well the next case sixteen dash one zero two three five united states versus rico the morning may please the court my name is kevin paige i represent mr rico and i work for the federal public defender the pre sentence report is not gospel it is not sacred text unsupported claims do not become true merely because they appear in a p s r and it is not heresy for a defendant to suggest that the p s r has not provided sufficient support for its claims yet here the district court increased the defendant's guideline range which was already severe from two hundred sixty two months to three hundred twenty seven months to a recommendation of life imprisonment kept by statute at forty years on the basis of conclusory unsourced it logical information and because the defendant's lawyer had the audacity to question whether or not the p s r gave sufficient support and evidence that he dealt a kilogram to a codefendant when that kilogram didn't even affect the guidelines and i should something that's that's strange to me about this case it sounds like the p s r comes out and this was a surprise that there was all this information i understand all your games was to begin conclusionary but normally the defense should have access to everything in the government's speil so for example if this came in because of statements from the codefendant go dean as you have the interview summary of what go dean is said was there not full discovery in this case going to mean to me there shouldn't be surprised at sentencing and it sounds like that's what's going on here well i mean i we didn't represent mr so i can't speak to that i assume that there was adequate discovery i haven't heard a complaint about that but the reason that it knew that that evidence needs to be in the p s r and it needs to be adequate even if the  defendant has the ability to access to the same information is number one any time he makes a factual assertions particularly in this court he's at risk of of losing acceptance of responsibility so the way that we protect the accuracy of the since it's a is in process ought to be that we have an adequately sourced basis for information in the pre sentence report to begin with and then only then do we shift the burden on to the defense to rebut those claims it's also questionable whether the defendant has the ability to produce the same information that the government particularly in a case like this one where the key enhancement doesn't depend on whether or not the defendant even isn't a fact the defendant even knows it once and we challenge here is whether the methamphetamine came all right back on let's talk about that because that's one where maybe objection then you get to the sentencing hearing and say no or the current case law this is correct i'm just preserving the way the fifth circuit does says i'm someone preserving that argument for further review and so that wasn't a fact ground argument that was a legal argument and so you have your client has then waived any argument that the evidence was insufficient rather you're making whatever other legal argument you were making isn't that a fair reading of the record i disagree your honor the if you compare what happened in this case at sentencing to the cases cited by the government it's clear that that was waiver and what happened here was merely that the defense presented to arguments one legal one factual there was insufficient basis for to find that it was imported and in any case i ought to have to know that and then pursued only the legal one at sentencing that's not the same as what happened for instance and whiskeys where the defense said i with you all of this it's not a game of gotcha on the lawyers but it is not a game of gotcha on the judge either and judges have to do a lot of sensing hearings they have these big fat p s r s for those and they need the lawyers to be honest with them about what they're claiming so you show up at the hearing and say are your predecessor shows up and says on the two level enhancement for importation i'm only making this objection to the fifth circuit standard which is a legal question and not oh this thing about it being wet isn't good enough to support the idea that it's from another country the judge is going to go with that and think ok well i can't overrule i'm a district judge i can't over all of this circuit i'm done and not look at it further and you can't mislead a court like that and then come and complain to us honor i would disagree with the idea that it's misleading particular clearly judgment right in this case had an opportunity to rule he issued an order in response to the p s r saying i find i tentatively find these all to be without merit and this is this is so that you can to affect your presentation before me so in other words he said i already have evaluated the evidence in this case and i think i think that there is adequate evidence of importation on the p in this case please take that into consideration when you consider what arguments to make in front of me and now what's the purpose then of the number of arguments you continued to press after that tentative ruling like the legal issue on the importation like the factual basis for the met house and there was a tentative order if that was a full ruling why did you make all these and it was you but why did the defense lawyer make all these other arguments at the actual hearing because i think he hoped that some would be persuasive and because he was afraid that he was lose except and exactly and so on the it's easy enough to say well your honor you seem to not agree with me on the method importation but i think there's really no evidence on that because the fact that it's wet i mean it can be wet in texas it can be wet in mexico could be wet anywhere and that would have been good enough it would have been disrespectful or anything like that to say oh so i'll stand on you know my objection that i made or i'll stand on the papers on the don't want to take the court's time unnecessarily and then if the judge wants to engage you