when a car does not follow the procedure of state an improper bases in this case the court based his the the imposed ins was based solely on a colicky of nothing about nothing other than the defendant incriminating himself and about pending charges in state court do we have any authorities that are binding that were binding on the district court at the time that would suggest to him that he was about to commit attributed to her she did not take the stand to discuss it she did not testify about her drug weight the court in that case when he imposed judgment ruled that because you remained silent would in that against you and at that time he ended up cynism her to a mandatory minimum sentence although the evidence did not even show that he drew a negative inference from her remaining silent and not incriminating judge is not permitted to tie in a conditional lesser sentence to the to the defendant incriminating is or difference between not providing a reduction in a sense and punishing somebody for not cooperating the cases at least certain cases out of circuit cases seem to make that distinction is there a difference in your mind i do think there's a difference but your i don't think that that is the issue before this court this is not a situation where mr strong had pled guilty to federal charges and stood before the judge and not further provide information about the often steps he had just put guilty to i was going to be sentenced on that would have been cooperation incrimination there everybody knows he's pled guilty he's convicted of robbing a suspect in this case this is a bank has been rocked the defendant has been charged with bank robbery not in federal court but in state court and those charges are pending and the judge knows it sorry wes she is going back to whether this is a procedural or substantive error and what your best argument for saying it's a procedural error we know that met with the mitchell involved but i don't counsel the court did not explain his chosen sentence the court did not and the court compared attempted to compel the defendant to incriminate himself that is case there is also the case so i think we actually know the standard what we're trying to do is to get a factual situation like fit into the standard subs in his colloquy with the defendant suggested and actually saying you would rather go to jail than be a snit you don't want to get time served that conditioned the defendant sentence on his self incrimination so had the defendant been willing to capitulate and give the information the court asked he would have gotten a lesser sentence that is don't you you understand that yes so the courts the court saying you will get a lesser sentence if you give me this information that demonstrates that he would have gotten it's unreasonable for him to now get the statutory  unreasonable or procedural you know reasonable it is both is both procedurally unreasonable because the court did not state a proper basis for its conclusion where it imposed the sentence or relied on an improper factor and also the court was careful in mitchell not to express any opinion about this circumstance where doing not with an inference of guilt but whether or not the defendant's silence should be held at bursley to him with respect to a sentence so do you have a circuit court opinion or circuit that holds to that because what we're talking about here is whether or not the judge acted plainly and reasonably and how can it be plainly unreasonable for him to suggest that as a result  no person shall have to be a witness against himself in a criminal case when judge baugh will continue to ask details about a criminal charge that the defendant was facing even though it wasn't from him to that ok so you're conceding that but for the fact that the charges were pending it would not be improper her a judge to use silence against the defendant well part of the problem is the question of silence as briefed by the government was about silence as regards  cooperation this case is not about cooperation the case is about incrimination cooperation is when a defendant is already accepted responsibility has pled guilty in this case the court there was information argument no you don't you don't because if he were the argument is made because he faces self incrimination if there is nothing pinning and he doesn't face something criminalization it's not it's not the same argument and we believe is procedurally unreasonable but what did butts up against is that a district court can of course take the defendant's cooperation into effect and sentencing right yes but this is not really i understand but in repast other situation ok right and that's why we're asking you is would you still be error what was happened here if the judge can certainly consider a lack of cooperation on the part of the defendant in sentencing but he has to do it so the court maybe heard on it that was not the situation in this case the judge was not asking this court the defendant to add details to something that he had already pled guilty to one and it was about to be sentenced on he was not being sentenced for drug offenses in state court the revocation hearing the purpose of the revocation hearing is to punish the defendant for the breach of trust for not complying with the court orders so it's very different for him to be punished based on not coming form with more details to incriminate himself on charges that were not before the district court let me ask you this so one of the things i guess we need to consider is whether or not that mistake or error whatever you want to call it made a difference and in this case as i understand it the guideline range was significantly above the maximum sentence that the judge could impose i think was thirty to thirty seven month guideline kept the twenty four months so why can't we be confident that in this case this error was or really did make a difference because there really wasn't much else that the defendant presented with respect to sensing that would suggest that the result would be any different if we sent it back there for makes it clear that it was it would have been different because the judge said so the judge said it so what are you going to do just take the time smart guys like you do time served you want to go to deal rather than be a snitch it's very clear that had this defendant incriminated himself he would have gotten a lesser sentence so the error was certainly not harmless  apples would be this is a sentencing where the defendant has already pled guilty this man was presumed in the poke of innocence as are related to those charges and for him to answer any questions would have only possibly incriminate him in the pending charges and maybe even lead to even more serious conspiracy