parties they had an opportunity to review it and they in fact they do read to now say that they didn't have any idea what was in that order and so had no opportunity to  he is out and so the probation officer says ok well you just pay twenty five dollars a month toward the cost of your standing fines or my situation i never calculated how long that would take him and probably take him longer than we have left on this planet earth because the sun's going to exhaust a supply of hydrogen before this guy plays tennis is paying is fines so i just don't see an issue here seems to me that especially if it's done so that he can get his insurance to pay for it i mean reason i'm talking about this now is the government so it's an entirely different statute to support what happened here it's a statutory argument and they never grapple with the plain language of the statute at which i ask you to do that all the case but ask you about a place points made by your friend on the other side explains a series of things that are going to happen that there's not going to be enforcement until either private insurance that most of the probation officer would propose revocation he would ask for wally to put it was why is this right now as opposed to on your radical eventually became a proceeding which your friend on the other side represents doesn't happen in the district based on ability to pay why should we confront this issue now as tense as a practical matter it sounds very unlikely to happen and we'll have more facts when it does none of those contingencies are on the record none of helping sometimes happen are really on the record that's all l affirming rejecting the cross appeal but in doing the affirming note that as a matter of law we did not find that the conduct on this record amounts to  ahead here's what it is so there's a story that says when the district court she was sponsoring raises unresolved an issue of law on it barrett and appellate may challenge the ruling on appeal even if you fail to object and review is not the plain error but under the three other published decisions from the six th and d c circuit that's what happened here i mean we got sandbagged by this yes the clerk did use the word judicial stoffel so that our attorney didn't know that was the basis of the ruling so when the court said you know i understand counsel's reviewed the ruling our attorney didn't say well to be clear we didn't get to read the actual paper but what he did say was well i do wan on the record or objection to the court's ruling and then he goes into the other possibility just in case the clerk changes his mind or the judge change his mind about how this works suppose that you apply plainer review i think i don't play an err on the application of judicial stoppel prejudice is not merely limited to the u s a s reputation because now i want to put us in the defendant's shoes that she is so capably done in her argument defended shoes when a court mis calculates a guideline range it's kept one of her that is going to be presumptively prejudicial unless we have some statement in the record that the district court would have announced the same sentence without the miscalculat action that's what's good for the goose ought to be good for the gander here and that's what happened the court substantially miscalculated the guideline range and that's prejudicial in and of itself apart from the rest reputational prejudice as far as the discretionary prong i mean look i will show you what happened on this docket but i would in no uncertain terms tell you the question of the integrity of the court the standard for that court is out the window if you look at those documents and you draw a reasonable inferences from them which is somebody went back and changed it to say to suggest that we had this on the docket served to us even says at the bottom you know by e mail on that date that didn't happen and the rest of it i'm not having a go at the law clerk i clerked myself on the court this court too but the fact is he's doing whatever the judge allows him to do or is instructing him to clerks doing a similar thing ventilating substantive stuff a seventy five minute status conference off the record no judge present and then no order and orders promised but it never issues that was united states versus ok as a judge one time was not me said i heard about it said somebody who said they can't do that kind of time that's too long for me the judges response was give it your best shot so i well i was not that judge