no the lake will just take it off for your time if you don't mind no i'm kidding don't do that i think you might be familiar with our lighting system to tell you how much time you have that amber light goes on and you had a couple of minutes then when it turns red kind of  finish finish your thought if we think we need more argument we might give you a bit more time but try to stay within our time limits and the first case of the morning is united states america versus luis fairly favor of impression in this circuit with regards to the first case you it's basically appellants contention that the government committed procedural error when it failed to not refile the notice of enhancement after the appeared appointment of new counsel for the defense in the filed filing of succeeding indictments and we basically contend that because this court noted in ar real quickly to see what the cases were and i was served with when i was appointed i would just there were the indictment that was then in in effect how that can happen court but given that for whatever reason i missed it the second purpose of the notices was not made in this case your plea strategy in this case when you are not the first counsel though did make an objection to the enhancement with regard to the two convictions so it was raised before it was it not it was raised  opportunity to confront the issue and the matter was reset when you did first notice it at that hearing and then she recesses when did you formally object on the ground that notice could not be done when where in the record is there  government to proffer the recent reports from the prior cases and so based on the circumstances of this case i know that the case is cold in that it's not required to look at comments that if there's succeeding superseding indictments and change in council the end the original notice may not serve the purpose and it's basically our contingent that in that in this context that's exactly what happened and so sentence well if if if if i had been aware i was you would have conferred with my client to take that into account there in our decisions and i would have offered to drop the enhancement yes they did they did make that offer but in the context of this case you're on are well first of all that the statute itself requires  notice to be served prior to the entry of the guilt of plea or trial in this court and that's and recognize that those temporal requirements are for the benefit of the defendant furthermore in this case the court had already ruled on the offer really did not cure the prejudice in the context of this case just trying to clear the rule of law you're urging is that you accept the consensus of circuits that say superseding doesn't require a refile but you  whenever there's a new council the government has to reno to use correct and your best authority for that is the best authority on that is the language in williams that says a court i mean there is no case that's what i'm saying in this impression this court this touched on it in united states v or and held that the cases there were not consolidated because there was nothing in the record to support it in this case there's an abundance of evidence in the record first of we go further in this case there's one recent report for both cases and i guess a sister circuit in that instance said that when one person this report covers all the prior cases that's also evidence and a functional consolidation and here we see that the probation officer murders the two cases and came up with one guideline range so they basically took the weight from the first case and the weight of my do want to from the second case aggregate it and so they basically merge the relevant conduct to come up with one based off into level we also see that me that the court for efficiency purpose decided to sentence and treat in a consolidated fashion but it doesn't change the fact that these were two separate prior spot amounts apart intervening arrest just separate criminal convictions consolidated report and we also have a situation where in both cases they're treated as first time offenders in the sense that in both cases he got zero criminal history porton and criminal and so it was a real sign to the sitting judge and the sitting judge is since both cases on the same day use that consolidated pre sentence report and in the transcript during the sentencing team made the comment that and the court and davis also recognize that when a defendant gets a material benefit from that merger and treatment that is a sign of consolidation and the the case simply cannot meet the separate requirements of separate convictions and so the fact that there are an intervening convictions doesn't mean the inquiry the court needs to look at whether or not there's actually separate may please the court every circuit to have addressed this notice issue has held that the government need not refile it section eight fifty one information after the falling of the superseding indictment and apologised to distinguish these cases because he came on after the enhancement was filed but only one of those cases cooper mentions having the same counsel all the way through as a supporting circumstances the other four cases do not mention having the same counsel as a as a supporting circumstance for the rule no need for refiling there is a little the oral decision implies sort of logic to that in that if we're focused on is not being able to contest the priors instead the opportunity to plead unless we sort of back it all into ineffective assistance yeah but going into the purposes of the statue arnold there was a defect in that and knows was are right he was told he was subject only twenty to life when he was actually subject to mandatory life and so but then the court goes on and cites other circuits saying what's going on what the concern behind it is then he might not have known he could plead or he should plead second purpose is to have time to assess whether to enter a plea or go to trial and an important circumstance here is that his first counsel more news is the one who saw her with the eight fifty one consideration of the possible manner of the of the of the mandatory life sentence is all factored into a year appropriation he's ready mr ijaz is ready to go to trial will be different pragmatically if if indigent initial appearance government hansie a fifty one notice then right away he retains counsel still no burden on the government so there was no opportunity to plead you know that's what more happens more often right guy comes in defendant and not on no well on first counsel on the call on the f p p that steps in for the initial appearance and then just a week later he gets new counsel and one would think counsel would always look at pacer or whatever but but i can see crafting a rule because no one wants the defendant to be ignorant for purposes of pleading out of life it crafter also that the succeeding counsel has to check the docket sheet before well that's true but you probably the government doesn't really want to be conceding that it's an ineffective maziar because you end up in the same boat then well i think it's going to