why he would agree to a sentence in his playground of twenty seven months when that's above the guidelines range he agreed your honor if all he would not commit is that the court considered the thirty five fifty three a warrant of a sentence of twenty seven months mr believe it would not be before the court today right but but that's more than the range the sentencing guideline range and in this particular case your run of the court accepted the guideline range of eighteen to twenty four months but because the probation department had included additional monies to the tax loss it was raised to twenty four to thirty months you say it was raised on it then what happened after the riginal probation report was completed submitted the guideline range had been eighteen to twenty four but since they only calculated the federal tax laws and not the state tax laws the probation department filed an addendum as i understand it that raised the tax laws and thus raise the guideline levels to twenty four to thirty months so so is it my understanding the guard on ring its thirty month what happened judge is that the government asked the court to accept the lower guideline race which was in the plea agreement and the judge agreed to do that so he accepted the eighteen to twenty four months and was under the impression that he was in hansing the sentence it's right in the matter he did at the time so why what about the appellate waiver at twenty seven months your hon what happened here and and i won't obviously quite as familiar with it there were actually three proceeds and by the time we've arrived at september twenty eighth two thousand and sixteen when george marshall actually imposed the sentence there was words at the sentencing proceedings that he sends mr if illegal because of that corruption not because mr rip alito had committed tax fraud in and of itself but the course he found that there was corruption and that he believed from their corruption m properly considered all of the factors in this particular case and rick and and the essence of our brief judge is really that there is no evidence to support the judge's conclusion at this and this is a quote something  the town of voice debate there is no evidence it speculative it's unfounded and worse mr alito was punished for something that did not exist and for something he did not do and so what we're i think judge what it doesn't what it what it doesn't cover in this case is a fundamental perception of fairness in many other cases judge you can look at a defendant's background you can look at his criminal record you can look at  know what goes on and on these are represented by counsel negotiate these waivers judge i i don't believe that the courts have looked at the appellate waiver and said that it's an absolute bore to appellate review group and what i'm asking the court to to do is in looking at our motion papers to see whether m your own that's a very good question because he only got twenty seven months according to the government this is a massive catch right scheme so twenty seven months is is quite candidly a reasonable sense well mr believe your honor is seventy seven years old suffering tremendous amount of ailments i'm not going to go into all of them there was a lot of submitted by his doctor indicating that he may not surprizing course aeration for a long period of time but more importantly in a letter that his lawyer sent to judge webster in essence in confinement what i'm saying is that because of the judge's perception of corruption in the town of voice debate what may have been a lesser sentence of twenty seven months never took place oh never was considered i only pled to not reporting this money on his tax returns and sack racked that's correct and what's interesting judge is the government itself stood up on the first day to the sentence july thirteenth two thousand and sixteen and said this is not a corruption cas and then for the next three appearances it was all about corruption what is what was the tax laws i don't know the exact figure but i think the federal government was about four hundred seventy five thousand and the state was about one hundred forty something i'm i'm i know it was o appellate waiver but what i'm hoping to do here is to ask the court to look at the possibility that there is a issue that's all i'm asking the court to do that there is a reasonable issue of whether or not  waiver is a pleasurable to a case like this a man has a right to be sentenced but what he did he doesn't have a right to be sentenced for what people say occurred in that town relative to corruption specially when it didn't have anything to do with him but he couldn't receive the drugs questions that the defense attorney damn law regarding these questions they were answered he comes back on august twenty third he says not only is it rotten it smells  report that money on his income tax returns he didn't report on his income tax returns but what he did judge as he followed the law he filed financial disclosure forms for every year that he received the money even the year prior to with whom did he file that under the law in the town of boyce the bank is required to file it with the ethics committee he did he not only filed it every year on time he filed it reporting that it was consulting fees and filed it in you know in tributed to him probation department recommended no fine and the judge didn't post fine because he is in debt he doesn't have any money and he and judge wexler in his suspicions directed the defense attorney to say well what did he do with this money and the government echoes this in their brief what do you do with this money he didn't make any restitution he didn't pay anything he did with the money judges he had he was spending one hundred twenty thousand dollars a year between mortgages and one last question before you sit down you didn't go back to do it wexler witness for the answer is yes we did not go back and that's probably my fault i'll have to i'll have to take take the blame for that judge a notice of appeal was filed and it was my impression candidly that once a notice of appeal is filed at the desk the district court of jurisdiction i was wrong i apologize i did not know that and quite candidly the government addressed that with me and i'm very happy that they did because they were concerned as well so we wrote a letter to judge what actually are and this is the point i would like to make on the supply may or on yeah i think there's a schedule i put in