good morning and welcome to our court at the outset i wanted to welcome and introduce to you are visiting judge judge david bell who sits on the united states court of appeals for the th circuit he has sat with a great distinction on that court since his appointment in one thousand nine hundred and eighty eight by president reagan he is truly a scholar and we have had the good fortune of him helping us with our cases for many years and so we're delighted judge bell to welcome you back and to thank you for your help in your service with our court and our cases thank you this is a really wonderful circuit and wonderful lawyers and interesting cases it's a privilege to be here with that we will go to the st case which is good morning i mean if we support the heart of this case is about whether the district court by lated mr rose all this is de as due process rights when he explicitly relied on the erroneous belief that a statutory maximum was page sixteen of the sentencing transcript that seriously considered imposing the twenty year maximum that's to disappoint decision to impose a ten year sentence was based in part on its belief that the maximum was twenty not only is there the just report statement the government itself emphasized that this is an aggravated felony case and for that reason a stiff sentence should be imposed given this context it's clear that the district court relied on material misinformation when imposing mr rose all the city is a sentence the government thus far has not disputed that the district court relied on material misinformation instead it argues that any time a sentence is within the proper range it isn't even a constitutional challenge but the supreme court already rejected this reasoning and tucker stating that even a sentence within the proper range may be unconstitutional if it's based on  the question this way i think you'd be right except for one and i want you to help me with the problem here there's no question when you read that sentence in transcript that he lays out the long prior criminal history and the needs for the sentence flowing from this lengthy record but then he and his in order  when the matter comes up on the motion to vacate and he says even assuming all of that is right even assuming argue window statute and i'm not changing the sentence so i guess what i'm really asking is he recognized what you say he had mistakenly assumed arms around around him too and still wouldn't change the said so what are we going to do send it back to the district judge and say tell us if you really meant it your honor respect maybe i'm missing something is not a constitutional violation he never says i would have given it is a sentence no matter what even you know he doesn't say it's not in the record he says i don't find a constitutional violation because you're within the proper range and th it's authorized by the law because he has two thousand a's and you can have a statutory max so as i understand the government's argument he doesn't even have a cognize of all sixteen b claim here it's all part and parcel it flows from the c n n that's what i'm trying to understand what you claim is are you raising a davis constitutional claims that sixteen days and so therefore he was improperly our claim that we raised does tell us i accept all of that i'm not sentencing on the sixteen b he faces ten years that's what he's getting i'm just not changing it that's not what he said your honor well i just want to read you what he says he says because plaintiff was clearly convicted of two far only offenses afterwards he was deported and then reenter the united states without lawful commission because the court did not sentence  right which that he says he might have been more specific he might have been sharper at what he said but isn't this almost a formalistic exercise i guess is what i'm really asking you i have little doubt really wanted to he your i don't know that he chose not to say i don't know that that's true your honor he didn't say i would give him ten years no matter what he said i don't think there's a violation here because he's within the  i recognize i can go down here but i'm not going to do it because i don't think you're worthy it doesn't say that that's not what his order says he says you're within the proper statutory range and then that would get you back whether you even have a sixteen because i'm to begin with our due process help me with this do you have two separate crimes are you have one client constitutional climb due process claim based on did my we have one constitutional due process claim based on that i think thank you the only reason i had raised the question of what he's likely to do what i read the the transcript with considerable interest i'm told but the sentencing transcript and language of the judges use th certainly does more than suggest his mindset about the defendant based on the record that's the only reason why i'm simply asking whether this isn't just sort of a formalistic exercise you know your honor you're right he emphasized he had a serious criminal history and yet even with all that he says but i'm i'm not going to pose the maximum and there's reason to believe that he knew the maximum was ten years he may not have imposed that and we're not s a guarantee let me ask you the question would it be a violation whether you're bashing the crime on the sixteen be the mile the constitution however you characterize the argument and basically you've run them together it seems to me however you characterize the argument if indeed it is clear as a bell that there's just no daylight here you know it's just a total formalistic exercise and a waste time looking at all of our cases do we have to send it back i think it's all we have the discretion to say given our case for an you're familiar with that this is just you know a waste of time we know exactly what he did he told us what he did he recognized sixteen b couldn't be used to justify an aggravated charge she's described the defendant in the terms  application is denied we have firm would that be there and if it would be tell me why so i see my time to i don't forget policing i don't say we have to do that and you're certainly right that at the time of the sentence he labored under an important misapprehension about the law so your honor i guess the way i think about it is that if we were on direct appeal for example this would be a constitutional error