is both procedurally and substantively unreasonable within those arguments there are a few i guess sub arguments so i guess focusing initially on the procedural reasonableness argument we would first admit that the basis for the court's sentence in the case was predicated in large part on inaccurate or unreliable information the first component of that was an article that the court had relied upon  referenced was a cleveland dot com article was actually a five paragraph summary of a ten page state report there poured itself was never provided to the parties you got that article the morning of the sentencing hearing we were in court about to start the no indication prior to the start of the hearing it had anything to do with our particular kill and it's within the hour i suppose or thereabouts that your client gets sentenced based in part on reasoning drawn from an article s accurate however long the sentencing hearing when the court referenced its its intention to rely upon the article or consider the article in fashion the sentence then made no mention of exactly how it tied in whether or not it intended to vary upwards  downwards essentially allow the parties to do their elocution and then when they were finished proceeded to quote excerpts from the article and then also referenced other articles and studies that it had considered there were ever specifically identified or provided to the parties as indicating an increase in cocaine use or cocaine deaths in ohio and in that jurisdiction as justifying a five year upward variance in the case the article itself as i said before was simply a five paragraph summary of the underlying state report it didn't contain any information about the scientific methodology that were used any of the underlying procedures for obtaining the data and he potential rates of error anything along those lines and in reviewing the actual  report subsequent to the hearing we obviously were able to determine that there were certain in accuracies both in what was referenced in the article as well as what the court relied upon in part in basing it s objection as i understand it is that that should have been provided to you earlier with some indication that he might rely on the idea that's part of it that there was no advance notice with respect to the article the intention to be very not dance notice you could have looked it up you could have found the so that the judge knows you've got a problem so if you thought you didn't have enough time to look at this thing you should have objected on the theory that then the judge might have said ok i guess i'll give you a day and then we can come back tomorrow or something like that but if you don't then it becomes harder to reverse a micro or even on that procedural grounds on the procedural grounds and with what it what is your answer to that so i would i would submit that there was a sufficient objection after being asked boss to question there was an indication that there was an objection to not only the basis for the variance which in large part was predicated upon the article there was a request to make the article part of the record on appeal which should have been an indication that that was going to serve as a basis for you say this is you yes you say your honor to fence counsel would just make a general objection to the base variance and the issue of the issuance of the upper periods and then the words the fact that coun didn't receive advance notice says the court as to the court's attention to consider a variance that's a little bit vague as to we needed advance notice of this article just as we needed vance notice of the upper parents are you just suggesting that that's sort of built into it because that's what our problem is with or well or that somewhere else you raised the procedural objection to not having advance notice of this material as opposed to appropriate so i don't believe that it was ever specifically stated advance notice of that material it was simply the basis for the court's decision to impose an overt variance which included in large part it consideration of this article and then sort of incorporated in it to judge had enough notice here saying that you were concerned about the absence of advance notice of this article the absence of advance notice about the article as well as the fact that i guess deacon the indication of its intent to vary upward based upon in large part the article as well i mean the court i guess in context i mean the court had just read extensively for the very variance of judge adams would realize you know it's this in part at least this article that you are relying on i would think that in addition to the fact that there was a request specifically that the article  made part of the record the defense counsel made it wasn't that the court hadn't in indicated its intention to include that as part of the record it was specifically requested after the bostic objection was lodged ok d as i was indicating before a review of the state report itself indicated that large parts of the article as it related to the cocaine possession in this particular case were not necessarily  span and the statement that one dollars and one hundred nine people died from cocaine overdose deaths in two thousand and sixteen also is not accurate if you look at the table in the state court it simply states that it was reporting substances that were in somebody's system who had died of an overdose so all that it indicates at best is that one thousand one hundred one people who died had cocaine in their system it doesn't tell us whether or not that was the sole cause of contributing cause or any sort of cause what other because and i think that also goes to the lack of notice requirement not just respect to it's consideration of an upward variance but as it relates to this i think the