you mr chief judge may please the cord the district court in this case refused to allow mr landreneau to withdraw his guilty plea after repeated assertions of innocence and despite the fact that the government never argued that it would be prejudiced by withdrawal then mr winter no was sentence based on two unsupported guideline enhancements specifically a distribution enhanced men and a pattern of abuse advancement that more than doubled his guideline sentence and increased it by approximately ten years the st issue in this case is whether the court should of allowed mr sentencing should be construed live really in favor of the accusers we know we look to the court factors the st two car factors in this case assertion of innocence and prejudice to the government are clear up till sentencing knowing he was going to lose acceptance of responsibility points which added about five years to his guidelines sentence so knowing that he continue saying i'm innocent i want to withdraw my the court cut him off during the hearing on this he started to explain his factual innocence the magistrate said to him on page one hundred and twenty two dollars of the record it's not going to make a difference to me under these factors moving to the prejudice issue the government never even attempted to argue prejudice then in a unsupported finding the district court said the government made  general assertion of prejudice we can comb the record in this case there's no argument about prejudice to the government so those are the two strong issues that support withdrawal of the g argument in the district court to explain why he wanted to withdraw his guilty plea my response to that your honor is that he still tried to withdraw before sentencing ok he if he made the or he explained the reason why he did not voluntarily plead guilty because he was under duress the government didn't have any response to that either really so i think just on the totality of the car factor and explaining the reasons why he wishes to withdraw his guilty plea and it's before sentencing where we were we construe the rule in favor of withdrawal i think on the totality of the car factors he should have been allowed to withdraw his guilty plea where's the tipping point that's my issue with this is dinner review is not with we might have done something different but abuse of discretion we had a full airing out of this he gave his reasons use of description and we have to link in the order to give you believe we'll certainly on the prejudiced factor here are where as i said the government didn't even argue it in the district court  and it's at page seventy of the record says the government that made a general assertion of prejudice i've what i've read through this record many times the government didn't make any assertion of prejudice so that would be one of use of discretion the nd one would be the the courts use of the wrong metric in terms of the time table at that hearing mr winter no explained he tried to withdraw his guilty plea two weeks before the motion was actually filed so based on that the court should've should have given him those two weeks as opposed to all the way up to when he filed the motion so that would be a  that the court relied on a bare arrest record to enhance mr weiner no sentence by five levels that added about seven and a half years to his guideline range i would like to address that we know this court has held that a bear arrest record is insufficient to support a sentencing and hansen look at the p s r in this case all it does is recite a bill of information on pending case in louisiana two pending cases of a bare arrest record this court has held is the date the charge the jurisdiction contains no facts underlying the arrest that's all this is and in this case the p s r cites a bill of information which by the way is just filed by a prosecutor in louisiana doesn't even go to a grand jury so some prosecutor made this allegation writes out an indictment in the court relies on that to increase mr weiner knows sentencing by five levels about seven and a half years under the guidelines why do we win on this issue i would cite to the williams case and this is not in our briefing but the size is in the you your honor unfortunately i discovered it last week preparing for argument we do cite the extensive law of this circuit about their arrest know it's helpful i understand your honor and i certainly apologize to every one of the the williams cases that and dykeman it is error for the court to consider an indictment as evidence  the sentencing calculus and indictments merely a charge it doesn't constitute evidence and indictment standing alone may not be considered in the sentencing analysis that site again is twenty two f th in this case more recently johnson this this court seven johnson which is cited in my brief that a mere arrest is quite quite consistent with innocence so after mr winter no objects to this sank this is a barrel rest record it doesn't prove anything about whether these events actually happened probation comes back with a response quote probation relies on not sufficient to impose a sentencing enhancement or the considerate sentencing what should they have brought they could have brought office reports affidavits officer to testify but said i think he described one of the witnesses testimony which was the mother of one of the complaining witnesses in this case as quote incredible and gave no credence to it i don't think that's in dispute here i think the district court  honor but you still have to put on some facts beyond the mere arrest and that that's all we have here is the bare arrest record and the allegations in the indictment which are nonspecific it doesn't even give a gender of the complaining witness it says male or female it doesn't give the alleged act that occurred it just gives broad terms that tracks the statutory definition of the crimes charged i think that's completely insufficient under this court's precedent with the court's permission i would like to also address the nd issue which is the distribution and hansen which was based really on one sentence in the p pornography there's no information on whether this e mail was addressed to anyone where it was located whether it was in the outbox a draft e mail folder certainly if it's in a draft e mail folder that would indicate he didn't intend to distribute it he didn't make an attempt to distribute it to counsel objected he did your honor and specifically i can find you a si says he said at the sentencing hearing page one hundred and thirty seven of the record there was no attempt ever to email this he was practically jumping up and down in his p s r objection saying we've never seen this email or produced the e mails the government has a rule sixteen obligation and discovery to produce any statement of the defendant for some reason that didn't happen in this case so we have the bald assertion that he made an attempt to distribute this material and nothing else we cite