the district court increased my client's sentence by nearly a year based on the number on any us understanding of this most basic principle of criminal law this was procedural error and requires remained in pronouncing sentence the district  glossed over mitigating factors presented not only by defense counsel but specifically outlined in the pre sentence investigation work that went instead straight to oversight of dismissed state or domestic violence cases over also admissions by a defendant but those admissions were made in a very different context and mr dobbie wasn't missions and those defendants made emissions that were coupled with other substantive proof on the record that could be contemplated in reliable for multiple reasons st these were made it made by a man who was ranting in probation in a decomposed mental state who was under the influence of narcotics who even said things in his own admissions that aren't true for example he said well i've been in jail seven times six for domestic violence that's not a true statement he has not been in jail seven times much less six being for domestic violence so i think that while we can look to the admissions the court is not are not that would be a question of st impression before this court because in the other pieces in which there were missions alone i excuse me in which there were admissions as i mentioned the most recent cases rodriguez and miranda were coupled with defendant made admissions and they were corroborated by uncontested facts in the p s r about his own drug use by his defense counsel's own sentencing memo about his drug use and prior drug cases and then the district court used other factors to justify the variance not just admissions in this misconduct in rodrigues race in miranda a more recent case there were admissions by the defendant himself by under advice of counsel in his p s r interview in a much different as the government urges it to go jones was a very narrow decision which said that the court can consider this mistake where conduct in the aka context in determining whether it was a one single event or multiple event local rule allows a prosecutor to sign a criminal complaint upon information or belief that the events occurred so it's not based on someone with personal knowledge of the events it's signed by a prosecutor and i think that one sided version of events is subject to to it's not something that the defendant has any opportunity to fight such as i can deposition would be if we were before the court in that sort of situation it's important to note with jo complaints to guess the nature of a conviction would be air so they said in the jones case me allowed it because it was determination of aka and the jones defendant pled guilty to those state court he says they were just trying to determine you know what he whether he qualified for aka but they clarified that and saying if you consider just misconduct in the sat in the following case was for enhanced going to c o v a crime of violence to assume that they can they actually committed the underlying conduct would have been err so to cite jones i his admissions alone sufficient to justify the upward variance that was imposed in this case at least some of that it's not here as i mentioned initially the judge glossed over all other mitigating factors and when he pronounce sentence he focused solely on the dismissing or cases which he meticulously right into the record and then used those court cases to justify the admissions mean those were the only two reasons that he focused on where the cases and the allegations made so without the cases i think are those admissions alone enough to justify the upward variance that was imposed in this case and we think that improper weight was given to them especially for the reasons i explain earlier such as the mental health conditions the drug abuse the context that these threats are current it's also important for the court to take into consideration is that there is so much similarity between the rank allegations of the complaints and his plane their behavior towards the probation officer sufficient to make is that mission's more reliable you're arguing that  state court conduct to buttress the nature and circumstances of the offense he actually goes in the opposite way he uses the dismissed state or comic basically to try and prove what happened and the admissions m understand that by entering an unconditional guilty plea if you're mentioning the venue issue that that issue is waived we would just point out for the court that a reading of the r and r and i case and coupled with what everything that happened in this case  in order to get the english translations that he knew he'd need in order to hang his hat on the issue and then the government submitting them the night before sentencing so i think that points to an additional factor is the reason for the variance was just a mistake or conduct and this court has to determine can we set precedent saying that a judge can rely on this mistake or conduct in the way he did in this particular case to justify the upward variance and the procedural background of the sentencing hearing  indicates to the court you know how much weight he put on these domestic violence dismissed cases and again i repeat when you review a transcript of the sentencing hearing he did not mention really anything other than those instances and the u s probation office regarding the submission of english language translations of prior arrests that were mentioned in the p s r those conversations grew out of this court's repeated statements that it wants a more complete record on appeal regardless of whether or not united states relies upon sentencing documents before at the sensing hearing it's come to pass that on appeal or perhaps the defendant or perhaps the judge  upon sentencing documents if those documents are non english that becomes a problem on appeal and then if the case is we mandated this court has made clear that the government does not have the opportunity to submit english language translations so there were conversations