we moved to the seventh case this morning u s versus johns h may please the court counsel again my name is daniel horowitz i'm a federal public defender's office and i represent michael johnson mr johnson is raising a single issue on appeal but we need first to get to the prospect of an appeal later there was six months of continuous comatose state so he was not a high functioning individual need pendent greatly and with the government's representation for and after the change of plea colloquy the government specifically in this is at government appendix a page thirty eight informed the court that mr johnson is quote reserving the right to appeal the substantive reason that reasonable this is the term of imprisonment that bound the government irrespective of what and to the change of plead with the understanding that he could in fact preserve the right to challenge the subs to be reasonable this and that it had been preserved your respective with the plea agreement said the government through it statement about what was represented in the written terms versus what was done through an oral modification and it wasn't there wasn't their recess taken after that statement because of some collateral issues and then you went over the entire pre sentence with your clients i don't know if it was you somebody else on in the district court judge went over the entire plea agreement again with your client and determined that he understood everything thoroughly and then everybody went back on the record and patched things up he understood everything that includes with the representations were by the government i don't have any record on that we don't have any record that there was an understanding it reached about a modification an oral modification you know a meeting of the minds and oral modification only what was stated of record there's nothing that comes in and says your honor we misspoke he did not preserve this issue we need to clarify that and so forth but the record reflects that the defense counsel went over the entire written agreement with the defendant during the recess that was taken after this misrepresents misstatement it wasn't willful misrepresentation there is no evidence that it was a misstatement of the terms of the written agreement and then when court resumes a record was made that the defendant understood completely the terms of the written agreement so there could not have been a meeting of the minds on an oral modification if that was the case i'm not if that not the chronology your honor adequately states the chronology it's just i think it assumes that there was a correction made in the understanding that was reached some contrary discussion that incorporates somehow something between counsel and the defendant that the government misspoke have and preserve this issue and you can't go forward on this in the that of an appeals that's not in the record i think that what you've laid out adequately states the chronology in what was said but i don't think it takes into account that at least for purposes of my advocacy on behalf of my client what the government did to bind itself in this particular case they did not undo that modification coming into court and saying to the extent you are that we said something that was contrary or we said before these preserve this issue has not would like to make that of record as defense counsel agreed i don't find anything in the record shows the government did that and these are important things these are pleading in particular plea agreement with  disabled individual league remits come with them due process requirements and that the government's going to make representations and it's going to represent the government's interest and has to live with the things that it says in the agreement that it makes even if it is either a misstatement or something along those lines my client is entitled to have the benefit of that and he is asking for that now i think that you deserve that given the lack of completeness i'd say in the record to dispel what this error is by the government use curiosity given your claim then would we have now the mountain to climb of a substantive and reasonable if this is a just a step to give you an ability to climb that mountain yes but it's important because if we are going to have the huge majority cases be determined through plea agreements and they can be written or oral we have to as a matter of due process insists the government i mean as the times that they make that's fundamental and we're upsetting that if we allow them to say one thing in a written agreement something else during the change of pleas colloquy with the understanding that this now is a material change that allows him to preserve one thing that's difficult enough to win and then to pull the rug out from under him in the appeal they filed a motion to dismiss the appeal they've now asserted waiver which they can waive instantly but they're insisting on it and we think that they are bound by their party's representations in the court and this misstatement was made what was the reaction from your sa client was just barely able to function in the understand things they had to recess in order to have a second go at the change of pleas because he was so disabled he didn't understand things and so i think that they are trying to spoonfeed him the minimum term so that there was a satisfactory rule eleven colloquy for a valid please but in the process they interjected this additional factor this ability to preserve the substance and recently challenge in the appeal that's my kind of again added to it in the jenkins decision which is april it was within guidelines sentence on the child pornography case the transport of child pornography of cross international borders from canada to the united states and in it they said within guidelines sentence that was very close to the low end of the range was substantively and reasonable and i think that we should take a close examination of the factors that they thought were relevant for that because we have them here and importantly even after this king we have the over emphasis on factor sentencing factors and when that happens this court has said that in we don't want to think of sets to the reason most challenges as a one way elevator that only if the sentence is too low there's relief but this is a sentence that's too high and relief should also be given when there is an overemphasis on the sentencing factor governor rector recommended twenty year sentence my client got thirty and the judge took into account so what is his capacity is he in general population is i understand yes so we able to get through and she knew things like that and yet there's minimal abilities and he can do those things but he's not a high functioning  but anyway back to the wrapping cision there's an overemphasis on these factors there's a mechanistic application of them there's a failure to take into account that this is going to be a life sentence pressley polk those are relevant decisions from this court pertinent to this issue the judge should have taken the right in says cases sex trap king and minors cases they're not but they're also not fraud cases but the government says this is a fraud case i've never seen one of these cases characterized as a trafficking yes it's where in the statistics it's the department of justice and i think the sense of the commission as well as secretary of state that the typical sentence for are roughly in this group are a little over eleven years my client's doing thirty and the government recommended twenty so we have a huge disconnect in great disparity in the judges thinking  eleven years i believe so you're right when minors are over a period of three years force is used i will have to go back and check the statistics i don't know if they singled him out about the ages of the individuals but i think that it's generally w incarceration speeds the process goes broke we were and furthermore our if this case is a bad case and it clearly is not the facts but is a different from the other cases where somebody gets the eleven year sentence i don't know that it is good to see the revenue understand and i'll be happy