sentencing in this case represents a failure of justice at every level first even the government concedes for tourney's failure to recognize that the guidelines range district court considered was ninety eight to one hundred and fift for the appointment of mitigation expert in these circumstances is simply indefensible as a matter professional representation especially in light of the massive stakes involved in this case with ms market facing and in fact being that there is no explanation from defense counsel as to why that report was not particular are why there was no i guess that even to get a report from the mitigation expert is that right there there is nothing in your palate record i can i can i could proper your honor that i i spoke with the defense counsel after i was appointed to the case told me that he you know and again this may be and the issue is there has to be another hearing and i have to be a witness in this case so but what he told me that it never crossed his mind was not a tactical decision but again that's not a part of the record in the course the government is is entitled to speculate as to potential reasons why he might not have done so but i mean i happen to know him would be a witness in this case that he did not have any reason and again in light of the extensive record including the government itself at the bail hearing are you extensively for wideness machias mental health issues for her long ideation among other things including her attempts to hang herself is reported by her mother provided the reason why she had to be detained during trial so so there's no question this is not merely like a stealth reported you know th hour suggestions nakia had severe mental health issues affecting her entire sense of agent and of course affecting all kinds of important th to argument without prejudice to being raised on a subsequent twenty to fifty five proceeding when the district court can you know take it can you hear evidence you can get affidavits it could even have live testimony right suggest some situation where does in fact more efficient have the issue presented in that case and i would suggest this is one of those cases particularly in light of of the of the issues regarding  issues i still believe it would be more efficient in this case and also more there especially in light of two matters one is of course under pennsylvania ms nakia would not be entitled to  vice versa i think they're different test your honor the which is why both issues are raised in the brief under strickland the prejudiced prong obviously requires a reasonable probability that undermining confidence in the outcome the the prejudice prong under under the there is no prejudice prong really under start with the right guidelines consolations but here for just under three can differ just trying to determine whether the outcome is likely to be different and we have this record where the district court realized the mistake and then said but i would still impose the not that's why i asked if the ineffective assistance is a different test so those are not ineffective assistance of counsel that's about procedural and reasonableness still if it's just a prediction about whether the outcome would be different why would we fix the outcome would be different well i think i think it i don't think it's so different in so far that everything even in the case cited by the government moviedom martinez was goes on for pages about the fundamental importance of of the guidelines analysis at the outset of the matter because it informs every other consideration in this case the parties either with marcie or the government had any opportunity to respond to any of these concerns which were only raised for the st time in some we don't even know when they were raised when whenever the court to add up the statement of reasons or after the fact realizing the error and moreover the statement of reasons for me not publicly available you would even have printed on it that it's not you know for for public release and as the court explain i believe also was interviewed already covers a lot of ground in this case part of the reason why why this is important is that the public can tell us have a right to know what why people are being sent so what your argument is that if at sentencing the district judge had the program lee said that the yes they would have the opportunity to to discuss the issue of the variance in the case in particularly none we just discussed the issue but but i want to know the only the sole basis even provided in the statement of reason for the mormons variant is the fact that my client you know was with the mother of the young victim and that already accounts were at the level increase to the guidelines range would also have i would i would say your honor that this is why the two ineffective assistance claim talk till together it needs to be considered together because every one of those issues is precisely relevant for why psychosocial report is necessary in this case to address those matters as noted specially in the r and otherwise my client has been the victim of sexual abuse and she was five years old as well good morning your honour's may please the court michael carey on behalf of the united states i guess to try to address counsel's argument the n with respect to door b and its lack from the government's perspective of application obviously pre dates molina martinez that case from the supreme court i don't think is limited in the fashion that defense counsel suggest and in fact it seems to talk about guideline errors although in that case resulting in a sentence  within the correct out within the correct guidelines even when they are outside and i think case law after interpret ing is consistent with that where there are errors of guideline calculation that result in an overstated guidelines and therefore the sentence but it doesn't say that you have to right so that just gets us back to the question of whether the outcome would be different if he had realized his error at the time i agree but i agree one hundred percent agree with that your honor i think if that's the question i think the combination of both a statement at the sentencing where the judge talks about the possibility of a miscalculated guidelines and says this is the sentence i intended to impose and that in the statement of reasons reflects