government in their brief makes a point that you know drug overdoses and drug trafficking is harmful to the community and they've cited some supplemental cases that discuss a court's sort of policy disagreements with the sentencing guidelines is justifying an upward variance but those cases all involve situations of opioid epidemics in ohio and fenton all in heroin and so the court sort of reliance and piecemeal string together this cocaine epidemic is being a problem i would agree that cocaine mixed with fenton all is certainly a cause of a lot of deaths in ohio or opioid epidemic but there's nothing in the record in this case to savage this cocaine was laced with anything more potent than simply cocaine and in that sense i don't think that it falls in that category of cases in this distinguishable from the case that it's just this case is just a cocaine case like this case only involves cocaine it didn't involve any other so i would submit that it falls outside of that realm of cases where the opioid epidemic and how national standards haven't caught up with some sort of local policy to reserve the top time for a bottle so let me ask you before we get into that  procedurally the district court does not mention the articles contents until you're done making your argument at the sentencing hearing zachariah i believe so it referenced the i don't recall specifically it didn't go into any sort of detail about the substance of the article or how it would play into the court's consideration of sentencing until after the parties had finished and simply indicate here's an article that the court will be considering all right i think question been more given more of a chance to object to the relevance of this article is there anything in the record that in the record of this case that suggests that this judge would not be able to take fairly what he say and apply and i think that there's an argument to be made that we did make obviously that reassignment would be appropriate and i think it sort of i guess goes to i'm asking what in the record supports that other than the fact that what is well i mean i believe that the statements throughout the course of the change of plea hearing indicating the belief that they thought he was mr fleming would be a career offender subject to a certain enhanced guidelines range  coupled with the fact that that was true it was true at the time and then when it turned out that he wasn't going to be a career offender i think in my opinion the way that the entire sentencing hearing was structured would be indicative of a predisposition to impose an overly harsh sentence without the kind of insulating it to a certain extent from being able to be challenge on appeal like a normal case would be i think that's helpful thank you you have your rebuttal there from the good morning me please the court mathew called for the government the district court committed no procedural errors and certainly none that rose to low level of play an error that is required for most of the errors that they cite here for their procedural objection how is it not procedural error to  give this stuff to counsel you know with no notice and then expressly rely upon it upwardly very to a significant degree to put somebody you know in prison that much longer i mean how in the world is that not procedurally under rule under rule thirty two your honor the court can rely on information outside the prius are if it provides it to the parties in advance of sensing that was the one of the or they have to have a meaningful opportunity to respond and respond to the information is meaningless sec can't go look at the underlying story and see if you know the twenty six year old reporter for the cleveland plain dealer or something is accurately described the scientific  findings in that study they had no chance to to do any of that if they had an objection they could have requested additional time they could have said your honor we need more time to review this article we'd like a half hour recess we'd like you to continue it for a day they didn't so at a minimum we're under plain error well and they haven't demonstrated that would be our position they link to the underlying report in their reply brief the data in that report is entirely consistent with what's in the article the report thinks so and they didn't get a chance to argue it before you know his client got sons the data in the report says the number of cocaine related overdose deaths rose significantly from six hundred eighty five in twenty fifteen to eleven hundred nine in two thousand and sixteen and that's exact argument that should have happened in the district court and has not happened they hadn't or he gets sentence the core inform them at the outset of the hearing it intended to rely on this information but they he doesn't even he doesn't even read the article he walks into a sensing hearing and the court tells him i'm going to rely on this document which is trying to summarize a much longer technical document i'm going to rely on this five paragraph document when i sentence your client in about forty five minutes i mean does he seriously i mean does this counsel have a chance to to read that thing and to make the argument to argue the substantive points that you're now saying about whether it's right or wrong we believe they do your honor this was not a link this the way we do it in federal court is that i mean really if this had been a much longer article and much more in depth the data and the defense had objected to this i'd be inclined to agree with you your honor this was a two hundred two hundred fifty page article that can be read in a minute or two the data in it is not that surprising that there's been an increase in overdose deaths in ohio he disagrees that cocaine alone as an overdose source for lack of a better  term