lengthy series of seven grave injustices four times he was forcibly removed from his own homeland and three times he was convicted and imprisoned for coming back to his homeland in spite of the government's duty to prove each time beyond a reasonable doubt that he was an alien but he but but it was proven either he pled or he went to trial he did plead guilty people plead guilty to things they don't go do each time the government has a duty to all the that the court has a duty to verify but he attested to it i guess it goes to the point you were asked to come to bear to discuss because for me to get to hear a characterization of this case as one of entirely innocent has as both factual and legal problems to it st of all he hasn't been adjudicated innocent of those he certainly has iran or his court those cases have not been that the convictions have not been vacated but there is a finding an intervening finding by a tribunals specialized to address questions of citizenship which has held that he is a citizen and was a citizen from the st when did you submit that to the  i'm asking you when you say it's undisputed that's very problematic for me because imagine if they were these were state convictions would you say a federal court could just say well we've looked at them and we decide they're infirm if there were a specialized body in the state that addressed the particular factual question that was an element of that case then this court could do that but i do want to point out what case did you cite for the threshold proposition that  asked a district court to count the defendant's convictions right the actor says count the defendant's convictions up and if you get to three given fifteen years for a one point one says give criminal history points for each conviction count them up and give a criminal history score but but you know i'm sure you've researched it curtis and longstreet have both been applied to the federal upward departure guidelines context federal prior conviction leading to oprah departure that's what happened  so if your argument is that you think curtis and longstreet are limited to whatever this argument you're spinning out is that because you've now researched the law that really should have been research prior previously and you're telling me that you know th have that courtesan longstreet that suddenly federal sentencing judges are vested with the power to just declare with nothing in front of them you gave this district judge nothing you didn't even give the certification that was mentioned in paragraph fifty three the that that judge had before him the the existence of that certificate but he said these are convictions they haven't been expunged that's practically what curtis has told you it's a supreme court case it is your the government and say we need a continuance instead of creating a situation where you're asking a federal judge to vacate a conviction that that that there's no evidence in front of the judge is a nominee  of the motion to supplement that this is your authority ok that those cases permit this court to look at the record to record an evidence that has been submitted to the court  in order to determine the correctness of a sentence even though the district court didn't have that in front of it vacating a district court is not a judgment on the district court's thoroughness or or or reasonability it is all your questioning but you keep using and you didn't your brief to wrongful convictions innocence but all we've got is something you supplemented to us in november and the at you that is his birth certificate it sure makes me think that he had ineffective counsel three times he pled guilty it makes me think he may have an ineffectiveness case against your office for not continuing the federal sentence and moving to vacate it he may have any number of ways he can vacate those i don't see any law that allows you to the st reason is that cussed us and longstreet have to do with provisions that involve counting convictions and they have to do it with with guidelines three thousand five hundred and three dollars a is an open ended flexible directive that says be just how is it just to increase a man's sentence because he suffered the injustice of having been forcibly removed from his home three and convicted of a charge said they haven't been expunged he's not being unjust he had nothing in front of him but and cases that deal with considering facts that are that were added to the record even though they weren't before the district court this court can consider that in determining whether the outcome of the decision was correct and in this case the nd reason that those two cases are or distinguishable is that in both of those cases there was a provision that told us specifically the told the district court specifically when to consider the invalidity of a conviction the same the same issue and for a one dollar which is where forty one dollars says that this does not create a right to a collateral attack for the purpose or provide of dealing with forty one point one if this court is to say i mean coming in and saying i want to introduce new evidence that shows that i was in that i was doesn't even see didn't even say that he was innocent in those cases which is another point i'll get to but in those cases there isn't there isn't anything where another tribunals has said this element and oppositely if we decide you're wrong and cost us in the law just says you're wrong how can you help your client now have you thought that through well it's no one wants if we determine who defected it is sentence no one wants somebody who isn't guilty of between defenders in order to do that but we haven't