between the deputy clerk probation office or the deputy clark the judge then issued an order so did the probation officer the language versions of the complaint i don't know if they had the original spanish french language versions or not i know that they in the p translations of these of these documents if the deputy clerk of the u s probation office asked for english language translations i can assure the court that st of all there were no communications directly with the judge and there were no substantive communications regarding the sentence regarding any outcome of this case the communications were purely limited to the administrative matter of who would provide english language translations for certain documents in addition they were not limited to providing english language translations of just the domestic violence as the court will not the record the government provided english language translations of the three domestic violence issues as well as a marijuana conviction and the destruction of evidence charge so we try to include as much as possible english language translations as you can call it a complaint an accusation an indictment and i want to be clear about what it is and the parties seem to be in agreement in the briefs but i'm hearing something slightly different during oral argument in particular the appellant's brief at twenty three  affidavit of the prosecutor and we can see that actually in the record if you look at the act as your own is in the in the appendix refer to just one at page one hundred and nineteen you will actually see a list of prosecution witnesses at the bottom of the page and this was not included in our brief but because it's coming up for the st time on appeal i simply will refer to one case of the court wants the conservative twenty three dollars letter but it's just gross out overseas recital council which this court decided in two thousand lot told his probation officer on may th two thousand and sixteen that he had just gotten into a heated argument with his girlfriend and that it blew out of proportion he stated that he might have hit her in the back and told her to leave he was thousand and sixteen that he was involved in domestic violence one of the complaints that the judge relied upon one of the accusations was domestic violence for that incident of may th two thousand and sixteen st piece of property evidence goes directly to charging i think if they are if the you had an instance where there were undisputed statements description of the offense conduct that was not disputed it was in the p s r was not disputed by the defendant substances on particular dates what the p s r had were statements by the defendant that he had engaged in decades of substance abuse the court held that that general statement regarding criminal conduct was enough to corroborate specific instances even though as far as i read one hundred israelis there was no statement by defendant that he used the drugs on that particular date just a general statement that he engaged in that kind of criminal conduct so i believe that issue has been ruled on by by this court your honor if i ma because he has stated before he enjoyed beating up women and i want to emphasize that causal relationship here he's not saying that he's been in prison seven times of which sex six words or domestic violence because he's a wrongly accused man he says he's been in prison july th two thousand and seventeen to another probation officer the defendant brags about his multiple domestic violence convictions stating that he loved beating women again to another probation officer drawing that causal connection between the violations also a th piece of property that robert evans that comes from defense counsel herself and that is in the objections to the p s r it's including the c include the sealed appendix it's also document number fifty four of page twenty eight in the context defense counsel is arguing that the threats were not directed specifically at the victims because of their governmental position and what she says is quote mr down the law has had a long history of mental illness and other problems involving lack indicating that mr cobb has a long history of a lack of respect towards others not limited to government employees and the government's position is that when you take all five of those pieces of corroborating evidence that is more than enough to move th proof from probable cause to proponents of the evidence and i also want to point out here that it would be incorrect to characterize the district court as simply we're lying or placing blind faith in the accusations because actually we don't have just domestic violence accusations here those are the minority of the complaints that we have in the arrest record as well as the government's that's the doctrines of the government submitted we also have controlled substance offense we also have three charges for destruction of evidence we also have a charge for resisting arrest notably of those in the or in the p s r and all of the judge could have relied upon at least some of those because the government provided translations he did not in other words the judge here limited his reliance upon the charging documents to those charging documents that were corroborated by other offenses conduct in addition if you look at the structure of the judge's argument what you see is the sense that the defendant bragged to probation officers about his history of domestic violence offenses that he provides those three instances of offense conduct and then he bookends that discussion by again going back to the fact that defendant bragged about his history of domestic violence offenses so we can see here is that the judge is bookending his discussion of the offense conduct in the context of murder no pattern as we're looking at the departure departure guidelines and the departure guidelines do make the distinction that your honor is mentioning it says in particular in the in the section mentioned by recorded by not an op ed as it says  record itself shall not be considered for purposes of an upward