please the court counsel my name is and tell a fair and i represent the appellant in this case karen mclachlan miss clip miss mclachlan comes to the court with the overriding complaint that her sentencing was fundamentally unfair and the unfairness was the consequence if you will of a number of colliding factors and procedures that took place and it resulted in a sentencing procedure that was unfair and a sentence being imposed without consideration of information of all the information and all the factors that are required for a sentencing court to take into consideration the unfair sentencing procedure began we have alleged in the court when the district court was unwilling to continue the matter for a brief two to three week period of time and it was a continuance that was genuinely needed trial counsel in the case was admitted and not fully prepared he admitted that he had not provided the court with information crucial to the sentencing with regard to miss mclachlan's medical information that that came up on the day of the hearing correct that the council was not prepared but the motion didn't mention that well was there a motion to continue gas or the date if there was so have motion but the motion didn't say anything about counsel initially correct it was just about her health situation so so the sentencing was initially set initially set for sometime in march i believe and counsel initially filed a sentencing request to continue the sentencing saying that she was having medical issues was having surgery she'd been dealing with the step infection for a very long period of time so please continue the sentencing that was set i believe in march for a six to eight week period of time so that so that and set it for a sentence or set up for a scheduling conference so that at that point they could determine what her medical condition was was aware of the medical the court was aware that she was having medical issues at the time in june when he wanted to extend it further there was a doctor's letter that said there was no surgery imminent right so approximately correct approximately a week before the scheduled may th sentencing date counsel again requested permission to continue the sentencing for a brief two to three week period of time because he had not been able to ascertain her full medical condition it is true that there was a doctor's note that indicated she was not going to have any new procedures but they were still trying to deal with the infection she was also starting pretty she couldn't walk she didn't have strength but she was also starting physical therapy in that motion that they have all of that new federal penitentiary they have pretty good help hospitals well that is true but but the reason that situation that they were dealing with in that motion of course he could have done that months before well i don't know if he could have done that months before about a week before the sentencing he was still trying they were still her her medical situation flux so when the but she'd had this hip surgeries and infection since two thousand and thirteen and she had and the infection would increase then it would be ok and they would have a surgery they would put in a spacer they would take out this and at the time of sentencing her temperature was down at the time of sentence and there was a doctor's letter and and the district court pointed out that they have medical facilities federal prison and that is correct i would also point out however that the full medical i mean again they the doctors indicated that she wasn't going to have a current surgery but they were still trying to figure out her infection and since and this isn't a record just with regard to the docket her medical condition has worsened which has required that is she still out of she is still out because the court has stayed or not stayed the sentence but suspended her reporting because goes not only to her ability to to appear at sentencing goes not only to her ability or or the b o p s ability to take her but it also goes to a perhaps a variance because some courts have found that it is you seymour's question doesn't the fact that she has a bit obligated to sit to report even as of now because of this ongoing consideration of her medical problem conclusive evidence that there was no prejudice continuance based on the inability to know her better status at that time well and i would i would say no because the reason for the continuance wasn't only because of the medical issue on the on that point although i mean that's which are about i realized there were several argue ok but but with regard to that part of your argument for a continued and i would indicate no because because yes she has not reported yet she still has a ninety six month sentence hanging over her head and had the court fully considered her medical issues perhaps that would have been a reason for a variant was it ever argued to the district court ever well he but the i think the problem that i have with that argument is the defended his counsel is specifically saying judge i don't know that the current status you could be very severe i'm not prepared and he never with the the next statement and said and if the condition is really bad that my provide some additional grounds for a variance there was a it always it was she might be too weak to appear at the sentencing and we don't know as you pointed out we don't know if the opi has adequate medical facilities but he never argued that as part of his ground for continuance that there might have been some additional ground for a very and i agree i agree with that what i'm trying i obviously can't make it ineffective assistance of counsel claim right now this is not an this is not an i c claim but what i am trying to make is the indication that the court knowing the trial counsel was not prepared knowing that there was not full medical information before the before the court knowing that trial counsel wanted to file additional information by way of a motion from vari court would not grant just an additional small to the variance i understand the trial counsel didn't do a lot of things that perhaps trial counsel should have but i can't argue i see on appeal knowing this information though this is an abuse of discretion argument based upon the fact that the court knew that there was certain information not before it and it's not enough of the court to say well i'm just not going to consider that because this is information that needed to be considered and i just itself did the council object that sentencing to the factual basis or to the court's explanation for the enhancement you know so we're on plane air review or are we on a waiver well i would think my argument to the court is that is that the government has the burden to prove this six the six level enhan sentencing the government said we're not going to do it we believe that there's and we have the evidentiary burden we are not going to fill this evidence or a burden which did not make the district court happy it did not make the district were happy at all counsel joined i guess into the objections of that enhancement in writing so so so the the application of the enhancement itself was objected to on the ground that the government didn't  and says look it's upset at the government for having not done that and proceeded itself working with the pre sentence report and the materials that had been provided objection to the procedure that the court used to get to that determination there was there was not an objection to the procedure in the court