the nervous where case in our reply brief this was a drug enhanced mint case and the court reversed or the court found an error it was harmless error on the basis that there was nothing corroborating that allegation of the drug amount in the p s r with that i see my time is concluded but we asked the court court but i'd like to start by reframing what we're talking about here when we talk about the sentencing what was before the district court was not whether this defendant was guilty of a crime beyond a reasonable doubt but instead whether it was more likely than not that this defendant engaged in certain contact that supported the enhancement and what's before this court now is not whether this the members of this court would make the deceived decision presented with the same evidence but instead whether the district court's view of that evidence was even permissible even plausible and it was plausible then this court has said it must affirm under the clearest interview preview so when we look at the distribution enhancement and that's a little bit of a misnomer because what we need here under the same handsome it is just possession of the child pornography with intent to distribute we can look at the building blocks that were before the district court from which it needs decision we have the pre sentence report that articulate the cyber tip that came from google through a statutorily established system to the authorities in louisiana and the authorities in texas who ultimately apprehended the defendant the district court  reliable and it does have the indicia of reliability that this court looks to when this court asks whether district court can rely on information in p s r there's a known source there's an established system and this information was that mr landor knew or somebody using mitchell in a news e mail address had uploaded eighteen files of child pornography including child pornography involving very young children to an e mail which is a means of distribution  know when these law enforcement officers get to mr landor know and they say this is what we've discovered we don't have a denial we have a confession which has been mentioned in the opening brief the reply brief and the opening argument mr landor knew confessed and officers he admitted that he had been downloading images of child pornography from a specific website that he named and he said i get excited when i look at that so what you have here is somebody who is admitting to possession which is the beginning of what the enhancement requires possession with intent to distribute and then you have the cyber tip that establishes the intent to distribute by using this e mail as a means of distribution and with all that evidence before it the district court who saw mr landor know face to face who saw the case agent face to face could plausibly determine that mr landor known engaged in an attempt to distribute that he possessed the pornography with an intent to distribute applying that same standard of review to the pattern of abuse and hansen what we see is that the district court had before it more than what was in the p s r and more than the charges there was an information there was also later indictments so there was a grand jury that looked at the this information and decided that there was enough merit in these charges to move forward with them but the district court had even more than that the district court did hear testimony from defense witnesses but the district court didn't discard everything the defense witnesses said the district court said that those defense witnesses denial of the outcry by these two young girls that denial was incredible given all of the evidence before it mr landor knows confession and the district court's assessment of the witnesses in person in the in the district court's courtroom  what was undisputed is that two young girls mr lantos daughter in a family friend went to police saying this man has sexually assaulted me that the police question then that one of the victim's own mothers questioned her and denied her reports and that they persisted and that the police having investigated this and believed them decided to go forward charges a prosecutor said to go for chart with charges and a grand jury decided to go forward with charges not only that but we had confession that he had these five hundred and ninety two dollars images five hundred and ninety two dollars images of child pornography and he got excited by looking at them that can only add to the district court's calculus here in saying that it is more likely than not that mr landor no engaged in this conduct now just to clear some of the underbrush here there there is has been no at any point issue about will sixteen in this case has never been raised in the district court it was not raised in the opening brief here and therefore is waived as we mentioned one of the footnotes of our briefing and in addition i just wanted to know that  district court can rely on hearsay under this court's precedents including malone and there's no rule that the district court has to have all of the underlying documents before it that's an implicit him alone and council mentioned all of the evidence that was before the district court senate saying that includes the testimony from the two witnesses that the defense brought that includes the facts that the defense counsel at sentencing but i didn't  friend both of those things were mentioned in the pre sentencing report that's what the probation officer cited in response to mr landor those objections but the district court had before it more than that when it ultimately resolved the objection it heard testimony from witnesses and it disbelieved those witnesses denial of the reports by these two young girls in addition there was a proper by defense counsel see there's are these are facts conceded by defense counsel at sentencing where defense counsel conceded that were mentioned in the pre sentence report in the district court was all of the objection to that if it's meant at a sentencing hearing and all of the evidence that i'm telling you about was evidence and the concessions factual concessions made by the defense counsel in relation to the objection to that enhancement the district court is not bound to just go on what the pre sentencing report says the district court can do that if the pre sentencing report is reliable and sufficient on its face but the district court didn't do that here the district court heard further testimony on that point and when the district court did that the district court could rely on that testimony in the actual concessions by defense counsel at the sentencing hearing and that's what resolved the enhancement enhancement is not for a charge of the enhancement is for conduct and that conduct a district court found by a preponderance of evidence that said it was more likely than not and that was a plausible view of the evidence before the district court i'll move on to the guilty plea if there are no