can as well i mean i've certainly had the experience the lawyers don't seem to care what i think they keep making their argument anyway and that's ok too i mean the sensing hearing you're entitle heard and so i don't see that the judge cut you off or care or your predecessor keeps saying you know i'm sorry i don't see that the judge cut defense counsel off or said i will not entertain argument on points a b c or anything like that that would excuse what i think is an effort to mislead the court either and if it's not intentional then it was unintentional but either way i think it's the record supports a conclusion of waiver that there was no pursuing of this fact and to the contrary just said i'm only objecting on the standard the circuit standard point well i'll make a few points and then move on about that the first one is assuming that would be a rational rule i'm not sure it's the law i mean the law in united states versus mark martinez rodriguez is the central inquiry is the specificity and clarity of the initial objection not the defendant's persistence in seeking relief yeah but this isn't a question of persistence if you make five objections and you show up and say i'm standing on my objections i just want to argue one of them your honor absolutely you haven't waived anything we get that you don't have to keep being persistent and really sounding passionate and making a lot of gestures but when you come in and say my only objection to this two level and handsome it is this thing about the fi circuit standard it's a legal objection we're just preserving it for further review then you have left the judge thinking that's the only problem with that and then you've done more than simply not be persistent you've actually done the prior objection that's  inconsistent with with that position because he had clearly presented the argument he wanted this court to rule on which was that it's not an aggregate aggravated felony so the final point i want to make is if you look zano which is another case cited i think in the reply the court can consider also in determining preservation whether or not the defendant there was a cost to likely cost the defendant for pursuing it in a way that would have made preservation clearer and i think it's clear in this case particularly given the third issue here where the defendant lost acceptance of responsibility for pursuing an evid sufficiency argument that there was a reasonable fear by the defendant that if he pressed the factual claim here he could lose acceptance and finally i want to point to just that in general we are supposed to indulge every presumption against waiver so at most we have an ambiguous way record here with the court's permission to move on to the second argument which is whether or not the defendant dealt methamphetamine the house or outside the house he gets two points if it's found that he maintained a residence for or other location for for drug dealing in the district court found that he had but it's finding on that point is really a based on a balding conclusory statement in the in the pre sentence report if you look at paragraphs twenty one twenty six and thirty one basically these portions of the proof of the pre sentence report just say it they don't provide any any information about what the probation sources are they just they just say the defendant conducted drug deals inside the house there's no source there's no reasoning just a conclusion paragraph forty three is a little better it says coke and four conspirators confirmed that he dealt inside the house but it doesn't provide any information about who it doesn't say under what circumstances this information came to the probations attention or the agents attention it's basically a little birdie told me and you know a little birdie told me is not an inherently reliable claim  i would submit to you that the controlling case on this at least the best best reasoning that might be of guidance to the court here is not viz gara in that case the pre sentence report was found to be harmless error about it it is clear that this court found the p s r to be inadequate on the subject where enhanced it was based on the briefings interviews and and telephone recordings of defendants and and it wasn't narrowed any further and that's effectively exactly what we have and paragraph forty three of the pre sentence report is just a statement this came from co defendants i submit to you that no globally sourced information and that was inadequate and the reason that that is has to be inadequate in our justice system is first of all it doesn't provide any basis for the defense to to defend themselves defense without knowing more about the circumstances of that can't go and find who can't go and find witnesses to rebut them the defense can't even necessarily say i've never met this person i don't know or i've met this person but that's the person was in any any position to observe that the defender himself can't even can't even rebut that that argument and the court doesn't have any basis neither the district court nor this court have any basis to evaluate whether or not that information is is is is credible so the government now will argue that it is clear from the record that the person who made that claim was m anus but the only information in the record that says that is the statement of a prosecutor means the praised the statement of the prosecutor in its answer to the p s r and prosecutors are you know find credible people but but we  the law this court ellwood in rome is that the unsworn statement of a government prosecutor as to a factual matter they don't have any first hand information about isn't inherently reliable basis so i think if the if the court that's why i come back to the question i asked at the beginning i mean they say it's good dean as you should have some reason everything to dinas i mean it's not on you on what the government doesn't give the judge the reporters exactly what you're doing as said about this house but it that's why this is all a little artificial