the the one who talks about the possibility of the muskoka deadlines he's talking about whether he meet in the stak coming to the number forty right you know he's not he at that time isn't something of the fact that he misstated he misstated the guidelines level based three i think that's the best reading of the record your honor i mean i suppose it's possible that in his mind a more significant error was was possible given the back and forth over the guidelines but i think i think your honour's reading is probably correct i would like to point out with respect to the statement of reasons molina martinez talks about a procedural option for appellate courts that i don't think is appropriate here but that i think the existence of reflects why the statement of reason should really matter here molina martinez talks about i think positively the possibility of a limited remain and the purpose of which is essentially to ask the district court hey in light of this error is this the sentence that you intended to impose or now that you know that the guidelines were wrong or in the case that they cited molina martinez that there was actually a lower mandatory minimum than the court recognized at the time would you impose the same sentence or were not if that procedural tool may be appropriate in circumstance as i think it suggests here why the statement of reasons ought to be sufficient to avoid making a sentence and remanding for resentencing on this procedural error because the district court does the things that presumably would have been asked of it for purposes of a limited remounted as your honor pointed out when you went through the statement of reasons it doesn't just say because of the relationship between the abuser and the victim i'm burying it identifies other reasons lack of acceptance of honour's correct to the way that it should have happened was with different i think the case law suggest though that even when that's under plan a review at least if there'd been an objection i probably would have a different situation here but there but there wasn't but under planner review if you're looking at prejudice then i think it's appropriate to look at the statement of reasons and if the district court is saying to the appellate court among others in the statement of reasons i understand now that the guideline signs are two hundred and ten to two hundred and sixty two months in that it should have been a total offense level of thirty seven dollars and not forty and then says the reasons for the imposition of the nine guidelines sentence are fully noted on the record that that this court ought to of thirty seven not forty as noted in the record so he seems to be saying that actually you should go back to the discussion he gave on the record and assume that he was really thinking of thirty seven all along just stated forty but if  thinking of thirty seven all along wouldn't you have directly said this is an above guideline sentence and given the reasons for that's so if you're more than just an inadvertent statement i think that's right i was reading from the portion and if we were to accept your argument that the appellate waiver is valid you would therefore argue that we can even reach the question of procedural on reasonableness correct yes but you would agree that we wouldn't still be able to reach the defendant's st claim ineffective assistance of counsel even though you think it loses on the merits and you would agree that counsel's performance was objective lee deficient under the st prong of strickland with respect misstating guidelines rank yes but you would you would take the position that prejudice required by strickland with respect to the st ineffective assistance of counsel claim and then with respect to the nd as we as we argued don't believe that it a direct appeal is an appropriate time to resolve  of strickland the reasonable probability of different outcome on the st point which is counseled pretty blatant i mean pretty amazing the statement the guidelines and unfortunately the government's failure to correct it either right i mean the government at no point said judge we're talking about what you found to be a range is actually to ten dollars to two hundred and sixty two dollars right in a point the government pointed that out you're correct so here we are left with a court that from the transcript appears by all what appears in the transcript which is all we have to work on to be operating on the assumption i think that's right yes so we're you're strictly asking us to realign the statement a reason to correct all of those misstatements on the record under the nd prong of strickland on that right well i think what we argued in in the brief and perhaps the st part of this the court may not find particularly compelling for the reasons that your honor already articulated that the judge did recognize the possibility of the guidelines miscalculation and i don't know that the record supports that knives that to the extent that it's ultimately recognized and the statement of reasons but those those two things combined and in light of the obligation of the defendant for purposes of ineffective assistance of counsel show showing prejudice and e by filling out that statement a reason i think that's right and i also if i just just briefly you know that the defense and i understand the argument says well this is just a post hoc you know justification on the part of the district court but but that is is what would have happened were this court to do something like a limited remand and in other cases where you essentially ask the judge the question now that you're aware of this mistake would you have done the same thing that's post hoc as well i don't know that the fact that it is post hoc by itself unless   announce that it understood that and made an error was in a meaningful opportunity to object and then point your i'm not sure that the record really answers that question so i don't want to speculate about  what specific opportunity might have been afforded when the when the judgment was was answer i mean what whatever available tools there are to to file an objection or file a request for re sentencing were available i don't know that there was as if you had recognized the error from the beginning even if the most we could do is remanded for a post hoc consideration is that really the proper