and but your your argument appeal is procedural and reasonable so where are we in terms of how we were reviewing this issue a couple of answers to that the court had already trial counsel was already in prepared the court had already said no more continuances we're going to go forward with my procedure then kind of without notice quite frankly because the government has said we're not going to present evidence on this without notice the judge said ok if you guys are going to do it i'm going to do it myself the trial counsel absolutely did not say hold on a minute judge i'm objecting i'm procedural grounds however he had already objected to the application of that six levels  i would just i would point the court to have a case honestly that came out last week it's united states versus aragon and the issue in that case is a little bit is a little bit similar here because because in that case the court took evidence and it was somewhat similar because the parties had agreed not to apply a certain guideline and the reason presented additional it or even present that it additional evidence and the district court said it's my responsibility find the facts so that court specifically question the parties that court took evidence that court continued the sentencing hearing and gave all parties the time to deal with the situation this is a little bit different because kind of out of nowhere work where counsel had already requested a continuance the court out of nowhere kind of said well without notice i'm going to do this ok could i just so you're making  procedural unreasonableness argument could you be more specific about what the components of that argument are i mean you've got i know in your brief you talk about the government's burden and shifting the burden  leaving those aside the other one i just i'm hearing now is lack of notice it would be one of them so what what what what exactly you're asking us to reverse on procedure  by doing that by by not making the government uphold this burden it basically shifted the burden to the defense to i guess objects to the facts objects to the evidence object to things and you can't shift the burd when there's being an enhancement apply when it was the government's or what's the court's supposed to do if it thinks the government's dropped the ball and decides to work with probation and whatever else it can do to court took evidence there was still a procedure in place when there was no evidence taken here there was the victim's impact statement statements were sworn they were attached the pre sentence report in counsel for the defendant put on the receiver very wisely and asked a bunch of questions the the receiver well with regard to the victim impact statements really what they were i mean there were some that were victim impact statements a lot of what they were checking the box saying i ha been financially harmed the government was correct when it said this this requires a case by case victim by victim analysis to determine the there's several factors that the court has to look at in applying the six level know i honestly don't know if there were twenty five what i know is that there were a lot there was a there was a chapel and there were twenty five doesn't that support the district court's conclusion that there were twenty five or more victims who were substantially harmed but i think no because i think that the court has to victim by victim just without looking at certain i understand there are certain statements but but there has to be evidence put on factors reliable evidence that can then  doubt there are twenty five that are sufficient there may have been twenty five that were sufficient i don't know that at the time the court stepped into the role and became the advocate for the government i understand that the court was concerned i see that my time's up can i finish the statement please do i understand that the court was concerned about this this the nature and the a what she called the egre of this crime but instead of stepping into the role of the government and making their evidentiary burden she could have dealt the court could have dealt with that by various so doing so by doing her discretionary variance and fastenings senates as opposed to you stepping into the role of an advocate and meeting a governmental burden that is what the issue is here thinking and i think that's the way they are the issues the question arose as are the standard of review because there was no objection below no challenge whatsoever to the factual basis for the enhance excuse me rather than a legal matter we run into the cases the say that point that factual matters are not reviewable for playing air and that that is a species of waiver there is no question about it  and that doctrine is to largest extent dictated by practicality if they didn't develop the factual record below we don't know what the challenges were to the factual basis the judge didn't make rulings there is nothing for this  else but so there's an least an objection to the enhanced moments that's true why why isn't that enough to enable them to make the arguments they're making now because an objection needs to be specific  and this this well actually this objection was specific it simply didn't object to the factual basis for the enhancement it said that we're recommending a lower sentence the government wanted sixty five months this enhanced mut if the government there wouldn't there in a factual basis for the enhancement in the p s r there is a right and if they're objecting to the enhancement why doesn't that objection extend to whatever the factual basis was for the enhanced because they didn't say that the prosecutor just said i'm not going to pursue this issue because we didn't anticipate it in the playground that was the basis of the objection i mean the logic of it from a certain point of view the district judge did not care for it one bit the logic that's quite quite planted the prosecutor saw no profit in pursuing a hearing to try and present evidence to support a higher sentence and the prosecutor want that that's the reason and  prosecutor didn't said there is no basis never said there wasn't a basis for there is no defense counsel certainly didn't do that so no the p s r finding was not itself objected to but the twenty five dollars plus victims would require additional evidence beyond the victim impact statements and the government was elected not to put on additional evidence in my right yeah regular there is a statement along those lines of  the prosecutor was saying well what we need to investigate i think is what she said and we need to present evidence and we're not going to do that and so in the appellant is presenting an argument that  boileau relied on the victim impact statements and the attached declarations from the victims and saying essentially that was iranians and it sounds to me like well the government was acknowledging to the district judge that the evidence that judge or quayle ultimately relied on was insufficient for the enhancement but you know just bacharach prosecutor n i'm just trying to get it but i thought that the prosecutor had said you know we with when the judge is really pressing a usa so you know we would need to present evidence beyond the victim impact didn't allow for this and handsome and so judge i'm not presenting the evidence and i'm not going there that was what the prosecutor was thinking and she did it it's clear from the record because she felt that that was the right thing to thank you it was fair and i just follow up