it please the court counsel if i could reserve three minutes for a bottle i'm jim earhart and i represent mr hammadi in this case the issue which is before the court is whether or not the life sentence  procedurally or substantive reason to proceed really or substantively reasonable it really boils down to an issue of whether or not the six circuit is willing to recognize sentencing entrapment or manipulation as a defen to sentencing in in these particular types of cases and what standard the district court is to apply if the court is to apply sensing entrapment or manipulation in this particular case the procedural issue is whether or not the district court started with the correct advisory guideline range we suggested by adding the fifteen level enhancement for use of the of the rock or what we refer to as the stinger missile in this case the district court did not begin with the correct advisory guideline range here the district court should have rejected the fifteen level enhanced meant for an offense involving destructive device that is a portable rocket and a twenty five year mandatory minimum sentence under the facts and circumstances that  this case and guilty to account having to do with the stinger missile it did your honor so why was the district judge supposed to ignore that and the district court is not supposed to ignore that however it and i saw all the that argument in the united states brief sentencing entrapment is not the same as entrapment as a matter of defense to the substantive of the subsidy of crime and i think it's kind of obvious when you think about it this way you're never going to reach the issue of sentencing entrapment if you win on the issue entrapment is a defense a trial you just never get there so obviously the person is either going to be convicted of the offense or plead guilty to the offense before you ever consider the issue of sentencing entrapment or manipulation that's going to be true in every case and i thought that frequently sentencing entrapment claim has to do with quantity of drugs that somebody has been involved with informer or whatever and that the government is increasing the quantity so as to increase the sentence so that is the sentencing entrapment this is really seems to be a rather different kind of situation where it was just one sale of this sink stinger missile right at the end that is a typical example the court has seen but it it is the identical situation that we have here whether you call it drugs whether you call  weapons in this particular case we have weapons instead of drugs in the court just recognize that in the entrapment cases the government somehow is interjecting a lot of times i think the case will say that the government will offer a large quantity for a little profits were some like that just to get the sentence on the on the sentencing table about being a trade minimum where there are more where there are many stinger missiles here and so it was really a continuing the development of the sale of stinger missiles or wasn't just one it was just one pleaded guilty to it so so he's admitted that he sold the stinger missile just like the drug dealer who pled guilty to distributing drugs for it but it's the only difference isn't it because in the drug cases what we're talking about is what the is the pin the where the ought to be set i mean here you're trying to make an argument the stick with respect to your procedural unreasonable this argument that the district court should have disregarded the a fit of conviction and that's not what the argued in the drug case it is being argued in the drug cases the extent that it's it's it's being argued that the penalty should not be here but rather should be here but it's not doesn't have to do with the offense of conviction correct but they have to do with  that from this particular circuit it has never been ranking well i understand that i'm not i'm not intending to endorse it i'm just saying that if you want to conceptualize what the argument is isn't it better conceptual so the district court would be entirely correct to start out at lie considering the offense a conviction but then consider whether there was some government conduct that would  adjusting downward i think that's correct procedure leon and i would agree with that and the issue here is that is what is the standard that the district court is to use to make that determination that we never got that far and we never got that far circuit has never recognized i'm sensing entrapment or manipulation as a mitigating factor to be used by the district court and i think i cited in my brief there's a split in the circuits as to how sensing entrapment would apply or should be applied and why would we why would we want to reach out and recognize this doctrine in a case like this where there's much evidence of your client's predisposition including predisposition with respect to stinker missiles you know i guess we would dispute that there is such overwhelming evidence relative to my clients there are there are recordings of his their recordings his comments in response to the introducing them and discussing them and presenting them and showing videos of them yes there are you have to remember this back to the stingers is in the conversation something like this the informant mentioned stinkers these oh i've been white and your paraphrases is is somewhat accurate in terms of the nature of the interaction between the two individuals however in this particular case of murder that my individuals a person who has no money has no weapons has no customers for the weapons has no means of transporting the weapons has no way of obtaining weapons and basically is what are you getting very little added the is so it's not like easy broader reading to obtain money but it's similar to the drug dealer situation you have a low level drug dealer has no means to obtain multiple kilos as no means of distributing multiple kilos has no means of transporting moral kilos and all of a sudden the government furnishes all of the kilos basically for nothing and a source to sell them to for nothing and you've got this low level drug dealer who says there's no way an award i could ever been involved this except were his response is basically then is this mad lucky day that would probably be the response of