really that although i live in louisiana grew up in sulphur springs texas and i hope you won't hold anything against me that this that this office brings wildcats may have done to the clinton bulldog also confess that yes three children the youngest of whom is very ill mr headley served his country switch shit sweat in iraq and afghanistan and she had blood at the hands of a taliban sniper in afghanistan mr hadley high over into the up in a place in april two thousand and eleven that has caused us to be here today and that place is the iberia parish jail under the control of sheriff louis akhil he was there because he was a dog handler his job was to help the other officers conduct a sweep to come sometimes call shakedown of the parish jail he was sweeping for weapons drugs shanks and things of that sort at the end of the day missed to have these dog needed a rest and so he took the dog into the chapel at the jail and rested while resting other things happen begin to happen in the chapel at least one inmate was brought in the chapel abused seriously abused by other deputies fast forward from april two thousand and eleven to december of two thousand and fifteen almost five years later the united states government is investigating the allegations that have been made against your acl and his officers at that jail them that evening in april two thousand and eleven they got to mr hadley and they ask him a question as to headley went over voluntarily without counsel and the final question after an hour or so of interviews was so are you telling us that you didn't see anything happen that was against the law that valise someone civil rights in april two thousand and eleven mr hadley unfortunately said that's correct that's what i'm telling you that was a false statement in december two thousand and fifteen a few days later was to have me call the f b i up and said hey i made i made a mistake i said something wrong i need to come to your days was i'm calling was at thirty days later no sir the actual phone call and this is of course the the basis for trying to get access to the three zero to use the actual phone call to the f b i agent was a few days later and say a few days  could have been two weeks but no more than that i don't believe and he told the f b i that he need to come back and talk to them and tell them and get and set the record straight he then acquired counsel me and then we went over to the f b i office and met with members of the part of the justice will that's the thirty days it was within that thirty days that mr headley and i went back over to the f b i his office and is pretty simple i think perhaps i should have had more foresight but this was a plea agreement this was not we didn't go to trial so there was no exchange of discovery by the time we play it there was no need to to exchange discovery we entered into a plead that was pretty simple and said that i saw something in the chapel and that i should have reacted on that of course led to a misdemeanor civil rights charge and it also said the plea agreement also said that oh by the way i made a false statement about that four years later and so i'm charged for that as well so that's the eighteen u s c one thousand and one charge so at the end of the day we went through the usual things after almost a cattle guard type syncing process at the end of the day we had gone through sentencing memorandums we've gone through letters of support we've gone through the other kinds of the objections to the pre sentence investigation report and the objections and things of that sort were handled at the sentencing hearing at the hearing the presiding judge who had sat and pres over the louis akhil case when it came time to send us my client we made our statement we made our argument we had argued in the sentencing memorandum that we thought mr headley should be placed on probation me the judge overruled all of the objections to the p s and he made the statement in support of overruling the objections he made the statement take that to mean other than the sheriff was acquitted as i recall so i don't know what tone of voice the district judge was using was that potentially a favorable comment that he was one of those who agreed to testify against as plausible just as likely perhaps more likely that it was just the opposite and that is and as you well know the entire transcript of the actual trial is a part of the record on appeal in this matter and so bad that all of them except for for two were more active participants in the bad acts and not you wanted not just the bad acts of the night of april twenty ninth two thousand and eleven but the bad acts and other occasions as had this overlay of stuff that i call it that is very negative because if you read the transcript it is hard to reconcile a not guilty verdict in the trial and there were a lot of things going on in that trial and so a lot of people came in but of the three hundred that didn't they were not active participants they were mr burns mr hadley and mr and so so what we have here for mr hadley is the core violation is a misdemeanor civil rights violation now i'm a former member of the united states attorney's office in western louisiana the u s attorney's office the department of justice does not likely handle misdemeanors they handle felonies when there is a misdemeanor it is and i hate to use this term they have then added on this other violation which is the false statement which i'd like to talk about for a moment because i think here is where the the major point is for this or given the false judge misdemeanor could have finished him to the four year statutory maximum but yes six months so there was some discretion in there and there's some rationale for that sentence and that is the same sentence and mr burns got who correct the there was one there was one witness who testified believe if i have this right and you'll see this in the record that that my client's dog barked always calls the bark at one of the