to me though because in reality in the sentencing court there should be more information and i understand you're saying the problem is there wasn't but i don't quite understand why and i don't quite understand why once they say it's good dean as you don't say but judge i've got the good news report and he never said that but it just seems to me this shouldn't be happening that might be so but i think that there are a lot of good reasons that it's important that if we have a burden of proof we need to enforce that burden of proof and it needs to be the government that bring or the court that brings this in probation or brings this information to our attention because otherwise we really you know we really don't the defense has their cost to the defen it please the court nicholas bonds for the united states this case presents three relatively routine students in issues in a case that is handled in the same fashion across courts in the state of texas and all the courts in the fifth circuit and fairly standard protocol except for this tentative that's unusual other judges in the northern district do that that kind of rule and i apologize your honor i'm not aware of other judges in the district that do it judgment bride has done it on a number of occasions  those issues have been brought before this court in various fashion not ruled upon directly but never in any sense objected to or any cause of concern in the cases that i was never found it improper to make a tentative ruling as long as the council's allowed to come in and present their argument sensing that's correct your honor i'm not aware of a case i'm not aware of anyone actually raising that as an issue either what happened in this case judge cause to you you suggested perhaps there was an issue of discovery  there's nothing in the record to suggest that that's the case there were no motions filed seeking discovery there were no objections filed indicating there was a lack of discovery provided and what happens in this case and in a lots of cases is that the government provided information to the probation officer for purposes of preparation of the p s r and the probation officer in this case cited her sources paragraph ten of the p s r is very specific about where the information is coming from to support the conclusions that she's made in in the report it includes the factual resumes the sworn criminal complaint that was filed in the case investigative material often reports prepared by various law enforcement officers personal interviews with the a t f agent and a texas department of public safety sergeant to clarify information in the pre sentence report and we upon probation officers to do their job they are neutral independent objective third parties who come in to a case after there's a conviction they analyze whatever information is provided to them whether by the government or by the defendant and they reach conclusions based upon a review of that and they make a determination as to what is reliable and once they make a determination as to things that are reliable they put it in their report their officers of the corps they take an oath just like an assistant s attorney does to have a duty of candor to the court they identify their sources the discovery was provided in the defendant he had an opportunity to object to those things which he did and what's important in this case is the probation officer them to the prison and report in when issues came up about the premises or about the importation issue the probation officer took steps to clarify the information that she had already received and stood on the enhanced meant that she'd already applied that's the process that was filed in this case the defendant was given every opportunity to come in and present contrary evidence that's this court's case law simply objecting to  r is not enough to establish that it's wrong the defendant has the burden at sentencing to show that appears are is materially untrue unreliable inaccurate or wrong and that if it's insufficient then it can't sustain that's certainly correct your honor i don't disagree with that but that's not the types of objections that were being made here the objection so how about how are they supposed to object when it just this makes these assertions without attributing the specific assertions to any of those officers you mentioned or any witnesses or cook particular co defendants let's take the importation issue to start with the statements in the p s r say that the methamphetamine came from mexico we've seen here on appeal that my opposing counsel  cited articles to suggest that that conclusion may be wrong and maybe it is but that's the type of evidence that needs to be presented at the district court so that there can be a factual determination made by the district court judge in the first instance that evidence could have been offered and judgment right at that point could have said you know that raises a question in my mind as to the reliability or the accuracy of what's in the p s r government what do you have to offer this court is the only thing if it says drugs were bought on this day at the mother's house that the defense should know which who bought those drugs were who said that no question but i don't believe there's any dispute in this case as to where those drugs are being bought and how they got there and what evidence they got all these things saying they don't know anything  about who making these statements in the the godinez only comes in through the not through probate probation but through the usas response well let me let me respond to that disagree with that there is a statement in the government's brief referring to the government's objection or response to the defendant's objections are if the court were to look at that document it cites back to various paragraphs of the pretty senate report to support the conclusion that the drugs were coming through but the  and there's no difference in this particular case what's unique about mr rico's challenges to the pre sentence report and