good morning your honors may it please the court i met in bennett i represent defendant appellant john quote chang who is challenging his appeal as early as his sentence as procedurally and reasonable for four different reasons were to start by mentioning that i'm nursing a cold and if i sneeze or some supplies over here the four reasons that mr chang is challenging his appeal are these one the district court clearly erred in its final statement with respect to his cooperation that and i will quote that mr chang that there she would be inclined to give him some consideration for cooperating is apparently hasn't been useful at all the district court didn't consider any of the cooperation mr chen provided prior to two thousand and fifteen when he was right after he was released from a southern district casted the district or didn't consider it i mean it was all presented to the district judge right there was argument at the sentencing about the post about the october two thousand filters and on every right the judge was certainly aware of it and the government can a judge didn't sort of specifically referred to it in sentencing the judge did not refer to it at sentencing whereas she did refer to and discuss at length the parties the two thousand and fifteen onward cooperation so there was no discussion at sentencing but it was raised by the parties in the government acknowledge that it was a relevant consideration i mean she may have given a little way anyway it's she she clearly was aware of it and had it on her mind and decided it wasn't worth anything well i agree that it was it was present both i'm going to call the sort of you know two categories of cooperation the preach twenty fifteen and twenty fifteen onward it's clear that both of those categories of cooperation had been raised by the parties in their sentencing submissions and then at sentencing there's an extensive conversation about the twenty fifteen on cooperation and there is no discussion in this during the  the earlier cooperation so i agree that the issue was before the court i agree that the court opted not to give any credit for cooperation but what i think is unclear from the record is whether the court engaged in a consideration of the pre twenty eleven or sorry fifteen cooperation because when she says that she would have been inclined to give consideration for it apparently hasn't been useful at all that's contradicted by the evidence in the record about the assistance mr chang provided to investigators in albany in connection with the murder of a family there it's inconsistent with the evidence that was presented about the credit card fraud ring with about which he provided information in the government never never contested that he had provided assistance in those cases so i think the confusion here is in the court statement that it apparently hasn't been useful at all clearly refers to the government's minimize what i would call the minimisation of his post of his twenty fifteen onward did in an argument is that the guy at the district court had an independent duty considering the fact that the co defendant's cases were before the same judge and that she had knowledge of the sequence of the guilty pleas procured and all of those cases and the timing which matched the defense's argument that his assistance had been helpful in particular i'd point to page seventy six of the appendix which takes place it's a letter in june of two thousand and seventeen wherein the defendant defense counsel asks the district court government has has asserted that mr cheney's utility was almost meaningless i think there's an inherent contradiction in what the court was looking at and instead of sorting that out instead of exercising her independence and the discretion that she was required to exercise she just solely relied on the government's minimisation of mr cheney's assistance that similarly on the immigration detention mr chang was procedurally mr chen had been released in two thousand and eleven from his southern district case he was then at liberty for about four years until he's taken in to immigration and customs enforcement custody in december of two thousand and fifteen essentially simultaneous with the arrest of the co de said he was in custody and defense counsel said he was in custody because there was an immigration detainer and at the same time the appendix of three forty five the court asked wasn't he in immigration custody based on his prior convictions that they were seeking to depart deport the answer was that's correct your honor and and then the defense counsel also says if you go further to i believe it is three fifty six defense counsel again does asks ask for credit for time he spent in immigration custody i suppose you can always ask for credit there's no factual dispute that he's in immigration custody based on prior convictions that are leading to deportation proceedings defense counsel says that he was  question is was it would the bail application have been made prior to may of two thousand and sixteen had the defendant been in custody solely for deportation purposes or in fact as we conte able to make it make a bail argument on his deportation and that really the question is what what was the purpose of that detention and so whatever defense counsel may have said and i understand that perhaps this goes to a waiver argument but whatever defense counsel may have said we've made  a request for the immigration file and the department of homeland security has failed to produce it as and i think circuits that ins of allah the government is uniquely situated to produce that information we could have the answer in the immigration file if the court were to remain on this case that the district court gave us the opportunity to review the immigration papers which would reveal what the purpose of the detention was because remember he'd been out of custody for four years before december of two thousand and fifteen he's brought a lot of people who find themselves in immigration custody but he's brought into the immigration custody simultaneous with the arrest of the defendants and jang the people against him he'd been providing information for several months before that arrest and the timing of that is the sort of serendipitous timing of his detention by immigration and custom enforcement and his release upon signing the cooperation agreement strongly suggest that his detention is for purposes of the pending prosecution not for debt not for removal purposes that we would ask the court remain on this case and direct the government to produce the immigration file as they are uniquely situated to answer that question thank you thank you you're from a six months imprisonment imposed by the district court was procedurally unreasonable in support of the assertion he raises for claims each of which lacks merit prior to an at sentencing the district in fashioning the sentence your adversary says the judge didn't adequately consider the first wave of cooperate your honor and i with all due respect to appellant counsel i would point out that judge hammond did in fact discuss preety fifteen cooperation and sentencing at appendix three forty three to three thirty four defense counsel was discussing the benefits that she purported were given to the government and to ice prior to twenty fifteen and the court stated quote the problem with that he was dropped from ice in two thousand and fifteen but while he was working with  he was also engaging in extortion activities and beatings according to charges in this indictment and john are the government would suggest that this statement here is your honor is the district court reviewing the allegations that the that defense counsel had made that there had not been any due consideration the this colloquy here this exchange between defense counsel and and the court is more exactly and i think the court ultimately determined that under all of the circumstances while the court