inmates that witnesses mr witness or memory reconstruction as i call it none of the other witnesses none of the other active participants the actual people in the front of the chapel as if he were here in front of you with three officers around him one sitting down here and the bruce or back on the fourth pew at the end of the day mr mr hadley's dog himself back in the back of the chapel and so i would submit that anyone who says that and the only one that i can think said that perhaps of this to bruce or that's the only one none of the active participants said that and so and so we have on the false statement though which i think is the crux of this matter is that guidelines today point one  to be one point one two j one point two and two b one point one we're confused by the probation officer today one point two gives a office level of fourteen one point one ends up with an office level of six and when we think about a false statement in the context of a misdemeanor violation that yielded six months is it reasonable getting to the substance reasonless of the matter is it reasonable that there was no none of the phrases phraseology none of the words the eighteen u s c thirty five fifty three a was not mentioned at all by the presiding judge and i did so in the other six innocent that day but not in mine i did not get my client did not get the analysis required on the thirty five fifty three eighty four soonest to be substantively reasonable and often i think that's particularly true to the thirty month sentence for the false statement which should be as argued in my brief in the zero six range rather than three votes lastly that they should not have been run consecutively five he one point three makes clear that a judge has to apply at least thirty five feet three a or that to forcing us to run consecutively less the law mandates that this initial exactly which is not the case here you know i did it wasn't pointed out to the district court but your client on his own went back to correct the statement in the transcript it just says he went back to correct it doesn't say he called them with shortly thereafter and all of that do you know did the morning your owners made please the court on behalf of the united states jeremy how these thirty six month sentence in this case is reasonable the sentence was a substantial downward departure from the sixty three to seventy two month range calculated under the united states sentencing guidelines i'd like to start with this by discussing that guideline range at least principal challenge to the guideline range is that the district court miscalculated the offense level for a section two forty two offense in making that challenge hatley downplays his factual involvement in the offense the elements of the offense and he misstates the breath of the applicable guideline range i says involvement in the offense it's important to remember what how we actually pleaded guilty to he pleaded guilty to violating eighteen u s c two forty two that's a willful deprivation of rights under color of law he committed the crime by failing to intervene when a fellow officer ben lasalle assaulted and made repeatedly by striking him with a baton h admitted that he knew that the beating was going to occur before the beating started he admits that he had an opportunity to intervene and he admits that he had a duty to intervene nevertheless he woefully and deliberately chose not to intervene and disregarded his constitutional obligations as between the two counts the sentencing guidelines presume that there is a total punishment imposed to all counts and the count by count allocation is merely a ministerial stop at the end of the sentencing process which is a felony one's a misdemeanor what you're talking about intermediate step of calculating the offense level for the section one thousand one offense was incorrect that the district court should have used the other guideline cross reference rather than the one it used were also acknowledging th the the rationale behind a grouping decision was also or may have been erroneous but neither of those errors matter because those are intermediate steps along the way to calculating the final offense level so the final offense when you have multiple counts the final offense level is driven by the count with the higher offense level regardless of whether they're group or whether they're not grouped under the guidelines and here no matter what the section two forty two offense is going to have the higher offense level and that's what drew that's what drove the guidelines range and that's what would drive the guidelines range in any event here and the fact that the offense that drove the guidelines or injuries a misdemeanor is of no moment which could have been harmful to the defendant your honor in our view the question here is whether that there's any evidence that the district court was actually confused about the identity of the defendants here and and where you knew the namely new facts of what he done but it does seem to me there's actual confusion about whether he was one of those who testified at the trial and i disagree with that your honor because if there was some sort of perception that the district court was confused either by mr that he did not testify were what we're disputing is whether the whether the judge was actually confused about the identity of the defendants and based on this record there is that that line in the transcript about your testimony but if you look at the record as a whole it's it's very very clear that the district court wasn't actually confuse the district specifically mentions how the service just country as attendances them that's a unique fact to hatley there is only one other defendant who served abroad and only how they made it central to his sentencing arguments and then the second part of it is that if you look at the sentences across the board these sentences are reasonable and it's clear that the district this is a really complicate that