what i think resulted in the denial of acceptance of responsibility is the way that he presented those these were not objections to say there is a lack of evidence on this point his objections were to affirmatively deny relevant conduct and three year one point one makes very clear that a district court judge can deny acceptance of responsibility if the defendant falsely denies relevant conduct rico you have denied an acceptance of responsibility for saying just saying that the drugs are wet is not evidence of importation i'm not aware of that case your honor no in other words that doesn't seem to me to be denying responsibility you know i know i was dealing these drugs however i had no reason to think they were from mexico or whatever and i don't think just showing that they're wet would prove that that isn't seem to me to be denying responsibility for the crime it's denying and handsome and so i think this is a friendly question and you seem to be resisting it but i think the point is that there's differences if i deny that i was it was five kilograms then that might be denying acceptance france building versus denying the source of the drugs just because you're dealing in drugs doesn't mean you know where they came from absolute that's in fact the legal objection that's being may that's the legal objection that's the only one that was presented below at the district court i'm referring to statements by the defendant through counsel in the objections quote rico states that he would not store any methamphetamine at his mother's house or any of his places of residence rico additionally denies ever seeing dean as with any type of firearm rico denies storing any drugs at his mother's home rico would always pick up his meth then fed it mean and have it on his person or in his vehicle right before any transaction those are affirmative statements by the defendant through counsel that contradict the reliable evidence in the prison it's important that coupled with those those objections taken together what caused the district court judge to deny acceptance of responsibility because so you're saying this sort you use a good dean as was referenced in the objections to the p s r in the objections to be a star reference i mean objet response to the objections to the expands a little bit on that and he said forty one forty three you're already three and so then that's suggestion that it was so we verified on sworn statement of an assistant u s attorney to support that particular aspect of this case i don't believe that's accurate let me touch briefly on the importation issue i agree judge haynes with the the fact that this is not a game of gotcha with the district court judge it's certainly also not a game of gotcha with respect to the assistant united states attorney who is handling this case i think i touched on this already but just to say it again the importation issue may be simply because it's wet or has a high purity isn't sufficient to show that it came from mexico maybe but that factual question was never presented below and there was nothing presented to the district court judge to require him to resolve that dispute this court has had cases cardini is one that comes to mind where the importation issue is disputed in the government can put on evidence through an agent's testimony for instance who can get on the stand and say based on my training and experience my time in law enforcement i know that high purity meth and federal money i asked this then i mean were you already to put on that evidence it just didn't because of the waiver i don't believe there's anything in the record to support the to answer that question your honor so ok because it seems like somewhat fortuitous for you if you will that at the actual sentencing they back off for an objection that they'd already made and so if they'd said you know your honor there is just zero evidence this came from mexico the stuff about being wet in our main to texas has rained two or whatever joking but you know could could just say that doesn't prove anything because it could it could come from mexico but could also come from somewhere in the united states all right so then at that point what would you all of done presumably at that point the government would have put on the  two individuals that provided information to the probation officer to testify regarding their training their knowledge and experience have to because of the concession and so then that's why that's why we make the waiver argument getting back to a point edge costa made on a different subject which is it seems a little artificial because agent could have come in and explained why this why they believe this to be from mexico and then that there would have been some evidence to support its oppon of the evidence finding doesn't require the typical strict strictness of a criminal trial so that's absolutely right your honor the defendants could have put on the case agent if they had some basis to challenge the case agents conclusion as  to why met in that i mean is more likely to come from mexico why high purity methamphetamine is more likely to come from mexico there was no disputed factual issue at the sentencing hearing and it's now being second guessed here a appeal and second guessing the district court judge and the government from having its opportunity to present that it so let me ask you this if if we were to find no waiver and conclude that he has a point  proper remedy be to vacate in re man for a new sensing where you could put on that evidence or would we have to find insufficiency in the traditional sense and and re man for a recent thing where you don't get to put on any evidence of that i think this court could affirm based on the record it has before it even if the court finds that it wasn't late because then the question is that's another that's a third option but i'm saying if we can if we determine that it was a valid objection that wasn't weight then what do we do then the question's going to be whether it was harm us and there is evidence in