been able to do that yet i will say that's good you've approached them and the nd thing you've done is what it is ask the defender has agreed to strip seek out a different district representation but i'm not sure what about the other question i had it is a tricky one for me as the government for clothes for making a custis argument at this point i guess i wish they were i don't think they are at the because i think they can that they can do well they may be foreclosed from they may be for clothes for making it but it doesn't part of you would be away with a dozen arguments or just plain error and what invited their plane are invited right and that doesn't sound correct to me and particularly i want to call your attention to t to a four in the records to put that matter to rest this statement into a for nonetheless we do object for all the reasons stated in our defense objection to the sentence imposed by the court this is defense counsel that being document number thirty two of the court file and for all  a gang member and he had a ton ton ton of convictions he had he had fifteen convictions that none of them were salt of but i did the plain error analysis on the th prong is asks us whether or not the sentence affect the public reputation of judicial proceedings to give some somebody more time leverage a prior justice like this in order to give somebody more time on the th point i want to make about custis and longstreet is that they're distinguishable because those cases didn't involve innocence those cases involve people coming to court and saying i had ineffective assistance of counsel or i had i wasn't given enough warning about the nature of  demonstrate your probably innocent or in the sense in context that by clear and convincing evidence that you're innocent is the record reflected he had counseled those prior illegal reentry guilty pleas it doesn't but i mean that's not contested i think he probably didn't up and he was a his birthright citizenship vests in him because his mother was a citizen and he was born in warheads and that's it and that that is a very uncomfortable fact about this this case is that that this problem does not happen to citizens born in the united states it doesn't happen to people who are naturalized it happens to people who have the citizenship by way of the way that he has citizenship and if we are really going to say that there are no  nd class citizens in this case in this country and that nobody can ever be deprived of their citizenship or any portion of they are there of we cannot permit people's guilty pleas you know your brief it's four pages of argument so excuse i i have to apologize to the court i viewed this case this issue very narrowly as a mistake of fact i think there are different ways to read the sentencing transcript and the mistake of fact i viewed it as and i i viewed the appellant as only appealing the misunderstanding that happened because of what defense counsel argued to judge me and that we didn't even get to the custis longstreet consider it was based on the invited error of the defense counsel really was based on as a score mention the fact that the certificate of citizenship was not provided or even read into the record and that if you look at the record judge means was asking he was trying to understand the argument and he was saying when did mr parrish come become a citizen and the defense counsel gave an answer that that showed that defense counsel the best answer he had was two thousand and five which is after these convictions i want to read that passage so there is no evidence of status in my record before two thousand and five exactly and so that's what you know judge means which is trying to understand and i think you know i know that expungement statement is confusing it's confusing to me too but my best reading of it i'm a i apologize if i was wrong is that in light of everything that happened before judge means like i don't know why you're trying to keep talking about these convictions you haven't shown anything even suggest that there was a problem with them so the critical passage for me was this went on page two of twenty thousand four hundred and five of the record and judge means as said you pointed out that some of his convictions were for illegal entry or re entry and i wonder if you know when he became a citizen i went back through the pre sentence report i thought i saw that and then i couldn't find it and then defense counsel said it's on page fifty three dollars on page fourteen it notes that he obtained a certificate  states this and ship and then it gives the certificate number and it only would have been through looking at the certificate itself but judge means would have really even understood the argument because the this and that's why i asked to see it on appeal i got it from m who actually got it from the case agent for purposes of appeal so that leads me to believe that defense counsel didn't have never seen it when he was arguing this but once you get it on appeal and once you have it now isn't contesting that those three convictions it would seem like the government wouldn't press the position here that's just my opinion it would seem like a dialogue would occur you could move our court to dismissed without prejudice to reinstate get it back down  means you're assuming there was error correct me if i'm wrong i was assuming there was an error in terms of judge means even understanding of the argument and so my assumption was if the court just agreed with me on pressing a furman's that it would remain and so th judge means in the st instance could understand the arguments see the evidence and then decide under custis and longstreet