case with the five day trial p s r s five k motions for eight for most of the defendants and the district court clearly considered all of the culpability and all the cooperation and came to a basically sensible sentencing scheme here that all of the sentences fall within or below the guidelines range ranges and the district courts sentences do reflect the relative culpability and cooperation of each defendant look looked at as a whole you know just last month we had a case where it was not clear whether the judge was of what he was we also knew something that wasn't true and that is something that can't be excised from the record i think your argument is just what is the effect of that is not the fact is that he knew the fellow was by looking at everything else i think we have t accept except his argument in a way for you to respond to we have to accept that the district judge factored in maybe not to the senators but it was something that was in his mind as this was one of those who testified at the trial of the sheriff and what that means i have no idea whether it be harmful or helpful to the defendant but that fact was in the the judge's mind so can you give me a little bit more than just saying the overall picture is he knew the fellow was right and so the inference from the idea that he thought that how he testified at the trial the conclusion to that is that he must have therefore confuse hatley for another defendant who did testify at the actual trial and that the record as a whole viewed as a whole does not add also just that the district court confuse happily for somebody else they did that when he says your testimony at the actual trial the inference that the defendant is trying to draw from that is that the district court thought that hotly was one of the other defendants and there's just no viewed as a whole i just don't think you can reach that conclusion based on the rest of what the district court did both in this case and the rest of the cases so you can move on is just the name of eighteen president too but he doesn't really doesn't read like a normal sentencing transcript we see tons of these right the court goes on to discuss several of the factors as you as you see in the transcript such as his history of characteristics involvement in the the five k motion in a service just country all of which are relevant to the thirty five fifty three analysis and then this in the cases that we cited in our brave sharpen salazar garcia this court has upheld circumstances where the court calculates the guideline range adopts the factual findings of the p s r and then describe some of the factors that it considered and it's important here that the court consider the whole volume of information such as the trial trial testimony that it hurts after a five day trial and consider it had before at the five k motions in the p s r's of all of these defendants it understood their relative culpability and cooperation and so the consideration of the factors both on the text of the sentencing transcript is sufficient under this court and we don't dispute that he did correct the statement thirty days later we do dispute the idea that he came to the us on his own or anything like that because if this issue had been raised before the district court we would have developed our own record explaining why it is that we why it is that we charged him with one thousand and one and it's important to remember that he pleaded guilty to violating the statute which requires a material false statement so it is material to the investigation he that he was just sort of innocently missed forgot something and then misstated it because it was five years later that's that's not a one thousand and one violation one thousand one my allusion is a woeful material false statement which is what he actually pleaded guilty  probation officer is using it they're allowed to look at the basis for the lease the lawyers to look at the basis for going into the p s r they may well have prevailed on that issue your honor but my understanding is and they're not allowed i'm not saying  my understanding is that the u s czerny's office in the western district of louisiana generally does not turn over three accuse when there's a guilty plea that they're using them for the p s r not nothing from that was incorporated into the p s r here  but again it wasn't litigated before the district court and they very well might have prevailed or we might have taken a different position depending on what exact he requested and what the basis was for it and whether it was only going to the council as opposed to the defendant etc etc but here you know one of the things that this is a complex investigation and it's still ongoing which is why which is why there is that which also goes to the five k issue of you know now the defendant contends that the district court didn't explain the five k downward departure sufficiently and you know the five case were under seal before the district court and if if the defendant had objected perhaps the district court could have provided more explanation in close quarter something like that but the district court was prudent and not going into too much detail about it because this is an ongoing investigation with multiple defendants and it still and each of the five k motions was individualized to each defendant based on their cooperation so it contained a great deal of detail about about what information each defendant provided to the government when they provided it how it was used and so forth counsel we there's there are multiple errors in the senate some of which you c e and even though you argue that they're harmless there are multiple errors in the sentence there's perhaps ambiguity regarding whether or not this person is mixed up with the judge's mixed up about who the person is the calculation of the one thousand and one offense of one that's an intermediate step in the calculation of the guidelines there are two the grouping issue is the grouping