mister thomas seventy one month sentence in this case is fourteen months higher than the high end of the guidelines range erroneous lee calculated by the district court it is thirty months higher than the high end of the range erroneous lee contemplated by the parties and it is forty one months more than twice the high end of the correctly calculated guy lied range of twenty four to thirty months as we outlined in our briefs that mister thomas's sentence suffers from numerous errors including two straight forward guidelines errors the underlying merits of which the government does not appear to substantively contest those errors and the sentencing hearing overall were informed by the conflation of two separate distinct and materially different crimes extortion which qualifies as a crime of violence under the armed career criminal act and fraud which does not mister thomas pleaded to and was convicted of extortion which is a crime of violence because it involves a threat to injure the person of another such a threat was issued in this case by telephone to misess linda webster during which mister thomas threatened to kill misess webster and her husband judge william webster if misess webster did not send appellant six thousand dollars it is this conduct and this conduct alone that constitutes the offense of conviction and it is this conduct that controls the operation of the united states sentencing guidelines because the extortionate demand in this case was six thousand dollars it was error for the district court to increase mister thomas offense level by one point under section two b to b one for demanding more than twenty thousand dollars the a government effectively conceits this error on page thirty nine dollars of its brief where it states that it is true that the specific charge in which appellant pleaded guilty involves demands of only five to six thousand dollars from misess webster that statement not only acknowledges the error with respect to the amount demanded specific offense correct characteristic but it also acknowledges the fact that misess webster is the only victim of the offense of conviction in this case and thus the only person to whom the section three vulnerable victim enhancement could potentially apply neither the district court and its independent guidelines analysis nor the government made any argument because there is none that misess webster is in any way unusually vulnerable as the term is used in the guidelines commentary but even were we to assume that judge webster were also a victim of the extortionate conduct and that he had an ownership interest potentially in the six thousand dollars and his life was indirectly threatened judge webster even at the age of ninety is of the least of all knowable among us again neither the district court nor the government made any argument that judge webster was in any way unusually vulnerable within the meaning of the section three a one dollar b one beyond citing his age and his courts have routinely found the government does not dispute age alone does not suffice for the application of section three a one dollar for vulnerable victim and handsome and combined the amount demanded specific offense characteristic and the vulnerable victim enhanced meant increased m thought i would quibble with the word demand he requested by an attempt to defraud twenty thousand dollars he did not demand of you extortion twenty thousand dollars at no point at no point did up from misess webster and so too she has an interest in the twenty thousand dollars if even if that were the case there was no threat there is no threat involved within the twenty thousand dollars there's also no evidence that there was a communication between the two of the twenty thousand dollars request again via fraud that conflation really is the problem here there there was no extortionate demand at any point of judge webster or misess webster of any more than six thousand dollars so whether we look at them individually or as a unit the so the language of three a one point one the commentary specific leak and this is why this it's so important the government's concession that those the extra police conduct does not qualify as relevant conduct and only relevant conduct can be considered in applying the vulnerable victim and handsome and so the role model victim unhandsome it specifically says in the commentary that  i believe would be in someone analogous but certainly distinguishable and i distinguish it for you here would be the last lee case in which the defendant in that case challenge to an enhancement to which he's had stipulated in facts that are not present here st it's specific lee said that the district court had no occasion to pass on the specific enhanced meant and thus relied on the parties agreement in applying it that is not the case in this case the the interest of your clients as a group lies in their being able to make a binding commitment such as this that they be able to agree ex ante that the so that they have a defendants to agree to enhancements under facts that simply do not apply there's a weight for the government and there would be ways for the government and defendants to to account for this we just can't get into a situation which we are questioning what is so clearly there in print it is it your honor it's absolutely there in print and and i and i still do there it there is an interest and the supreme court has recognized it and both most recently in rose ouse morales for these guidelines calculations need to be correct and the district court dips despite the part agreements has an independent obligation it must calculate the guidelines correctly and in this case the court did not rely on the parties it's specific lee said he did not rely on the  mister thomas's preceding contact with judge webster but because there's a narration that doesn't turn that conduct into a crime that  not and in fact that's a part of lastly what's interesting what the court that's one of the distinguishing factors of leslie was that the court this court specifically acknowledged that the facts supporting the enhancement that was at issue were contained in the statement of facts that were attached to the plea agreement there are no facts in the statement of facts that would turn a fraudulent demand into an extortionate demand there are no facts in the statement of offense that no no no the plea is is only to extortion right and so the district court has an independent obligation to calculate the guidelines correctly regardless of the parties agreement and  it's distinguished