july st two thousand and eighteen hearing which was supposed to be the sentencing hearing but essentially resulted in a status where the judge told the government that it was dissatisfied with the evidence that was presented wanted to sentence my client to something that reflected criminal punishment based on more than the ninety eight grams that was accounted for in the p s r b s hard on objected to the government forthrightly told the judge about problems that i had with regard to the evidence  possession the credibility of its witnesses the inability to corroborate information that the judge would apparently want to have to impose the higher sentence that the judge wanted to impose nevertheless the judge told the government that it was continuing the did and in doing so the judge in my view set up red flags because the judge just post presided over an impartial proceeding and when you were giving one party directions to go  accumulate evidence to tell the court where the defects are evidence for some of the witnesses so the judge doesn't rely on that too much to then have the government present witnesses which it was not going to present at the july st hearing to present documentary evidence which was not presented at the july st hearing and the judge ultimately relied on all of these things to impose a sentence that was not within the thirty three to forty one month but it was a one hundred and twenty one challenge the evidence if i thought i could get one of these three members on this panel to bite that argument i would have made it in all capital letters the standards of review and action that we accord the district court judges puts me in an enormous hole i'm  now i think it's different because we don't have reliability in credibility that we're allowed to record in the district court judge because we don't have those sort of assessments under four hundred and fifty five dollars that we are inspectors assessing things based on what the reasonable person or well informed person would be in the courtroom that day and that essentially for you to get that where the judge says that we're looking at a witness right because after the next well thinking how to distinguish this case from some of these situations the judge asks a witness questions and or an answer and realizes that the party actually has a better theory available to them than they indicate in a pretrial conference or something like that articulate that for them look at x date information that's considered at part the same proceeding that continued and then developed and glossed over a judge or jury trial to a pretrial conference where the judge in essence redirect the part you know way that winds up hurting the other opposing party but may lines ok well then let me throw a hypothetical from the other direction here the parties presented a plea agreement to the judge you're a criminal case the judge looks at the he concludes no crime has been committed and should the judge do something about it made a judge do something about the face of justice would be an interesting angle there that's far cry from here government saying before the judge intervened here to tell this guy who's ready to plead guilty that he's actually not committed a crime at all and he ought to go free and maybe and i can direct you to a case in the southern district of indiana where this happened in the judge directed the appointment of a new counsel to develop the arguments and resulted in dismissal of charges well i think again that is over the line i don't think american since it is either judge the court is entitle to raise subject matter jurisdiction and so it would be similar to that but this is very different from this it be in my view more akin to if the three judges here today would say i think that you had a good argument that you messed up on something argument or direct supplemental briefing i've been on rather end of waiver issues judge but i understand the point and yes i would like the court to be fair always but the thing is i think that the court in this instance was championing something very overtly for the government and i don't think we're go back to me well informed reasonable observer in the courtroom that day for all of the folks who would've been there to hear that i don't think they could do anything i don't think  often as a compromise between so called charge charge sentencing system and a real offense sentencing system compromise so what should he do you suppose you're the district judge you make your record based on what the evidence is to support the upward variance and you impose a sentence based on that judge that's been the law for a long time now the judge had that power available to him i think judges like to operate the safety net of the good morning david rinehart for the united states of the district judge did not act impartially in this case he didn't have a duty to or he was simply trying to get to it just an appropriate sentence in that case the judge was concerned offense conduct didn't square up with the guideline range in the end that fence conduct was substantial he wanted to make sure that ok i want to make sure i'm properly addressing the guideline range so we took a step sought further clarification from both sides is pay what can i rely upon in this case what is reliable in this offense conduct and what is not because in his opinion there was a mismatch he wasn't out for this defendant all his opinions were formed during the during the course of the litigation in this case and there's no deep seated antagonism work favoritism which is really what is required i mean this isn't that rare case there's no extra judicial things that are in this case it's far as i think there is one where statement asserted by the fence is that the judge ordered the government to go out and collect more evidence all the evidence methamphetamine that was already set forth in detail in three paragraphs and then the government called the witness to establish the reliability of that evidence and defense got the opportunity to vigorously cross examine that back of this we are we are confident we could actually support it's in the p r story that's not reliable and so on very pretty close personally correct i think a lot of that had to do with trying to quantify in a guideline range some of the evidence like these things and that's why we had the discussion with the judge in regards that because he clearly saw that hey this is bigger than just ninety eight grams of heroin and when not going to take the approach that mr gillis proposes that is disparities with with other defendants you know since an understatement of the severity of the two hundred dollars i think that certainly could be done but i think the court was still concerned about what can i rely upon as far as  one hundred and twenty one months originally then then where's the prejudice in this particular case against the defendant i think the judge the bottom line is that you are expected reasonably properly and nowhere and furthermore we don't have to show deep seated in taxes that's not required we have to show under the statute that a reasonable well informed of person would it perceive that the judge was not impartial there that have to show under the statute the other things are much higher burdens than we should have to bear and they're not the statute says so if i may also say that the evidence was not just in the p there was additional evidence it was forty pages of evidence from the testimony of ms pereira so we can't say that it was all before the judge and the judge had already committed to and that we don't have to show that the testimony was anything more than the forty pages show that it was additional evidence the judge relied on additional evidence in several places if he hadn't continued the sentencing hearing past july st this doesn't  come the record then doesn't support what the judge's conclusion was and it doesn't matter that he could get one hundred and twenty one month sentence we're not contesting that he had to walk who authorities don't pose sentenced to two hundred and forty months  consider for the purpose of imposing an appropriate sentence certainly there i find that to be not an issue in the case we accept that's true the government puts that in its brief the problem is that while the court can consider the information presented to do anything about that interesting because i think that this is kind of a hot topic in the th circuit where there's a district court judge who's rejecting three minutes between the parties based on some of the same perceptions and so i interject in to make a record about what he thinks there are that's lurking behind the scenes and he can establish that to impose a higher sentence do it to do it within the confines of three thousand five hundred and fifty three and not to do it as he did here because this doesn't do much that or to say something that we'd like fair notice the judge is going to consider those things so there's a district court judge was before kept a chart and it was sort of a secret chart apparently we don't like secrets we would like to have sunshine in the courtroom and for my client to know that information judge