the court good morning my name is dirty would eva i'm a court appointed to represent my client mr webster this is an important case and it's important because it illustrates the importance  clear statement of acceptance of responsibility at c n n at sentencing but why did he do it before sentencing so that all of this could have been fleshed out and the probation office could have had a chance to respond to it or the united states attorney could have had a chance to be ready to respond this that that's where your client dropped the ball your honor the if if one looks at the plea agreement there's no requirement that it take place anywhere it just says that if michael the offer was that if my client pled guilty the government promises to reduce the sentencing level by two levels if he  demonstrates acceptance of responsibility at sentencing and if he clearly accept responsibility so i'm not really sure how much of a promise that is because if someone clearly accept responsibility the judge is going to give the judge so why was the government supposed to think he had clearly accepted your order of i'm i'm just stating what's in the sentencing record runner and these are my clients statement that he made  sentencing he said i take full responsibility for my actions i admit in agree with a court of law i committed a crime i hope you take into consideration my our way we've read the briefs we've read all of this he also says i'm not a bad person i just made bad choices that is what he said at sentencing your honor of when he was given elocution your honor  it's my arguments that the government plainly breached the plea agreements because you say plainly breach because no one pointed out to the judge that this so we're here reviewing on plane  review right that is correct your honor that is the applicable standard of review and we believe all problems have been met how that clear obvious error on the part of the district judge i know we in fact  know some of our case law in our court says if it's a question of fact it can never be a clear obvious or oh no that's been questioned but here even though he didn't do anything pretrial he presented his his comments to the judge the judge at the start i think of the hearing a during and said whether you didn't seek acceptance or responsibility you didn't get that and they didn't say oh no no judge that's what we're going to do now so how can this be clear or obvious error on the part of the district judge it's clear or obvious your honor because the plea agreement doesn't stipulate where it has to take place else or what he did give his allocution cited by the government and that that that case relied or contained an implied promise that this court enforced and it also applied the playing error standard of review and the court determined all the elements were met in that case and the government promised was inforced we think that case we actually are cases has a more compelling argument your honor because we were not relying on imply promise we're relying on an explicit i believe that's been established your honor and the plea agreement does not state where the past take place you're right about that the plea agreement doesn't say anything about timeliness but the sentencing guidelines do say the timeliness of accepting responsibility is a factor in whether the points are awarded so how do you deal with that god mine mine would that i think it wouldn't when my client gave his statement of exceptions at sentencing your honor it was up to the government to state whether or not that was insufficient or not the case law here for example the puckett case the fact that was compelling that let the court not to find that there was a error was that there was an intervening crime the defendant committed a crime from the time he pled guilty to the time of sentencing and the court phil felt that the final prong of the player couldn't be satisfied that the other case was clubbed in that case the court found that the defendant obstructed justice and made false statements under oath we don't have any facts like that whatsoever in this case and another case is the mak case where the court found that the defendant minimized his role in the offense we have very clear statements of acceptance of responsibility that my client made at sentencing so you can say he made some mistakes and you c stated i take full responsibility for my actions i admit in agree with a court of law i committed a crime i hope you take into consideration my sincerity and give me the lowest sentence term possible there was no argument whatsoever that that was inadequate or insufficient it's by anybody there was no finding we made that allocution did any i'm sorry or he said that it allocution he said that at the sentencing your honor yes as part of his allocution correct right this is at the end of sentencing are you saying the government was supposed to have jumped up there in summit and said oh no you're on of that doesn't satisfy acceptance of responsibility i'm saying that our position i'll just answer me yes or no are you saying when he said that the government should have said oh wait he's trying to get acceptance of responsibility and jump up and said we object your honor he he hasn't shown acceptance of responsibility i think it was incumbent upon the government to either comply with their contractual obligation your honor and recommend a two level reduction or give a statement as to why that those statements of acceptance of responsibility were insufficient or inadequate and neither of it was charged with conspiracy yes rod trafficking correct he was charged with conspiracy of possessing five hundred dollars milligrams or understanding i understood it was conspiracy to distribute and in the legal drug that's quite a difference don't you agree yes between possession and distribution yes or no and so he's charged with conspiracy to distribute i suppose the argument could be made well if he had come forward before sentencing and met with probation and he said i accept responsibility i know he's not seeking substantial assistance but still they could have deep briefed him he could