that that that this article that the underlying study supports that i mean let's say in the district you come in and there's an article and it's about how  you know some scientific study that supporting shorter sentences and you get that as a government lawyer and twenty minutes later the court is sentencing the guy to two months rather a range of fifty one minds i mean would you would that be ok with you i mean is that ok with the government if that i don't have enough time to review consider and evaluate the article i would have asked the court for more time  not really interested in whether it's plain or i'm just talking about whether the court was procedurally unfair and we can deal with the standard for you later i think it matters how why does an uprising the report is how lengthy the report is how difficult the information in is it to digest i think it depends on what type of information is provided well i mean mr nema sect made a pretty reasoned argument here at the podium which he didn't get to make in the district court about why it is wrong and the article mis characterizes and so on i mean that it would meet the standard you just laid out well and his criticism of the article viz i view the report is inaccurate he argues that the report actually says there's been a decrease because there was a decrease in non sentinel deaths he equates non fentanyl to cocaine the report frankly i mean this is argument that should be happening for the first time in the district court not here and think it's beyond me how in the time he had he could make this argument or counter this very argument with everything else going on in the sentencing hearing i just wonder why doesn't the government just confess  here on the procedural point i mean this is so far adeline unless i'm really missing something well if we don't see it that way your honor we don't think there's anything in rule thirty two that requires a deadline for provision of this information if this were a lengthy article if this were a twenty page article they couldn't possibly have gotten through i would be inclined to agree with you this this article was two hundred fifty words if they had a problem with it the court specifically told them at the outset of the sensing hearing it intended to rely on it if they had a problem with it they could have asked for more time and they did not it's fair to presume based on that that they had no issue with it it's not really in dispute that we're having a drug crisis in ohio that we're seeing i guess the subtext i take from judge catholic is question is does the government apart from your totally understandable obligation to defend the judgment in your favor by the district court understand that doing it in a capable fashion but apart from that interest is there any other interest that the government has and just not letting the district court  review this case this sentence based on this article after there's been a chance for the other side to attack it in front of the district judge base and i don't have any interest in  mean there's no public interest in favor if the court wishes to remain free sensing it certainly can do that we think they were given that opportunity when the court at the outset said this is information i intend to rely on when imposing my sentence in giving each side as much time as they wanted or needed to argue in the defendant enough time to allocute the court didn't even mention the particulars of the article and what the court thought was important about it until after defense counsel had finished his primary presentation the court put its statement of reasons on the record after allocution yes doesn't that make it all the harder i mean he has to go completely against the grain  of the the way the hearing is structured to to respond to the extent that he would theoretically be able to to the court's points about the article when a district court is imposing its sentence it's not it's not a matter subject to open debate between the court in the parties any time i've gone to a sentencing in that quarter or any other district court in in the northern district of ohio when the judge begins putting his statement of reasons on the record you don't interrupt it and against you here that i don't i mean he didn't even get to hear what the court thought was important about the article before we get into the statement or reasons thing where you don't want to interrupt the court told him it was important at the outset of the hearing by tell him why you know particulars i mean what we do here is not just going to affect this case it's going to affect cases where you might be the short end of this sort of thing and i mean and so we have to think about you know how do we want sentencing proceedings to go in the district courts in the circuit and it just it would puzzle me if the government wants district judges in the circuit to be able to serve counsel with some  document that is trying to interpret a longer more complicated document to serve them with that document at the beginning of the hearing and then rely upon that document in some kind of significant varian upward or downward in the sentencing before you have a chance even to look even to look at the underlying document he never got a chance to look at it is that is that what the government is asking us to ratify as a practice in this circuit yes or no no your honor ok but then why do what you don't want to i'm fighting it is because if they had an objection to it this is as judge rogers pointed out a procedural error they had an objection they had an obligation to raise that objection and they didn't do so the court had no notice they wanted needed more time if i may have i mean if this isn't if the error is in plain here it's hard to see where i mean us i mean u three years ago the org has to give the defendant