us good afternoon your honors may it please the court i'm edward sass of the federal defenders of new york here on behalf of one thompson the sole issue on this appeal is whether the district court heard by enhancing thompson's offense level for violating a court protection order like to start with our twenty eight j letter which pointed out that this court now has an advantage that the district court didn't have  guidelines amendment eight o five which took effect on november first of twenty eighteen now clarifies the meaning of court protection order and it's a clarifying amendment so although it issued after sentencing and indeed after the parties filed their briefs it applies to clarify what the guideline always meant the amendment provides important part that a protection order must be consistent with eighteen u s c twenty two sixty five b to qualify as a court protection order and section twenty two sixty five b specifically addresses the subject of ex parte protection orders which are the orders at issue here and it provides that in the case of ex parte orders notice an opportunity to be heard must be provided within the time required by state law and in any event within a reasonable time after the order is issued sufficient to protect the respondents due process rights what what do you make of that what is what does that then mean tell me what that means in your view well i think  have it confirms the position we took both in the district court and in our briefs which is which is and it refutes the government's our principal argument in its brief which is that this enhanced mate is a strict liability and handsome and so long as there was a violation order and the defendant's conduct contravene the terms they've they've had for me as of this morning that they're no longer relying on that argument in light of the amendment ok so the quote so as applying that new language to this case the first question is is was thompson given both notice and an opportunity to be heard within the time required by state law and that invites the question which is under new york law when is the person supposed to be given notice and an opportunity to be heard right so i'm not an expert on new york law by any means but i went in under the family court act section one fifty three little b perenna little c an ex parte protection order must be served promptly right in this case the first x party protection order was issued on august five of twenty sixteen and at sixty three right of right i'm just checking the date yes that's the first order of protection night i think it's undisputed it was understood of below an undisputed here that this was never served right on mr thompson right when i go ahead  was whether he knew about the order of protection and your view was state law decided that he had to know that for him to be to have violated the order of protection he had to know about it because new york law is fairly clear it doesn't you don't actually have to be served with it but you have to know what the contents of it are you can't just say to somebody in court there's an order of protection against you has to be read to you and and that's what the court of appeals cases go off on and some of the intermediate  off the government's position was it didn't have to be a knowing violation because knowing is not in the guidelines and that there are other and they cite other instances where knowing is in the guidelines and so they draw that distinction that's a very good argument to make and they say look this isn't really this isn't really looking at whether he's the venality of his knowing violation it's looking at the fact that in order to protect was issued and then even if he didn't know about it he continued and did other acts that were th consistent with what generated the original order of protection and they cite to like possession of stolen property and you don't need to know that the property stolen stuff like that so those are the kinds of enhancements that occur without knowledge not and so there was a debate about it does state law decide the issue of the of force ability of the order or does it not matter about that because knowledge isn't really necessary is just the existence of the order and then the conduct that is post the existence of that's that's where the rubber met the road and yet at the at the district court right i think you've you've characterized it essentially essentially correctly and i just i get money that the district court understandably i don't want to fold the district it didn't have the benefit of the answers we now have from the sentencing commission and so what new york and new york laws focus on was to to hold someone in contempt of an order they had to know what the order set and the government's respon pieces of law that seem relevant as i read this definition fair enough to tell that the first part says you have to have notice an opportunity to be heard within the time required by state law cracked that's the first part and in any event within a reasonable slut but then there is a constitutional federal constitutional question is that time sufficient is that opportunity to be heard sufficient to comply with federal due process rights ok ok now let me ask you this and then i'll let you say a little bit more and then i'll ask you sit down we know that the summons was attached to both pullin a orders to temporary orders to go and that would give him an opportunity to answer to this in the courts or the family court act so if i mean if he had like an alibi and said i never did this or something and they could contest that point right well  i have another number of responses before i give you a yes or no because it's not exactly a yes or no straight straight answer the first thing is is is is the obvious question is was the summons ever served on mr tom we're going to get to th ok we're going to get to that yes i'm so i didn't mean to jump ahead of you but the reason i started with it is obviously you have no meaningful opportunity to be heard if you if you don't receive any of the papers but but this summons itself is about responding to the family court petition after this descendants does not tell you that there was an order of protection issued well but the summons as i understand it the summons was attached to the temporary order of protection was it not i don't have knowledge one way or the other i'm not sure the record tells us all i'm not sure it tells us but you'll notice of the return date on i don't think it matters whether there was or wasn't as long as it was if it was served but in any event big because this past sunday but but i don't see them claim that the summons was served nor have i seen any evidence of service of the summons that's for a question for the government but also i just point out that the summons the return date for the summons is october thirteenth tw the order of protection was issued ex parte on august five of twenty second and was due to expire on august thirteenth two thousand and sixteen so there is a question of is that constitutionally sufficient opportunity be heard if if you're subject to it for two months and you i would never say no to remain almost never in your honor and i think i think i'm going to say no now i mean i think no i'm not i think it would be