and the government would have the burden of proving harmlessness beyond a reasonable doubt obviously we're on twenty to fifty five year and standards a little different that said i don't think i still think it's a question of harmlessness and what we don't have here is anything in the record saying well i'm relying on this fact but even if i didn't line it i'd get the same of course that would be very different that's not what happened no no i understand that but if he had said those words you would agree that remained here would not be required you know your honor i struggle to even agree with that because there is precedent in this court under jazzman brown possibility were required to send it back at the district or a lot of misinformation and is reasonable and then recognized sixteen day couldn't go in the sixteen bay couldn't use the residual cause and couldn't use therefore any theory of aggravated felony and still said he gets ten years same judge it depends on the facts of the case your honor i mean it's a one count case in the guidelines a law whether the law is a constitutional provision or a legal provision you have the burden correct yes your honor thanks very much and you've got your full report all time thank you well the question i have is the one that my colleagues have been asking about prejudice but the question the bridges i'm worried about hasn't been addressed yet and that is is there a prejudice because he currently is being sentenced under b two which is called an aggravated felony and if he were sentenced even to the same amount under be one it would not be considered that is that is that the the the stamp on his forehead of an extra aggravated felony for further sends things that might happen down the road for this one man crime wave he's had a prejudice well the what may or may not happen down the road is not the  issue no is it is the issue there are plenty of cases i know around the country i guess i don't know for sure in the th but there are a number of cases around the country that say that if you if you if a defendant carries a  additional category of sentence that the possibility that that will enhance his sentence in the future or make him a career criminal in the future or something else is a sufficient prejudice even if the total number of months doesn't change and if he is sentenced under the two he is categorized as an aggravated felon and that carries legal consequences for subsequent sentences i didn't want to know that that that that's the only concern i have i agree with my colleagues that i think it's almost very likely that he would be sends the same amount upon remand although i must say i'm i am a little troubled that the court might look at him differently for sentencing if the court doesn't look at him as an aggravated felon on this case but rather disses a plain felon might make a difference and i'm so i can see those two potential concerns and i guess on the other side of the coin terms of appearance of justice i i'm not persuaded that it's a very great cost to the government to get it right well  you're discussing is collateral consequences which are not the that section twenty to fifty five years is not the office for correction of was a constitutional violation you sentence me under a statute that is unconstitutionally vague that gives you your cause of action under twenty to fifty five and then you simply ask just the garden variety question  my prejudiced kind of question the courts deal with all the time and he says yeah for two reasons he says one there's maybe a difference in the way the court would look at me if i'm convicted of an aggravated felony versus not we don't know for sure that question was not presented to the district court and in spite of his recitation of my wrongdoings he did not say and because you are a aggravated felon in this case i'm going to do something so we don't know what he would say about that but then more seriously is this concern about the scarlet stamp that will prejudice me in the future so i i think it's a legitimate two thousand two hundred and fifty five issue we have to get all the way back to you do you got to get through all the other stuff but i'm just addressing the issue that we spend so much time talking about with the appellant we surely have a lot of other issues and if you if you got a quick answer to this question i'd like to hear it if you don't let's move on to the other issues well my quick answer is that is what i said before the collateral consequences with regard to the the import of the aggravate ok thank you now you proceed with your of the argument ok i'd like to go all the way back to where we're where we need to start which is what the burden is in this case in the burden in this case is st of all for the defendant to establish that the court relied upon a now defunct of residual sentence the undisputed facts in this case would support a ten year sentence in this case based upon his unlawful felony convictions and he had numerous felony convictions therefore the sense that he  serving is lawful and not only that he hasn't shown that the only basis for it but he labored under a misapprehension of law that's correct and it was a big says in the sentencing transcript in my considered opinion and i'm reading from page sixteen of the transcript and my considered opinion i believe that a variance is more than an order and i believe that a sentence of ten years is more than reasonable in this case and i tend to give him ten years and i intend to run a consecutive to the state sentence and then he says these words i just want to put the following in its context i seriously considered giving him the statutory maximum of twenty years because i know that once he's released because he's still a young man and once he's deported he's coming back here no question in my in any mind but i will do that for these reasons it's a judgment that he be committed to the mindset and with the statement that he thought this guy who clearly was a recidivist who had to be basically put in jail for an extended period of time he said i'm cutting your break i'm giving you only ten that's probably enough to satisfy our need that was a mistake and i was a big mistake so we're really asking this question of prospects for probabilities that are in round three what would he have done round one being the sentence round two being his disposition of the twenty to fifty five round three  