thank you anderson good morning may it please the court my name is graham archer with the federal public defender's office on behalf of appellant david so i've got a ramiro if a man like to reserve two minutes for a bottle you honors the court in this case should remand to the district court with instructions to grant this or so i got a mirror those motion to dismiss because the eighteen month delay involved a mistress i got this case is attributable entirely to the government and that delay caused actual prejudice to mr so i got a room euro the delay in this case was caused as a result of the government's failure to take any actions to bring mr sadat over miro before the federal court to september eleventh of twenty fourteen and then yet still approximately a year later september fifteenth of twenty fifteen they filed an indictment they took no steps to lodge either a criminal sort of thing happening is that right can you tell me what what you mean more fully certainly i want to start off by saying that that mr scott us case is a little bit factually distinct from the cases that were that are addressed by judge white by judge dobby and judge where tell me how in this in that in those cases the the united states attorney's office had made a conscious decision and that was the record before the courts a conscious decision to permit a filing of a civil detainer as opposed to a criminal detain or ours is distinct in the sense that there was neither a civil nor criminal detain or filed instead with the issuance of or with the filing of the complaint that also triggered the issuance of a warrant from judge cousins on september eleventh of twenty fourteen that was what eventually caused mr saddam era to be taken into federal custody but only after he completed his state sentence it is not the defense's position here today that the factual record is on all fours with the series of cases raised before the district judges previously but it is relevant to this court consideration for for who is at fault for the delay and the sort of the level of negligence that would be required to allow this delay to occur where there any of the sort of official findings made by the judges there judge white or any other judge and those cases as to that would send for bad so that as is quoted in our in our briefs there was there was certainly a finding that the united states attorney's office in san jose was failing to comply with the requirements of eighteen u s c thirty one sixty one j that that would require them that once they were aware of the presence in custody of the defendant to then either lodge a criminal d or file a writ and in this case mr so i got a ramiro was discovered and this is this is imputed to the government because it's in the actual complaint filed on september eleventh of twenty fourteen that mr so i got a ramiro was detected because his fingerprints were were found as part of the monterey county booking procedures he remained of course in continuous custody of monterey county and then posts sentencing and to the california department of corrections and rehabilitation  he was he was first of all discovered his custody status never changed and there's no indication that the government took any steps to either buy or five councils judge cool yes your honor so it looks to me like the government may have been negligent and also that he has if we take the time as running from the first time there's an arrest warrant  actual precious and the issue here and it's sort of an interesting question that the court raises and it's it's interesting that the government so argues that this prejudice is speculative it's interesting because the government's delay itself rendered that prejudice uncertain because the primary prejudiced that we're addressing here today is the inability of him to should be granted c current time from his state sentence imposed by monterey county now mr scott a romero of course cannot establish that that was a certainty because he was never aware of the existence of the federal criminal procedure so it it's something that is rendered and i certainly hesitate to suggest that or agree that it that it's speculative but to the degree that it's uncertain level of prejudice well it's i it seems like the it's not required to impose concurrent sentences is that right it's not ok and if i recall correctly the record reflects that your client made why i guess doesn't that undercut your prejudice only as to the district or your honor the that the district court did address the defense's request for a downward departure variance pursuant to two l one point two  x to ticket and account some of the state court time but the actual prejudice is also inclusive of the state courts ability to them impose that sends concurrent to an ring federal sentence and frankly as a practical matter if the state court were aware that mr so i got a ramiro we're facing a significant federal sentence one that in actual time would significantly outstrip in terms of months that the the state sentence ultimately imposed that's something that the state court can get siddur and you are running a state sentence concurrent or or potentially reducing the amount of time spent in state prison just help me with the sequence here as to why the state court would have been able to do concurrent sentence where it was the timing or what was the sequence of the sequence was the complaint was filed september eleventh of twenty fourteen mr so i got a ramiro then went through criminal proceedings for approximately three months in state court in state court in monterey county and then he was sentenced and committed to see the c r and serve the balance of his sentence there and till on march second of two thousand and sixteen his sentence was completed in state court at that time prior to his release they looked in class found the warrant and then turned him over to be transported to a federal court where he made assertion that the prejudice remains the same and that the delay which was which is a little bit over six months when he actually appeared in the northern district to face the charges the that delay is sufficient to trigger the barker lingo morning again your honour's jonas lemon for the united states i'd like to focus on two points prejudice and this policy or practice point starting with prejudice there was absolutely no can cognizable prejudice here within the meaning of the sixth amendment and this court's sixth amendment jurisprudence in fact as the defense has now conceded the defendant benefited from the delay here in the form of a lower guidelines range so that was the only form of prejudice that they alleged in their motion to dismiss and in their reply to the government's opposition they've now want to appeal in their reply brief here conceded that they were wrong about that that in fact because of the government's delay the defendant was sentenced after the november twenty sixth seen amendments to the guidelines and the bottom end of his guidelines range dropped by seventeen months now that's roughly equivalent to the entire time he spent in state custody both pre and post conviction for these unrelated sexual assault crimes so he spent eighteen months and two days if you take the pre and post conviction st custody time that's nearly the same as the seventeen month benefit he got from the guidelines range drop post conviction in state court he only spent fifteen months in prison so that's less than the benefit he received so i want to be really clear about this because this guidelines issue also takes care of this concurrent sentence claim because even if the government had done exactly what the defense says we should have done here and rid the defendant over immediately after we filed the criminal complaint and convicted him and gotten  sentenced in federal court immediately and sent him back to the state court even if we had somehow managed to do that in