whether he you consider that he never had an opportunity to do that i don't think he ruled on that issue you haven't asked a stream and you are defending this conviction because i think invited error applies very clearly based on that passage also based on the fact that defense counsel right slow down invited error applies so when he does object because defense counsel and sentencing did object said those aren't valid i'm a citizen he somehow in fighting the opposite he did not argue that mr he did not ever clearly state that mr peerage are quite invited or means he relinquishes something he asks for the relief he gets he nowhere says these should be enhancement convictions what's your case remote like this one for invited are your best invited there i best invited their case is an analogous there is no case like this ok so then from my standpoint don't even press invited there because you've got to research this you do know or don't know if those are valid convictions my so so tell me your best plain error if you've looked at this he shouldn't have been guilty of three crimes but you're still asking us to affirm a sentence based on that if that's the government's position you've consulted with higher ups that's the position you're pressing that is not the ok are you asking us to remain yes you are if the court does not find that it greater and greater deduction and often its level and the court said no i'm sorry you said the wrong thing at sentencing and so we are not going we're going to find invited error here i defense counsel i don't think he understood when mr perfect became a citizen and he told judge means the wrong day and when i think of invited there i think of what in fairness to the district court what was happening and in fairness of this report judge means i don't think ever understood that this was the argument the argument that was the case just longstreet argument even if it's somehow and i don't speak for my colleagues somehow conceivably invited to the we would then let stand there is always an exception for invited there for a manifest injustice s i think really and this is what i should have added to that argument is the customs longstreet analysis is actually relevant to whether there was a manifest injustice because the same the factors that led the supreme court in this court and custom convictions validated and then could move to reopen the sentencing proceeding so that alone would show there is no manifest injustice so yeah mr pierce a cone is not going to prevail in the initial sentencing or even you know at this point get to make the correct argument in front of judge means but he has a  nd bite at the apple most likely i mean i can't say i like the two things the two avenues that i've identified from the case law in which he can attack his conviction or if you were still incarcerated of course he would be through twenty to fifty five dollars in the prior proceeding since the federal they were federal commissions but he's not so possibly through a petition for writ of quorum nobis and then of course he has to meet the standard for that but that is a possible avenue for him to pursue and i and my understanding of that is what is in the works now is that they possibly will they get authorization file a motion and so there is a way could be done would be if by agreement you moved to dismiss without prejudice to reinstate that brings it back down to judge means you can say the judge means reopen your sentencing he could then say i don't know if this is right or not but he could then put it off give them time to move to vacate whatever but were just given the same sentence because i don't think it's well that's true i think it's possible that judge means would still give him the same sentence because of the fact that opposing counsel mentioned that mr parrish account may not have even known he was a citizen and he was so his mindset at the time he reentered might have been that he was breaking the law and i think judge means could take that into consideration and say you know i think to me you still have eighteen convictions worth of criminal conduct in your past so i mean that's another reason i don't think this is it's really necessary for the court to reach the custis longstreet issue here although i think we'd win if you did but there's a lot that i did as you said several things that perplexed me one is why is it not necessary that is a fight on principle how that's a threshold question what there are it's your honor which i guess the st question i have once you've agreed to those two things but if you accept that custis curtis customs which is i guess just as an ass and longstreet don't allow a federal sentencing judge to make that determination then the u s government's got a lot of discretion and maybe obligation under burger as to getting the right result not just a conviction to work very collaboratively so a man might not be in jail for things that you acknowledge or no it is there's just there is flexibility that can be done by not saying you have to but you could this can be argued to us exactly as you have nearly four pages only saying invited error he asked for this essentially the complicating factor in this case for the government and really for me when i was writing this brief is you know there are consequences that go beyond this case even though i'm just going to say this is one of the weirdest cases i've ever seen in terms of what happened with mr p coming in here saying i try to get them invalidated but i couldn't but look at my state to get of citizenship and you know it would have been nice if judge means had considered that i think that would put in a different place that he hasn't