distinguishable i don't believe that the court in any way relied on this agreement in calculating making an independent in fact the court stated this court has an independent obligation to review how the guidelines apply  essentially regardless of the p s r and regardless of the plea agreement so this is similar to the cases where an issue is not pressed but passed upon the court had the opportunity to to analyze this issue it did analyze this issue and and its guidelines calculation is incorrect now should the court i believe that this is an error a district court error of calculating the guidelines but should the court find that it is not then it is absolutely ineffective assistance for counsel to have agree to these two guidelines to calculate calculation enhanced mintz excuse me when they simply do not apply they don't apply legally they don't apply factually and i think that that if the i think that again extent the th the government concedes the underlying merits that that the extent only at page thirty nine dollars they can see that the offense of conviction involves only an extortionate demand of six thousand dollars from from misess webster  and to get at that whether it be directly which i believe that the court has the power to do or indirectly through the ineffective assistance i think that these are very plain plain errors that under attorneys to i think challenge the the qualifications of the government's expert witness at trial there are certain i don't remember the names but there are sentencing cases that are the same point  know this well there's there's also sentencing cases and there's and and there are in our briefs that quote it that it's that the prejudice here is whether or not the sentencing proceeding would have been different so would he have gotten is it reasonably likely that he would have gotten a different set and that's where that's where there's no plea in our talk and those cases are not cases but the problem we have here is a plea and if you want to get out of the plea the assume for the moment you can't get out of the plea for your other reasons but but if you want to get out of the plea than the then the test is supposed to be you have to show but but for the alleged errors there would have been a plea would have rejected a plea what i don't believe that that that here we're saying like at least in the initial and in the initial sorry in the straightforward allocation of error by the district court where that allegation is that the district court had an independent obligation to to calculate the guidelines correctly and i'm asking no i'm not asking the question that i'm asking used you said that if that's if if we didn't accept that then it's clear ineffective assistance of counsel and so i'm just trying to follow up on what ineffective assistance of counsel means under these circumstances and my understanding is that it means you have to you know  show that without those errors he wouldn't have accepted the plea i would think that's mad i think that that's it that's appropriate in this case where someone has accepted  accepted guidelines areas that don't apply this that makes sense because if you remove it he's already accepted those errors so i don't believe that that is the appropriate way to look at this and there is i believe it's a still good and that we take judge ginsburg's point that there are stipulations and so there's no more challenging that the plea means you can't challenge that part and then i took your argument to be well that it would us ineffective assistance would not have pleaded guilty and would have insisted on going to trial i don't i don't believe that that's true your honor i believe it because because the errors are guidelines errors i i'm trying to tease out what what the  implications of what you're saying because we have guidelines errors that he agree to that don't apply it's not possible to say but for those errors he would have gone to trial he agreed to guidelines calculations that don't apply they're higher understand how that would apply because he's worse off in the plea agreement so so so i simply i don't want to say that i'm not taking that position i'm just having a hard time understanding ineffective assistance with respect to the plea he's intitled to counsel who understands the guidelines and who can could counsel him with respect to a p i think i understand and if you if you have an effect of counsel we entered into a bad plea and you get out of the plea if but for that bad counsel you would have gone to trial that's that's that's a classic test but i'd but why i and i'm happy to try to find the case but but the cases but i believe that why would it not be that he is just entitled to effective counsel that would counsel him correctly but we're not making any progress on arguing about what the case law says let me ask another solicitor we have gone all this time and not discussed the plea provisions at the government's a o s says mean you can't challenge anything other than the extent of the departure you think you should address that absolutely your honor this i believe that this case st and foremost most is governed by this court's this court's precedent in good boy united states boy which has been reaffirmed several times since then that the that the language of the appellate waiver if characterize differently by the court at or two in the two case and in both good boy and i believe ferrari there's also brown there were fundamental mischaracterizations which actually i think make this case even easier because here it wasn't it wasn't a fundamental mischaracterization it was actually a clarification of the natural understanding of what the words to the extent that mean the court interpreted it as unless and there's no reason to believe that a defendant and and could do a certainly says this that that the it's that if how the defendant would would understand those words there's no no reason to believe that the defendant would understand those words in a more nuanced way than the district court explained and the district court used the word unless we cited cases in our brief where  courts replaced the words to the extent that with the last and in this case because the court used the word in last and again even had it not we would we would argue that unless is the most natural reading of strictly construed against the government so i believe here that there's there is two conditions that the court set for th that would allow the defendant to plea with no other conditions attach so it was if the court sorry if the court