morning good morning your honor may it please the court i'm kelly called to for dr foller and i'd like to reserve two minutes for a battle i like to begin with three points first congress those that you cannot sentence with a got without a guideline calculation second this court holds that it guideline calculation is necessary for meaningful appellate review and third this court in this case illustrates just that the district court imposed a sentence that was seemingly plucked from the pre sentence report but did not make a guideline calculation and did not make a finding of fact under united states first call the supreme court emphasized that the district court should begin all sentencing proceedings by correctly calculating the a political guideline range as we discussed in our brief parties cannot wave the guideline calculation first neither party claimed that one hundred in eight months was a guideline range second parties cannot agree to an arbitrary figure this court held in united states versus johnson in two thousand and twelve that parties cannot agree to an arbitrary figure they reversed the district court where the parties agreed to a figure that was sentencing a requires a calculation he explained that other judges apply a variance as opposed to doing what i do and that was exclusively to apply the thirty five fifty three a factors excluding the guideline range  e simply stated that the guideline calculation was only important for whichever party wanted to appeal later on he then went on to say that the guideline calculation in view would be very difficult to make that he didn't remember much of the testimony and he told parties that he didn't think they wanted to waste the time asking him to be a fact finder in terms of a trial that happened in march so you see the court lead counsel to believe that the guidelines didn't matter he wasn't going to calculate the guidelines regardless and that they'd be nearly impossible to calculate during the sentencing hearing regardless and thus he did not make a finding  fact so when the district court then asked the prosecutor what he suggested as to be the sentence the government threw out the figure one hundred eight months and based on the fact that the district court had already led counsel to believe that it wasn't going to matter for purposes of sentencing anyway he was kind of backed into a corner and agreed to that one hundred eight month starting point but your honour's the record reflects that even though counsel did agree to that one hundred eight months starting point he didn't believe that the guideline range was waived because he continued to argue against leadership and handsome and in fact the government continued to argue back against the leadership and hanson as well which again we would turn the court tonight it states first johnson in two thousand and twelve where though the guideline range was it waived but the parties did agree to again this arbitrary figure in the district court just kind of rubber stamp that it's the closest waiver as well yes your honor and that the supreme court again emphasize that the district court needs to make the correct calculation as to the guideline range right my part of the reason that there's no case the you know the guideline range calculation in this not only for the benefit of the parties to set the parameters of the issues who are appealed but also exist for the benefit of the appellate courts so that we can properly review the kiddies exactly your honor and that was the concern and united states first johnson again this court was they noted that it was very fair for the judge to agree to that average sentence but again that it put the appellate court in a position for review he simply had nothing to go on well it's not it's kind of a i mean it has usefulness for the parties it's also kind of a the agreement that council did make after the prosecution's stated that they believed the appropriate sentence was one hundred eighteen months the court had already made it clear that he wasn't going to make a guideline calculation and that it didn't matter for send in same and showing deference to the court in alternate respect i think that counsel understood he had to go along with that figure because his objection essentially fell flat to  yes yes and he he did again object to the non calculation of the guidelines prior to that agreement and continued during the sentencing hearing to continue to bring up the guidelines he mentioned three other times after the purported agreement that the guideline range was still there and he said at one point i still have my variances but i understand they're moving on from the guideline range so again counsel continued his objection but but show deference and respect the court on the last ultimately though the court did not hear to the one hundred eight months starting point the parties had alternately agreed to move forward the court still sentenced based on the figures in the pre sentence report the court plucked the restitution amount directly from the pre sentence report he imposed one point seven million dollars in restitution the testimony during trial was could support only about forty thousand dollars in restitution so the court imposed about forty times that amount that figure was present in the pre sentence report the court showed deference toward the probation department calculation during sentencing and he rejected counsel's own calculation and he called counsel's calculation to get out of jail free card which shows that he certainly had showed deference toward the pre sentence report but also that he didn't believe the guideline range had been waived because if the range had been waived he wouldn't have made it a point to mention mention council's guideline calculation nor reject it so you see your honour's the court own statements  the court's own statements show that the district court simply it here to the pre sentence report did not go along with the figure that was a creative pound by counsel and again there is no working or he did not your honor the only thing the court did say is he said we're talking about a lot of money that dr fowler was convicted of receiving by the jury i think that's the closest indication of where he came with this number but the jury did not convict dr fowler of a certain amount of money there was no amount of money that was associated with the conviction just that he was convicted on counts one eleven and twenty one but no figure was proposed on the super  you're not