tried to collaterally he hasn't tried to invalidate the convictions in the in the avenue that custis carved out for him to do and he could do that make that argument at all i didn't see it as going that far because i really believe that judge means didn't didn't have the argument before him and yet he says they're not expunged which is virtually what the custis rule is yes and i was reading that in the context of what it also happened i mean the other statements from defense counsel defense counsel just said that he didn't understand become a citizen and so he told judge means that so he didn't say his mother was a citizen he's a birthright citizen that's why i gots to pick it he said i think he's was born in mexico i think he derived it from some family member i'm not sure how it would be conjecturing for me to say and then you know the same thing that comes the closest to suggesting that mr parrish khan was a citizen when he received those prior convictions was you know he received these convictions when it turned out he was a citizen but he never said when it turned out that he was a citizen and that's on pages two hundred and one thousand two hundred and two of the record so my reading and again i apologize to the court my reading was likely very much too narrow but when i saw it what struck me was judge means never had an opportunity to consider this argument and that to me is invited error because it was soley because of a defense counsel telling him basically he became a citizen in two thousand and five after that these three convictions he has another avenue for release if he can get these invalidated in the western district of texas so this is not as difficult as us saying go to you know the state of texas and get prior state convictions validated so he can go he can file whatever motion he deems appropriate possibly of  notice and then move to judge means to reopen the sentencing proceeding and and that that's the proper are preferred avenues can't reopen if we have jurisdiction so that's certainly contemplates a joint motion to dismiss this appeal with with the can only became a citizen after the last of his immigration convictions and that he never was presented with even the opportunity consider that's the invited part but the error is what the error is that mr judge means believes that mr parrish account only became a citizen after his convictions when in fact the certificate if you read it shows that he became a citizen advocate actually but therefore the error is he sentenced and then he based his sentence strongly preferred route is invited to error in allowing them a chance to just sit on their time table go ahead and give these invalidated and then move to reopen sentencing and then they can re appeal the sentence the new sentence that judgement by good judge means gives if he if he gets a new sense like i said there is a possibility seventy seven his birthday so it was his his birthday and that's how i i knew that yes he was had always been a citizen and then i looked up the relevant statutes that come from that the way if you have a parent who's a u s citizen that you  gone now all of that's gone officer of the court he said he's got a dialogue with your office he does have a dialogue and you're here in front of us book the moment you're still pressing that we affirm the sentences instead of asking us to get this back down that's the government's position at the moment at the moment that is the government's position yes because i see a path forward through invited area where he can still get the same release but it justifies or through invited error so we have firm convictions that you acknowledge we're premised enhanced on things that are legal melodies and that's because you think in post conviction proceedings i assume alleging ineffective assistance of counsel he will prevail but i don't know the standards of you get very heavy at that stage i do that there's a possibility he would lose and therefore the government's position right now is well he's got this alternate path and i wonder whether the government will will concede and refer back to these proceedings and say we were sure hopeful it would work out for i guess that will depend on the government's litigating posture i mean and that's where your honor that i think  it's the government has to look to how to treat cases like this when people collaterally attack convictions and this is this is what makes it kind of weird is that there is the certificate of citizenship and it's so it circumvented all of the moun of evidence that you might usually have a distancing that would convert a collaterals hack into a mini trial but yes because i think in cases like this this is the best route and so this is the position that we should make and of weird often means consult higher ups as high up as you need to go so i mean you know the case burge b e r g e r that's the fundamental case for what a job of a prosecutor is i do not to see convictions but to see justice i absolutely agree your honor i take that to be very seriously and i will take what you say back to my office i absolutely i don't speak for the court i'm energetic in dialogue going to was with opposing counsel now i understand to tolerate it but i did have your job for twenty years and now says a weird case and that good could be explained as a lot of innocent oversights but sometimes it's not best to press a court too but especially when custis hasn't been briefed and parties haven't had an opportunity but anyway now i and i agree i agree and when they just report has it didn't have didn't really even i think rule on issue because i didn't see it that way yet that where you have one minute to