the record that i mean the question was if we send it back can you prove it up or would we just be saying  it can't be proven right on this basis it's done take the points off and resign and so do you get another chance to put on the evidence or do you not all other things being going against you and on appeal i would think the government would have the chance to present that evidence on reeboks you might think that inside i want to tell you that candidly judge i hadn't thought through that question because i think yes and i know lawyers often don't spend enough time on the prayer for relief about the what if i don't win everything like what might the court do and it's helpful if you have thoughts on that because otherwise we're going to do what we understand to be correct under the law without any assistance from what the lawyers think understood your honor and i think that the question though is if it's not waived it's did the district blind the two level of hands and on the facts in the pre sentence report that are under a budget that were unchallenged below the pre sentence report establishes that the methamphetamine came from mexico it says it  stablish is that it is wet that wet methamphetamine is typically brought in from mexico as a way to but it's not easy elusively right it's not like there's some form of marijuana that can only grow in the fields of some so and so that's only in mexico i mean something like that that would be that specific where you say there's no way it could have come certainly not less and i'm not making that argument your honor but the high purity level is something that goes to the just of course conclusion about where this particular methamphetamine came and on a preponderance standard the factual burden on a sentencing issue and the clear air standard i think that the government would prevail and there would be no need to send it back to the judge u nless the court has other questions i will reserve the bows my time thank you you thank  in the court there's five things i'd like to say which might be a big which might be ambitious but i'm passing all right so first i want to call the court's attention i believe to twenty eight u s c twenty one of six which says that basically the court can do whatever it wants on reman but it's nice to have a lawyer finally concede that that the court on its own or man can remand with any such instructions as it as it wishes and their great equitable considerations in this case against giving the government a second bite at the apple there were clear and defenses view evidence evan interests efficiency objections to each of the enhancements and if this court is serious as it says often in its plain error jurisprudence that there need to be in cinemas for the parties to make their best case to the district court then it shouldn't have that opportunity second is because you see if you when we have it doesn't mean your client lee walks out if you win it means you have every sentencing and the question is just what happens at this like you can complain if well ok we just have a do over and start where we would have been if everybody knew this objection was still being made if the court believes that preservation is complicated by that than than that that's an equitable consideration and way shouldn't way that position on the objection is not enough to put the government to its burden of proof or the p s r to its burden of proof of showing the facts the factual basis for its conclusions and then saying that when the defense makes affirmative claims when it actually attempts to tell the court what the facts are that it should lose acceptance of responsibility for those facts but it depends on what that it is because except as there is i agree that it it's not inconsistent with ex responsibility to say the drugs don't come from mexico ok i don't think that has anything to do with the actual crime other than and in the enhancement context but if you start saying well i'm not really sure there's evidence that i was dealing drugs at my mother's house and that's part of the relevant conduct here then you can start to say that gets into denying responsibility it becomes a little bit of a fuzzy line and and fuzzy goes to the district court right so the that brings me to my third  point i guess i'm making the time that the the defendant did to deny some relevant conduct in this case but that's not why the court took exceptions that way if you look at the particular objection that the court took acceptance away form it isn't he had other sources there is no affirmative claim i did not deal that nine hundred twenty nine and that's why the district court took away acceptance of responsibility in this case so the district court crossed the line in this case in  responsibility and i would submit that the court i would ask the court to keep that in mind when it considers the preservation issue that we do have questions here where the same kind of objection that the defendant wanted to make about importation here cost acceptance on another issue i was on the fourth point i want to make is that the p s r that the government is the paragraphs of the p s r do say that go then as receive the drugs from the house but nothing in the p s r says go venus is the source of the information that he received those drugs from it just says that those were code if it's doesn't say d n a has told us that only the a usa says that which means this could be downstream here say  that you know maybe originated with go the nose or originate with the defendant or defendant or the defendant's brother it could be the defendant's brother for all we know in the p s r so pretty technical well i mean i think that if you government can't switch its basis for losing acceptance on appeal that it were bound to the district court's finding of why the defendant should lose acceptance and i don't think that we can always just call that the case agent to fix all these problems because of too he regulations and because of this court's precedent that say the defend doesn't