thank you your honor you may please the court my name is michael thompson and i represent the defendant appellant arm all richard sent in his appeal mr richardson appeals the sentence that was imposed by the district court because and imposing the satins the district court inherently relied has the right to be sentenced based solely on reliable information right but what's even the liable i mean police reports are historical documents shephard says for purposes of the modified categorical approach they're a little too casual for that but why isn't the probation office looks into all sorts of things about people's backgrounds a lot of it's hearsay they talk to people who know other people they talk to people who know the family seems to me the logic of your argument would eliminate the district courts ability to rely on the p s r at all well first your honor i think it's important to note that the p s i are didn't conclude that these facts were true it merely related that this is what the police report said happened which i have is an important distinction yes the district court can consider that but what it did here is explicitly use that as a basis to give  that it said it otherwise would not have it's not like the district court started from a neutral position it said ordinarily what these qualifying convictions i would not impose this higher guideline well so what he's doing though is he's saying ok you are a career  fender that's that's just a fact you know properly applying the guidelines so then we move over to thirty five fifty three and we ask questions like well you know does this career offender  status overstate your dangerousness or your or the appropriateness of the higher sentence for you and so it's in the sense of trying to adjust what is  correct guidelines determination that you don't want the district court to look at evidence that winds up giving the the guy a way lower sentence he's not the district court judge isn't in a position to say well i'm just not going to consider you a career offender at all he goes way down from and if you can if you can't consider this evidence why doesn't that actually hurt your client rather than help and then he just gets you know a bottom of the guideline range career offender sentence and that's all there is to it you're on it's important note that the qualifying convictions one of them was i think for about point two grand i know they were small amounts of money but they do pro you're conceding they properly classify him as a career offender absolutely and the district court considered that and said that because this is one of the qualifying convictions and this is on the on the record this is what he was convicted for ordinarily i would think that would be insufficient to give him the full enhanced guideline that he does technically qualify for under the career down he does go below the guidelines but he essentially said that he would ordinarily without those other convictions without the information from the police report he would ordinarily impose the non career offender guideline which was another thirty to forty months below what he actually impose that would have on the seventy seven to ninety six month guidelines if you are not qualified as a career finder but have the same criminal history otherwise and so to increase the sentence by the proximately fifty percent what the court did is look at information contained in the p s i it was gleaned from police reports about other offenses that occurred later that would not have qualified for a career offender predicates offenses that were for possession rather than distribution and he looks at this information contained in these police reports and says well maybe it was only charged as possession but i think we can conclude that it was probably actually distribution and i don't think that's it i don't think that can ever be reliably done  just what's in a police report and someone that's arrested and charged with a crime but not convicted for it should not be presumed to be guilty of a crime that he wasn't convicted for i think that's common sense based on the co it's so much the question whether he was convicted of something he's convicted of possession based on facts that might have supported charge of more than that maybe not that the underlying facts of the underlying facts but we don't know what the facts are we know that one officer concluded that that was the facts we don't know how reliable that is we don't know if that officer got it wrong we don't know if he was biased against the defendant we can't just say that because he wrote this down in the police report those are the underlying facts but that's the district court did here and in doing so it i think it made sort of an unfair situation that where there was nothing mr richardson can do to prove that's not what happened this is from ten fifteen years before the sentencing occurred and for one officer of conclusions about what he thinks you know even i don't even know if he thought that what he wrote down in a police report ten years before shouldn't be relied upon to increase somebody's sentence by fifty percent when the court explicitly said that without those police reports he would've given a much lower so now i guess where i take issue with you is the increase by fifty percent as opposed to decrease by fifty percent well which is what he's doing yes the technical guideline would have been one fifty one to one eighty eight months because of the career offender status will sit down to one fourteen he does but he basically explicitly said that he would have imposed the seventy seven to ninety six strange if not for those other later offenses that were not themselves predicates he says that if it had just been the point to graeme conviction as the second looked into it more what he did is challenge to the reliability of the police reports as he's doing now