a drug dealer who had no means to obtain multiple kilos they just come flowing into him and he's going to have it he's going to get him out of that mighty not quite in that position but he's in the see that's a great idea which which again i think and i understand what you're saying it exactly but i believe that when you look at the individuals involved and you look at their relative ability and that's where i would suggest that the clarity here for the court to look at sensing a trap an army of delay should needs to be provided and that is what we're looking at some objective and i think the course pointing out the exact the exact point here are we to look at it not at all if we manipulation should we look at it subject to fully or should we look at it objectively in the court of suggesting a subjective approach which mother course of suggest that you would look at it as an object of approach and the object of approach matter i think that that is it precisely correct in the entrapment situ raised as a defense to the crime and as i think where the courts of have tried to explain that obviously if you haven't tracked meant to commission of the offense itself then that's a different that is a different animal than entrapment for instance the drug dealer may have the intent to distribute a half gram of crack ok he may not have the intent to distribute a truckload of coquet and that's the difference he can't defend i want to make sure i understand your answer your first question so that exact hypothetical he's got an intent to distribute a little bit but not a truckload but then he pleads guilty with the intent to distribute a truckload  you're saying he can still bring in entrapment defense and the sentencing and i was just trying to figure out how that works or stand it what he's plead guilty to his intent to distribute a controlled substance in my hypothetical it spells it out a truckload the sell want to buy one whatever and they get him to do three but you still have a guilty plea that says i intended to buy three surface to air missiles how could you i don't understand what's left to argue what's left argues the guilty plea is to transporting or an intent to distribute weapons and then by virtue of the fact that the weapon was defined as a stinger missile how my guilty plea spells it all out i intend to  i intended to buy three surface to air missiles period so it it just takes off the table arguments about entrapment into intent because you just said you plead guilty to buying three of these missiles and intending to do so so how would i start just trying to understand how you could talk about entrapment either for guilt or for sentencing i just want to change one word if i might my client never agreed to buy anything anywhere so what we're doing we will what's the verb you want to use transfer to transfer the ok ok so the guilty plea is i plead guilty to transferring knowingly three surface to air missiles from point a to point b he did because obviously you can't deny that because they showed it would be nothing to discuss in terms of trying to trap me and now i believe that that there is there is something to discuss in terms of entrapment because then to become what is the penalty for that and the penalty range is a mandatory minimum twenty he didn't sell it but he did see it so to to go to a defense and say he didn't see it and transfer from that government desk to that government desk is not going to get you anywhere the issue is that matter what they put there he simply is not a person who is who is who is at that level of the game he is simply a person who is in there and taking it over there and i think a court should be able to consider that sentencing to have a head they put ten kilos of crack cocaine as opposed to one think the court no because the again sentencing entrapment or manipulation is only going to occur after conviction it's never going to be addressed without a conviction but i've been reading the good morning you may please the court i'm just poena from the justice department the district court committed no error in declining to reduce the defendant's sentence in this case based on claims of sentencing entrapment it's an existing manipulation for three princip guilty plea to count ten of the indictment in which he admitted to the very fact on which is entrapment claims are based and third and perhaps most straightforwardly the district court rejected as a matter of fact the the evidence that the district court relied on in rejecting as a matter of fact the defendant's claims was overwhelming the district court found that the defendant had been a member of an al qaeda terrorist cell in iraq and had participated in i the attacks there with respect specifically to the the stinger missile when the informant first suggested that the next weapons shipment might involve these kinds of  missiles the defendant responded that he had meant to ask about sending those kinds of missiles and then he recounted his experience with those specific weapon systems in iraq they defended also responded favorably to discussions about conducting attacks in the united states including killing an army officer who was known to both the defendant and his codefendant on and when those discussions took place the defendant specifically recommended an adjustment to the tactics that they use in conducting that attack and he recommended that in the event that they did do domestic attacks that they think should take place and that it should be huge the defendant may detail admissions about his conduct as a member both to the to the confidential source during the conduct and afterwards to the f b i and then at the sentencing hearing he confirms on cross examination that his the those accounts were true he lied on the immigration forms in order to obtain admission to the united states here at sentencing did you said the district court rejected as a matter of fact the entrapment claim what exactly would you point to in the sentencing colloquy that shows that the district court did that in terms of i'm just wondering if there's something else you would point to show that the district court considered the idea is that your opponent is arguing that there was really no possibility of his client providing stinger missiles or doing any of the other aspects