has not come back to the th circuit yet my understanding is that there was a hearing on it recently but not a decision in the district court and i don't know how the court decides what order cases are decided in terms of what panel whether you'll be waiting for that the only thing that the challenge judges to decide is the legal sufficiency or here as i understand it achrekar if i'm wrong i thought there was no allegation that the judge had information from a non judicial source it was just a matter the judge having information from judicial the judicial sources i'm not sure that the issue was information i think the question was whether the bias may have come from a  nontraditional source ok but just the same i thought what happened here was there wasn't any nontraditional source you know there's two answers to that one is that under a number of cases that i cited in my brief it doesn't have to come from a no but here would it look like was if the judge had developed hostility it was toward the lawyer not the client and again just to finish my answer the st one the judge's language that he may have a bias against the th circuit yes but that's ok well but i think that this is not a bias against the defendant rodriguez is just a bias against say us which is ok there's actually a lot unpack in your question st of all i think that the bias from the extra judicial source was that he was overturned he wasn't just saying i don't like the th circuit he was saying what do they know what this case what do they know about how much he should be and that's mean by bias exactly bias against the defendant because he said it again there are so many things so many answers to what you just said he said before he even heard any evidence or before he had a hearing on the  so he said well i'm going to sentence him to the exact same thing or i may sentence him to life in prison and that i think definitely shows bias against the defendant i don't know about that you get cases all the time in fact i think we've had a couple of decisions where we said that this would enable us to resolve a case where a judge has a complex guidelines determination to make he makes it he realizes it's arguable and he says but even if i'm wrong on this i'd give the same sentence anyway so it doesn't matter i think here he didn't hear the argument before he said that he didn't hear it was given the guidelines i'm not sure how  guidelines in this case was the one that controlled because that's much greater than section four b one dollar and if you look at just the career offender i would be forced to agree with that that it was within the guidelines range although it was also extremely dark in his statements throughout all these hearings that that didn't affect not only or not not all statements it really struck me that the judge said that he thought rodrigo's was a changed man he did say that at one point but he also says a lot of other things about him again and there's all this just i want to make sure they understand your position there isn't a dispute that he is in category six his criminal histor here's the thing again there are so many that all these things are related if the eight hundred and fifty one if the california statute is not categorically the same as the federal law and if it's not visible then that affects the fifty one dollars which would affect his guideline or interest it affects the career offender which would affect his guideline range there's also the question have you calculated to see how many criminal history points he would have assuming that you prevail on your arguments because he had sixty as i see it from the record criminal history point and it takes thirteen to put him in category six so that means that it's a three hundred and sixty to life guideline range i have not made that calculation i probably should have but it all i'm saying is that these things are so interrelated let's say that the court decides that he should have recused himself and it goes back to a different judge they could decide that the eight hundred and fifty one dollars doesn't apply they could decide that the career offender doesn't apply they could decide on the acceptance issue differently and that's the part that was under seal of course and they could decide to  sentence within the probation officers recommendation which was within the guidelines of thirty years so again i wasn't able to answer all of your questions because there were multiple but they all affected each other it imagine decision overturning the fifty year sentence and i think he did express hostility not just to the th circuit in general but to that decision in the the court that but doesn't the hostility need to be expressed against the party no i cited numerous cases where that say that it can be expressed against the attorney in that that can affect the judge's attitude towards the defendant and i think that's what happened here by the way out of curiosity other that if if the case were to be remained did you you don't want to go before the sentencing judge and you also requested that you not go before stand it just strikes me that that's emblematic of the deficiencies in your claim what other judges would you not like to go before if this court were t position that there was nothing extra judicial here i believe my opponent is under the impression that you know because there was an opinion from this tribunals and that's outside the four corners of judge beneath his court and that that somehow makes it extra judicial we would say that it is and it's still a formal judicial proceeding in the supreme court itself in the tekkie versus united states so i mean i'm trying to understand that i think the extra judicial information was that add to judges on the th circuit thought that the previous sentence was pretty harsh and that was it so we're talking about are we talking about something else well i don't know i don't think it's anything more than that but again even with tech he says prior proceedings in the same case are counted as introduced although so what you're dressing is something different if two judges on the th circuit had said wow this fellow rodrigues is a really bad guy i hope his sentence is sufficiently harsh