we particularly welcome the participants in for certain fifth circuit bar association seminar we always look forward to having that every year and today we have three cases to be submitted on oral argument we'll start with united states versus mathis m always welcome you back criminal history specifically the court found it had a long history of carrying firearms illegally and he did sell quote often times with internets with serious drug activity the second results are just lead us through the factual to do that and the owner of the shop kept a gun sometimes apparently underneath the counter when the f b i came in they found the gun underneath the counter it was within reach they said the gun was in plain view that is the basis count the what the court did in this case in addition to the criminal history being one reason for this departure the other the one is that is the criminal history and it is our position that that basis alone also does not support so large a variance and i quickly point out why the court said there was a long history of  assistance hearing in it and that would have been a mandatory minimum of fifteen years right and the court very clearly said i'm i'm very upwards because your criminal history and because you month sense and the reason that is it important that we determine whether or not the error was procedur consideration substantial assistance because the government doesn't have to follow the motions so in other words mr mathis out of two hundred ten months since if the district court had granted if there had been no downward departure and no upper departure  e had two hundred month sentence right in the original guideline range and i think to be hard to say that two hundred month sense in this case not accounting for substantial assistance would be substantively reasonable of course then after the brief was filed the government  that the district court's concerned about appearance we argue isn't isn't sufficient reason to vary so the question is can this dismissed count in in any other way be deemed an adequate reason for departure and we say no his sentence was not altered by the dismissal of this count not in any practical way his guideline range was the same when it was determined after he pleaded guilty to that and it was the same after  a fifteen year minimum statutory minimum the government would have thought of thirty five fifty three motion which would have avoided the court the court would not have been constrained by that that minimum in other words the dismissal of the c grounds first of all a sentence it's based on a clearly erroneous fact is a procedural error under goal and although we're not talking about it in a sense fact we it is a fact it's a factual question whether the dismissal of the count had a had a  box on the statement of reasons and we have argued that that should not be concerned given that litigation that we all saw in it in the transcript that that should not constitute a the fighting effect given that the court you know said yeah you know if the gun i want i find the gun was there i found it was in reach therefore i find it was connected to the feds this wasn't mr matheson's going to begin with so that's an ambiguous finding on and we believe on mr mathis's culpability because they had to find in addition that he knew it was there and our you know again we're arguing that the post them a check box on the state in the reasons does not is not adequate essentially no you're out on margin it's not it's a very unusual case and the case is important to us for three reasons first of all it was the government's sole decision to dismiss that count the  handling the case realized that the defendant had not committed the off chance in her opinion based on all of the evidence he was simply not guilty of that count and she did not feel right in leaving him convicted of a count she truly believed he did not commit and so she made the decision to dismiss the count mr mathis's attorney was not involved in that mr mathis was not involved in that and yet he ends up with a ten year greater sentence because of a decision made by the united states and in our view that's not fair and we thought it was important to speak up the second reason is that mr mathers was an extraordinary cooperator he provided an amazing amount of assistance and information to the united states yes your honor he testified against his brother at trial and as a result received death threats and was alienated from his entire family and so the man deserves to be rewarded while the district court granted the eleven level five k departure on the one hand on the other hand she took the entire benefit away and that was largely because of the dismissal of the gun count which actually provided him no benefit so he ended up with no benefit whatsoever from all of the cooperation he gave to the united states and that is not only unfair in be that it isn't it improper to consider the dismissal of the gun count as a factor in imposing sins and that would be the instruction from this quote because it is our position that this is a substantive matter and that the dismissal of the cow is simply an improper factor to be considered in imposing sentence and and that with god the court's instructions impressed with the criminal history of the defendant and believed that it was the guidelines range was inadequate to reflect that criminal history so i would imagine that some upward variance or departure that's something that should be left to the discretion of the district court at last then there would be an argument that whatever the district court ended up imposing that there was a clear error of judgment in balancing we would have to wait and see what she did with that it would be like a sentencing a new and it would be in her judgment to determine one of  but i are if your honor i don't think more than two levels would would be reasonable to reflect the defendant significant criminal history that the third reason that the united states takes this position in this case is that although the district court made no finding that there was any sort of misconduct by the attorneys in this case she intimated that there was something improper about the way we proceeded she called again us is comments disingenuous she repeatedly said the optics don't look good she said she said i'm not going to call you a liar for into the usa and i'm not going to call you a liar to the defense counsel clearly signaling that she had a concern that they were not being truthful and and that is not the case at all your honour's th this case felt the justice required that the count be dismissed because he was not guilty of it there was no collusion between the attorneys i understand why the judge was taken aback by the fact that mr mathis originally came in and played guilty to the office and then later says well guess what i'm not really guilty in my attorney told me to go ahead and plead guilty even though i'm not and i can understand why the court would be taken aback by that but if the finding the fact issue i think that we are left with the fact that the judge did adopt the pre sentence report the pre sentence report does say in the supplemental addend that the defendant did know about the gun so i don't think there's a basis for arguing that the court did not made a procedural error by not making a finding of fact in the end your honour's we believe that the court erred substantively by always of your good work on behalf of your of your client and hope you'll be willing to take additional appointments when so you you were you were a staff attorney here so when you when did you leave the staff attorney's office i know is a long time ago in nine hundred ninety