to that extent we're from a weak case i think you're familiar with our lighting system long as you have a green right to run free when the yellow light comes home again to bring your argument to a close and then when the red light appears finished on some s and you do have a readout on your side now that shows you how much time you have left and i remind you that rebuttal is for above only go first case u s b washington and we hear first from m this is an unusual case the defendant was originally sentenced back in to forty six months in prison the sentence was they catered in two thousand and five by this  one the barker vs wing speedy trial issue which this court has held that the speedy trial clause of the sixth amendment applies all the way through a sense the second issue that we've raised on remains and i raise on behalf of mr washington the question of whether the mandatory victim restitution act is constitutional in light of apprentice because i do not think as i read th statute that there is any way for a defendant to be exposed to rip a restitution award under that statute without factual findings by the district court specifically the district court has to release so i think he's not subject to supervised release of this point on that particular conviction and i think you know frankly i think the government makes a good point on barker versus when go with respect to delays and set and say you know i don't like when you're dealing with a convicted defendant that you want to undo that convection they can't the conviction the most that i think you could do would be to suspend the rest of the sons argument is precluded by circuit precedent isn't it it i think that it is and i said that in my brief saying no we can't do what you ask but you preserved i guess  that's correct your honor now that the one thing that i think is a little unusual about this case under the n b a already is that the conviction was only on the intro it offense of general conspiracy and under eighteen u s c three i think it's constitutional i think you're up your unpublished opinion eliot said that the rule of oriel orderliness that this court follows should generally apply in situations like this and i don't see a basis for distinguishing this case on the ground even though it's a very intriguing argument i'm not not that it's i think you're bound by your prior panels contentions but i do think and i want to make it clear i really do think that those are wrongly decided cases and there's no question that on the in my mind after reading the statute the district court just has to make those findings by preponderance before the defendant is exposed to restitution ok so couldn't really give relief on the sentence and therefore the fact that the same sentence was reimposed doesn't affect the prejudice analysis but i'm going to challenge that assumption i mean it seems to me the district judge is an honorable person and if the judge had been persuaded that had a i think there should have been a lower sentence but of course now i can't do that i think it would be incumbent on the judge to say so but by reimposing the same sense and saying i find that's the right sentence why don't we give deference to the district court's own statement i would have done the same sentence and anyway in assessing prejudice i mean you're basically saying the judges line and i'm not sure that we should somebody to last time but there's more than pleasing cation here that the judge indicated i wish i could of i mean we see judges all the time say my hands are tied by mandatory minimum my hands are tied by this circuit my hands are tied by everything under the i see nothing here in fact i see the opposite i see the judge said indicating that this is the sentence he would have imposed you know five six seven years earlier had this happened as it should that i don't believe he actually he had to impose a sentence that he had because based upon the time served and so in that the court didn't actually make any view point at all as to what their whether there had been prejudice or not that's correct ok and where's your record authority for that i mean where does the judge indicate that that that he then he felt that he would a lie to impose a look you know if we could go back in a time machine he would have liked to give a shorter sentence but now couldn't do it and say that no he didn't say that he and i'm not saying that i'm saying that i believe that the the record shows that the judge reimposed the same sentence and really didn't have an opportunity to consider booker at all or the impact of booker because the defendant had already served the time speculating that it would i mean the problem to me is that on the prejudice plan you have to show he would come out better among other things i know you have this argument that you know serving time under an vacated says i mean i get that but in the sort of real life prejudice the real life prejudice would be sat in jail longer than he should have and if he shouldn't have if he would have spent that same time had everything happened that affects a prejudice in us maybe it's not the end of the road for you and i see nothing here that indicates that the judge wanted to give a shorter sentence but just by practicality couldn't and i am you seem to want to assume that and i don't see why i would assume and i understand that the government's arguing it's speculative just as your honour's making that argument my point is what's not speculative is that he was denied the benefit of the mandate there was no ability for the portal reconsider its initial decision because  time had already been served and that has nothing to do with whether the judge was acting in good faith or not it's just a matter of fact it was impossible to undo what's been done