when it gets back there but we didn't say anything like that don't mean you're saying even if we had it wouldn't matter because it's not extrajudicial correct i mean my understand ok now i understand why you're arguing that you know if a judge says something in a newspaper article or sits on a board of directors where the defendant lives it is co op and says something i think that's what it's meant something having opinions forms or you know stating from the bench except in the rarest of circumstances should not give rise to a recusal motion l and i would i was inquiring to make sure that that i had it right but you're now addressing have facts that would be much more problematic for your side of the case if they had occurred and say even that wouldn't matter we don't need to get there right there are enough your honor in that even aside from the extra judicial party i know my opponent has said that he has sided many cases that hold otherwise but the government certainly isn't aware of that in here i mean there's no i don't think we need any absolute proposition do we because if you judge said there's no question that there was animosity between the district judge and defense counsel but there's also no question that defense counsel kept fighting force clients and even the tech he says in the end even for in court judicial bias to be so strong it has extent you can consider it a victory and then he goes on to say i'm not taking back anything i've said about your conduct but this is a victory for the client i feel that it paid him wise is this judge's ability notwithstanding the rank or with defense counsel to still impos judgment and you know i mean it was a very substantial reduction it was a fifteen year reduction the judge did notice that the defendant had been appear to be a different man i know there's lots of record to sixty five  dollars it's under seal but there's things in there that the district court was basically complimenting or encouraging the defendant so again zero animosity towards the the client himself and then i guess another point i wanted to bring up i know to put a lot of weight in the fact that the judge said he was going to you know repeatedly threatened to sentence him to the same sentence or even to life and i want the record to be clear on that there was nothing about repeatedly threatening at the very  st mandate hearing that's in july of two thousand and seventeen two or three pages in the judge i think you know he's thrown off a little he says look if i were to rescind some right now i'd do the same that's the only time he ever said that actual sentence w seven months later and not only that at the end of that same july two thousand and ten mandate hearing at the very end the district court says you know mr voltaire's i'll be happy to hear with what you know you come back at the time of sentencing so he had already walked even back that initial statement and as far as the life sentence every single time that comes up the court never says i'm going to impose life since all he says is if the prosecutor proves two or more prior drug convictions my hands are tied and uses colorful language like can you give me a cite that i can tell congress to go fly a kite if you know you fall into the plain language there was never all that was he could have said that ten times a one hundred or a one thousand times that's correct every single time that that's not a threat why didn't the government present evidence of more than one felony you know i think in the end just to maybe try to you know winnow down all the issues on appeal also because the alt that that my colleague recommended still fit within the guidelines i mean there have been so much litigation i mean it's kind of ironic and it was the sole reason that the case was remanded the st time around but then in the end i think they just you know he wanted to basically say if that goes completely in the defense favor our position still is that it's harmless because he's basing fence level was forty the career offender table says if you qualify you go to thirty seven dollars so you know it wasn't lower in our position is that he still is going to be a category six it was three hundred and sixty eight to life that'll still be a range so you know other than a passing reference to he's imposing a curfew under guideline you don't see anything in the record where that infects the district court's judgment satisfy that because then you have to have either a violent felony or a drug trafficking offense as it's defined but that wouldn't change his criminal history points calculation anyway that's our position and i know my opponent didn't reach the us some s thank you for the minute i'm just going to try and make two points the st is that the probation officer recommended the thirty your son's which is five years less than what was imposed and i believe that was within the guideline ways so why he doesn't have a presidential had a lower sentence and that it was within the guidelines range and that there are few if there are staff or probation officers recommendation it's like a lock recommendation for how to decide a case and again i'm not saying that it's because the probation officer recommended i i'm just disagreeing with my opponent that nothing would change in other words there was a basis for a lower sentence and that's not even including the acceptance possibility that still within the under seal thing and the last point i want to make is that the so is it is it the appellant's position then that now the sentence should be three hundred and sixty months because at the sentencing recency before a judge that's not biased and the only thing i wanted to add is that the comment that my opponent was talking about is how your efforts led to a reduction in the sentence that was because the appeal occurred there was a two point decrease in the guidelines he wasn't saying you did a great job and the one time when he complimented the defense attorney he said yes but my tongue was from lee and like cheek when i said it so i think the rancor that my opponent pocs about is clear from just about every page of the of the right thank you very much counsel for both sides for your argument the matter submitted