your honour's i'd like to make just a few substantive points as well first the government assumes that fifty percent of dr fowler's and dr clark's prescriptions were illegitimate  but the government's own witnesses testified that eighty percent of dr feller's prescriptions were legitimate and that dr clark was not involved whatsoever second the government assumes that dr foller was involved for two years but the government's own witnesses testified that dr follower was involved for just one year and had only increased his prescriptions for opana for about two months in fact the government's own witness mr taylor and the government chart to corroborate that two month statement these factors alone would reduce the government's druggists to missions from two thousand two hundred thirty seven kilograms of marijuana equivalency to approximately fifty kilograms of marijuana equivalency and likewise the restitution amount from one point seven million dollars to approximately forty thousand dollars for these reasons your honors dr fowler respect morning or honors may please the court i'm here this morning representing michael to re enter and i'd like to reserve two of my minutes for a bottle if i may your honour's the problems that occurred at mr fowler sentencing continued on in mr three and sentencing a couple months later and that is that there were no findings by the court as to the amount of drugs involved in mr through rand's case to allow a reliable guidelines calculation in this case and in fact they got the amount of drugs issue it is a hard issue and mr three ends case and i think that's the problem in this case is that this is the amount it's such an hard issue that everyone abdicated their role in the sentencing process in coming up with the actual correct amount of drugs that should be attributable to mr three and in this case if you take a look at the p s r report in this case the it doesn't appear that probation did anything independently to determine the amount of drugs involved in this case it's a matter of fact the only couple sentences with regards to that are the government has provided information that and that is the total sum and it's interesting because the got the information that was provided by the government with regards to the amount of drugs  tribute old to mr three and is exponentially different than what they provided the jury during the trial in the case as allegedly being involved in mr therians case to the tune of some five hundred thousand doses difference if you take a look at government's exhibit number twenty they provided minutes they provided the the jury with all amounts that were distributed to all of the rands patients from all pharmacies from january of two thousand and nine through some time into i think june of two thousand and eleven and that came to eight hundred nine thousand doses in total that's what they told the jury they tell the p folks that that it was six hundred thousand doses and there's no explanation for where this five hundred thousand increase comes between the two time of trial and the time of sentencing now that makes obviously a huge significant  difference in the guidelines calculation but the court after after probation decided to pass on this the court decided to pass on it as well there was again this discussion much like a mr fowler's case of what sounds right in this case and the parties came a range of one sixty eight to ten which is unborn to any actual figure as to what the amount of drugs were that are tribute able to mr three in this case and that's the problem if you actually go back and take a look at what the government alleged was involved in mr case at the time of trial the number again drops precipitously drops  agree and i understand you did not represent him in the district court with the man that they agreed to comport with the trial figures or did it comport with nothing important i can't figure out how it comported with anything  and or than what the figures it is more than the figures it is more than the figure so here's here and here's the problem is this look so trial proof shows who would his lawyers agree to a grade or a mail out exactly in that's the reason why we argue that even if there's a stipulation here as to the amount which we don't know what the amount is but they talk about a guidelines range not an amount but even if there's a stipulation  doesn't abdicate the court's responsibility to make a finding i mean maybe the attorneys were aware of you know more than proof was hundred ninety actual calculation rectory six hundred somethings in the p s r but it was four fifty five exactly and so we have had no idea where that came from i think we're no i think well there's a couple problems here one is that there was a carousel of attorneys in this case in the court below there was a there was a and that was you know obviously some problems with the client that caused that but there was an attorney at trial and then there was attorney for sentencing that wrote the sentencing memorandum that agreed to the four hundred some thousand figure and then a month and a half before the sentencing another attorney is involved in the process representing mr through and who doesn't file a sentencing memorandum or anything else and just relies on what was file before by the previous counsel of which mr three and was having these problems and part of these problems was relating to i think the amount of drugs issue and so that is part that's a little bit of the problem but everybody just sort of to what the trial actually i think that's part of the problem and again it's it was it's hard because if you take a look at government's exhibit twenty eight which is that what they presented at the trial where you get my hundred  thousand doses you actually have to do a lot of math because you have to do doses doesn't equal grams you have to so you have to figure out how many grams is in a dose and then once you get to graham's then you have to do the calculation over the marijuana equi to get then to a guidelines range and i think that it created an optional problem absolutely i thought i understood that the real problem with calculating what actually occurred because he had compan stringency worse than that because even with one hundred nine thousand figure this is all patel pharmacies all controlled substances from all of the rans patients from january of two thousand and nine their july of two thousand and eleven now we know that three and wasn't even involved in this case until