and so i should have a presumption that they're on reliable well i would presume they're unreliable perhaps that would not be the correct you but yes i think he has a right to be sentenced based on real information that can be shown to be reliable and the mere fact that something is included in a police report i don't think is sufficient for that when he may please the court opposing counsel good afternoon i'm madeline murphy appearing on behalf of the united states and asking for this court to affirm the district court judge no unlovely warrants were juveniles through the microphone certainly your honor i'm asking that this affirmed the district court sentence of the defendant because it's not abused its discretion in relying on the summary of the arrest information that was provided in the pre sentence investigation report there's no dispute here that the defendant was properly classified under the guidelines as a career offender and that his guidelines range was appropriately calculated the defendant claims that the court incorrectly relied on these summaries of the police reports in the pre sentence investigation report however the district court is entitled to rely on the pre sentence investigation report unless that information is contested and the defendant did not contest that information he did not file an objection to the pre sentence investigation report in his sentencing memorandum he did not take issue with the facts as recited in the pre sentence investigation report and indeed at sentencing where he made the argument that he really should not be sentenced pursuant to the career offender guideline because his criminal history was remote in time and occurred when he was in a youth he never took that opportunity to contest those facts then the court asked a little earlier of my opponent what the defendant could have done there are a variety of things he could have done at that point in the sentencing hearing the defendant could have taken the stand himself to contest those facts saying for example yes i pled guilty to the two thousand and five possession charge but things that he could have done and should have done if you wanted to contest this information what he did essentially was say that the court should not find it credible because that no underlying evidence has been presented and the burden at this stage of the game remember after the guidelines have already been calculated is for the defendant to contest what they feel to be inaccurate information in the pre sentence investigation report it is not the burden of the government to come forward with information that the government isn't required to come forward and have a mini trial or provide evidence to underlie uncontested facts that have appeared in the pre sentence investigation report so the district court properly relied on the information in the pre sentence investigation report in determining where in the guideline range or in this case below the guideline range this particular defendant ought to be sentenced based on this particular defendant's history and characteristics which should include his prior convictions and his prior criminal behavior so the district court did not err in considering that information the pre sentence investigation report and even if it did any error was harmless this defendant received a sentence well any questions for me i will ask that the court affirmed the district court's sentence because it's not the views its discretion in considering the information in the pre sentence investigation report apparently not thank you thank you ron anything previously i would say that as far as whether mr richardson met his burden of contesting what was in the pre sentence investigation report i don't think that burden ever attaches here because all the police all the p s i said was that this information came from the police report this is what the police report said mr richardson doesn't object to that that probably is what the police report said didn't have any reason to believe that the police report said anything different but neither does you have to accept that because it was in the police report it was true and it's also he at least need to say don't rely on any of the underlying information in this particular police report because i don't agree with any of it so i think he did say essentially that your honor he said that they information about that other arrest or those other arrests is not reliable the only information we have is from police report that's ongoing robbery viable is one thing for him just to say i didn't have the money or i didn't have the drugs is something more pointed i agree and there's no reason you can't use the information from the report but all the reports said was that somebody else report indicated i started that i always say i mean look we're going to present a report has a lot of stuff about that and how all the defend nt is and where he's born and all that stuff that's not that's not based on findings and some kind of adversary process that's what the guard tells them when he was born right absolutely sentence but not because every fact on which the judge might rely has been verif ok but in this situation i think the district court explicitly decided that a lower sentence would be appropriate if it hadn't relied on these or numerated facts and those facts were never presented in a reliable or corroborated manner look what if the pre sentence report contains the defendant's age and this judge said well you're a young person i don't like to have a sense that young people now are you going to say or you know the government said well wait a that age i think that whatever party was negatively impacted by that would bring out what was the reason to be the police report but because it's just one man's opinion based on some investigation ten years ago that didn't happen you could say that about almost