please the court my name is cody coe for i represent appellant but jean broom because the district court violated the bar against double jeopardy the court should reform the judgment of conviction and reman a new sentencing hearing the only question is whether jeopardy attaches when a district court unconditionally accept a guilty plea and a judge is a defendant guilty just as all of this boils down to whether sanchez or give some exceptions to sanchez that still leaves us with no rule following johnson and so there has to be some point that jeopardy attaches and presently the rule is in sanchez we don't have anything to fill in that void but all of the interest at play in this case can be addressed with really three questions one whether the government had a fair opportunity to prosecute all of the charges whether the district court had a fair opportunity to consider all of the charges and rd whether mr brune relinquished control of the outcome in the case in each instance the answers really wanting us to focus on fairness i thought your argument is this you know we need to be really strict because in fairness didn't your client mean to plead guilty to the b so it's not a fairness argument you're not asking us to fairly do something you're asking us to strictly construe something because if we were just saying what did the parties intend you would lose all right yes i agree i would lose if the question was only what did the parties intend at the rule of a college but i do believe that those questions of whether the government had the opportunity to prosecute the court had the opportunity to address all charges when is the moment that you believe that the court can't take it back whenever the court finds the defendant guilty in this instance record on appeal if at fifty whenever the court  filed by the government then double jeopardy would protect mr barone from prosecution after the dismissal so once an interlocutory order is filed regarding the the plea if you believe nothing else nothing can change that that's the moment is that correct yes you are i believe there are some of vents that can happen before that could make that water not attach jeopardy for instance if there was an extraordinary defect in the charging instrument that didn't give the court jurisdiction or if we were put in this situation by the actions of the defendant like in johnson where the defendant was actively seeking a situation to attach jeopardy to escape prosecution in other charges but the defendant lost and johnson that's right ron ok and so i think johnson is a good example and very different from our situation because in johnson the defendant you know what did you represent this fellow at trial yes your honor well then you're well aware that he was the leader of this ring he was the principal defendant soft by the government he had been at the at the height of the conspiracy he was distributing a half pound of meth per day to one of the purchasers which is a huge amount of money if you add that up there is no way it seems to me that a skilled lawyer like yourself did not tell this fellow that he was looking at a up to forty years imprisonment and in fact you agreed with that that's right  so what i would like to know is we don't have to reach double jeopardy if the rule of criminal procedure applies here and i believe it's a good the rule thirty six allows a court to fix clerical errors and why isn't that essentially what happened here this is not a clerical error perhaps or certainly whenever the statute was originally incorporated in the charging instrument by the government drafting that was an error but whatever the report recommendation of the magistrate recommends mr broom be convicted of a forty one dollars b one c it takes on a new meaning and in certainly whatever the the date that the order accepting the recommendation until the date of sentencing mr brune was convicted of a forty one b one c and four hundred and eighty seven dollars days he was in jeopardy of a sentence of twenty years and if the case would have gone on he could have received the twenty year sentence so certainly he was placed in jeopardy for that time also mr broom was not in a position to be able to withdraw his he did not object during the fourteen days and he was bound by his plea certainly the government should be bound by their actions you know the government is looking for flexibility where we can fix problems but the system already provides for that in the government didn't avail itself but avail itself of that flexibility the government had fourteen days where they could have it fixed what they perceive as the wrong report recommendation i will rule thirty six requires fourteen days or what no that's rule fifty nine rule thirty six that is so that's real fifty nine for objecting to the magistrate's report completely unrelated criminal statute let's say an environmental criminal violation a criminal violation of the internal revenue code completely unrelated an obvious mistake you would say that that would not qualify as a clerical in that interim number of days the person stood convicted of that completely unrelated statute i would agree that that would not be a clerical error it may be a an error but it would certainly be of substance and significant now in that circumstance of course there would not be a charging instrument to support and so that would be an exception to the double jeopardy attaching whenever the charging instrument doesn't vest the district court with jurisdiction and but in this instance the charging instrument had the two charges and it had the lesser charge and then it had the additional fifty added on and so the district court was in a position to consider both charges and i understand it was not the intention of the government to do that and candidly as on the record in the district court and in my brief it was not the intention of mr brown to enter a plea to the lesser charge but the court had jurisdiction to make that decision and mr broom didn't create this situation and most double jeopardy jurisprudence stems from a mistake a mistake that either the government or the district court has made and going back to fung food all the way up to recently in evidence but the case relied on in the reply brief santa barbara was a mistake where the district court made an egregious error in misunderstanding the charging instrument and so there has to be some line when jeopardy attaches question  charging instrument and neglected to put in a quantity