along the same lines here and i'm looking at the senate's transcript and so the cork points out that the government obviously was not pushing for the enhancement and then took it upon the court took it upon itself to address this in debt and said that it and the court the probation officer conducted a victim by victim analysis they looked at the the victim impact statements they said all sixty three victims indicated they suffered significant financial loss so forth and so on and went through my to quite extensive quite extensive but then but then said  wasn't that at that point after the government had gone through the analysis why wasn't that an objection to what had just happened another words at that point we don't just have the pre sentence report we have  governments analysis of the enhancement including victim impact statements and then there's another statement about the objection why didn't that preserve issue are you referring to its best counsel statement but it's the government's objection your the court had gone through the the substantial financial loss victim enhanced meant evidence so why at that point why why wasn't there preserved is referencing what what happened before and the and we have to look at the ground i mean in place well is it really the core don't lie hard in the court turn to defense counsel it's that mr hammond you may make a statement for the record at this point after the court had gone through all of this yes but he just said nothing to challenge the victim impact statements or the court's reliance on he just referenced the fact that well it's a government's objection i mean that's practically all right all i understand your argument but  if if if we if we were to get past that why was the court's approach here procedurally reasonable because it was based upon sworn statements attached to the pre sentence report do see no basis for arguing factual well you say you say in your brief that the court made the detailed findings based on the victim impact statements but i didn't see anywhere on the record here that the court pointed to a specific victim and said this victim suffered financial hardship it was more of a global well we have these victim impact statements and in we have we have this information and  financial or twenty five where there how do we know which twenty five they were you don't because i didn't object well i'm serious that's not a flippant i'm beyond i'm beyond the objection point i'm just asking what was the court supposed to do to be procedur reasonable had there been an objection let's get past the objection st nd let's get to the merits well let's suppose there are better objection and we will speculate what if they said there are really twenty five that's an obvious possible objection then the judge could have said ok let's go through these and you can well into the government look if the government that had assumed the burden wouldn't the government have had to go through these in the st instance and said it's this one this one and this one prosecutor didn't want to go there and so the court stepped then in place of the prosecutor when the court have to do that the court didn't have to do a but the court had a right to do it and we can mean that the court didn't have to do it doesn't that doesn't there have to be a basis for depending on a particular when it comes financial circumstances well yes there are numerous it might be hardship to one person isn't a hardship to another person you have to have a finding on that there are numerous factors that are required to be considered there sat out in the guideline in the court was record the court findings were asked to the number and to the nature of the financial hardship they were detail they did not identify the individual victims but those are identifiable from the record in this that there is we really cannot fault the district judge for not providing more details when there was no objection below to what she did well if the government hadn't provided details and no one else did house because the government below didn't want that enhanced i understand that but whether it comes from the government or comes from somewhere else don't you need a factual basis and particularize findings to impose this enhanced you certainly do in our honor and we have that here and we do have that here how do we do that to the would we have to go back and kind of piece through the record to make that determination no just that would not be appropriate because you're a court of appeals and you don't do that binding on the band would we have to re man so that somebody would do but i'm asking whether we i'm assuming that the objection is preserved should this case be remanded so that an adequate record for the enhancement can be made no judge because the current record is entirely adequate it was not objected to and or cannot be faulted this court has no obligation to go to the pre sentence report  use well you're back to the you're back to that and that that i understand that argument and i've asked you to kind of move beyond that you keep coming back to the argument let's assume for the sake of discussion that the issue is preserve are we after that if you shoe were preserved then we're still under a clearer standard which is an extremely high standard and they have presented no evidence whatsoever in the briefing nor do they present evidence below that would impeach in the slightest bit the factual reliability of this they haven't even attempted to surmount out a preserved standard of clear air but if actions are is it really clear error though if if what we're talking about is the appropriate way to establish the basis for this enhan it's a procedural error being alleged here not in here in a factual determination trying to get at how the court got to the facts will determine if i understand your up your position judge your findings about the number of victims and whether since the financial hardship was substantial that was never made below or that was never preserved we're back ok i understand that you keep coming back to the i understand that point you made it multiple times but not sure you're answering my my question even if it's preserved just matheson there has been no argument from the defense in the briefings that the clear or standard has been met by them they have done nothing whatsoever to try and attack the victim impact statements were the factual basis therefore there is no basis whatsoever for remanding this case and i would respectfully and trying to do the best i can judge and i think that you're imposing a greater requirement than the guidelines in the law and poll of with regard to findings and that argument was not raised in the briefing if there is any requirement beyond that i think that was i think there was an argument about the victim impact statements whether checking the box enough i don't i don't recall any challenge actual challenge to those i didn't i don't know that it was factual i think it was i think they were they're making a procedural reasonable  that based on the record before the court there was no challenge to these victim impact statements that the court's findings are entirely adequate and that the that issue was not raised in the briefing so i didn't have an opportunity to look at any further case law about how detailed they need to be but i don't know why they need to be more detailed when they're not challenging that it was twenty five or that it was financial hardship or that it was substantial because they have not challenge that i would respect