appropriate i think would be fair to the district courts to consider consider his prior finding in light of the recent amendment i think if the government had any new evidence that wish to present it could do that i think if the judge yes i'm sorry just promise we're going to ask a question follow up on during please question just what you want from us well i'd like  ruminant it's an order vacating the sentence and remanding for recent and sing and i'll leave it up to the court whether what you want to specifically remind the court that is free to revisit this in light of the new definition another whether for the court to go perhaps is to say it doesn't matter i would impose the same sentence regardless certainly could because he gave you the maximum which was way above what the guidelines gave him any he could but he didn't give any indication that he would do that if it if he calculated the guidelines lower well if we were to conclude that somehow this this clarification altered what the judge should have been thinking about then a vacant you're wouldn't necessarily lead to our concluding that the judge was wrong it was only that that th clarification asked the judge to consider some additional information that was not necessarily within his steer at the time that he made the original decision as to whether it was knowing or whether didn't need to be knowing that that's absolutely correct i mean my own my own view and i put it out for what for what it's worth is on this record i don't think it supports finding the required finding is now one of the amended definition but but the court does not need to resolve that at this moment no it's on this record presumably judge castro on remand would be able to expand the record as you and the government  agreed would be appropriate i believe that's right i believe that and that would be that would be a completely fair result i mean the district court as we said didn't have the benefit of this guidance it's not it's not the acted contrary to what he just didn't have as much information as we as we now have you any reason to believe that this would be in your client's interest in the long run run remap is a reason to believe that he would have a different view of  appropriate well i think there is hope i think the government part of the plea agreement below had agreed that a within guidelines sentence was a fair and just sentence on these facts probation asked for a guideline sentence in fact at the low end of the range there are some equities in mr thompson's favor that are that are under seal so i'm not going to go into them but but there are reasons that the district court might come down from honor let me just take a look i don't recall offhand whether he was remanded right away or whether aligned on the first argument in our brief that knowledge of the protection order is not a requirement for purposes of the relevant sitting sensing that handsome it's so is mr said the idea of strict liability the government didn't advance that argument below for judge to stele and this court should still affirm because the district court's finding by a preponderance that the fifth had actual knowledge of the order of protection was not clearly erroneous but that that's maybe you're right about think we have from the record your honor that he had the he had knowledge of the protective world which i ain't sure he had knowledge of the protective order but but i know q of page forty five of the appendix what don't want the government concedes defender was not formally served with border protection so if the government didn't serve him with the order of protection did it serve him do you know that it was he was served with a note of the summons summing him into a family court that's that's not in there then tell me then tell me then as an officer of the court representing the united states here tell me then how you know that there's any way to sustain a finding of which there is none at this x party order he was provided with a notice of opportunity to be heard there's not is there that simple math you don't serve the order of protection you don't serve the notice i was with no is do you have anything in your file that tells you that a summons with notice to appear in family court to answer next party order an order that was obtained without him being present in court was obtained and that he was then given an opportunity community contest that you know that no you're on ok simple yes your honor there is there is evidence in the record that look honor all right you are the the government's position is that remained isn't necessary here because under cast yano and under axelrod actual that's what that's about and so if someone someone is read an order in open court ok now they don't necessarily read to you then they're in court now they were there they understand ok this is about someone who wasn't there and who isn't titled under both the guidelines and i might add new york law to notice that's what the summons is all about the someone says look you've got a room you come in here and contest this here's one year i have an opportunity because this order which allows you to be immediately arrested if you violated was was obtained ex party without you ever even knowing about it with no notice to you whatsoever had never given a chance to contest any of this that's what this case is about now not the axelrod notice that's why you guys are all you have and you've confused as you conflated this axelrod is talking about knowing what the order protection says stay away don't come near me don't make a phone call don't come to my house and when you're given those workers if you go to the house and make a phone call you get close you're in violation of them you don't have to have that paper in your hand but if you know about it axelrod says knowing it is enough that's not the knowing it here this is providing him with notice of an opportunity to come in and contest it that's why that summons attached i bet i would bet you a million dollars it was attached to the order of protection ok but the problem is you don't have an orders or an affidavit of service not your fault ok it ma and you may go to the family court and brights and get that order and that affidavit that says that it was served ok and if you do then you've got an order of protection of the guidelines and he's got a big problem but we don't have that here now you've you've you've said that this is a clarification you've agreed with your opponent rightfully so i think wisely so ok but the game is different now i'm in the game i don't mean it i'm not trying to make it a game the rules are different the rules now are that for this to be an order of protection when its next party or notice an opportunity or heard must be provided now you got the notice but you can't prove to provide  remain the government would have the opportunity presented a dish and all evidence and litigate this issue mr warren i don't know how long you've been at this job but this is a case where you should fold ok and you go back to your office with your supervisor and say the senator said this was one where you in the as a as a member of the department of justice we see the department of justice regularly walk in year one confronted with an issue like this which is clear i get