sentenced the defendant above the statutory maximum or if the car court departed above the guidelines that it had determined then could could appeal there are no other no other conditions beyond that and so i i believe both under good boy and then even even were we not to to use the courts unless as binding it certainly is evidence that that is the that's the natural reading of that language it's how the court interpreted it and it's how again how m thomas would naturally interpret it i don't see how he would he would interpret it any different so i simply don't don't see that that that that that appellate waiver here is an issue another thing except to the extent that it exceeded clickable guidelines range or the statutory maximum and he also stipulated to some basic facts as part of the actual guidelines calculation begin with the question of the plea waiver and i think it's telling that appellant here today says that in fact the judge did not miss characterize the plea agreement  fundamental way and us cases like to do it do not control i think when you look at it i know it was safe but fair that's not what he said ok that is that the judge clarified the meaning so it wasn't fundamentally inconsistent was completely and completely consistent that that's her position i really said that's her position you have to answer that that that argument right so and i think on as to that argument i have two responses  st just looking at what judge how actually said at the very end of her sort of very prefer short hand characterization of the play way birds which is designed of course in this context simply to make sure that impel it has understood what he signed she refers expressly back to the page and paragraph and says as described in the nerves so i don't think that the judge was trying to say that it was her words that controlled how this plea waiver should be interpreted but rather she was saying it's the written waiver with respect to the written waiver itself i don't  to the extent with unless in the way that appellant argues is simply not reason because in that case what it says is although what the parties are saying is that you cannot appeal essentially how the sentence was determined in other words you can it appeal how the guidelines were calculated you can't appeal your sentence except to the extent that the court exceeds the statutory maximum or exceeds the political guidelines range that means that you can appeal that kind of a decision there's no reason there's no reason why the decision to exceed the statutory maximum or go above the guidelines range should then make everything else appealable that isn't it we submit a reasonable interpretation of the provision in certainly that it certainly isn't what the government believed the parties were agreeing to and i don't think that it can be reasonably said that that is what the parties actually understood in this instance as such we think that the appeal waiver should be fully enforced  and what is at issue here today is only the decision judge how to depart upwards you know mister coleman we're getting many many more of these cases where the district judge varies in the language lately decide whether it's fundamental or not but varies in the language from the plea agreement i don't understand why your office doesn't have a policy of assisting u s attorneys pointing out to the judge the exact language judges if they make statements that there are a lot of pleas and so unfortunately they're going to be some instances where are you systems training may not jump in when the district court speaks the one thing i could recommend  is that perhaps district judges should be asked perhaps simply to read the language of the police waiver rather than try to reach eric to rise it or summarize it etc because i do agree that when the judge tries to paraphrase or summarize or put it in layman's terms that it does create the potential for later litigation saying that well it's the judge's words that should control and not what was written i think judge felt try here by expressly referring back to the language the page and the paragraph number of the agreement she tried here to refer back to that to indicate that look again it's not her words that control that's not the plain way for what she says it's signed and i think it's reasonable for district judges to assume that defendants who are represented by experience counsel that they've gone over this and they understand it and i don't think that the written plea waiver is written in such a way that it's really that confusing i think it's pretty clear what it that it means what it says which is that you can appeal to the extent that it exceeds the statutory maximum the guidelines range but you can't appeal anything else and it's only to that extent again though even if this court were to have some concerns about that i don't think that as we've explained in a brief appearance arguments here simply don't have merit even if that appeal waiver you know were considered to be problematic with respect to the to enhance minutes at that appellant has focused on here today and that's the twenty thousand dollars and the vulnerable victim and hanson it's those were stipulated  whether counsel was ineffective in agreeing to that deal i think marshall and we are very clear appellant has he can't just argue that well here's this aspect of my plea deal that i don't like  the plea deal for me essentially take the plea deal and strike those provisions or allow me to challenge them now and i don't think that that's the test the test is you take the plea deal as a whole and there's a good reason for that in this case the statement of offense that appellant signed onto which is just with respect to the websters would have been essentially was admitting to multiple counts of fraud and with respect to judge webster and with respect to misess webster in other words there were a lot of counts here that he signed on to the facts for a loan the government when he was essentially admitted was that he could have been found guilty of multiple counts and although the extortion guideline doesn't allow grouping of amounts the fraud guideline certainly didn't and certainly would have supported a loss of mt well in excess of twenty thousand dollars so this was a over this is a plea deal in which the government gave up the right to charge multiple counts and appellant in return admitted to fax or to a handsome it's that yes to increase you know his sense of what just a narrow he is saying he was prepared to go to trial i guess he seems to resist