murder sentence without the requirement of a murder conviction the government candidly admits to selecting the primary crime charge bank fraud merely as a jurisdictional hook describing the question of whether or not mr aber committed murder the primary issue in the case the government didn't charge mr a bear with murder instead the government drafted a single sentence into the preamble of the bank fraud counts of the indictment suggesting murder that sentence which was irrelevant to the elements of bank fraud and was expressly it's looted by the parties from mr a there's can fiction alone overrode everything else in that case and alone dictated the sentence imposed the district court sentence mr a there to ninety two years a life sentence which neither the district court nor the government suggest would have been appropriate absent the uncharged murder m raised four issues on appeal all of them related to the constitutionality and legality of this practice all began with what was claimed to be a mystery there is free whether or not the guidelines permit a cross reference from bank fraud to murder gets charged with seventy counts originally yes so he then they go shoots a plea that knocks out a ton does and in the death results in death wasn't just in the bank fraud count two is in the obstruction count two in a different characterization correct so so what we've got here is a an indictment that does a speaking indictment no motion to strike anything as surplusage you probably wouldn't be able to anyway because it's relevant conduct it's describing in their theory of why he engaged in the larger set of fraud yeah i think so let's say you went to trial now the evidence is coming in with a for a for b instruction and then for it becomes relevant conduct and professor sokolow just walked out  the case you probably know where it where that that eight to one supreme court says that relevant conduct can drive sentencing yeah i think i think they're at a couple of issues to pull out of that so first being that we are at sentencing and there was a guilty plea in this case and on the cross reference issue the cross reference in to the one plate one c three by its own language only permit cross reference where the conduct set forth in the count of conviction establishes all the elements of another offense your first question about whether or not the homicide allegation was also in other counts the mystery there was not convicted on a conviction he plead straight to the bank fraud it describes and paragraph j the murder and then and then it very pretty clearly i think then when you get to rearrangement everybody says your honor we understand you will be deciding this at constituting the offenses to which the defendant is pleading guilty are as follows you know so mr abrams conviction was limited to things that were in the factual basis and the pro not of our guidelines like if you small rooms in the guidelines at sentencing two or preponderance of death results goes up how is this any different those would be sentencing enhanced means which would apply with a different standard the cross reference and c three is quite limited and intentionally limited by the guidelines to things that are set out in the common convictions and not to relevant conduct which would be covered by any one of that guideline on the guidelines are structured differently and require that what mr it was convicted of count conviction lay out all of the elements of the crime that he is being sentenced for so and as to your the third part of your excluded it from the kind of conviction and in fact the judge in her coat i rearranged minute note that mr avery is not pleading guilty to this the government nevertheless believes that it can be resurrected  sentencing as being part of the count of conviction think that it's important to recognize that the government introduces no limiting principle to this anything that is written in to the charge that they ha would be struck from the indictment here the conviction is what the parties have agreed to and in the factual basis again based clearly stated this is the conviction that we are going to and  absent that women in the cross reference to only the count of conviction the government could put any sentence that it wants to into a bank fraud count saying that it is you know adjacent to part of the bank fraud even if that as this sentence here is irrelevant and unnecessary to the elements of being from the government you know the government could have pled bank fraud without this sentence and in fact this sentence actually doesn't go to any of the elements of bank fraud so the argument that the government is think it's it it will there are going to be interesting questions to the government about what they can do but if you get a big speaking indictment with lots of extraneous stuff and when he was twelve he rapes somebody but has no background relevance to his intent an opportunity for the crime charge defense will immediately move to strike that and it'll get stricken it will not be conduct described in the kind of conviction but here i think the theory of the government's whole case was what allowed him to defraud the guy of all his financial accounts was his effort to to to kill the guy so he could never complain and report it so its integrity they would say so you're to prevent the abuse the hypothetical abuse you've got to put the government to the test of a try going to move to strike it you can't negotiate a plea that says we will let you decide this at sentencing to a preponderance but to that last point i think that the government for the first time an appeal on appeal sort of float the that that mr aber and his attorney were agreeing that this should happen rather than resign themselves to the fact that a sixth amendment right just to be proven guilty beyond a reasonable doubt of every element yes it's the right of the sixth amendment right  perhaps it in artfully worded the claims that we raise on appeal are the main claims or to both claim to regarding whether or not the guidelines permit this cross referenced and clean three whether or not as referenced as one of the costs of friends in each of the other cases were based on conduct that was in the indictment which was found as a whole by the jury always pleaded guilty to by the defendant without this situation where the in around that which all describe the count of conviction language in the cross referenced in c three is quite limited and only applies if all of the elements of that other offense are established on