that he pleaded guilty to count ten a spouse past experience with them in iraq and that of course he adopted the pre sentence report which recounts the dialogue that we discussed earlier with respect to the defense capacity and i don't think it's the case that the  defendants lack of capacity without the opportunity provided by the government is a mitigating factor it's it's routine in these kinds of investigations for the government to provide an opportunity for the f to commit a crime and it's not sufficient for a the defendant to show without anyone else i wouldn't have been able to carry out the offense if the defendant is predisposed to commit the offenses and if the government does not offer any improper principle that it shouldn't matter well let me back up a little bit it's not it's certainly not a defense to entrap it's not part of the the entrapment defense focuses on the inducement and the lack of predisposition i would say that mitigation can never be or i'm sorry lack of capacity could never be a mitigating factor in the district courts application of its discretion under the section thirty five fifty three factors  this individual is getting a life sentence and he's he was a poultry factory worker and he had no according to your opponent he had no ability to do any of this provision  stinger missiles etc so so why what can we rely on either from the district court saying explicitly which is my first question you still haven't told me where except this one thing about struggle the russian missile launchers where does the district court or where do you get another court telling us that there is no mitigating factor here based on the inability of this poultry worker to provide missiles well i think the district courts life sent the reasonable civil life in this is based on the defendant's conduct relevant conduct prior to his coming to united states which involved actual conduct or terrorism and if the defendant was trained in how to to use explosive the pendent actually conducted attacks and then in coming to the united states the defendant  lied about his involvement in those activities and he reached out to another former member of the of the on his own kind of cell in iraq once he got here in those circumstances the government is not required to wait around for these individuals to get together and to and to organize themselves and to come up with the resources necessary to conduct attacks and this defendant was willing to  entertain the idea of a time of doing attacks the mess to clean here in the united states and to continue to send powerful weapons to his colleagues in iraq at a time when u s troops were still engaged in in combat in that specific the district specific finding it with respect to the claim about the the stinger missiles i think the district court's more overall support for the licenses in the seriousness of the offense and the concern about the protecting americans from for the crimes of the defendant and taking into account the relevant conduct not just of the defense conduct since he arrived the united states but his conduct previous to that that involved a long history of that that was admitted to in detail the missions of actually carrying out attacks against u s troops in iraq i would read this transcript the district court starts talking about the request for a downward departure for senate saying entrapment i page six ninety nine and then the court goes through you know how bunch of factual findings about the record and then we get back to the senate saying entrapment issue on page seven  six where the court says he's going to assume that it would apply and then he begins these findings they go through seven o seven and down pretty much  of the factual conduct as laid out in the present is reporting is found by the district court and that all of that conduct together shows that the defendant was dangerous and he was he had he had experience and he had skills in actually carrying but it but the entrapment discussion bookie and basically both ins of it that's how i read the transfer to school and so i think the district court's its conclusion that a life sentence was appropriate in this case  e the difference is well supported in this in this factual record based on the entire history of the of the  to sentencing a travesty assuming it applies we need to know does it apply or doesn't apply and if it does apply which is the standard the subject of the object of or makes them both together or is the district court fruitless ours i know because we don't have access to that well the reason i was asking was because if it was verbatim from the priests in a report and he's he's reading from that and then there were any objections to the facts as stated about what had happened that in the case it's a dispute to the extent there would be a basis for sentencing entrapment if it applied it would be a question of what it prints is could be drawn from a set of undisputed facts of that's correct and which set of facts you should be looking at should you be looking at the defendant's conduct or should you be looking at the government's contact and that's where the circuits are split and it makes a huge difference because of what you read and what the government just for sided clearly the court was focusing on the defendant's conduct in large part and then mixing it in with the government's conduct and so it was applying both standards of sentencing entrapment all at the same time  arguing that it really isn't just looking at the government's conduct it's looking at at the defendant's conduct before he came to the us why is the government wrong on that goes for purposes of sentencing and track that would would be relevant in an overall sentencing factor but not relevant in the sentencing entrapment factor and we disputed those facts having said that if it was where it was just the one to find the facts and he has found the facts that there was very atrocious activity over seems so why isn't that a relevant factor in deciding that this person should get not concede that they were not into speed thank you thank you thank you both for your argument and mr erhard i see that you were appointed pursuant to the criminal justice act and we thank you for your representation of your client thank you very much take the case would be