the three month window between the federal criminal complaint and his state sentencing so again that was september twenty fourth jane to december of twenty fourteen even if all those things could have happened in that three month window and we've sent him back to state court and even if you accept the wild speculation that a state judge would have imposed a fully concurrent sentence here and again there's no reason to think that a state judge would have done that for these pretty grisly sex crimes even if you accept all that the defendant would still be in the same position he is here because of the the amendments to the guidelines i think he's made there does the seventeen mile benefit as you characterize it does not account for the fact that the defendant a crude crude additional criminal history and yes was elevated in the criminal history category by the fact of this earlier conviction yes it does and the defense has conceded that so even with the higher criminal history category that he has because of the state conviction even with that he has a lower guidelines range because of the the amendments to the guidelines and because none of the other barker factors weigh heavily in his favor here on ars the district court was correct that there was no sixth amendment violation and you know even if she she said even if the sixth amendment speedy trial clock runs from the point of complaint that eighteen month period still doesn't weigh heavily enough in his favor to merit the extreme remedy of dismissing the  here now on the policy and practice of point i also want to be just really crystal clear about this the u s attorney's office has no policy or practice of intentional delay in thirteen twenty six cases or any other kind of case and you don't have to take my word for it because you have a finding from judge beth freeman here that she reviewed the whole record she looked at these old cases and she found that this claim just wasn't true she said based on the record presented here this court cannot find a practice of de lay by the u s attorney and the cases cited by the defense quote cannot be interpreted to establish a practice of de lay and instead she found that the delay here resulted from nothing other than simple negligence and that it didn't weigh heavily in the defendant's favor in the barker analysis now that determination by judge freeman this court reviews that determination for clear error that is the standard you've applied again and again including in the beeman case or in the alexander case from last which we cite in our brief you talked about how that finding by a district judge about the cause of a delay is entitled to considerable deference and there's nothing in this record that would support overturning that finding as clearly erroneous what explained judge white's comment thing because it was referred to in the brief for trying to understand what the u s attorney's office then was doing in san jose sure so this this requires going back to two thousand and nine in the castro case which i think was sort of the genesis of some of the confusion about this and the castro case the defense included a motion hearing transcript from that case in the record here that's also in the record on appeal and they're the district judge and it was judge james where he had some concerns because the defense in that case had why they do that and one of the reasons is that the vast majority of defendants who comes into contact with if they're in state custody the federal government doesn't actually end up criminally prosecuting them but ice has its own reasons for using administrative detainers but it's not for purposes of the delay the chief of the san jose branch was very clear about that and after hearing all these explanations and it was a lengthy hearing the district judge denied the motion to dismiss in that case denied the motion for reconsideration and he said in his order denying the motion for reconsideration there is no evidence here that the u s attorney's office is discriminating against thirteen twenty six defendants or that it's trying to this advantage them in any way so that was the castro case then we have no guest opinio and this was the case with with judge ronald white there the claim was that the u s attorney's office was intentionally violating eighteen u s c thirty one sixty one j and that statute talks about how  once the government becomes aware that someone there federally prosecuting is in state custody they should move promptly that's the word used in the statute they should move promptly either to or at the person over or file a detainer but this court has held in valentine  that the requirement of promptness in thirty one sixty one j is to indefinite and subjective to be described as a time limit and that valentine case is cited in our brief as well so there is this line from judge wh opinion order where he talks about how the u s attorney's office quote apparently had a policy of not complying with eighteen u s c thirty one sixty one j but it's unclear what he was referring to there and it certainly doesn't count as a factual finding and that's what judge freeman said in her order in this case she said that there was not a factual finding in any of these cases relied on by the defense and judge white goes on to say in that order however the government did not choose to ignore  faith or for the specific purpose of penalizing a great a by impairing his ability to present a defense so again judge freeman looked at these cases she looked at these cases and she said they cannot be read to establish a pattern or practice of intentional delay by the so what happened here was it negligent was it over time what happened here it was negligence i you know we concede it was negligence but again if we're talking about the loss of opportunity to make a request time to the district judge that only the only negligence there was the three month window between the government's complaint and his sentencing and state court you know i think the real negligence here on the part of the government if there was an was between when we filed the criminal complaint and the five month and twenty one day delay between then and when we brought him over for his initial appearance in federal court and i think you know at the trial usa said you know that was an oversight on our part and we sort of dropped the ball on that but you know judge freeman considered this full record and she said that there wasn't anything here beyond simple negligence and under this court's case law and that doesn't weigh heavily in the in the in the barker for factor analysis and so your current policy now what do you have in place what what mechanism if any to guard against this well as we explained in our answering brief the typical i should say the typical practice because i don't i don't know that how typical it is or but certainly in many thirteen twenty six cases we were at the people over but here on the facts of this case we would have had like i said before we would have had to read them over in that small window between when we filed the criminal complaint and his state sentencing and this court is never held in any case involving similar facts that the government has that sort of obligation just to try to help the defendant get a better sentence in an unrelated state case unless the court has other questions  i will sit down right thank you very much and your honors i think of nearly ran through my time but i just want to point out the government it's interesting and it's opposition brief here no it's several cases where they did actually read someone over and yet still or use that there that there's been no change of policy that it's always been consistent that there has been no consistent failure to comply with eighteen u s c thirty one sixty one j m that's all thank you thank you both for your arguments here in this case united states of america