and that's my point we don't have to reach the prejudice problem do we know in the sentencing context given the guidelines and the importance of the guidelines even after even after they've been rendered non mandatory having of individuals who can testify to your good character et having people come in and you know especially in light of the fact that we now have a ruling out of the supreme court in pepper indicating that subsequent  re sentencing a timely reset and seeing gives the defendant the best opportunity today to present his character his his is good faith etc in this case well i think there is something to that i know that he was heard subsequent conviction and that that you know obviously is not helpful facts for me but the truth is this guy has really turned his life around he is supporting all the people in this family as i've indicated here and i think part of the reason the judge didn't frankly slap you with more time was because he was impressed with the fact that  is that case law there isn't any in my view clear guidance about what to do on how much you import barker v window which is dealing with the guilt innocence trial into not just an original sentencing but a recent  after of a caterer for booker etc etc there is not a lot of guidance about how much of that do you import into the sentencing context later i would say this when you've got a guy sitting in prison it's pretty pretty important to get t resentencing done on a timely basis to me that's if anything the very critical when you've got somebody sitting in prison and the supreme court has said that any amount of additional time has sixth amendment significance you know  i wish his lawyers had told him something about the case i did i don't know walk well that's another question i have is he says my lawyer didn't tell me do we have any evidence  diligence and he says he didn't know any relied on his lawyer to tell him that his lawyer didn't tell him we don't typically take the defendant's word for that at least we get the lawyers position and if they disagree then it's a credibility finding from the district court if they agree then fine you know and mr record just may have made a mistake in all that but it seems kind of like a big deal as a defense attorney to just ignore your client to that extent that he never gets three sentenced and i understand generally defendants don't have an obligation to go ask for me sensing but when your clients in jail or prison or whatever you should be pursuing and i mean again it's to your benefit to pursue the sentencing not like when somebody is out and you say well let's not leave sleeping dogs lie so do we just take mr washington's word for this or should there be a record developed as to what happened well one thing we know for sure you are he sat in prison quietly and ser will to miss a happiness that arnie's office in implemented any policies or procedures to make sure this doesn't happen again i don't know whether or not a specific communication or policy went out with regarding to  the usa or to the u s attorney's posse i believe the policy is that if sixty days go by they will notify the court but even unfortunately even with the best care and the best training mistakes happen and the constitution allows for mistakes and so the question here is whether this mistake rises to such a level as to deprive the defendant of his constitutional rights and they're justified therefore justifying the dismiss conviction now on what he saw are a pretty so for the first time washington is now saying that he's not arguing to get rid of this a firm conviction he's only wanting to get rid of his restitution award but what's interesting about that remedy is that the rest is that doesn't address at all the prejudice that was a caused by the delay the restitution award would have happened regardless of whether or not there was delay and you know that because there would have been a hearing he might have brought forth witnesses about what the victim impact was or cross examine the witnesses and all of that in a more timely fashion we don't know what the in the are a word would have been in the first if you would have been done in more timely basis well i mean the district court found that it was outside of  wouldn't have been addressed in resentencing first of all but secondly washington doesn't even dispute the actual underlying facts of the victim's loss or anything like that he's just disputing the constitutionality so the writ the mandatory  restitution award would still have been there even if he had been sentenced on time what about if there's no prejudice requirement there there has been presumed prejudice in certain pretrial delay cases no court has ever applied the prejudice in this context with the delay was post conviction and post deferments of the conviction so this court would be the first to ever apply that presumption moreover the reasoning behind that presumption doesn't really apply here because the reasoning behind it is  just as judge davis was saying generally over time the presumption becomes stronger that there is some sort of evidentiary prejudice that witnesses memories have dimmed the documents have become unavailable but there is no danger of eviden prejudice in this case that it's a post affirm and of the conviction so no danger to any evidence reproduced regarding the trial if it ends and washington doesn't allege and there's no indication that there was any prejudice regarding the sentencing evidence as of all issues regarding calculation of the sentencing guidelines were already resolved and decided before the delay even occurred and as far as mitigating evidence regarding a person's character generally by nature that is not evidence that erodes over time as it doesn't recall  doesn't require the memory