charges down the road well but but the judge then says i understand your predicament but given the lack of cooperation i think this is the appropriate sentence what's wrong with that that would have been fine but that's not what happened the judge asked a lot more than that where are you getting the drugs from but he never he's protecting never and which was a good thing for the defendant but the court should not be permitted the problem is where do you draw the line here it's about fairness it's about fairness and the fact that this is the reputation and integrity of the of the court and for the court to punish someone who are not  bernard any of the problems i'd like to turn briefly first to the proper standard of review in the breach the defendant suggests that a no contest plea somehow amounts to a blanket assertion of fifth amendment rights for the rest of the hearing that's simply not the case the information before the court here was in the red in the revocation motion if they did that the defendant had been charged with crimes in state court the defendant chose to plead no contest which is essentially a decision to put the government  approve to require the government to prove its case which we did and at that point the court had found by a preponderance of the evidence of the violation number to have been committed because we did not proceed on violation and provided and at that point i suggest that any presumption of innocence at least with respect to this hearing is no longer the violation had been found the range for the sentencing was based on the defendant's criminal history and of the grade of the violation and at that point in time all that was left was the sentencing considerations at no point was there any suggestion by the defendant that he was concerned about saying something that incriminated him and in fact if you look at the colloquy between the dependent and the court what the court was concerned with the defendant was concerned about was not self incrimination at all he said i don't want to be a snitch and that is his prerogative he can choose not to give information but by the same vein the court is not required to report that and i think that in the con think there was anything improper i'm not  insane constitutes reversible error but anything improper in the whole conduct of the destruction this year i don't believe that that was fair then i don't believe that there my question ye differently because my understanding of the court's colloquy is that he wanted the defendant to do the right thing he's appealing to the defendant that this is going to epidemic is a serious problem i think that it's hard to read tone i imagine that this was probably an uncomfortable colloquy you know the judge yes but at the same time i think that the district judge is keying in on but was looking for some indication that the defendant was divorcing himself from this criminal activity and if you look at some of the things the court says i mean he says i mean how can you expect to get straight if you're still part of it now who could possibly be protecting that's anything of value and he talks about the open it up adamic that people are dying and points out that the this was the season john she was intelligent based on the facts presented to him court what if what if rather than gauging in the colloquy with the defendant the judge during his sentencing explanation said well i haven't heard anything about you cooperating with anyone and i'm taking that into account they're wrong no i don't believe that that is right and in fact i would suggest that robert i think that robert says that you can consider cooperation to the extent that it is relevant to sentencing factors such as remarks contrition removing one style from criminal conduct or seeing yourself from your connections with the criminal underworld when you are willing to share information it is an indication to the court that you are preaching from that life that you are recognizing your wrongdoing and you are trying to fix the problem that you have been a part of so i don't think that for a court to reflect on that is a problem a court may consistent with the fifth amendment reward a defendant for  let me ask you related to judge marcus question of oh this isn't a guess wasn't raised on appeal but what struck me with respect to this hearing is that this lack of cooperation seemed to be the focus of the judge's concern and at the very end of the case suggest that it isn't a problem because i mean aren't you supposed to engage with the thirty five fifty three factors the one the ones that are relevant with respect to replication literally not all of them are but he didn't say anything about any of them i think that if you look at his statements throughout the colloquy that there is sufficient information there to support the imposition of the policy statement range sentence he found the by lesions he recognised during the hearing that but for the statutory cap he would have been facing thirty to thirty seven months he recognized that the defendant was on supervised release he had thirty seven bindles of heroin two extra grams of heroin money  would you have a right this opinion and you but i don't know that you gave an answer are you suggesting that we should tell district court judges that this is a ok i would i would anticipate extent refusal to cooperate accept responsibility can be used in terms of the characteristics of the defendant his remorse his contrition his recognition of wrongdoing and that in light of the absence of binding authority the air simply cannot be plain and beyond the court could knowledge that the defendant has not met his burden to demonstrate  the guidelines range was twenty four months it would have been much higher had there not been the statutory cap although and i would suggest that what the court did sign focusing on the  recognizing the policy statement range and asking the defendant to and highlighting how can the defendant clear of this that he is not  recognizing that what he's been doing is wrong that is a sufficient basis and that there's no reason to believe based on the arguments that were presented the court would have done anything other than impose the policy statement let me ask you kind of a different question hypothetical not this case so the answer to this question will be will not be that is not the case but a case where the district judge says things that  are then we would all in our while or two of the fifth amendment you know you've got to tell you got to contest this is you you're not hurt you're just hurting yourself if you don't mean you have to do it but at the end answer and i think about what's going on in the world of qualified immunity so we're in the world of giving guidance and