of marijuana and then a pretty comes down after the defendant has entered a plea of guilty but before sentencing and so the government realizes they're not going to be able to get the sentence they hoped for and they move to dismiss the district court allows them to and it's reversed for a violation of double jeopardy because if it isn't titled to the finale once he has a judge guilty that he knows that he is guilty from from then on and and he's bound in this case if the court were to reverse on the other issue for instance send the case back for sentencing and if the rule were that jeopardy doesn't attach until judgment and sentence is entered then the government could once it's remanded fall or dismiss this case and follow a new case perhaps a attend a life count and in this instance we have something like two hundred and two days between mr burns plea and when he's finally sentence poor guy two hundred and two days incarcerated of a minimum twenty years sentence well two hundred and two dollars days for the government to if they for whatever reason decided they didn't like the charge they could have indicted him and tried him anywhere from two dollars to six dollars times in that amount of time from it's on our design i know it wasn't your obligation but it dare i ask when you observed that there was a clerical error in the judgment i don't believe the record bears out when mr byrne st saw the clerical error and i just wondered since you have a few more minutes left i'd like to ask you about this prosecutions out of dallas to know that all the meth in dallas was coming in huge quantities from processing plants to me to a con and then the government has some kind of highly redacted report that they cite too  but i mean how can it you know how can we deny the obvious for that two point enhanced because the evidence for the report what made its way into the pre sentence report is that the cartels activities were based in i mean even if their tentacles go elsewhere what's the likelihood that a member of the meat to a con cartel is not importing methamphetamine from mexico i don't believe  record answers that question well i think i mean i think that signaling the obvious but you know i guess we'll let the government try to answer how much i didn't see guidelines and so we're not dealing with guidelines that are beyond the statutory max now of course if i'm successful on the double jeopardy issue that really doesn't seem to probably make a difference right and so the by the government to replace the sanchez rule and double jeopardy the whole horror hallmarked is finale the certainty that there is a line and that is why we ask that the court reform the judgment of conviction and remand the case for a nuisance and here all right thank you good morning your honor may please the court rebecca rickets for the united states so opposing counsel presents an attractive argument which is that a bright line rule is helpful to all of us why why wouldn't a bright line ru rule with respect to when jeopardy attaches your honor at the base a problem with that is that the supreme court has rejected that bright line rule in ohio versus johnson so i would agree with your honor's question earlier that if this court were to reach the dept double jeopardy clause analysis the basic question is whether johnson overruled the fancher s and the facts on the holding of johnson made clear that it did as the as all  but one circuit courts that have examined that issue in any detail have concluded i mean in a sense the whole statement in sanchez was because the court ultimately holds th trial court number accepted a guilty plea at all so that you didn't even have a jeopardy problem that's correct your honor so i mean i would have called the victim but i would as well your honor the defendant's indictment and sworn testimony all repeatedly refer to the five dollars to forty dollars penalty range set forth in section b one b those facts are fatal to the defendant's double jeopardy claim for at least three reasons the st is that the defendant has no reasonable interest in the finality of a plea that is based on the typographical error the defendant repeatedly states both here today and throughout his brief that he was quote convicted when the district court a judge accepted the report and recommendation of the magistrate judge and that's simply not true under rule thirty two judgment is not entered until the court completes the sentencing process rule thirty two actually requires that the judgment of conviction set forth the police and the sentence and so the supreme court has their color held that a court must impose sentence before a judgment of conviction can issue that's the mitchell versus united states case five hundred and twenty six us three hundred and fourteen so the notion that the defendant was finally convicted and then the district the charging instrument that is it odds with the language of the information i certainly hope someone in the government was reprimanded for that mistake it is a serious mistake your honor and the government takes it very seriously that noticed by the government and we know that i don't believe the record speaks to that issue your honor i know that the government st brought the issue to the attention of the court in objections to the pre sentence report citation however is it odds with the language of the information and we know from this court's precedents and from rule seven that it is the linguists of the information that controls and then the factual resume signed by the defendant finality of a plea that's based on the typographical error that's the st reason the nd reason and the defendant's argument fails is that there is no governmental overreach here of the type that the double jeopardy clause is designed to prevent the supreme court held in ohio versus johnson that there was no double jeopardy problem with continued prosecution on the remaining charges in a single indictment this case is even easier because there is only a single charge and only one prosecution and one charge so this is not a case involving successive prosecutions or multiple punishments this is a case about the government's efforts to complete hypothetical all that the defendant has asked this court to do is to remain for a new sentence and reform the judgment at no point has the defendant said either to the district court or to this court that it wants to with it that he wants to withdraw his plea and i think that's telling because the governor