need effective assistance to hear you anyway but that's exactly right that lack of knowledge by counsel doesn't relate to defective notice it did read it rather than the record show if anything to actual knowledge of the defendant and that's that's mine that's exactly my next point the record shows nothing with regard to his actual knowledge or all all of these scenarios about prejudice because not knowing about the the mandatory life sentence is completely speculative and he had that opportunity there's two sentence there's two marathon sends eateries were everything's raise the issue about what his his client lease about what rodriguez know is never raised it's never raised in the district court we know nothing about that  so that that's pure speculation but even you could even analyze prejudice on the basis of of the fact that yes he had when you're straight up to the first trial and didn't do anything and then secondly he had the opportunity he had the opportunity by debriefing to remove the the enhancement the district court statements at the sentencings don't imply the district court made a finding that the defendant had mirror in the whole colloquy it's a little unclear the court says well you knew you knew right but it's unclear to me when successor counsel and the defendant no ok are you conceding you know the record doesn't reflect anything about knowledge prior to trial there's nothing about what the fed ok if you're talking about what counsel though i separate his assertion but your second superseding indictment on the final page is clear mandatory life that's that last internal use page goes to defense counsel as well you know i can't tell you i'm sorry i can't tell you but if i came in situation very late in the game acute the defendant in this case was understood english to be up to the whole process have to go through an interpreter earth or was he an english speaking defendant do we know there's no interpreter at the trial  saw he's a united states citizen i did as i said there was a minute sentencing there's no interpreter either and he's marathon what's the government's position and when the argument being made to us was notice to subsequent counsel being efficient being sufficient but nowhere is there an objection that with a superseding indictment you must refile  notice that part of it is not objected to and you can also salman what's new about the tense but he filed objections on october thirty first and you could look at his october thirty first objections and there's whenever actual notice was given once it's good for that prosecution no matter what happens with counsel it's good for that prosecutor listen me carefully actual notice meaning you filed it and predecessor council had it and therefore that's the end of the  is it a constructive notice that any successor council has to look at pacer and everything in the record is imputed to successor council see what i mean is the rule you want us to announce that all we do is look at actual notice once or do we say successor council has constructive notice of anything in the record s unraveling because it says you had one council that council got it they could have played or not end of story constructive notice says it is important that all counsel prior to trial knew and read but if he didn't walk then i suppose that can all be dealt with it in whatever gets filed and just that the rules seem slightly different to me when there's an arraignment someone who died in the rain the enhancement that's very little very possible the first time for the first indictment he waived for the first superseding indictment he did appear the transcript of that is in the record the second supersed the rule i'm proposing judge a consent is it is just to follow the statute service on either counsel or defendant is adequate to live in said that the formal requirements of filing and service of the information are easily satisfied quote unquote like an actual notice from the government the fifty one before trial we don't even look at who counsel was it's in the record that's it it's it anyway ok that's a second issue the statutory issue of whether his prior to drug convictions qualified as felony drug offenses occurred in june seventeenth two thousand and four trying to cross the border with forty kilograms of marijuana hidden compartment the other the conspiracy is november thirtieth two thousand and five so it's it's a year and eleven the statute doesn't speak to the circumstances of a love lawyer coming in correct order we do with the only time constraint in the entire in the entire statute is that the notice has to occur before trial that's that's the only that's the only time constraint within and it's more than that if you have to serve a copy of the information either only to find out or or on counsel and you say it's appeared and in the case oh i'm not sure you are oh he was it was appointed two days after other council withdraw withdrew and then a new scheduling orders went into effect and then the trial occurred approximately seven months later after that and then when was the one with the want of notice f that if there's no more questions but on the first issue of a second issue these offenses occurred sequentially a year and five months apart there of the argument is functional consolidation but functional consolidation is a concept it's used with regard to the career offender guideline it's not used in the eight forty one b when a customer context is not used in the rejected that it was as a factual matter that it had been consolidated with the analysis was was according to barr he can't he can't meet the test of being that's correct but you know he has his argument is the doctor then his argument if you want to make it again for a no no no sir of the relevant conduct that was for conduct that he was acquitted of by the jury yes judge just said by yes but that was there was a lot of testimony about that a lot of p s r about that and he was using the same courier that he used for all the cocaine transactions same truck is i guess with i presume the court's questions about the optics and i guess one when the government moved to enhance at the first sentence in here in kilograms of money why not when it actually involved fifty so there is that objection also there and i looked at that that's the sealed opposition you file it correct but did you in it say other than saying the priors aren't qualifying did you say and superseding new counsel can't ever work did you ever make that argument in a footno interestingly during that discussion the court noted that one of the things that would be relevant to her to see if there was a merger is if the if the relevant conduct  from one case was used in the other case and as i alluded to earlier in my argument you know there is a merged prisoners report that basically  matter in in the event even the defendant that testified about the met the speaks about how he delivers it how he took cocaine and cut and then and then he he says that there's stuff left that were in the hidden compartment and he selling it so i mean all of that just indicates to me that he was acting on his own and the jury so found