july of two thousand and nine so we have six months that we have to figure out how to take out of these figures which we don't know the numbers to be able to figure out which is when and then on the other side of it video may who mr three and was involved with closed in november of two thousand and ten so that provides another seven months that out of this hundred nine thousand figure that we've got to eliminate then we've got to determine well every time that one of the reasons patients showed up at one of these pharmacies ran with them did he take the drugs so we've got that problem to to back out from all these hundred nine thing figures but yet somehow when we get to sentencing it's now up to six hundred thousand and one actual player yeah absolutely your response knowing that and that's that is the basic problem here that there's no reliable the i i think it's a kinda like if the parties came in and there was no evidence of why possession of a firearm and there and the parties both said yeah we want the two point hands for possession of a firearm what doesn't relieve the court of at least trying to figure out if there is some evidence that there's a firearm that was involved in the case if it's nowhere in the p s r nowhere at the trial and that's what this is this is somehow we councils removed at this point but at least one council removed at the time of sentencing that that restitution number was given so in other words it was mr barrett who will by the way was the same person that came up with the four hundred fifty five thousand doses or whatever that number was that they came up with with the amount of drugs second obviously it was rejected by the district court as a as a number because the court came up with two point some million so once it's rejected we should be free  to make whatever arguments we think are appropriate based on the actual evidence in the case if i did it yes back in youth is good ol the pharmacy i understood this case related to a single pharmacy is have with trying to figure out if this was relevant conduct or if it was that he charged sure no this was this was they actually named the top ten pharmacists on the second page of this document that kind of breakdown most of this under nine thousand goes figure  pays patients to go see a doctor for fraudulent doctor visits gets the controlled substance of prescriptions and sells the drugs on the street i was trial counsel in this case the chart that was introduced the evidence at trial that the government induced a trial that had over one hundred thousand was a very narrow sampling of the defendants participation what happened was one of the fraud so help us understand that you inter your honor we've agreed i was trying to address the pills but yes we've agreed to remain and for the restitution because we essentially agreed to their proposal of the guidelines actually i just want to ask about is represented by the sliver or whatever of the chart to poor hundred fifty fat thousand or six hundred thousand i was trying to explain that based on the trial testimony you have to understand that that hundred  i don't know what the label of the chart is but the the evidence that introduced the chart explained the limitations of it i'm not i'm not i'm not asking you a question about how you get there factually i'm asking you a question about what happened in the case and what i really want to know there was an objection to the amount of restitution but you put no proof is as i recall to establish any amount of restitution other than what was set forth in the precint report would you have been required to bear to assume the burden of proof on that issue once the objection was  and we agreed with their objection to the lower loss amount they stipulated to a lower loss of mana we believe that that should be remanded in that lower amount they should be held to what they stipulated to and it's really kind of astounding to me that the attorney for michael fran is saying that when counsel enters into a stipulation that that can't be accepted and we can now up and get into the weeds and i want to argue i want to explain a little bit out th out to the point that you know we're talking about whether he can stipulate or not i mean there's some things that it doesn't matter whether the parties stipulate to the court has to have whatever i needed for its own review and so it's both a question of the parties but it's a question of the court so that's the reason we would be questioning things that were stipulated to or agreed to between cancel the day if i just could get through the factual issue of why that's only a sliver a defendant the rands conduct the testimony supporting that chart shows there was a search warrant at the corrupt medical practice some of the chart see had a certain on them which was the defendant's nickname ok we didn't get every chart from there we didn't get the whole period of time from there we didn't get every patient that he used we only got a sampling ok and the chart that i'm following what you're trying to understand you're saying you don't have the evidence to do that so what you're doing is an exemplar and you're then allocating that across a larger time period but wouldn't you have had if there are little sign in charts at the pharmacy you would have had those that day because they would have been on his chart for whatever time period you correct they were in at the pharmacy they were at the medical practice the medical practice through a bunch of them out after the patients were done signing in and we only got a select we only got a sample of that it was that sample that we then calculated all of the all the pills in the fraud related to that that chart we are used as at least one hundred nine thousand it was clear there was more because we didn't get the sign in charts for all of did you have to support the higher figures well the higher figures was then the higher figures took those actually took those patients and applied them across a broader period of time and  so to the patients that were associated with him and the patients were associated i interviewed each of the patients vdare no they did not interview other patients i guess what i'm saying is that they're stablish in that they're trying to say that we took the position at trial  this hundred nine thousand was the was the maximum was the ceiling it was actually a floor the whole problem with the case is that there was no finding either on factual mail or on dollar amounts because your opposing