being if we sent it back is there any reason the prospect he wouldn't do what he actually has already done how big a deal as the fact that he labored under a misapprehension of law is really what i'm asking  ten but if in fact he only could give them the maximum of ten do we know with sufficient confidence that on a rerun he would give them time so i thought your answer to me would be we know that is clear isabel all you have to do is read what he said and read what he did on round two when he denied the twenty to fifty five i don't think it matters in that because th know it's not just the amount of the sentence that's not the end of the query here it is the rationale has to be constitutional too if the court had said to this guy you know under the appropriate sentencing based on that rationale even though you were charged with that i'm sensitive ten years is not the government wouldn't be up here and say well that's fine he could get ten years under the proper immigration laws we would say it's not just the total amount of sentence it's the rationale that has to be constitutional you can't just send somebody for some because i don't like you for ten years and just luckily i think even if i did like you you could have gotten ten years that's not argument if we are in direct appeal but we're not we're here in the twenty to fifty five proceeding the defendant has the burden to show st and foremost that there was a reliance that that was all the court relied upon was the residual clause some doubt that that's when you look at the sentence that he was relying on b two that wasn't even what the question was at the sentencing hearing that's what the question at the spent thing hearing was whether the defendant we were talking about a guideline calculation and the question at sensing was whether or not this defendant's burglary conviction was a burglary of a dwelling such that he was entitled not entitled to but he qualified for sixteen low enhanced min of  as i indicated the question at sentencing was the guidelines calculation that the defendant said and that actually that the lawyer indicated to the court that he even wanted to withdraw that  above the guidelines range there was no discussion at sentencing about whether or not this was a b one or was that there was there was no you know that because the court said you could have gotten twenty years and i'm going to give you ten that proves that the court had be too in mind because he wouldn't said that if he was thinking under b one he wouldn't have had twenty years under b one and we also know that oral statements of sentencing trump any written statements so we have the kind of the gold standard here that the court was in fact relying on b to that but he says he still might be one person that's correct so that's really what you should focus on that the court made it clear that it was a b one sentence now that goes to it may be problematic we didn't have the same judge who was the trial judge if he didn't do a written order sometimes we see cursory orders this one's a fairly decent trinity fifty five water breaks applying twenty's doing yes correct and if i could have like thirty more seconds sure yes with regard to the misinformation issue that has been injected into this case we stay number one that's on timely but it wasn't the basis upon which  misinformation that the court has recognized constituted used process violation it's not what happened here we're talking about a mistake of the law the misinformation in it tucker in those therefore the misinformation is an apple and we will assert that you can affirm on that basis as i thank you very much thank you disagree with you about that that we're really confident that the exercise is utterly formal formalistic and that our in round three you get the same ten years let's just  that that so you would have to lose here wouldn't you want to twenty to fifty five because you couldn't show you couldn't meet your burden could you it the district court relied on material court will told us what he was going to do because we had this order on the two thousand two hundred and fifty five you may disagree about its language but let's just assume we would read that together with the transcript  there is no real as to chance anything would have been different if you accept that then you would have to lose you wouldn't have met your burden and there would be no reason for sending it back isn't that right if the court concluded that there was no chance of being a different sentence if you cannot show that the sentence may have been different right you've got to show some reason the prospect that the sentence would be different don't may have been different right and here it may have been different that the district court did not want to impose the maximum i thought about it i don't want to do it it may have been different and at every sentencing hearing it have far lower guideline range he'd have that maybe pepper evidence and just report not be laboring felonies is i'm looking at the p s i he was deported in two thousand and six because of a whole bunch of crimes correct he is that correct correct yes on this case is because after being deported he came back  had a bunch of crimes and he was just deported aggravate felon had nothing to do with it was a deportation so then he's now back here on illegal reentry conviction correct sixteen level enhance under the guideline calculations because the court has said that the and also the supreme court has said that the vagueness in the johnson and so forth doesn't apply to the reason enough given our case law to get it ordered i think it would be different if the district court said i'd give you ten years no matter whether this fact so that all i'm saying is if he had said let me put the question then again that way if the district court said ok maybe it wasn't to be too he's not an aggravated felony he's a bad guy here's why and i'm not changing the sentence twenty to fifty five i think would be very difficult to me notwithstanding the fact that it still would be true that he was carrying the scarlet letter of the aggravated felon in the literal sense that if you looked at if we were satisfied about that you'd lose if we have a real question about it then you win it's a simple as that yes but the record here your honor is very does not make it clear the court would give the sentence no matter what it's not clear yes i understand i've