sentencing and i believe the issue is kind of revolved in this case it appears that the question is whether or not this court should adopt the mandate rule as increase his sentence right and and sentenced him based upon a crime that had not been he had not been convicted of when he was initially before the district court and we argued that seventy one fed third twenty four it's the first circuit case nine hundred ninety nine case that case addressed a couple of issues that were not addressed in the koran case which the government sites and the sentencing that the court was limited in what they could do it recently seen by eighteen us c thirty five and eighty two subs and wolf thirty five criminal rule thirty five ok let me ask you about that because it seems to me if same scenario about say your client attempting really really great he did great community service or he saved someone from a fire or something like that certainly you would run the district to take that into consideration to say look at these great things he's then the court upon re man would be limited in the things that they would be able to consider and and i recognize that the court the mandate will cuts both ways but it does seem to be the most consistent most cooperation i mean five work and that scenario i guess the argument would be the five k comes under a different statute that allows the government to come in if there's  assistance or something of that nature and the court could do it at that point because it's consistent with the statute but then ok perhaps i mean five k there's the drug five k or version a five k were a statutory straight five k over five k factors which cooperation you're not familiar with the general five k there's all the other one that he when he was in prison he turned his life around and he got all the college certificates that they always like to bring in to sentencing to show how they got their g so under your view on the mandate rule all of that is out well under that that are that argument would i had to have been made at the initial sentencing and the court would have considered that at the end there's right but let's say sometimes as you know the ninth circuit is not as fast as people might like it might be a while before you get a case back right a year in prison someone perhaps could finish their ged in between the two nights or could be you know he was that under the mandate rule that cannot be considered i believe that under the mandate rule if we were to follow it strictly they wouldn't be able to bring that up if they hadn't brought it up and they shal i would take that that if in the initial appeal before the whatever the circuit court is the attorney that handled the appellate case and raised that as an issue i don't think they'd be barred if the court ruled in their favor and that particular issue from race say they were they raised on appeal that the court failed to consider the factors that they should consider such as you know the change in life or lack of anything if the court ruled that the court failed to consider those thirty five i think i can't remember a time i had those the number that they are to consider when the person changed their life around or the other sentencing factors that are not considered under the i'd lines if that attorney failed to bring those up and the appellant was in the elevator to get an raise that issue on appeal it appears that would be barred under the mandate and i don't want to dominate the discussion today but i also do want to make sure you talk about the second issue in the case where as i understand the d n i circuit instructed the district court and friends of the on counsel convictions how they could not be used for criminal history and so forth and in looking at the ninth circuit's mandate in the in the members saying this case back and then looking at that support did i wasn't sure what the discord did actually was inconsistent because i wasn't sure this court actually used them to compute criminal history he certainly mentioned the questionable convictions but i'm not sure he actually used them to compute criminal history score can you talk about that well i don't believe that he did use  they were instructed the court had been instructed not to consider counsel there was no objection to that reference to the defendant's criminal history which explicitly did include these on counsel conviction there was no objection to that at shoe that arguably be the standard because at the time the council made those arguments i didn't i didn't admittedly stand up and say i believe that the court should keep in mind that settles it i guess the question then is in light of the very substantial criminal record that your client has apart from those un council convictions how could you establish a reasonable probability of a different outcome on sentencing n if he were instructed that he is not to consider those in any fashion certainly would do that i think that it was perhaps of oversight on his part to convey that he you know unintentionally critic to consider or for any purpose constitutionally for convictions i don't believe it is proper for the record to consider any sentence still convictions to calculate the bids have been slammed by the criminal history category and i'm wondering if that was correct that whether it should have been instructed the judge to  is which rules should this this court follow the mandate rule or that the mobile rule and and that hasn't been addressed and what happened when i was here before this court before was i think one of the judges me that would be my position on re ma'am and i told them at that time i believe there have been an additional conviction in state court and i think that  comment by me resulted in the instruction about the additional state case i wasn't very apprised of what the conviction was or or any of the facts about that or the timing of that offen police court counsel good morning my name is tim all means here i'd be happy united states from the u s attorney's office in spokane so with regard to this question of the mandate i would point out a couple things first council stated that the din over rule was was first stated in the ninth circuit in the clock case and actually it was first stated in a case called punts  and if this is not in the briefing i would just indicate that this this issue wasn't wasn't raised in this manner in the appellant opening brief so some of these issues were not fully developed for argument but course and says that it must be consistent with and so it's very clear from clump how the denial of all review that was that was expressed in ponce works with  so time has gone on since then and after reading the defense reply brief and seen the direction that they were going with their argument i did find a case that was decided in july of this year from the leave the tenth circuit and that is us b burke b u r k e n i did provide it was quite late but i did provide the court with a notice of supplemental authority and that's located at eight and over reading it was my glasses kate sixty three federal third thirteen fifty five decided in july two thousand and seventeen and i think one of the one of the valuable things of his clump is a very brave yet a case there's not much analysis in it burke goes through the issue it cites both to cure rally and clamp cites the first circuit