and acting appropriately yes and so so i put it to you you know you put yourself in the place of that the question the judge dss use the question we have in every one of these cases is how does this opinion right you haven't given us too much i am mindful of what the supreme court had said and then i got the case when they were grappling with the difficult at them i'm an issue and they go on and they say that the federal constitution which marks the limit of our authority in these cases does not guarantee trap procedures that are the best of all worlds that a court with the most enlightened ideas of students of the infant science of criminology or even those that measure up to the individual predilections of members of this court i think that the fifth amendment is a very nuanced and complicated area it's not always straightforward and sometimes the result that one might want or be drawn to is not necessarily what the fifth amendment requires and i  was a very interesting case and it don't with a penalty phase in the state of ohio and i think that most people would agree that that was not appropriate so i think that this if the court i'm here at the invitation of the court and i'm glad to be here but i think that again the fifth amendment is not so executing you need to assert it and to the extent that the court requires you over that legitimate assertion you know from the very beginning this defendant had not disclosed to source and i want my question is how did he know that is there anything in the in the precepts report of anything in the hearing or i'm not oh no i'm not aware of how he knew that i think that the judge was curious but there's nothing that i'm aware of that was provided to the court other than the revocation motion that would have set any light on statements the defendant did or did not make or any cooperation so again and i think that one case that is that i would direct the court attention to in the acceptance of responsibility type context is frazier not is a published decision of th choice which the upon his face is an incidental consequence of a legitimate government practice i've encouraged through leniency at sentencing both cooperation with law enforcement authorities and contrition on the part of the defendant so this was the authority this was the publisher authority that was available to the court at that time there was no published authority and the defendant has pointed to no published authority clearly stating that what court may not consider that as it relates to contrition remorse or divorcing oneself from something different happened here i was going back and because i think which is such a question is really thing you need to step up maybe it's just kind of out of the blue i think that the court is acutely aware of the problems that the it up adamic is confronting his community and he wanted this individual to stop being part of the problem and start being part of the solution and he was giving him an opportunity to do that and to the extent that the defendant did not want to do that because of fear of something for money so he gets the knowing about them one way or the other he knows who his supplier is but he doesn't know anything about cooperating not cooperating at least i can't smart of all this he makes the drugs himself and sell them right you know knowing that to the extent that he doesn't know anything about that i don't think that there's a problem with the court soliciting more information a fifth amendment privilege at this stage of the proceedings the judge is asking him to disclose information that could be used against him at stake or any veteran defense attorney is going to know that you know that you're starting to tree a very closely to a fifth a member privilege and yet no objections made whatsoever so what could we not assume based on fact that experienced president representing a client that there there is defender that would have been representing him defense counsel in say course we have a very experienced defense counsel is it right however for the defendant in this particular defense counsel i'm sure had to make a had to make a quick call it's very hard sometimes to figure out whether you should interrupt the judge or that the judge continued to talk to your client one of the things that happened in this case was as the judge continued to press the client did not give incriminating statements therefore an objection was not really needed at that point and i do think that the defendant attempted to now no i'm not saying and i'm saying the court should not have sent the client based on his silence and he got a much harsher sentence because he refused to give the court the information he wanted which was stop incriminating i do think that the defendant was not the most articulate and he did make a statement and in that statement when the court w are you smart yes or why don't you cooperate he says well at this point in time i feel like me not you know like my lawyer just explained to me cooperating with law enforcement was because of the simple you know i really didn't go as i really didn't condone it the judge is like you did what in then he says well i really didn't you know i didn't want to be labeled and then the judge feels in the words snitch this person is not someone who knows how to clearly articulate when to when and how to clearly articulate a fit but he certainly my lawyer just explained it to me i don't think his lawyer was explaining to him you don't want to be a snit now he followed the path that the judge gave them when the judge said you didn't want to do what snitch and then they went that way but nonetheless  axis and i think that's appropriate sentence under the relevant factors but if you tell me something tell the government something respect cooperation i might reconsider that sentence is there anything been found guilty of the violence the prosecutor says george we're investigating this drug drug ring we've talked to this defendant and try to get him to tell us who his source was so we can go further up the chain he won't do it he refuses to give us any information about his cooperated i'm going to sell some to a greater sums the normal they are wrong with that yes what the government is looking to the judge the government has to prove their case without the help of the defendant the defendant chant is not in their eyes we're talking about and some of what's the appropriate summons the appropriate sentence is not based on the government trying to get information from the defendant about other other people that they're prosecuting is that was the premise of your question look at those factors cooperations why it is one of them because it cannot be the sole reason the court is supposed to consider all of the thirty five