of a specific event but rather just someone's understanding of the defendant's general character and person moreover washington actually used the delay to his benefit at recent thing because you argued based on facts develop leniency from the court so there's clearly no evidence or any indication right now what is your response to the whole you know i had a lengthy dialogue with your counsel opposite about what we are to to take from the fact that the judge reimposed the same sentence and whether that is because the judge felt his hands were tied or whether that is the sentence the judge thinks is the right sentence with or without you know mandatory guidelines and you know sixty seven eight years ago that's the sentence this mr washington would have gone what would it what can you show me in the record of what can you point to you that would support the notion that this was the sentence regardless of when it was  judge james you're absolutely right on that point governor griese with you on the district court said that the seven forty six months ends in the sense that it found to be appropriate after considering all the sentencing factors and that it was not greater than necessary i'm sorry what is the answer well i'll speak for the government and we presume that the district court knows that it meant what it said when it said after considering all the sentencing factors and that are required by statute as to section thirty five fifty three factors the appropriate sentence in this case is forty six months we presume that's why he meant it when he said it and we can assume that by saying that what he really meant was that a lesser on the life and the court found that the late cause washington no prejudice and that finding is entitle discourse deference as well moreover the record well and that finding could have been made if the judge thought that he was and that mr washington was entitled to a lesser sentence but felt constrained not to get it he couldn't find also find no prejudice from the dilemma because obviously that would be the definition we all agree spending more time in prison than you're supposed to is it was prejudicial absolutely well in that case the court did not presume presidents and actually sound prejudiced because the district court actually said if you i didn't censor earlier i right not have given you any time at all so the court actually found that you the defendant was prejudice it didn't presume prejudice and here there's absolutely no evidence of prejudice so you're just trying to the difference tween just presuming prejudice without looking at any of the facts of the case and looking at the facts of the case and finding there would have been a different outcome that's the two dichotomy the dichotomy you're looking at and your position is that there's no case that's ever been just said there must be prejudice based on time in the post you know post conviction or permits  maybe not a zero in a lot of cases but at least in some cases a come and go and you have at your precedent going to the supreme court and agreeing with the defendant that we should be reversed and i kind of like to know that in advance because well we can't go against circuit on at least a few occasions where the u s supreme court has had to appoint someone to defend the for circuits position because a u s attorney won't do it having asked for it that's a fair point your honor i'm not prepared to speak for the office of what their at the outset i'm sorry to say that the more reason for the presumption of prejudice that after a long delay like this a year which is very difficult for the for the party  prejudice is evidence or a prejudice well now i don't know that the education that's the only reason i've never seen it applied when that wasn't the reason and it just of the rationale or the justifying rationale behind it right and that's also one of the rationale and it's it's the idea that as it goes on it's hard to show that the wait time has eroded evidence and so in addition to that it's much harder it's a harder burden to ask the defendant to do  addition to the fact that naturally time does that evidence we create this presumption when there has been a long a long delay in the in the pretrial closure is another reason though that we've talked about a presumption of prejudice in the case law the speedy trial x requirements that it's not just if they did so that the presumption can be applied in order to teach a lesson for lack of a better word that it's a i don't want to say it's punishment but that reason and why it shouldn't be applied here well if it's to put teeth into the speedy trial act that's that's a separate act is that it's separate from the constitution that creates obligations on the part of the government and that has no teeth in the efficient and minute strain of justice regardless of whether it's in the speedy trial act context or in the general constitutional status did you want to address that and why that's not necessary here i've assume you're going to say that's not necessary here that we don't need to do this to teach a lesson or to put some teeth in something which you like to elaborate on th e i would say that we don't need to do it here because the constitution doesn't require it here on the sides whatever policies whatever they want to make the constitution doesn't require it because it doesn't need to factor tests here and most the most important factor in this case is that there was simply no harm when we're talking about an intimate innocent mistake a mistake nonetheless an innocent mistake that caused the defendant no harm the constitution does well that's kind of important too that it was a clerical error as opposed to intentional conduct on the part of the government which might need to be punished or