because the defendant knows because all parties understood below that the defendant was pleading to a charge with the penalty range set forth in b one  under under johnson i think the rule is clear that ending this prosecution now would deny the government its right to one full and fair opportunity to convict those who have violated  both principle set forth and johnson both the finality principle and the governmental overreach interest in favor of the government but the rd reason your honor that the that the defendant's double jeopardy argument fail s is that he is in a fact attempting to wield the double jeopardy clause as a sword to prevent the government from completing its prosecution in this case according to the defendant's argument because that typographical error was not identified and corrected until after the district court accepted his guilty plea the district court was simply powerless to do anything about it effectively he's seeking to hold both the government and the district court hostage based on a typographical error and that is exactly the type of weapon is ation of the double jeopardy clause that johnson forbids now the now he's taken up the shield of his conviction but that's again based on the faulty premise that the acceptance of the guilty plea was a quote conviction and we know from rule thirty two that's not true how do we apply rule thirty know i think this is a clear case for the application of well if that's so why is the government arguing the broader i mean i understand the need to respond to the defendant target but the principle of constitutional avoidance is we will rule on the narrower than on constitutional ground of defense a very fair observation your honor and i do think that this court can resolve the case based on the application of rule thirty six  which plainly gives the district court the authority to correct a clerical error at any time the district in addition had its own inherent authority to reconsider its own orders until they become final  notion that the moment the order accepting though the report and recommendation was entered the district court was was a balance and finally and that constituted the conviction  both at odds with rule thirty six dollars it's also at odds with rule eleven because rule eleven affirmatively requires the district court to ensure that there is a factual basis for the plea prior to entering judgment  know from multiple sources within the federal rules of criminal procedure that the district court retains authority over the order until the judgment of conviction is ultimately entered the district court when it became aware of this issue d on the b one b penalty and then ultimately imposed sentence in accordance with that penalty range is it the government's position that the government could could move to correct as long as it was within the time period following the final judgment or could it could the government have is there a time is that the time where it would expire the government's right could the government have noticed it five years later on appeal to try me try to when when when when does it finalize for the government's purposes you are once judgement is entered the time period following the entry of the judgment by which judgments can be corrected correct your honor exactly and so the cases that the defendant cites about limitations on rule thirty six following the entry of judgment that's absolutely true the district court's authority the st time oh by the way this is the wrong thing and he's not supposed to be as should have been a b all along no your honor i don't think so yet another reason why this court should reject the rule the defendant has put forward is the extraordinarily perverse incentives that it would create both for defendants and for the defense bar if this court were to embrace the defendant's rule effectively a defendant could identify a typographical error in a charging document lie in wait until the district court has accepted the guilty plea and then according to the defendant the district court would simply be powerless to correct the error and the defendant would reap a wholly unintended windfall as a result there's simply no authority for that either in the supreme court's or this  concern that the court should be worried about you know why isn't the defendant entitle to leave windfall if the government fails to be vigilant because your honor the supreme court has specifically instructed the defendant are not to weaponize the double jeopardy clause in that way but simply not the interest that the double jeopardy clause is designed to protect instead johnson tells this court to evaluate the double jeopardy analysis based on the defendant's interest in the finality of the plead and in preventing any governmental overreach you're not saying though that they had a duty to bring it to the court's attention it's no ethical or they could lie and they can sit quietly can i suppose the only duty your honor is is that of candor to the court to that all attorneys have to timely raise issues but you're right that there is no affirmative rule that would require it unless the court asked for the questions on the double jeopardy clause issue i would turn to the briefly to the importation enhancement what do you do with the case yes  only evidence supporting the importation enhancement was an unspecified cartel that dealt in kilogram quantities and this court said no that's not enough mere reference to an unspecified cartel says codefendant smith that there are that there are aspects of that part of that proffer that also dealt with the source of supply but it to the extent that we don't accept the idea that common sense would say it must be supplied from from mexico that the but that you actually have to say it was imported from imported then there's nothing in the record that that correct that the drug was manufactured somewhere else and imported i mean infect it theoretically the core cartel could be back it could have operations in multiple places and could manufacture drugs in multiple places correct so you could get non imported drugs even from a cartel that has that has operations in a foreign country your honor is correct that there is no explicit statement in the proffer report  about where the methamphetamine was manufactured however the fact that the cartel is identified and that the location of the cartels activities are identified but the location of the cartels activities  is dallas that's correct your honor dallas