one and the other one there are two in the in the process that i saw what unfinished whether there are one or two none of those errors all to ultimately affected the ultimate guidelines range which is the which is the ultimate guideline range is the starting point where this court's review starts the court's review over the intermediate steps court doesn't review the intermediate steps as long as the ultimate guidelines range was correct and here the ultimate guideline range was driven by the section two forty two offense it was correctly calculated the sixty three to seventy two months and that he was  he received a substantial downward departure from that rate from that sixty three at the bottom of the guideline range she got a substantial downward departure it's unusual to have a defendant who pleaded guilty got a substantial downward departure challenge both the substantive and procedural reason want us of the sentence it's also worth remembering here that he was a supervisor he didn't have direct supervisor at dorothy over ben lasalle the individual who repeatedly struck pretrial detainee here that was brought broussard but he was a supervisor so he wasn't a minor player he wasn't just in the wrong place at the wrong time there's extensive testimony at the actual trial about how he was part of this group of defendants ben lasalle testifies that how he was part of the group restart testified that how he was a good friend who was in the know and so this this is a long lasting series of abuses at the at the sheriff's office and how he was a part of it there's testimony that he walked into the chapel following broussard lasalle and the officers who had had the conversation about where in the jail there was no cameras and he admits in his factual stipulation that he knew before the beating began that what was going to happen and you admits that he had an opportunity to do something about it he admits that he had a duty to do something about it and he willfully chose not to so he wasn't just his brief suggests that he was just sort of in the wrong place at the wrong time when something went awry that that is not supported by either his own guilty plea or by the fall factual record in this case well ask that you affirm the sentence which is a substantial downward departure just intermediate steps just a little bit of this and just a little bit of that you know mr hadley like the rest of us deserve a little more than that you know we're talking about whether the error is harmless or not how can it be harmless arrow when a judge may have mistaken in may have been mistaken in the person that he sentencing how can it possibly be harmless error into the day there is no doubt counsel just agreed that the judge said i remember your testimony from the actual trial how can that possibly be harmless of mr act if mr headley did not testify ethical trial how could it possibly have not affected his substantial rights how could it possibly have not if the public would understand that how could they not bring disrepute upon this institution and there were other things they did as well some things i consider to be errors right  from counsel mr hatley was a supervisor he said but not the supervisor over the folks who were doing the beating that's a huge distinction because in the cases cited by counsel re serato all of those cases involve supervisors who were supervising the people who were doing the beating mr hatley supervised if anybody at all mr burbs mr burns's testimony when you read the he says that mr headley wasn't a minor player would be a misdemeanor is what the don't united states department of justice eventually agreed to that's not a felony everyone else other than burnt receive felonies for their conduct he said that there was testimony that that mr headley walked into the chapel with mr bruce sort there was also testimony that he wasn't even in the chapel there is also no testimony that any of the people who were doing the actual  and of course we're going to go over that with the hypnosis and the reconfirm memory reconstruction at the end of the day there are a couple things here that simply smale one of which is the idea that the judge may have been confused the second of which is the idea that the thirty five fifty three a factors were not analyzed in this case there there is not no reference to them whatsoever all but there is a mention of the s that's enough is that really enough to make to meet constitutional scrutiny i would oregon not not even close if you're going to be sentenced if we're going to take someone's liberty away from them we need to state reasons for that that's why  thirty five fifty three a day and i know i'm preaching to the choir that's why thirty five to three a lays out the factors to be considered not one of those factors was mentioned that mr hadley said it's not that not the military is a factor and he said it well that goes into one of the yes you're right yonder seven that's a little overstatement yeah and i apologize and i don't intend to overstate what i do intend to to mean though is that i think there is something more that's demanded here than for sentencing for sentences at the end of a colloquy made by the defendant i think that i think the constitution i think eighteen united states code thirty five to three eight demands more than that and so at the end of the day you know i don't know how even the government can't concede that this particular sentence is unreasonable you don't get to twenty three points for  that it was me i suppose that drug mr headley over and said hey go tell him the truth i'm a lawyer i represent a client the client makes the decision as to what he wants to do i will tell you that that is untrue mr hadley came to me because he had made that statement because he wanted to correct it the other thing i would say about that is the f b i is very meticulous in keeping three o two so i believe there is a record of the phone call that mr hadley made to the f b i when he stated i