counsel argues that you can't extract a light to a larger time period because this is a patient that you issue that patient may have only received prescriptions for one month at of the two year period so to say you had x dollars during this time prime is not indicative that those same patients took the same amount of drugs over the extended time flying so i understand where we are with this the factual problem i think my question ultimately to you is if there is this kind of stipulation with which you agree what case law do you have that say is that you then get that you cannot go back be an astounding decision if this court was to say that when the when there's the government pre sentence takes one higher position the trial testimony says this lower number is a sliver let's the defen then in their brief in their thing says let's go with this guideline level that's why there's no factual findings that's why we haven't parse through it because they are agreed to it and it's really astounding that they can come up here but i just want to say one thing to you and this is based on a lot of experience you can sit here and you can say i have a standing that is but if you lack the ability to prove the am and that's why you want to to rely on the stipulation so strongly it might be more a better use of government resources if we sin this  to go about proving what you can prove then sitting there and talking about the stipulation because if mr the rayon has a valid ineffective assistance assistance cl against one of those lawyers who stipulated without and through tending whether you could meet your burden of proof then at some point we might be back where we started and you ought to think this through before you talk too much about how standing in a is well i mean i'm just listening to this and i'm i'm not hearing anything that makes me very confident that the government can meet its burden and i guess part of the problem your honor says that because the judge because when you stipulate the judge doesn't make factual findings because when you stipulate we don't drag out point by point and that stipulation was entered well in advance of the sentencing hearing and so  you're really kind of saying when they have a stipulation the government has to be prepared to go patient by patient during their opinion should not stipulate to in a man out he knows the government can hear she knows the government cannot produce i would like to move to the to the file the case i am sorry let me understand this is a difficult question but does your position h whether or not the defendant's counsel objected to the figure heard at the restitution sentencing phase because i think you are here you enter to do you know we're done but i think the record reflects that the attorney representing they are plainly objected to the restitution i'm out as the figure is wildly high so it's even more complicated you enter some sort of an agreement and then you get to the senate thing and there's an actual objection does that not change your argument i don't think their objection was it was wildly high before you accepted their stipulation i don't see them saying that it was wildly high after you accepted their number i'd like to address the file or issue where again you have this remarkable legal proposition not supported by any case says you have you cannot wave your statutory right to a sentencing calculation and i appreciate the court's frustration that it would make it a lot easier if we had a sentencing calculation at this point i'm wishing that the that that perce followed but the fact is it's a statutory right that can be waived this court has previously in the beales case you can waive your right to have this court review it so this court is accepted that the district court can get it totally wrong in the calculation of a sentencing guideline the actual guideline should be zero to six the court calculates the guidelines as life there's no evidence to support it and it doesn't matter this court has said if you waive that after the defenses and dreaming that we don't need it we'll just go down for the government's recommendation instead of down from my guidelines calculation he then says one one one three one nine nine three zero i guess i would like to address the leadership in handsome and mr fishman not so much by the way for the three points but it really kind of goes to in a sense to the first of the thirty five fifty three a factors which is the nature and circumstances of the fence or the offense so he understands that the points don't matter anymore but in determining the nature and circumstance of the offense obviously the judge is going to impose a different sentence if they think the defendant some sort of leader in this enterprise is supposed to nod and then there's a discussion in the court doesn't make a determination on the three points with the court it one nine one three three so i'm going to knowledge that there's some relationship where it's either leadership or very close to it just for the relationship of the two doctors so the fact is we're not adding points anymore we're not doing a guidelines calculation we're going to thirty five fifty three a factors is  where the defendant is in this hierarchy and so rather than support the defendant's position it absolutely confirms what everyone who was there understood who which is that we don't need any guidelines calculation we're going to start with the government's recommendation which is far lower than the guidelines calculation and we're going to go down from there and he went down from there from the government's recommendation of nine years he went down the six years if you look at our maybe case guideline range need not be calculated or raise the pages that you suggest make a plain explicit concession on the record that guidelines need not be calculated you're of there it's not only that which was after the stipulation but in the government page twenty five of the government's brief mr fishman who i the way is a very experienced and highly respected lawyer says quote and this is a page id's one nine nine two eight to two nine two and if everyone agrees that that's where we start and if the court were to depart from there the comparison for purposes appealed by the government would be one hundred eight months then i'm prepared i'm prepared to go forward just like that and there was no more talk of we're going to have to calculate the guidelines and then of course there was the bostic opportunity at the end and he said