we would not object to any of the matters contained within and inform probation of that and on november the thirtieth i found a revised p s i was provided to the court on december the eleventh we went for  district court judge and during the sentencing it became apparent to me that the district court judge was reading from a document that i had never seen several statements were made such as that if defend th community that lived then had to take the game so fearful of him that they had asked for federal assistance to get him out of the community that he had intimidated numerous witnesses in the past that he was a known cheater and public enemy number three in the clarksdale area those those factual allegations had never been i've never heard of that never seen him either in discovery or in persons report and therefore i asked the judge judge where are you what are you reading from i've never seen that doc or have i ever sing that document and the judge looked at the document and said well i just got it from probation no you probably haven't seen and went when i went to reiterated the facts that he had read out of this justification section of the confidential sentencing memorandum he then awarded the defendant a sentence of seventy two months substantially higher than the guideline range of forty six practice and we recognize that we are asking this court to review this this this issue under the noble standard of review because we believe it is it is a constitutional question and a question of statutory interpretation that this specifically enough then the court would look at the plain error century review we submitted even under the plain error standard view which calls at first there must be an error or defect the use of a we have a secret document the legal area must be clear are obvious and we certainly think that that would be clear and obvious under rule thirty two using a secret dark it must have affected the appellant substantial rights and clearly it did because the judge cited to this document stated that and i object to do that to that statement or i said that the judge read it directly where there were likely intimidated numerous witnesses in the past and i believe i said your honor i don't i don't believe that was i just wanted this for illustrated purpose is to have a front page so that i could show what i'm objecting to is not the bottom half of that document i'm sorry is not the top half of that document but rather the bottom half of that dr we're of information in this or entries that the outcome would be different ya i don't know i don't know whether i could find evidence that he was not considered public number three in the clarksville area i don't know whether i could i could find evidence about this numerous intimidation or with intimidation numerous witnesses i haven't had the opportunity because we have been can work confronted with these allegations until the time of sentencing but i believe that we could probably teaches recommendation section shall not include any factual information not already contained in the other sections of the report and we're asking for whirling of the of to that effect so that not only in this case but in cases to come the defendants will have the opportunity to review the whatever allegations they are going to have to face when they stand before the court censor judge dennis you may recall a number of years ago you sat on the panel in here you are we did not object to that being not disclosed that is the recommendation and the top half of this document is the recommendation the bottom have is a justification we do object to that not being disclose well how do you get around thirty two three thirty two eighty three states that  that it that the recommendation shall not shall not be disclosed just a recommendation it says nothing about a justification section and in fact thirty two d to g says any information that the government as the government is asking this court to affirm the sin is imposed by the district court in this case our position is that there were no constitutional violations with respect to the court's consideration of the rule thirty two confidential sensing recommendation arguments based on three main factors that did i would argue on a day that there were specific instances where for example home page one thirty eight of the record there describes as actually pay paragraph eighty six of the p s r it describes a conduct there was a liaison counselor the superseding both victims would later sign a document stating that they no longer wish to pursue charges against offending the p s r also made reference to the fact that there was no reasonable justification as to why a different overlap victims repeatedly refused to go forward charges against this defendant so either is a coincidence your honor were left to use are to duck the reason in make a reasonable conclusion that there must have been some degree of witnessing simulation involved in that instance and with respect to the actual assertion i think the word likely actually actually takes it out of the ground will be in effect more of an opinion regarding over thirty pages of criminal history that was attribut objection or a motion for brief continuous either for few minutes to review document or a few days or however long it would take our defense counsel feel comfortable with the information in their report with respect to  fail in that regard with respect to his assertion that there were secret facts that the defendant or the hell it was referred to as public enemy number three he was a no shooter i referred to the sense in recommendation after it's specifically what the courts say that i quote the court is of the opinion that these pages of criminal charges and evidence of intimidation of witnesses that the criminal charges the history does not adequately reflect the seriousness of the record where the word intimidation was used but based on the narrative from each one of those criminal history explanations or instances it can reasonably insert reasonably be interpreted that there was a degree of intimidation used with cooperate with law enforcement we don't know specifically for what reason we can't speak on behalf of those individuals but if there's a pattern as evidenced by his criminal history is our position then that would indicate that it's more likely than not that there was a degree as a court is now where the guideline range was forty six to fifty seven months however there are two specific places in the p s r where probation specifically included language now quote behalf of his client in mitigation there's nothing from the record i would indicate and even from the heart and they were heard here today that there could be different evidence presented to the court that would change the since i was the discords where it is your judges have a wide range and it's important to know the probation and it's confidential recommendation actually recommended one hundred twenty months so there was a bit of a benefit given to the defendant and i think the court and analyzing its  said at the time of imposing sentence as he was imposing sanctions the course of the pending that these pages of criminal charges and evidence of intimidation of witnesses now the only place that he could conceivably have gotten evidence of intimidation of witnesses it's off that document right there that's the only place that it was ever mentioned in the pre sentence report it does mention that charges were brought and subsequently dismissed in fact one of the sort of one of the charges that was brought and  allegations are against his client by allowing a secret justification section to be provided within a person should counsel is going to be ineffective when it comes to responding to that no matter how prepared you are and how well how much you work on the prisons report and other matters that you are aware of if secret facts are brought in before the court you do not have the opportunity to be effective as to them we submit  for the reasons that we've set forth that whether it's a dyno bill standard or a plain error standard there's error in this sentencing should be remanded for recent sing and prospectively should be informed that a justification section either has to be provided to defend our to counsel so that we can review it and rebut it if necessary or left out of the present for once again we are not object to the matters contained within the in the supple recommendation we are objecting to any justification section it brings facts in that have never that were not set out in no one has any questions thank you very much for