the face of the count of convicts and that's supposed to booker did the sentencing did the judge the b three ways to get to a high sense one would be the cross reference another would be a departure which the government asked for and she didn't give judge will also didn't give the third would be thirty five fifty three variants she said yes so that's an alternate basis that has none of the cross reference complexity yes it's if you want to address that yes thinking that first the judge did sentence under the cross reference and then made a passing remark that she would have been given the same sentence as an upward variant of the first part of that argument is that the supreme court and indeed this court had required that that any judge consider the sentencing guidelines before imposing a sentence and because the guidelines were not correctly calculated he or she could not do that the second part of that if a sentencing judge at the end says and i would have gotten here this case would be varying upward from a six or seven year sentence to a life sentence for bank fraud and the supreme court cases which allow the presumption of reasonableness for the guidelines and in fact in p to suggest that the larger departures from the dive or larger variances from the guy the guidelines might require a larger justification for the entire sentence and the reasonableness of the entire sentence with and hanging exclusively on a fa that was not found by a jury that mr aber was not charged with which was that murder and that would be exceedingly problematic under sixth amendment jurisprudence to have the entire sentence be motivated and the reasonable enough but it hang entirely that that being a variance that would get you way up to a life sentence even from an underlying fraud that could be six years instead of again i think that isolates exactly the issue because in making not argument that argument is about whether or not mr eva committed murder and so the reasonableness of the sentence things entirely on that path it hangs entirely on whether or not this is a police officer who had killed someone and so that's where it gets into quite  constitutional territory because instead of having constantly who's been found guilty of that crime in fenton's based on that fine this is a person who's not been convicted of a crime and in fact the parties agreed to explicitly excluded this allegation from mr embarrassed conviction his guilty plea and then to have that resurrected at the sole basis of his conviction is tremendously problematic all right thank you your both time to enter our government mr shanker thank you may it please the court d j shanker for the united states your honors the defendant does not refute that the supreme court and this court has consistently and repeatedly held that a sentencing court may consistent with the constitution select the sentence within the applicable statutory range based on facts found by that court by a preponderance of the evidence and the district court here in fact found the facts by the clear and convincing standard the higher cleric convincing standard at your invitation well that's right your honor but the district court we submitted that we had proved the facts to be on a preponderance of the evidence in the court agreed with us and said that i know but but the government very carefully here said judge don't worry we take these situations very carefully we're i think the gore government said we're uncomfortable with preponderance in these fraud cases where there's a no body murder and so the government very carefully said we don't even like being able to get these at a preponderance so please make clear and convincing finding or even a beyond a reasonable doubt so when i saw the government saying that it's telling to me that she didn't say i found this beyond a reasonable doubt well your honor i actually if you look at the transcript the court did allude to the fact that it could find no doubt to which it could assign reason in finding that mr and their murdered that is in the following the evidentiary hearing so i would submit that it could be argued that the court actually found by beyond a reasonable doubt the murder but it did explicitly say that it was finding it by clear and convincing evidence i don't think it's not just i don't think it's fact that no court has ever said that sentencing facts have to be found beyond a reasonable doubt the only court that has gone beyond a preponderance standard has required only clear and convincing evidence and that's the one sure there's been discussion of the department because here the attorney is saying we've always gone into court and prove this well beyond preponderance courts of theorize someday you may have to use that meaning beyond reasonable doubt so the government is that the government when you've got these broad cases where you're going to end up asking for a murder sentence your honor i think the assistant united states attorney or actually it was a trial lawyer from a justice there was simply being cautious you know the department i can't speak to any discussion within the department about the need for a higher standard i know that we have filed multiple certain opposition briefs in which we have reiterated our position and side of the cases clearly stating including supreme court cases that  sentencing court can find sentencing facts by a preponderance standard and this court has made clear that that standard applies even where as here a sentencing fact is a significant if not highly significant part of the s paragraph says and when we interviewed him he denied it here and then that p s r fact comes in and then i think the government's position was to judge mulago and we can prove that fact now not just to a preponderance but with hearsay right because crawford doesn't apply at sentencing so this is becoming you do put in the stray sentence about zero and killed p s r says yeah we believe the government might have that prove that it sentencing you get there you only have to prove that and killed to a preponderance and you can use hearsay issued after the district court's evidentiary hearing for de evidence hearing and after the district court's findings of fact stating that it found by clear and convincing evidence that the murder was committed here at p s or was issued after the sentencing there were multiple p s r as multiple dr more and so there was two drafts before i think maybe three then the evidentiary hearing the findings of fact and then the fourth draft p s r referred to the district