a reasonable opportunity to respond to the information i mean this is just this should have been obvious without whether he pointed out which i think fairly you know he said the basis of the variance this was largely the basis of the variance i mean this should not be a surprise to the district court that this is an issue on appeal it sounds like you know unfair court this could have been cured if they had said something to the effect of we'd like more time to review this cured i mean that would have been the perfect way but i have some sympathy for the lawyer who gets this in is frankly you know pretty surprised and is you know you have an argument prepared i mean it be like you know you have an argument the basis here was there's been an increase in overdose deaths that's not unknown this court has said on numerous occasions even on appeals from judge adams where no such report was provided to the parties in the ford case and in the williams case this court affirmed up not an increase based on cocaine as the statistics from the state of ohio that they link to in their report clear in their reply brief to the report are entirely consistent with the newspaper article  big effect on the satins not if there was not if the underlying report is entirely consistent with the article which i didn't make that decision here we're not i mean i'll be speaking for myself but we're not going to and i'd also point out for the court that i forget it was earlier this week i think it was last week the published case of robinson that this court issued it was the same report that the scuse me the same article was provided by the court to the parties this court affirmed the sense in that case  o this court another panel this court had no problems with so it was he was same judge same article it was provided a published case it was a published case from last week we cited it in our second rule bench and tells the parties you know i've provided you copies of an article that you provided them one other thing and i intend to rely on it in sentencing and again he buried upward same article you're so we don't believe that there's any plane error based on that i don't remember a fentanyl i believe robinson was functional not cocaine but i am not one hundred percent sure on that your honor but the the other issues that the defendants raise we don't think have any merit either the court specifically said on several different occasions that it was not considering the career offender guideline and that it was not something that drove the sentence in this case and again there was no objection so it's a plain error standard of review the district court's conclusion that this involved interstate drug trafficking was entirely based on facts that were admitted in the p s r that if it was driving a car from michigan presented in michigan driver's license said he was coming from detroit and was found in canton with the killer of cocaine in this car alternately the one hundred twenty month sentence was not unreasonable it was a variance it was a significant variance but given the defendant's four previous drug convictions to drug abuse to drug trafficking and his violent crime he h ad a flow nice assault conviction for she served a seven year term of imprisonment we don't believe how far ahead of the hearing in robinson was was for the two reports that were given  to sentencing is what i was not appellate counsel in that case so i don't know from my review of the sentencing transcript in robinson it appears that the exact same procedures were used your honor but what we're bound by is the facts as described by the court are just briefly i would note as a point of clarification as your honor just indicated the robinson opinion and again i was not involved in the case but the opinion specifically states the two reports relied upon by the judge or provided the parties prior to sentencing similarly in the ford case the opinion notes of the court issued written notice is a variance to its intent a very bold defendant prior to the sentencing hearing so i would say that those are distinguishing characteristics there are several of the distinguishing aspects of those cases notably both cases involve fenton all of methamphetamine heroin and opioids in ford case again this case did not involve any of those substances getting back to the issue of defense counsel could have asked for a continuance if it doth that it needed more time to repair and i think the court's well aware of the circumstances at issue at that particular time but this is you could also have been avoided had the district court is given notice of an intent to vary prior to the hearing or simply provided the parties with the article and or report in advance and indicated an intention to consider rely on it and the district court is charged with ensuring that defendants are afforded a reasonable procedure one that gives them the opportunity to adequately address and confront any arguments or considerations that the court may have and i just don't think that that was done here so well in hindsight we can say that defense counsel could have asked for a continuance and perhaps that would have resolved the issue i think the same could be said for getting some sort of additional or advance notice in this case not only of the all thing that you didn't ask for at the time and specifically you're saying maybe that's partly because you didn't know what the stakes were well at the time of receiving it didn't necessarily know what the intention was or the nexus between the article and the hearing itself but also yes did not know that the court was intending to base its decision primarily upon the article on the information contained in the report  f the court has any questions about the remaining issues or arguments i know thank you very much thank you both for your