no i don't have any objections that weren't previously ready and so the government's perspective and sorry we really feel like we're b and sang bag here and there since by a substitution of counsel because of mr fishman was here you could ask him doesn't that sound like a pretty clear should be calculated because that's the beginning point for the terminations of the us and the courts discussion of the section thirty five fifty three actors and if we if we say th waived including rights again the rights to is not and see criminal yourself rights to allow fourth amendment searches but specifically this court has said you can give up your right to appeal that this court has also  you know there's another issue here and that is whether it's good for the united states good from a policy perspective for the united states to arbitrarily be taking for its sale the pulling out of the of a figure that is and to the guidelines and you know i'd like to know what you think about the policy meaning one case it might be advantageous to the defendant in another case it might be disadvantageous district court to blindly accept a figure suggested by the government as a starting point it seems to me the courts abdicating its responsibility to the government to do something the court is supposed to do in this case there were four trials with fourteen defendants and thirty eight defendants were sentenced dr fowler was surprisingly the twenty fifth defendant that was sentenced so we had a pretty good a pattern  think he sets and so that's why the government's recommendation was not to willy nilly pulled out of the air based on the people both more culpable and less culpable than dr fowler who had already been sentenced the government believes that the nine years was a reasonable sentence we couldn't ask for that so they are on him and i understand that but i think what judge gibbons is asking you is this is a room not just about the twenty or thirty defendants in your case but the fact that there are individual defendants in cases everywhere and there are a huge number of conspiracy cases with many many people involved and if the government is now in the seat of being able to stablish reasonable minutes by proposing a figure and that is not able to be reviewed by the by the appellate courts as to whether there is the perception of failure sentences reasonableness itself even in your position don't you have to recognize that that creates a problem for  creates a problem for the government who the defense just leapt on it in took advantage of it and said i'd much rather start it nine years then something that's going to be close to twenty years even if the joke court had given him a couple levels off was still going to be higher he leapt at the advantage just start from nine years and go down from there wouldn't it have been better for this court far better to have let the court determine the guidelines and then if the government wished to take a position about what the appropriate sentence was it could have done so preferably supporting it with some reasoning so we would have something to it to rather than just saying oh let's start of one hundred eight months or all i can say is that the defense has successfully told the court that there had to be detailed factual findings when the very essence of a stipulation and waiver is to avoid having those details factual findings and i think if this court anderson opinion which says that diff that there need to be detail specific supportable factual findings even when there's a stipulation it's going to create it's going to create a tremendous burden and frankly a tremendous mess on everyone who handles a sonnet on a daily basis your honors mr shad has agreed to give me his rebuttal time i'd like to make just a few points first your honour's judge clay i'd like to agree with you that goal is binding and goal governs this case because congress has stated that the guideline range must be calculated for federal sentencing and secondly the government point the government contends that the council agreed to a guideline calculation  did not he agreed to a number to start off with just as just as what council and will the two parties agree to in united states first johnson in two thousand and twelve is that the only agreement the  agree but to start at the hundred your honour's yes i believe that was the only agreement is no there is no other stipulation no there is no other stipulation and what about the waiver issue  there was no waiver again there there was simply again that agreement of that starting point so they agreed on our r and b tree figure but they didn't necessarily waive anything there was no guideline range that was waived sentence using the guideline range and counsel continued to say that he had read enough case law that led him to believe that the guideline your age must be calculated to that the court said no it's just the attorney or the government the defense  argued for the guideline range but he agreed to that one hundred eight months only after the court said that it would impose a sentence without reference to the guidelines and that was page idea one thousand nine to six that the court said that  this the law also requires that there be a plain explicit concession that the guidelines not be calculated but there was none just as you pointed out judge gibbons there was no plane explicit concession there other than the one hundred a month agreed upon starting point in further of the government contends that counsel didn't renew his objection after the boston question but first and foremost there was no boss to question the court never asked the boss to question the prosecutor raised the question whether or not anyone had any objections but this court's precedent is very clear that what is the boss a question of what is in the vasa question and since the court did not ask that question  counsel was in any under any obligation to renew his objection but he did he said that he had none other than what had already been raised and he had raised the amount of drugs the amount of restitution the leadership and hands meant and the guidelines he argued for the guideline calculation and again made it a point to slide in a comment about the guidelines three other times after that point your honors again there was no waiver you cannot waive the guideline calculation as your honour's have pointed out because it does preclude meaningful appellate review and in this instance dr filer did not waive his guideline calculation