court's own findings  your honour's and mr aber we're getting at limiting principles here and i think it's important to realize and recognize that this wasn't and i think judge you can see and you may day you refer to the example of an indictment referring to a rape that the defendant committed fifteen years earlier or something like that that's not what we have here and i don't have that any reason to believe that that's what the government is in the practice of doing what we have here is a murder committed as part of the fraudulent conduct specifically to enable the fraudulent conduct to continue undetected and that is a part of the fraudulent scheme and that's what the indictment alleged that's what the district court found and so the cases are clear that a district court can find those facts by a preponderance related to the crime that the defendant is on trial for we can't and i don't think the government has ever tried to refer to some unrelated offense but then it's the burden of the defendant to know all this law which of course they have to know do to strike it the only way to protect yourself is to get it out of any sort of thirty page indictment they have to strike it because if it stays in there sure what the basis to strike it would be if as in this area during the conduct is that even after let's say let's say that the defendant's counsel had made a motion to strike that and had succeeded ok so it comes out of the indictment does it still com as a part of the proof and p s our sense sentencing i mean what a fact is striking it from the indictment have on the proof that's brought forward at sentencing your honor that's a difficult question i haven't seen cases or great purpose of that is a great question the purpose of the count of conviction language as the eighth circuit said in bar and as the first circuit said alameda is basically to provide notice to the defendant and so that the district court can't rely on a trial here a trial transcript testimony to establish the conduct which it later relies on to in his the sentence that's the purpose of the count of conviction language and so if the language is initially in an indictment such that the defendant is now on notice even if the language is subsequently stricken it's a great question i confess i don't have the answer to that your honor that i didn't indictment but for a for be a motion mentions it yeah exactly what that arguably under the guideline is it is no longer in the count of conviction in the sense that it's no longer in the indictment it would think so but but with all the if the of these are tough questions i guess why isn't the government pressing more mulattoes first hand thirty five fifty three variants because the cross reference is difficult your honor i don't think with respect that the cross reference is all that difficult this clearly falls within the plain text to be one point rearrangement where the guys saying well i know it's in there and i'm not moving to strike it but i'm not i'm just understanding that it might go to sentencing and then that from that they draw that that's a preserved objection to use squeeze out a waiver it's messy i think just assume for the sake of argument it's messy what about variance why isn't that at all we we do argue very unsettling to our brief and we do rely on that what's your best case for a variance of this amount where got the court just says you know here are the guidelines down of fraud but i've seen horrible stuff here and i've seen it to a convincing level of proof so i'm going way up here wouldn't that wouldn't that survive and you know it would what's the best case it is well it is true that that  greater degree of variance requires a greater explanation but that explanation is provided here now it's important to remember that when we talk about the variance as opposed to the application of the cross reference we're not talking about disregarding the murder because the the district court has already found that the mother was committed but i can't commit sing standard so we're only talking about whether she gets there by operation of the cross reference right versus by the operation of the variance and so although the variance here was very significant if the district court is basing it on a murder in which it called heinous and unconscionable a murder committed by a law enforcement officer against a vulnerable elderly victim is that variance reasonable and out of what all this evidence is i mean we're not at trial we're in the senate and there would be time on a jury while you're on earth it raises a very interesting point because a defendant is would essentially be seeking to have it both ways at that point i don't want it in the indictment it needs to be struck the defendant would be saying and then at trial obese and and the district court can't find it by preponderance of the evidence so a jury has to find it beyond a reasonable doubt and then here we are at trial no you can't bring this up in front of the jury because it's too prejudicial that's why these are sentencing that this is a fact that makes this defendant's commission of this crime that much more significant we don't want district courts to be sentencing defendants who just commit bank fraud the same as they do defendants who commit bank fraud and cook and murder their victims that's why these are sentencing facts and district courts can find them by proponents of the evidence i think it would be unfair to require us to try to bring these facts and before a jury and have a defendant probably reasonably argue i don't want this before the jury that's prejudicial and then all of a sudden now we're in a situation where the district court is precluded from considering the fact that a defendant limiting instruction for jury to say don't take into account the fact that there's a murdered nobody it's air so to me this floor for b deal is way in the hypothetical arena  and you don't have it in there if dead you'd like a lump it supersedes you can't have any doubt would be my track record i just would never let you get to a four hundred four b on this kind of issue but we don't have that we don't have don't have that we've honor and i i think if the government tried to get this evidence in this forum for being it would be a legitimate site in the trial court that's a but the fact is that and we can talk about serious as long as got five more minutes i'm happy to go but the but the actually i'm not sure what prompted the revised p s r it was a it was a p s r that captured it now captures the essence