good morning may please the court i'm theodore cotch i represent mr williams bay the essential crux of our argument here today is that when a factual dispute exists going into criminals sentencing hearing and the government declines a fat ago hearing and so are you dropped your voice and i didn't hear the words that proceeded phatic go hearing the government government wants to rely on evidence that exists outside the central focus documents in the case there should be some notice to the defendant that the government is going to go it was all over the pre sentence report yes your honor it was it was certainly in the pre sentence report there's a distinction between what was in the pre sentence report and what the government relied on in the pre sentence report there was a paragraph or two that that the source of this was an f b i report that described in agents conversations with mr how much the pre sentence report made it absolutely clear it was placed before the judge that mr now let's say that your client had bought a brick of cocaine and the police agreement expressly left it open to the government to argue quantity so how is it that you were blindsided well there is a difference see when when if when you're not having a factual hearing you're having a basically an argument over the law well i'm sorry if the law is well listen to the testimony and in other trials that's that's the law we're not challenging that is the law i'm saying that within the particular facts of this case there is a gray area that is somewhat undefined and that we're asking this court to to make a demarcation within that gray area and that is that the the the history of this case was that mr williams bay he was indicted in twenty fourteen there was jury selection a year later he participated in jury selection and then he pled guilty the day after the jury was selected  pled guilty there was a p s r ordered and written his lawyer filed a memorandum the government filed a memorandum and they were standing there ready to be sentenced when judge meyer in his of mr williams baby came dissatisfied with the quality of representation that he had gotten up to that point and then then i was appointed to represent him i don't know how else to refer to myself but as i i was in i was part i stepped in to represent mr williams bay at that point in the proceedings and everything was at that point already quite focused and the point of said this fellow heads had said to the f b i he sold me a brick of or i it was a transaction for a brick of cocaine correct so how are you harmed by the fact that the judge not only had that but it heard the fellow testify at another try how are you harmed by that well i have yet to figure out how to cross examine a transcript to cross examine an f b i report you can't do that either and that's why district court agreed to substitute a one to one crack to powder cocaine ratio for the guidelines eighteen to one ratio and the agreement said that if the judge did that the base offense level would be twenty four which is at least five hundred grams but less than two kilograms of cocaine it seems to me that once the judge accepted everything the plea agreement not the informant or the cooperators testimony was what was dictating everything and that seems to find some confirmation in the fact that the judge asked whether his acceptance of what he called the kimbra variance mooted any drug quantity disagreement and you respond takes that guideline is its starting point and then departs from it but this seems to be quite a different creature the district court used the cocaine powder ratio and the parties agree that if that was the case there would be a drug quantity or the base offense level would be based on a drug quantity of five hundred to two thousand grams so so by i would see where you had an argument but you agreed to that that was the agreement that was made right let's hear from your adversary  quantity in this matter is academic judge meyer stablished out on the record so it really had no impact on the sentence where the court adopted the government's view and a pre sentence reports view of the quantity or the defendant would think is pertinent here as to some of the practicalities here mr williams paying was not the first of the twenty four convicted defendants in this case to be sentenced in fact he felt toward the end of the list of twenty four defendants with respect to every other defendant who was sentenced by judge meyer judge meyer used the kimbo departure that is he was applying a one to one ratio between crack cocaine and powder cocaine in every case so as the parties entered into the sentencing in this matter it was known the government certainly knew that the court wasn't going to vary there was anything in mr williams space case that was different so that the court for some reason apply a different sentencing structure everybody was virtually certain that would be the application of a one to one ratio and therefore the part of the plea agreement in which the parties agreed that the base offense level would be twenty four minus two points for acceptance to get twenty two everybody knew that was the likely result and that's exactly what happened as a consequence from the government's perspective there's no reason for the court the even reach the issue that's being raised by the defendant here as to the testimony that was considered by judge meyer as to quantity but with respect to that issue record is is is very clear here the defendant had the f p three zero to the f b i report which was provided to him before he pleaded guilty and in the context of this case is the court not from the record mr williams pay one all the way through jury selection he only pleaded guilty after we had disclosed the name of the cooperate in witness and what they're cooperating witness had to say about him and the other had in accordance with the court's order we disclosed his identity we disclosed his information before jury selection williams pay still like to go forward and then the day after the jury had been seated before the evidence started he elected to plead guilty so they had actual notice of mr house cooperation they had actual notice of the information he provided and in context it was that information which precipitated and plead guilty they had to pre sentence report is judge kaplan referred to paragraph seventeen that lays out the information as well they have the government's initial sentencing memory random which is not mentioned by counsel but in the government's regional the record that irrespective of whether he was right or wrong about his finding on quantity he would have imposed the same sentence which is exactly the issue that your honor owed call with decided in united states versus mendell and in this circuit that that would be harmless in any event and what the supreme court suggested and not suggested said i'm alina martinez versus united states that if the record adequately reflects the fact that the court would have  same sentence on proper grounds then there's no need to send the matter back respectfully that's where this cases and most of what has questions would rest and i think thank you you your honor i just want to delineate one thing and that is that at a sentencing where facts are contested the government has the burden of proof going into any sentencing the defense has to have of a sound strategy the case of proxmire it is in my brief and this court writes about how a defendant might be exposed to negative consequences if he were to challenge evidence a certain way and may strategically not pursue certain things and it was for this reason that once we knew that the government was not going to be calling mr howe we didn't ask for mr howe to be brought in as mr williams bay was exposed to who knows what mr howe would really say it's not strategic to bring in for the defense to to ask the government to produce a witness that has already testified against the defense effectively however if the government does choose to bring in a witness like this then you do have impeachment evidence that you can use against the person you can cross examine the person and so in a case like this where it's a very awkward procedural situation for at least for the defense to rely on the fact that the government is choosing not to exercise its burden of proof is