approached cites the ninth circuit approach and it it discusses them based upon the mandate rule and the the don't vote rule and it decides it's case similar issue consistent with the ninth circuit's decision to close but i think what's important here is it goes through the rationale and talks about the the rationale behind the did novo rule was that when the sentence is vacated it's vacated and then the what happens after that starts fresh starts anew that's the rationale behind the rule i think it is the but the law in the circuit i think  that even under the mandate rule the district court was authorized to look at that that intervening conviction so even under the mandate rule the district court did not violate that rule and so we're asking the court to affirm the sentence as to that when counsel's bit was my experience as a prosecutor that henri sentencing at least the ninth circuit defendant usually did better the second time around even on the same facts because a lot of the emotion in sentencing of victims attend the first they're not often there for the recent thing and the prisoner has behaved himself in prison i've seen district courts in my experience usually give the guy a break the second time around i was curious what your experience was in the eastern district of washington well that's my experience as well and and generally it's the sentencing is sort of scale that way if they come back and in fact that was the case here because if you read through judge nielsen's sentence scene statement he said i think one hundred forty four months i gave you originally was a just sentence he said when i came out here this morning i intended to impose a sentence of one hundred twenty months but the defendant had done well in penitentiary so the judge did consider let's say the evidence of post conviction rehabilitation in that instance this defendant is serving time i understand in a very serious severe prison environment he's not had any  fractions and he's also a very articulate man he can present himself quite well despite his criminal record and i think the court was swayed by those things and instead of giving him the hundred twenty one excuse me hundred twenty month sentence that he that he that the court indicated he was contemplating he gave him a sentence that was six months above the high end of the guidelines which ended up being the informant sentence so i think that that actually the court considered both the court considered aggravating circumstance of this additional conviction and also the mitigating circumstance of the defendant's behavior while he's in custody can so yeah so mass did the crime consider in going to bat guideline stands here because convictions i think that that's an interesting question your honor and i don't think it's clear from the record it is clear from the record that he considered the conduct and i think that the conduct was permissible for the court to consider the underlying when he talks about the long history he specifically uses the language of convictions does he not not conduct he does he does i think i think that's the reason he does is both because he he references it at multiple times and in some of it relates clearly relates to those those three in firm convictions and in some of it doesn't mean he talks about i'm a number of things including the defendant's long history of drug use and involvement with firearms some of that uncharged conduct some of its unconvi convict conduct which the defendant wasn't convicted he cites the fact that the defendant has a long history of violent criminal convictions which is a generic usage of the term here one of those would have then been the  umingly the assault conduct or conviction for with that was constitutionally infirm but then there were the two robberies that i think the court was also looking at but the court also looked at other factors the court considered the fact that this  presented false testimony at trial the court can be talked about the fact that this could have been presented as an obstruction issue that was it wasn't debated as an obstruction is to issue is just talked about as a thirty five fifty three factor the court  considered the fact that each of these three convictions was based upon an entirely separate incident as opposed to a defendant who's convicted on on three counts all somehow part of the same conduct these were separated by about one in one case by a year so that the court looked at a number of different factors here including what it considered the defendant's long list of law contacts the court indicated do ultimately begin to tell the story and that said excerpt a record twenty two so i think the court was looking at the entire package here of this long history of course of contacts with law enforcement that the court felt told a story the court clearly considered the defendant's conduct that resulted in the three on counsel convictions which the defendant never challenged in terms of the conduct of the defense net the defense never challenged the accuracy of the report of that information as it was relayed within the pre sentence report and the court does reference the fact that that these are convictions these were state convictions for which the defendant they're still state convictions as far as i know that the defendant served  sentence for each of those so they are convictions but i don't think that from that we conclude that the court was giving them extra weight as convictions the court was considering them as part of the total package of conduct that's the way i read the record and i think that it's a fair way to read the record given the result here why doesn't doesn't that violate the at least the spirit of the mandate true did consider the convictions in deciding the criminal history under the guidelines but he never the less looking at the total history of the individual did consider those can convict and why doesn't that at least violate the spirit of the mandate if not it's formal terms i don't think it violates the spirit of if what we're talking about is conduct i don't think that violates the spirit of the mandate and in referencing the conduct as a conviction that that is technically accurate so i think the question is whether the court was giving that somehow additional weight  when he says when the court was talking about the the long history of conduct of interactions of drug use in connection with firearms and of violent behavior so i think that you know there may be a semantic issue here but i don't think that the court violated either that the mandate directly clearly did not directly violate the mandate and i don't think the court violated the spirit of the mandate i think the court worked very hard to reach what it considered to be a fair and just result citing a number job of analyzing a number of those issues and additionally the ninth circuit's approach and then clump and why they why they don't believe that that's a good rationale for for occur at all the fact that he did not have legal counsel there in state court where i think the wrote the record in state court showed that he told the judge that he thought that he needed legal counsel but they proceeded with the help of an attorney and he was convicted then without an attorney actually i think he conceded and went ahead and pled without representation and i think that's why judge