texas which serves no part articulation that the cartel heads activities i mean you might be saying we can take judicial notice that because of the name of the cartel and because of our knowledge of cartel activities but that seems to be what you're asking us to do i do think that it is fair for this court to as the district court did  every day practically most of which comes into the united states and we've learned that from other cases that have come from the dallas area and huge money laundering prosecutions and the fact that zillions of dollars i mean can you know is that what this amounts to in my view is not a question of clear error but a question of are we going to require the p s r to state every little tiny your honor as the court is a very good question place do you have any authority for the proposition that we can just take our general knowledge or even our best our expertise into account in deciding whether we can draw that inference but whether judge me who's been trying criminal cases in dallas for over thirty years and i'm sure is had cases like this whether it's plausible in light of the record as a whole that he can make he can draw that inference i mean the case law plainly says there doesn't have to be direct evidence especially at sentencing but the district judges draw an inference based on reason and  experience that's absolutely right your honor the inquiry for this court is whether there is clear error in the district court's decision to apply the importation enhanced meant and of course sentencing facts must be established only by a preponderance on that reasoning do you think nimer from the is wrong it's an unpublished opinion of our court are you saying that we should not follow it or use just saying that it have the name of the mexican state in this case where they did not have that in him or for you know the government has no quarrel with number for zero but the holding of number fro is in fact quite narrow and we would say that it is because they use the word of the state's name is that the whole distinguishing factor no your honor because the cartel itself is identified where as in number fro there was no reference to any specific cartel in mexico or elsewhere and because the location of the cartels activities were also identified we think those are the two critical facts that distinguish this case from a number fro and that the district court did not clearly error in finding by a preponderance that some of the methamphetamine the defendant distributed came from mexico once again given that this would apparently been very easy to put in the record why didn't the government make sure that it gets in there having knowing that there are cases that have question the ability of getting the enhancement in why didn't the government be more vigilant in making sure specify however in the absence of a clear statement rule i think the district court was well within its discretion to find the that the enhancement applied here i see that my time is expired for all these reasons that i asked the court to affirm the judgment below ok thank you through the briefs and argument the parties have been playing tug of war the government is trying to pull the double jeopardy issue back to the drafting of the information and says that mr brune had no interest in a conviction based on that information but the issue is and i agree mr byrne does not have an interest in the information he couldn't have insisted that the court find him guilty of the one c but at the time that brune was a judge guilty by a judge means then he had an interest in the finale of that guilty finding and going forward on that guilty finding now the government has argued that mr brune is not convicted at the time the court finds him guilty and so it begs the question why would the court why do we have the procedure for the district court to a ok well i agree with mitchell in that the judgment is not final until the judgment and sentence is enter and but that doesn't require that double jeopardy doesn't work i'm sure that jeopardy doesn't attach until that situate all kinds of situations where a district court takes action before a verdict or before a judgment and jeopardy has attached jeopardy generally attaches for instance in a bench trial when the st witness a sworn jeopardy attaches when we swear the jury in so i don't think that this is dispositive of the issue it's something that if so what is the purpose of having the district court find mr brown or anyone guilty in advance of sentencing it just makes no sense that mr bruner that a defendant is bound is stuck is in jeopardy is going to be sentenced but the district court and the government has the held the district court of the government hostage as it were he didn't do anything to actively seek for jeopardy to attach to the lesser often acts but he is trying to use it as a sword  it's a windfall which term was also used the case well when fall does it dissolve double jeopardy actually in most cases where case were double jeopardy is an issue where the defendant does get a windfall often an acquittal in many instances based on an error by the district court judge and so that doesn't dissolve double jeopardy but mr broom didn't try to go in and get this conviction so that he could finda way the greater charge and no one is held hostage the government had the fourteen days they could have very easily through due diligence corrected this when it comes down to it it's not the type of graft where it once it's makes its way into the report recommendation and into the judgment of the district court it's no longer a topographically or an information but you do acknowledge you have no case it's directly on point  event mr byrne was not seeking this situation understand he is going to get one folder there's no doubt about it but double jeopardy your jeopardy has to attach some point and there has to be some finale there hast there has to be clarity that's the whole idea and policy behind double jeopardy now with regard to the importation issue i would just i would just mention that i don't believe the p s or the court has to state every detail but in this case it was objected to and the district court had to consider the objection the government responded that's all my time for these reasons i would ask that the court reform the judgment of conviction no ma'am case thank you mr cofer as a court appointed lawyer we greatly appreciate your services and you've done a great job for your client thank you yessir