saying one way or the other but the fact that he is unwilling to say that i think under martial means that that this argument should not be heard and he can't make make the claim that his counsel was ineffective unless he's prepared to say i got this bad advice from my attorney he should have told me i could challenge these and therefore i was proud to go to trial and all these other counts of the government could have brought me brought against me he's not prepared to do that i think for good reason because he didn't want to make that kind of war to go to trial and that kind of evidence so you know press here like has has not raised here today  other challenges i think as to the upper departure i'm not sure if the court has questions about those those provisions just a bit just to make sure i understand the government's argument on ineffective assistance yes you agree that the mitigating evidence the failure to review the government exhibits the failure to submit the support of the letters and the failure to submit documentation showing the disproportionately longer evidentiary hearing because i think the court could judge how could say look those i've looked at this in and it wouldn't have made any difference but that's in the st instance for the district court to determine with a more fulsome record she would at least have to look at that information so i suppose you know it's not what are the possible to say it wouldn't be possible to say supporting letters wouldn't make any difference without looking at the supporting letters i think i said spec but that's correct your honor which is why there has to  be more factual development of those sort of rather narrow claims again those claims of course you know presuppose that the plea deal was valid and fully enforceable and it's just that assistance made by the defendant is when no means so limited to as to just be submission of documentation rather was the failure of counsel to raise smith again we have we we concede that under a shot these sort of very narrow sentencing related sort of mitigation type claims after to be remanded then it's up to i think the district court in the  captures the breadth of the of the problem with regard to council's failure well again so these these claims i think should be you know the date they have to be reminded and it's exactly what you know what what additional procedures judge how should undertake to develop the record i think is in the  any court error as to whether or not counsel should have provided other information that would have changed her mind that yes we agree has to be reminded and we will see i suppose what it is i apologize i needed to thank you your honor st i wanted to say that to be very clear i am not unwilling to say that defend that to defend it would not have otherwise gone to trial but for the ineffective assistance in this case i my discussion with judge garland was merely disputing the underlying premise that that is what needs to be shown that i  think that it's and if that is something that there are cases case law that says that the operative prejudice is to the sentencing hearing in light of these guidelines  even in the plea context i don't see why why it would be any different but i would ask if there is and i think that such a ruling allowing ineffective assistance in the in the calculation of guideline to agree and misrepresenting what the guidelines are to a particular defended in the context of a plea and having that that defendant be stuck with that  i think that that is a rule that that that certainly my office that would would would not want the facts so i'm happy to submit  additional additional briefing on that but if the choice was whether mister mister thomas would have gone to trial with effective assistance or if he pled guilty to to everything that he was there for he he would have been sentenced for anyway he ended up pleading guilty to two everything he got no benefit out of this plea so i would say then he would have gone to trial because he got no benefit from this plea is not  listen to a defendant except for that court assessment so i don't understand what why the government keeps keeps harping on this this one count issue it really is up you know of no consequence i'm got there was a reasonable probability that the sentence would have been different that that's what i believe the prejudice analysis is correct go back to the books yes and i and i'm again happy i think that this is an important very important issue that that would affect every client that we have so to the extent that this is something that's going to control here i think it's important that that that i respond yes yes your honor i also want to say that with respect to the invited error issue we would not have raised this these guidelines ere arguments in light it not for the court's specific statement during the plea hearing that it was not relying on the plea so i want to make that clear to the court i understand that lastly is out there i believe that it was distinguish will be distinguishable because leslie made it a point to say that the court relied on the relied on the stipulation had no occasion to to pass upon it and that the the government indeed did not  proffer facts in support of the stipulation at the sentencing hearing so it was just taken as a given and in that sense no one had the opportunity to do to deal with the issue in this case the court did say essentially regardless of what the because but but not only did she say that but then she says she went step by step and did give reasons for the application she did justify her application as opposed to what happened in lasley which again it was just taken as a given no one discussed it it was discussed both in the government's sentencing memorandum it spent it there was a paragraph about vulnerable victims in the sentencing memorandum and during the the sentencing hearing the judge did take went step by step and explained why she was applying the vulnerable victim and hanson so again that is why i brought up the issue i would not have brought it up but for that information in in  i do i do because we haven't spoken about the other issues i did want to say we are still asserting them the government made it seem like because i had discussed them i was giving them up i'm not there they just run out of time all right we have we have that point  me ask my two colleagues if we can put a schedule on this submission and give the same to mister coleman course ok so we're clear on that all right your case is submitted thank you so much thank you