believed that quote he or she could have well benefited him if he hadn't made the choices he had obviously made in the past to try to cooperate with the government authorities now at the same time running a gambling businesses and engaging in an extortion i think what the court was explaining during the many times in which the district court discussed defendant's cooperation during sentencing and at other conferences is the fact that ultimately it was very difficult for the district court to give much weight at all to the defense cooperation given his continued criminal activity honor with respect to defense counsel's statement and prior before i move on to the next issue your honor i just would also state that if the district court was under no obligation at all to give any specific weight to cooperation as long as the sentence that's imposed is reasonable and does not shocks the conscience then the the district court is under no obligation to particularly give credit for cooperation even assuming the cooperation is at the level that appellant has stated which the government which is not the case here with respect to the requests for credit for the time spent in immigration custody i think you honour's correctly point out that the defense counsel conceded no less than ten times orly and in written submission that the defendant was in immigration custody for the purposes of deportation in fact the defense defense counsel went so far as to say that the that the government would have been more than happy and more than willing to let the defendant be deported and the defense counsel said quote it's been the government's intention as i understood it not to charge him but to let him be deported that's at appendix three eighteen but even more so opponent is now not only stating that the district court should have made a substantial variance based on this time spent in immigration but in fact reliance on savalas miss place here is that it is not the district court's place to provide section thirty five eighty five credit it's the job of i believe zavala says in footnote three it's the job of the of prisons and the attorney general to calculate the credit though is given for official detention and this is based on the supreme court's case in wilson it's a nine hundred ninety two case and i believe the second circuit has precedent that also follows wilson that ultimately a defendant must first begin serving his sentence he must exhaust all administrative remedies in order to receive credit and if that credit is not applied by the skewed me the bureau of prisons then the remedy is for the defendant to haiti as corpus to seek a finding by the district court as to whether or not there were there was any portion of official detention that should alternately be think what you're saying is that judge didn't adequately consider the fact that he was in immigration custody longer than he would otherwise have because he was trying to cooperate with the government and basically discouraged him from making a  application so we he was in custody longer than he otherwise and so that you and i would say two things first i would say that the record belies that the record shows that the reason that the defendant was in immigration custody was because he  mandatory deportation because he was supposed to be mandatorily deported there was no final deportation order and so during the six months that the defendant was in immigration custody he was there because he was challenging deportation and there was no there were no for the proceedings had not finalized at that time and i think as i mention defense counsel below concedes this issue more than more than ten times i believe in total eleven times by the government's count with respect to the question as to whether or not the court gave it due weight as i mentioned with respect to the question of cooperation this cour consistently held that when considering thirty five fifty three a factors the the district court is under no obligation to give a particular amount of weight when alternately fashioning a sentence if they properly consider the thirty five fifty three a factors defense counsel and at sentencing submission and during oral argument during sentencing spend plenty of time explaining to the court why the court should consider giving this credit and very substantially based on this credit and ultimately the district court rejected that the mere fact that the district court ultimately rejected the requests for credit based on both cooperation and  procedurally and reasonable your honour's ultimately opponents failed to meet its heavy burden of establishing either procedural or it's the government's believe there might be suggestions that they were also subset of a reasonable has problems with respect to the sentence and would argue that the district court's sentence in this case was both substantially and procedurally reasonable with respect to the other issues brought by defense counsel and it's brief if the court has no questions with respect to that the government is happy to rely on its briefing with respect to those issues the district court probably calculate the guidelines thank you your honors to judge eleven's point yes i was asking we were asking it at the district court for a sentencing consideration pursuant to thirty five fifty three day that took into account the six months that mr cain had spent in immigration detention thi in the thirty five eighty two context and mr chen may ultimately have an opportunity to file a petition the district court certainly could have taken the six months of pre pre indictment or pre information detention into consideration when fashioning a sentence here but what basis is there to think that he could have gotten bail hearing well how do you not been cooperating but you got think that you're suggesting he stayed in custody longer because he agreed to forego a bail application absolutely because he was cooperating absolutely and that was the reason so on the in the sentencing transcript when the district when the defense attorney says that he thought the government was intending to deport him but he stayed in custody in order to proffer the put the point of him remaining in custody was to have those proffer sessions with the government over the six months it took to get the cooperation agreement he could have if he were it not interested in and he ultimately did get bail on the on the immigration detainer is it your position that that this was mandatory that the court had to give him credit for the six months or that you know much of this was a discretionary matter it's an interesting question and i thought i would say that the court certainly should have given him credit for this and as a matter of calculating the sentence if if it had been established that six month period was detention pending prosecution  i don't i don't think the record is clear enough that that six month period was detention pending prosecution for me to say that it was mandatory that he received the six months credit i do think that a simple evidentiary hearing that would essentially involve just production of the immigration file which the government could order readily and which the defense has been trying to obtain to answer this question i also want to say one quick thing we did not fashion this argument as a substantive and reasonable in this sentence but i will point out that mr chang had been cooperating since from two thousand and four to through two thousand and fifteen much of that time there was some criminal activity that did not discourage immigration and customs enforcement or the f b i from using him as a cooperating witness he got no credit for any of the decade plus that he spent working with the government providing them unchallenged by the government information that was useful in several different prosecutions ultimately i understand that the court has to consider whether the sentence as a whole as the record as a whole