teeth put into it or you know something of that nature i mean the truth is clerical errors are going to happen and i but that should be some stopgap i mean it's not that it went past the sixty days and went to one hundred ninety days by accident eight years so why shouldn't we use this case as if it's one of these ones where we put teeth in it i mean mistakes happen and everyone here dropped the ball which yes the government the buck stops with the government but it does make it a little more understandable and we do want to hold people accountable to their mistakes is when it causes harm but when it doesn't here is the direct it is just too severe especially when you're who you're punishing for this is really the victim of his crime who had no responsibility whatsoever in causing the delay doesn't make sense the buck stops with the government that's right so in closing although the reason singularly in this case was unfortunate and regrettable it did not violate washington's constitutional rights given that one washington failed to even exert minimal effort to find out the resolution of this appeal let alone press for a speedy resentencing to the delay was accidental and promptly remedied upon its discovery three washington suffered absolutely no prejudice from this delay and for the remedy he serves only to relieve him of the legal obligation that he would have had regardless of the delay and to punish the victim of his crime who is in no way responsible for the delay so for all these reasons the courts to from the judg addressing the presumption of present prejudice issue one thing i'd like to point out is i mean this defendant served the entire term of imprisonment that was originally imposed on or a vacated sentence in my view in that situation we should always presume prejudice because once you've done that you can't undo the time served that's the the point of just his back to the thrashing about a how much we believe the district court in saying you know this is the right sentence but i don't want to you know suggest that the district court was not acting in good faith but i just felt that the district court is hands were tied i mean what what is he supposed to do with no indication of that and we do have judges who say my hands are tied and i wish i could do something different with minimum senses and all kinds of stuff but that that we have to assume that this judge is an honorable person would not find that the delay did not cause prejudice if in fact he wanted to give a lower sentence and was unable to do that by the practicalities of time the cases i've seen her on or where the word the district judges say that their hands are tied views really relate to you know a lot of those cases where when the guidelines are mandatory or when the the law provides that they must and but how can it be consistent that the judge would have given a lower sentence if the sentencing recent sing it happened sooner and the judge's finding of no prejudice how can those two things be squared the same judge well your honor i i think that the the judge found no prejudice but didn't i mean you have to understand that number one the judge ignored i just think that the judge was saying that you can't be prejudiced because we're going to set what the judge said was we're going to send some based on the facts as they existed at the time of the syringe in the sentencing which i don't think is consistent with what the a judge feels about a particular family not just so speculative because under that situation then the judge's statement that look i consider this i've looked at it as if as if i did this in two thousand can or whatever and this is the sense i give we're always going to assume that the judge is lying that's your position and it just seems completely inconsistent with the general deference we give district judges in the belief that there are good people and don't go around saying stuff that isn't true i'm not saying that never happens and i kept i'm just saying that's not the presumption that we have we don't assume that like i say you're i'm not saying that that's what the district judge did here that he's lying about what is feelings were anything like that  answer that's not in front of us well court has a question i do have a question the very tail end of what she said was you know we had this discussion about sort of presumption of prejudice as a way to sort of put teeth in punish the government if you will for its delay and all that but then she said well really you're punishing is the victim here because all that's left to do is vacate the restitution and one serious or two that the victim is certainly not at fault for this whole debacle i think the supreme court has answered the paralyzed case it's held that the rest of to sion is both there while there is a compensatory element to it there's also a penal element to it and this defendant is under that just punish the victim who now doesn't get the restitution and i don't think you're just punishing the victim your honor for one thing the court upholds the integrity of the system the one which i think is important and number  two you know i think the government's probably going to hear about it from the party that doesn't get restitution and i would think that the public pressure to make sure that this doesn't happen again is significant  number of the defendants pled guilty and they were also ordered to pay restitution but i would think that with respect to mr washington just cutting his obligation to pay the balance of the restitution is what payment of the full amount we know how much you go how much you've been paid i asked that your honor and it is in the record although additional payments have been made since then but i believe it's in the neighborhood of sixty thousand dollars