we always just had one recently by of maybe that's yes there was another case came out of the southern district of illinois and there's a thirty year sentence in it i thought it was marcus thompson brief and the appellant directly says the average sex trafficking offender gets eight and eleven point eight year sentence and that's the united states department of state statistics but that's not what the united states department of state statistic actually sets the united states department of state statistic that's a cited on page nine of appellants reply three says that that eleven point eight year term of imprisonment includes sex trafficking and labor trafficking so that is not and labor trafficking your honor so this includes not just sex trafficking of children like the conduct that occurred in this case and that's just it is really far afield from what happened in this case but it because it includes must must be ignored and rejected by this court because it really compares apples and orcs and compares conduct that's less severe to the conduct that's in this case but back to the start this court must affirm the sentence because it is substantially reasonable b efore this court decides or even considers the substandard reasonable miss of the merits of that argument this court must first decide whether account michael johnson waived his rights to even bring this appeal and the facts on this point are clear and assigned and binding written plea agreement mr johnson agreed to waive his rights to bring be appealing today's case and even today mr johnson is yet to put forward a single plausible interpretation of the written plea agreement sentencing which the defense now claims is a modification and oral modification of the written agreement that's exactly right your honor and in fact that's the only argument that appellant raises and today's case against appeal waiver and importantly that was raised for the very first time in appellants reply brief and is therefore not properly before this court that was this court's holding and united states versus webster and in countless other opinions where this court has held that an argument raised for the first time in a reply brief is clearly waived in applied here there are mr johnson cannot dispute that this is a new argument raised in his reply brief nor can you dispute that this argument was raised was there he wasn't there at the time was made in your pants when the but importantly on that point your honor opposing counsel was not counsel in the district court below but we filed in this case a notice of intent to enforce the appeal waiver provision it's document number two in the appellate record and this court has clearly held in united states versus manning just three years ago that the united states should file these notices instead of motions to dismiss based on appeal waiver provisions and at page four hundred fifty six and this court's holding in united states versus manning this court clearly held that these notices must prompt appellants like mr johnson to confront these appeal labor issues in their opening briefs and that's the whole point behind these notices and it's really important to point out your honour's  opposing councils own office the federal public defender's office for the central district of illinois came up with this notice idea to begin with and united states versus manny in that opinion and in that appeal appellate opposing coun own office suggested that the united states filed these notices instead of motions to dismiss and admittedly at paragraph sixteen of document fourteen and that appeal when united states versus man and they admitted that after these notices are filed like mr johnson would be required and that's their word not mine they would be required to address these issues and raise these types of arguments in their opening briefs but mr johnson failed to do so in this case and it's clear that he had not just the opportunity but he had the obligation to do so and because he failed to do so this argument is not properly before this court therefore this court should look to the binding terms of the written play again i get back to the point is it was not par let's look at the transcript of the that there was a problem that's that is right your honor but because we filed this notice that that's what this court held in united states versus making that this notice must prompt appellants to discuss this with their counsel and to address this issue in their opening brief and because it's not been addressed in their opening brief it's not properly before this court and and that's why this court should look to the binding terms of the written plea agreement which does bar mr johnson's right to bring this appeal in today's case and this court must dismiss this appeal for that reason alone but even if mr johnson somehow preserved his rights to bring the appeal in today's case this court must still  of the sins in guideline range this court has consistently held that those sins as will almost never be unreasonable that was this court's most recent decision in united states versus life coonass so there is a high court of the climb in this case and mr johnson cannot climb that hurdle in fact he has not cited a single case from anywhere throughout the country finding a sentence at the lowest end of the guideline range to be substantially unreasonable and mr johnson certainly cannot show that the sentence in this case is unreasonable in this case where mr johnson praja when we recruited and exploited children to have sex with strangers for money or mr johnson had sex with some of those same children himself well  had sex with some of the same victims himself and brutally assaulted some of those very same that child victims mr johnson caused unimaginable and potentially a reparable harm to these young girls and it's important for this court to remember that we're talking about children here today children whose bodies were sold children who were exploited humiliated debased and in some instances brutally beaten by mr johnson the district court appropriately recognized the heinous and incredibly reprehensible nature of this crime and also that it was committed by a man with a link be a criminal history over the past twenty years and reach the abundantly reasonable conclusion that a guideline  is not an abuse of discretion so for that reason and for all other reasons mentioned today we respectfully request that this court affirm the sentence and post by the district purple oh thank you to provide it but insofar as the government says the practice is to raise things in a motion and assist assert the appellate waiver there i understand that's a disfavored practice in that it's supposed to be handled in the merits brief which we did and the government says that we didn't raise this argument in the opening brief waiver can be waived only when the government relies on waiver need we respond to the waiver argument which we have the government then file the twenty eight k letter  had on webster and we relied on our distinctions and webster but as well as the attic and so bring all those to the sports attention drawn to thompson yes three hundred sixty month sentence but there's a very significant factor that lo thompson where that victim was a suicidal girl who was not just pimped but actually sold between two truckers that's a horrible fact that had to be accounted for in thompson that isn't present here and  so far as the statistics the government says that we lump in child labor as well as trafficking that that's fine if the child labor cases have lower aggregate sentences that's fine but if the number skews downwards relative to grouping sort of disparate types of cases under one heading all i can do is cite with the statistic is and i asked this how far does that skew down is it a thirty year sentence a twenty five year sentence in this case the government thought twenty years be a life sentence that is fifty percent longer than what the government requested a full decade we think that substituted reasonable we lie again and jenkins and that is a case that is pertinent to this analysis we asked the score to realign jenkins as well