have demonstrated his acceptance of responsibility by perhaps providing some helpful information of the government or something along that line there's it's quite a difference between that and waiting til allocution to say i accept attorney client privilege here are you know your other ok well i think it's part of the record what you ask your client it's not but and then don't tell us it's not the record well the record just reflects what  happened with the probation department and the record speaks for itself your honor of what i'd like to do to stress the case law of the th circuit and it says the plea agreements are strictly construed against the government the government is required to strictly adhere to the terms and conditions of its problems the record is clear the government made that promise and it was either put to him it was it was put put to an election to either comply with its contractual obligation or give a statement as to why the statement was inadequate or insufficient the if the error was so obvious then why wasn't there an objection below to no point objections to put the trial judge on alert about the issues so that sort of benign adept point and then it's not going to become super serious later i think if if that was the law then the plainer standard could never be judge wants to ameliorate it examined more in more doubt that can happen in that place in that space when it's sort of by the board in his res and later was too late for the judge to do anything about it and you take the beauty there was an error and it was obvious yes it's very clear that you demonstrated acceptance of responsibility it's very clear that i have a question about yes hearing it seems like at the beginning the government did ask for acceptance it said it was going to move for the rd point for acceptance of responsibility which is to believe in more difficult to get than just the two so how do we know it breach i mean just that the judge didn't follow that but it does say mr mr salazar for the rd point yes we are moving for that your honor our position is that  i believe that's what triggered the comments from from my clients which were contending satisfy the requirements of the condition precedent of acceptance of responsibility but i guess where did the government oppose it the record is silent your honor i think so the government didn't oppose it at the beginning of the hearing they asked for the rd point for acceptance you can't get the rd point if you don't have the st two and i think mike mike my client the legal basis on appeal is a breach of a plea agreements and the terms of the how did they breach it if they said at the beginning of the hearing we should he should get the three points because he didn't get and they didn't give well they think that everyone knows the government can't control every plea agreements as you know orders these are recommendations government cannot control what the judge ultimately does correct correct but i don't i don't think there's a clear spot in the record where they where they complied with their contractual requirements to give the reports that is there a motion from the government for the rd point mr salazar for the rd point yes there is your honor i think maybe that can be construed as them then complying but i think the case law could could of could could that applies addresses that maybe that was just window dressing and that wasn't a sufficient enough effort to satisfy the government contractual obligation to give the recommendation i don't see the words in the record where they explicitly state i recommend the government recommends a two level reduction your honor and even the court said had you gotten the two level reduction you would you would be at this sentencing range which is significant of this problem the government didn't say it because your client never clearly demonstrated to the government that he deserved it he waited until allocution to bring this up to talk about he was sorry and it's our position that that that satisfying it's the plea agreement and on and we're getting back to what i asked you earlier so at that point the government the case is what it is your honor and the final point i'd like to make is the purser case stipulates a twenty four thousand cases the ninety seven percent of cases are disposed criminal convictions are obtained by as judge barksdale said had there been an acceptance statement or any attempt to accept responsibility probation would have put that in the p s r and brought it to the district court's attention but bishops are interviewed mr webb tell in april  th two thousand and eighteen at that time defense counsel trial defense counsel was not present as to where to restrict it is constant factual material the probation officer noted that mr ware to would submit a written statement  therefore there is no recommendation for acceptance of responsibility on may th the probation officer submitted in the den to the p s r which said that the prevention officer had not received any communication from either party again no recommendation for acceptance of responsibility and finally on june nd trial defense counsel submitted a statement in writing there was no objection to the p s r that is to say no objection to the shape or form what is required under three e one point one truthfully admitting that conduct comprising the oftens of commissions in this case that would have involved a statement that on april accept responsibility precisely as to barksdale said that was in the middle of his allocution he said that he was sorry for what he'd done that he'd had difficult circumstances in his law and that he was having health problems and that he regretted his bad decisions as judge cost of said there is nothing in his statements that is a truthful admission of the conduct comprising the off incident conviction section thirty one dollars has six application notes three of them stress that one of the factors to be considered by the district court is the timeliness of any statement concerning acceptance in this case the acceptance came as judge barksdale said during his allocution i'm guilty i'm sorry