more questions  his sentencing enhancements and it's important to recognise that this dinner review here is not only an abuse of discretion but that the district court has broad discretion in making these decisions there are seven factors as were was mentioned that that  this court looks to in assessing a district courts exercise that discretion and at the very outset we can take three of those factors and put them in the column of holding the defendant to his guilty plea that have been it has never innocence is not enough by itself to have a defendant withdraw a guilty plea otherwise withdrawing a guilty plea would be an absolute right this court explained that in car on top of that i have to return to the defendant's confession the  could look at everything before it when it resolved the motion to withdraw the guilty plea and see that we have a definitive here who confessed to law enforcement before he came into contact with any other in me because he made this confession we need before he was even  arrested just when he was detained by law enforcement and gave a voluntary statement he confessed to downloading these things himself from a specific website having five hundred and ninety two of them in that he enjoyed looking at them he looked at these images to rouse himself so the idea that he came up with all these things just because some inmate suggested that he needed to plead guilty doesn't make sense under the timeline we had then as i believe was pointed out in the in the st part of this argument we have the defendant's statements under oath at his guilty plea hearing the district court that decided the motion to withdraw the guilty plea was the same district court that accepted the pl and that district court had a chance to listen to mr landrieu affirm again and again under oath that he was guilty and that he was pleading guilty for no other reason than that he was guilty turning next to the prejudice to the government the district court did not say that it was weighing this factor in favor of holding mr landor no to his guilty plea and what it said there had been a general assertion by the government it said even if there had been a general assertion that would not weigh heavily so this was a factor that the court found did not help either side and that was correct under this court's law and in fact under this court's decision in gray even if there had been assertion of innocence and even when the government cannot show prejudice still that does not permit a district defendant to automatically withdraw a guilty plea i also want to address the issue ok anything else and mr leavitt would have been permitted at that point to explain further if you want to also that was the hearing before the magistrate judge if mr landor no felt he had been cut off at that point he could have objected to the district court and said i have more to tell you about what's going on here but he didn't do that he didn't raise that turning to the rd factor of delay the district court called to delay just under four months because mr landor know at page sixty seven  record and his objections to the matter judge's findings said that the delay was just under four months that was not a contested issue in the district court but even if it has been as we point out in our brief the difference here is between just over three months for just under months and under this court's cases in car twenty two dollars days in harrison which i believe was five weeks in gray which i believe was four weeks in each of those cases this court said that those periods of time were too long to allow this  to to weigh in favor of the defendant and the midnight case which the defendant has cited both in his opening and in his reply brief doesn't stand for any other proposition and mcknight that had been it went to the court the day after he pled guilty and mcknight does not say that the district court got the calculation here of the of the delay wrong in even if it had this court cases suggest that anything that the district court got wrong about that calculation wouldn't matter given that there were three completely you look at the timeline again here you see that the defendant pled guilty swore he was pleading guilty only because he was guilty and then once he got the pre sentence report regretted his decision and went back to the court actually even several weeks later after receiving the pre sentence report and said he wanted to withdraw his guilty the last factor that i'll hit just briefly is knowing involuntary nature of the plea and i think for the reasons i've mentioned his under oath statements the fact that he had  confessed the fact that he was a law enforcement officer and should have known better than to rely on the advice of other detainees all of those points to the district court correctly resolving that factor as well so level in the hands sure let's start with the two girls reports which are undisputed that this is meant mistral internews daughter and mr andrews friend's daughter that these two girls there was testimony that these two girls went to the police that they were interviewed by police and that they were even question by their one of their their own mothers the girls persisted in those reports of sexual abuse despite all of that questioning despite being questioned even by in one case the girl's own parents and once the police had indisputably investigated this these reports the police went forward with the charges and a grand jury on top of that remember this is a person who has conceded that he is excited by looking at images of child pornography and not just any images of child pornography because he didn't contest the enhancement for having sadomasochistic images these are images of assault of young children and so's the district court could weigh in this calculus way in terms of finding plausibly that it was more likely than not that mr landor knew did this that this was a person who was excited the court had in the in the is a response from the probation officer saying well the bill of information is sufficiently reliable with no additional information about the cases and restitution requests in the p s or testimony at the sentencing hearing was put on by the defense this is the defendant's evidence that discrediting the allegations including testimony from one of the complaining witness as mothers saying i don't not credible so to come back on appeal and say that supports this enhanced man is just is wrong it's contrary to the record of the government's argument about the defense's argument about what the girl claimed her i'm baffled by because of the government's brief page thirty one it says the district court properly disregarded this unsworn argumentation quibble with the government's argument that  put government meet your burden we are challenging you to meet your burden put on evidence that this happened that's both with the distribution and the pattern of abuse and handsome and the government despite getting a continuance comes