answer his said your honor during his argument this is an up or departure it's not a variance so his reference to three thousand five hundred and fifty three dollars a obviously that's always relevant to sit and sing but the problem is this is the guidelines departure so it's controlled by the guidelines framework and as retrospect i would yes no i don't think it's necessary given by air but it would be helpful to reach it because when you're looking at manifest injustice under invited error the fact that cusses and longstreet suggest that there would that he wasn't nothing and just really happened to him because there was a strong possibility he wouldn't have been able to press this argument if he had made it correctly in the district court that is one of the factors in in fact in justice along with the ones that i pointed out in my brief thank you so that the court is clear there is not a dialogue with the western district and the government is are not a dialogue there is not the dialogue is that dialogue is over we approached the western district and they said no so the government coming here to tell you there is an alternate path and we hope people you know perhaps a prevail from that but no he just she said the alternate paths are all mine you are his new counsel if he gets it through ineffectiveness i think she wasn't saying i didn't understand maybe there was a guy like i sure hope there is but i think when she talked about alternate path she was just saying you better you better make your strickland motions against every prior defense counsel you've got that that's right and if this court regards the ultimate problem in this case as one of ineffectiveness of our trial counsel below i don't want to speak for him he's no longer with the office but regards that as the problem i certainly hope that the opinion will will will reflect that to the extent of the court deems that appropriate because we want relief for our client so as regards this court's capacity to disregard custis if it thinks it's it's a plot and it appears the rule is that matters which are not presented in the st brief waived so it is waived greenlaw now the court can disregard that but greenlaw says in general the united states in general the court rules only on matters that are presented it to it by the parties so there is nothing to prevent this court from crafting an opinion that simply says custis and longstreet might well probably do apply in the situation but because they are not presented to us but we executed preserve invited in plain acumen it's the th prong of the rd prong of each one would probably pull it back in as she sort of finished up if we were to rigidly apply those we would ultimately only give them a leave if we saw a manifest error or a miscarriage but arguably it couldn't be either if the district court had no authority to correct the problem anyway right that's so i think that ultimately her argument as to ok i didn't mention custis but you're going to have to decide anyway on the two arguments i did make well if it is a miscarriage i mean the the miscarriage is that he was the miscarriage might be owed to the failure of prior counsel to investigate his his alien inch back in the in the the eye or in the old cases it is it is an unjust outcome in this case for his prior convictions of which he is entirely innocent or conceding error seems to me they didn't press that i that to a reasonable listener would make it clear that he was saying the defendant had birth right citizenship and the consul get to that but those are in a nd but the consequence of that is that when the judge when judge means asked him when did he become a citizen he i don't speaking for him it's not with us anymore but my guess is he was probably thinking i've already told him that he must be asking when the certificate and so he told him when the certificate came which was two thousand  five and so the three things that he said were that the he had been convicted of immigration offenses even though it turned out he was a citizen not even though it turned out he would becom he told him i think and he didn't present it as strongly as i hope we hope he would but it's the heat of litigation he said that he thinks that if we he got his citizen ship from his mother that's comes at birth and he said it is as though the immigration laws have been walking him in this case and i don't see how i mean judge means as an attentive judge and that's part of the reason i think that the camp trial counsel below must have thought he was asking him when he got his citizen his certificate which is the in the question that he answered and exactly what he said he got the certificate it's not in the st place it's not invited because he didn't ask for a higher sentence on the basis of of on the basis of these convictions he asked for the opposite but he didn't even really doesn't in my opinion bear the lion's share of responsibility for the misunderstanding your seconds quick again it's not you know again i'm not advising you to i do it it didn't sound like there was no openness to dialogue from those accounts to me today there was willingness that she understands the burger decision it may be that means would give the same sentence he focused on a lot of other things but no one seems to be denying there are three federal convictions on the books that shouldn't be there to be there's a lot of room for dialogue there instead of i sure hope so and weld will start it again both with  colleagues here and that you know who i understand is a reasonable person and and with our people in the western district again but we haven't gotten anywhere so far with a lot of people a lot of effort thank