give me a light sentence hardly a novel statement in federal criminal and you think the government did the government recommend acceptance or not at the hearing i mean how do you make about that statement that we're moving for the rd point your honor the record is not clear what that statement means i will note for the court that you know what the rd point alvarez said is there a motion for the for the rd point and then the a i say said the rd point but that's as far as we'll go then judge alvarez said well wait a minute did we ever get to acceptance she looked at the and said no we did not on the very next page of the sentencing transcript judge alvarez said so there's no exceptions and she stated the range the advisory guidelines range and both the defendant and trial defense counsel agreed with that range priest as judge part still in judge cost about said that would have been the time for competent defense counsel assuming you had not done so earlier that would have been the time to say we're trying to to bring it to the district court's attention in the clearest and most straightforward manner than where it was trying to qualify for acceptance of responsibility since from where to position it made a difference of twenty seven to forty eight months depending on which range she wound up in none of that happened it was never an objection there was never a statement oh your honor we're trying to qualify for acceptance he simply read a letter it was not spurred by anything that happened it was according to the record it was something that he retired read off with a prepared statement it was nothing to draw the court's attention to that and in relation to judge mark still to question two opposing counsel i did not brief that this was a factual is the argument that this was a factual issue that could have been resolved in the district court had it been raised and therefore it could not ever constitute pl fully cognisant of that argument that argument did occur to me i respectfully submit that it is a lucidly clear that there was no exceptions or sponsibility in this case and that the district court did not commit in there he's not satisfied any of the problems at play here he's not satisfied the st or nd prong and therefore there's no reason to address the other two is the standard language that the government will agree to move for acceptance if it's clearly demonstrated is that standard language or unique to this case or no struggling that's a standard language in the southern district flee in fact i believe that's been the standard language in the southern district plea for quite some time for what at this very moment are obvious reasons will recommend acceptance if the defendant clearly except responsibility it's almost directly out of applicants in that one hundred and twenty three even point if that isn't a clearly accepts responsibility clearly demonstrates acceptance of that we have the planer standard of review because mr worth as counsel didn't object to mr west does counsel didn't object and he didn't follow through with probation but the law is not that plea agreements are construed against my client plea agreements are construed against the government it's my government compliant with his contractual obligation when it was when things stood up at the start of sentencing and said your honor by the way we didn't object to the payouts are but i want to take advantage of the plea agreement where it said my client gets acceptance or responsibility if he clearly demonstrates and i would are construed against the government not against my client my client compliant with his obligation he demonstrated acceptance of responsibility in a very sincere contrite way the only opportunity when it was in his control and he complied with the way when it was in his control but your client is bound by the actions of his lawyer of course yes your honor and his will it was in his control it was in quote his quote control at the very start of sentencing throughout sentencing and private sentencing and that's why we have the plain their standard of review of that's why we're here and the elements of that standard of review it is my objection there was nothing more that your client could have said to demonstrate except and to responsibility all i know is what the record says your honor and it says that he was going to comply a written statement of for whatever reason that didn't happen he's in jail your honor there's only certain things he can do he's relying on his attorney if his attorney asked the question very well you're saying that there was no more information be could have provided to demonstrate acceptance of to clearly demonstrate acceptance of responsibility than what he said an allocution i believe that's what's that's the only record i have your honor said what he said and it's our contention contention that satisfies it and the burden isn't on him with respect to how plea agreements are construed the burden is on the government and because the government has that burden it had the obligation at that point to either fulfill its contractual obligation to recommend that to the two level reduction or stayed on the record of why that's an satisfactory and it did lead to and so did i but we believe the government does not have a basis to argue that the elements of the plane there are standard of you have not been met we do not have a situation like we do in the in the cases in the pocket case where we had an intervening crime we have statements of someone not minimizing his role in the offense etc etc that those were factual basis that the courts used to deny the final prong of the plain error standard of review we don't have any of that here we have it we have we have the term of the  we have acceptance of responsibility and we have a clear failure from the government to to to satisfy its contractual obligation right thank you mr uribe you are  and you have briefed the case force and you have ably provided or even known behalf of your car here today and the court appreciate you and all our court appointed attorneys who take these cases who come and who present the case some behalf of