of what was a dues to the hearing in the judge's findings and so on and so forth to which i would assume thereafter at the sentencing hearing which should not be confused with this evidence you're hearing the subsequent said sentencing hearing at which the district court took on the defendant's objections to the p s r the out the cation of the cross reference  those things rejected all of those arguments sound again that the cross reference applied and that the murder had been proven by clear and convincing standard and that it was imposing the sentence both based on the cross reference and alternatively based on a variance let me ask a question you say then you judge suggested that he might say if he were the trial judge in this situation well you can't just bring a senator or a for be too much you've got to either charge him with murder murder or get off it what what's the charge i mean what statute and i'm i'm not used to your admiral murder there isn't one there's an f the problem it's a state crime isn't it is a state crime no you're not going to be able to charge and we wouldn't be able to charge it it looks like from the criminal history he actually was charged eight side with that just told the band he was not charge stateside with this anything related to this nothing related i thought no he was he was he served time for victimizing other individuals in the same way not murdering them but what i was going to implicit in my point to which and i don't have that option that we were in the government i can't speak for the solicitor general's office at all then and on it not intending to but i would suggest that we would have reasonable grounds for appealing that decision based on a clear law the the beat out was my point yet and i would agree with that it's i'm taking for a form be it out of this this is a sentence in fact well let's say on that point you don't want to read too much right if he did the same thing with other people that's who are for be if he murdered this guy to get his in this is intrinsic i bet is what they'd argue who knows or a lot of talk and hope i hope i'm not being seen as binding the government anyway i'm just suggesting that the four of four be as she was not one that we have pursued in this case or similar cases and i understand that there will be difficulties but it's the limiting principle the defendants have got to be careful because this cross reference language that they don't let anything stay in the indictment they don't think should be because if they pleaded it's in there the government then says now it's preponderance and hearsay works yes your honor but i don't i think that's putting it a little backwards if i may the limiting principle is not that the defendant should try to get things taken out of the indictment it's that the government should only be putting things in the indictment if they're related to the stats so the hope there are another lots of stuff an indictment well that's true you're on about my point here is that this is not a sentence in fact that this is not a fact that again this defendant the rape someone fourteen years ago this was a part of this condo with your time running out am i right the guideline is littered with enhanced myth the say if underlying offense but death results you go out and that's pure sentencing so the larger notion of people being enhanced because of the resulting death is not some remarkable thing that's right you're respond to a couple of points the government argues about the risk of the defendant having it both ways by being able to remove certain things from the indictment and plead only to the things that he believes that he's guilty of i would submit to the court that this is a far more classic example of the government being able to have it both ways being able to punish people for crimes without having to charge them for that crime the government didn't target mr a there with murder fully able to charge him i think in answer to judge king's question this would have been under eighteen u s c fifteen twelve c u which would be killing a witness to prevent them from reporting the crime to line horsemen and there are other examples of that in the other thing that i think is important to point out is that in order to make if the government had charged mr a there with murder it's clear from the record he wouldn't pleaded guilty to it they would have had to take it to trial have a jury convict him so it would not have been part of the town of conviction that murder unless they'd taken it to a jury this way allows them an end run around that to make something part of the conviction which it's quite clear they see hope that they might not be able to do otherwise as alien smuggling where then at sentencing the court said and by preponderance death resulted so i just don't see intellectually how this is different that my bigger worry is hearsay because my correct that the government's the logic of the government's position is they could we meet this through an agent taking the stand and just saying i've investigated and he could did it and in fact exactly that happened multiple times in this three day evidentiary hearing case agents testified as to the statements of witnesses there were several witnesses who had died in the interim and whose testimony was permitted from recorded interviews that they've had with police officers but if you're in a reno which by definition that somehow there's a different set of rules in terms of proving up these things we see lots of peers are where the finish really gets torpedoed by an agent getting up there about hearsay whether it's relevant conduct but if what you say the evidence rules don't but there are several objections me to that the structure of how this sentencing hearing it heard i think that your arguments about why the sentencing hearing is different and in fact said it does have different rules than the non evident your rules applying how probity visit to complain about the hearsay when by definition the hearsay rules don't apply that may go to how much weight ought to be given to it and whether government and council below describe it whether or not the sentencing hearing functionally became a murder trial and at that point it's quite problematic to have none of the protections generally afforded to a defendant in a murder trial apply at that sentencing i'd i don't have one immediately at my fingertips because we've been unable to identify any case in which to be court was took a six or seven year sentence and then a murder which was not an element