departure under this policy statement in the context of departures that same statement says prior criminal prior similar adult criminal conduct not resulting in a criminal conviction can possible in limited circumstances just to rely upon a lengthy arrest record because it may go to recidivism again that is not to the issue presented before before this court and with this case statements not just the day of the offense years before to probation to another probation officer his multiple statements to various probation officers as well as representations by defense counsel i think that the it's clear that the district court's why it was dismissed which is rule sixty four no other information was given so there was nothing for mr dobbie law to dispute until the night before sentencing leading up into the morning of sentencing so it's important to note that again what we have here are the there is a record he admitted to the probation officers and the most proper id by them that he was under the use of synthetic marijuana in sentencing hearing defense counsel attempted to explain to the district court the differences between marijuana  synthetic marijuana and the effects it can have on the user such as a radical aggressive behavior and i not only that there was the psychologist report he was getting court ordered from a prior revocation psychiatric and psychological treatment and she followed up and submitted his diagnosis and what had been going on in treatment right after his arrest in his case which was bipolar disorder multi substance abuse and dependence and aggressive behavior so yes i think the record is a he was suffering some serious issues apart from you know how he was feeling at that moment and the way he reacted i want to also address the government's claim personally that it was an area that he didn't know when he apologized to the probation officer during his allocution your honor we just point that out to the court that when we made our original argument admissions by any criminal defendant particularly in this case should always be looked up with an air of caution and particularly for this defendant given his history we submit to the point that these admissions alone which is all there is on the record despite the government's argument the contrary is not enough particular district or is always made a change of the hearing and the sentence was set for months ahead of time then approximately a week before sentencing the judge enters a one line order saying sentencing is continued to next week because the english language documents are not ready or the english statement documents here there is no order as to who is to prepare them what's to be done it's just that's all it says that we are we going the next following week and the night before sentencing the government files the motion submitting certified english translations that's how it came when the judge asked he never mentioned the documents during defense counsel's arguments at sentencing when she finishes and before the government begins he says defense counsel before the government begins i just want to make sure did you receive a copy of the documents submitted last night defense counsel says i did and i have some concern over what the court intends to do with them in this case however since nothing's been mentioned yet i'll wait and see what happens when we get there and then when the judge goes through in detail reads them she makes her procedural objection and what i mentioned earlier about the p s r these arrests are listed in one liners there's no underlying facts about what no and the defense counsel did not request a continuance during the sentencing hearing and i'm we're not in submitting to this court that a district court could never look at those documents again and to refer back to merely argument i think the procedural background is week prior to the sentencing along with defense counsel and indians and in the sentencing memo the government asks for a guideline sentence the government never mentions the dismiss tape or conduct other than briefly mentioning a federal revocation which was the basis on the two thousand and sixteen event which was later determined not to even revoke mr gobbler due to complete lack of evidence i think was that separate federal court federal court's decision so a week prior the government is asking for a guideline sentence they're not discussing this mistake or conduct and it's not until the sentencing hearing and in the government's argument sentence it again asks for a guideline sentence and it's very careful not to mention the state court documents throughout it focuses on the facts it focuses on the street obviously as drug addiction and it focuses on the probation officers attempts to help him throughout the past years and that's really the government's argument it's not until the judge pronounces sentence that he himself begins to go through these dismissed cases and that's really the key in this case because the question for the court is all these other issues that are before the district court whether considered mitigating or aggravating are poor uneducated mentally ill man from a violent upbringing a violent public housing project who was called in the day before to submit a drug sample which he complied with and he's called in the day after to summon another drug sampling and occurs what happens and he has his outbursts he had to go around the public housing project and then for money in order to get to san juan to submit his sample again it doesn't excuse is outburst but we want to put into context what happened in this  is an outburst that occurred over a period of minutes and he's doing sixty six months when combined with his revocation for this criminal behavior and when you compare to other cases under you eighteen u s c one hundred and fifteen it just doesn't justify the variance much less when it's based solely on the dismiss to work on it so we think that this was with well within the heartland of the guidelines and therefore the judge's sentence was substantially unreasonable as well if you think