a scheduling date on that as well as the government to if they can do an expedited appeal so that if one is to believe no it does go to devon the appeal would be heard sooner rather that there will probably be a probationary sentence or possibly a home confinement with a bracelet this man has not done anything other than this glad to see to proceed as quickly as we possibly can but i would ask the court to give mr belittle at least the benefit of the doubt here actually when you look at this record he was devastated when he saw what he was mean sentence for financing medical facility you  i i'm not sure i don't have the order i think it may have been just pending pending them the argument for the court l pending appeal just with regard to the question posed to defense counsel i just would like to clarify the record with regard to the guidelines when the police raymond was signed new york state didn't provide  government or the parties with the tax laws so based on the federal tax laws the guidelines calculation came out to eighteen to twenty four months and that was contained in the plea agreement thereafter i think  the plea was taken in january i think in july shortly before sentencing the state authorities came out and provided the probation department with a tax loss which was approximately one hundred twenty four thousand dollars that up to the defendants of clickable the guidelines twenty fourth to thirty months as contained in the in the probation report the government submitted a letter said that under the under the relevant case law and relevant that the guidelines are probably set at one thousand to twenty four to thirty months however we were going to honor what was contained clear eamonn and we were going to recommend the sentence within that eighteen to twenty four appellate way were at the highest level for the reduction of two points for exceptions of report results ability so in this case after two points for exceptions the responsibility his guidelines came out to twenty one to twenty seven months so we points for exceptions of of responsibility so so under under that i believe it was points with with the three points for acceptance versus responsibility what we do is his base offense level based on the the federal tax loss was eighteen minus two for acceptance of responsibility which gets us to sixteen that's where we set our appellate waiver and then once we feel is he's entitled to the third point we give him that third point but the submitted a letter and said asking for a reduction in sentence based on a forty year exemplary career in public service and what the government did and we were going to do this anyway but it certainly became important to address the defendants argue we said it's not really that exemplary for instance while he's negotiating on behalf of this vendor on behalf of the town he's receiving over two million dollars in payment and certainly that's a conflict of interest and that's what we said don't want and i was the one who got up i said it's not a it's not a a corruption case under the legal different definition of corruption not in other words official action is taken in return for more money is paid what i said was it is a conflict of interest case in the fact that notwithstanding anything else when he's at the town board and he's a he's negotiating with this vendor he he should know he doesn't need it board of ethics he should know that it's a clear conflict of interest and he should have communicated that conflict of interest is not a crime yes what of interest is not a crime as well that's why he wasn't charged with that what i'm saying is under the thirty four and what the government argued is under the thirty five fifty three a factors that is certainly something that's that that could be considered and certainly i would i would suggest it takes it out of the heartland of cases when you have a public official who doesn't report income and that income is to the tune of over two million dollars and that income is coming from a vendor who is negotiating on behalf of the people of of the town he's supposed to be representing so that was the argument which we posited to the judge if it was it was a thirty five fifty three day argument we also end with so that's specific you know specific deterrence argument and also with regard to general deterrence you know and the judge pointed us this out there is something rotten and you know with regard to this town and that's important with regard to you know general deterrence and  the judge didn't specifically say one way or the other what he was you know what he just said under all the thirty five fifty three a factors everything that was considered including the defend itself that was what he determined the sentence to be and i don't think it's  ely on reasonable in any regard and and just with regard to the defense medical history or condition you know counsel says he wants the opportunity to make a record he had they had that opportunity down below and the only thing that was submitted with regard to his physical condition was a one letter one one page letter from in his doctor there were no there were no medical records  to substantiate any any of the claims and looking at the medical conditions in in the probate in the p s r it's mostly past medical conditions that rule that requires monitoring and nothing extraordinary as as that extraordinary term is is defined under the political case law so he has been designated the medical facility has made a determination that they can adequately care for him so i don't think that there's much chance of success on that on that medical grounds because again under the law i don't feel that as though it's substantial or extraordinary so that's prejudice there was a i think an october of twenty fourth or or so of this month there was the killer case where where they where they dismissed half of that appeal without prejudice i would just point that out to the court why would produced to pursue the vote motion before a judge works well i think we i what what the government did is we argued under the under the substantive law there's enough of a record for you to dismissed with prejudice and certainly under the procedural law without looking into the substance you can dismiss without lead to to repress and we under under these facts and under the record we're asking that you just missed with with prejudice thanks very much of of the order to surrender is extended and to for the order of the court what is a concer