mode of analysis for deciding whether the outcome would have been different if the error hadn't cure the procedural errors right i mean so the district court would be advised that you made these mistakes you should address these points even though we know you told us that the ultimate outcome would be different i mean i may be and i'm satisfactory answer but i do think that the way that it's set up  if the district court says this is the sentence i intended to impose that the defendant hasn't shown prejudice even though and as a government conceded here there was ineffective assistance in terms of the deficient performance benefit from the government's decision not to bring their charges but that's not reflected in the agreements and it isn't always possible wouldn't that mean that it's untrue every appeal waiver would be supported by  consideration and we would never really have the case sorry i think it is reflected in the agreement because the way that the government describes it and that the defendant agrees to it says the government's not going to bring additional charges based on the on the facts described in the factual basis section of this of this plea agreement and so that is what's reflected there it's certainly true and i don't know that this has been required by this court i don't think so that the government could lift charges there there are reasons why it's not done that way because among other things it's actually more favorable to the defendant to have a factual barrier to additional charges rather than just those specific additional charges that are you numerated under under the circumstances i think at least as drafted here when it says the government's not going to bring additional charges based on the factual basis of this plea agreement that it is articulate and this was a plea to win information is there any yes or and is it typical my understanding that when a defendant pleads to an information there's not a situation where the government is dropping you know formally bringing and then dropping additional charges right that's practically the practice and my guess you're going to represent of the court right ok and your argument is that because on the face of you were plea agreement you had a recitation of the factual conduct and you had a satisfaction of in the outcome the burden is not to prove that the outcome would totally have been the outcome it's sort of like beyond a reasonable doubt the type of situation in reverse unless the court has the utmost confidence i would suggest the outcome would have been the same no matter what there's a reasonable probability the senator if you were to the man and the district court sentencing to a different set that suggested we haven't really spoken in this argument about the substantive reasonableness issues but i believe that there are very are very strong substantive reasonable reasonableness considerations here that undermine the fairness of the proceedings that ms mafia received the letter but at the very least and sorry there would be the opportunity for for there to be argument about the fact of the variance including the saying i'm i'm saying that even i'm saying that if we assume that the effect of the council means anything in a case and obviously we do because there's a constitutional right to it then we assume that  all so councillor to judge your idea i tell me if i'm characterizing your argument correctly that it may be one argument to say you know the district court misstated the guidelines and a mistake and said i do the same thing anyway but you're also saying that you have a similar but maybe stronger argument saying the district court may have caught its own error but at no point did the district court say that it now realizes that the defense lawyer also made an error and that the defense lawyer failed to engage in appropriate advocacy which would have for example included fighting tooth and nail against an upward variance so we may have the district co saying that i meant to impose a three hundred and sixty month sentence regardless of the guidelines calculation but no point to the district court say oh and by the way had defense been better and maybe argued other things to me about not a portly varying i still would have imposed three hundred and sixty are those that in my capturing things accurately or not yeah i think i think the nd especially captures it but i think it even goes further than that not only it's the court it's defense counsel it's even the prosecution every party and even her probation officer here everyone has this wrong and if that doesn't undermine confidence in the outcome it's then thought they were presupposing that she got all the enhancements that the court dropped out right that when they said that well yes and no because even even with the forty movie incorrect we don't four thousand three hundred and sixty months statutory maximum is still within the guidelines and and again that's part of the point about the court not even realizing that the sentence imposed constituted a variance you know from the guidelines you know it sendek so even even after even after the court did not apply or you purport of not to apply the four level and five level in a hansom and you know at that point if the government and the court all still believe that this was within guidelines that you know as obviously did you know the ineffective attorney i mean again if these hearings are are to have any realistic meaning if we're going to point or they're a similar case i i don't think i think your honor that frankly speaking the vents of this sentencing is that smart of this argument are so beyond the pale that i think occurs that is what you're bargaining away right i mean you know but argh away an appeal waiver only if there are no mistakes made and i don't think that there's an exception that if the mistake is somehow the government's involved well i  completely disagree your honor mutual mistake is absolutely a basis for invalidating a contract under under any event an event right at that mutual mistake about the premise right when you're talking about something that happened afterwards talks about why the court maintains the power for general fairness principles to invalidate any term of the contract which ordinarily isn't something you're right that would apply in the usual contract setting but that does apply