the honorable the united states court of appeals for the st circuit is now in session all persons having any business before this horrible court may give their attendance and they shall be heard god save the united states of america and this honorable court court is in session today's cases will be called as previously announced and the times will be as a lot of the council the st case to be heard say is united states versus thomas goodman appeal number one hundred and ninety one th occurred when the judge calculated the recommend guideline sentence within the medical figure of three thousand one hundred and twenty months or two hundred and sixty years and then get to what's really the heart of the appeal which is why the judge's decision to actually children friends he recorded it and he did receive a sentence of three thousand one hundred and twenty months which was an accord with the guidelines sentencing recommendation of the pre sentence report to which no objection was made your client entered a plea agreement which had an explicit waiver of appeal understand your argument it is that it would be a miscarriage of justice to hold your client to the appeal waiver because all of those t miscarriage of justice because your client didn't get the sentence that he wanted now there's something wrong with my recitation of what happened here well i because as a contract which is what it is and how it should be understood it didn't give mr goodman any consideration at all he would get the consideration the government says that  responsibility for having committed these awful offenses but you did not get what you asked for and you can't at that point turn around and say we had no consideration because just because you don't get what you ask for doesn't mean there's no consideration and the agreement expressly said and your client acknowledged that the ultimate decision was left to the charge so i think you better explain th sentence is left to the discretion i think that per se is a failure of consideration no that's not fair consideration the question is what promise did the government give to mr i agree with he get some benefit out of pleading guilty and not going to trial expressing remorse immediately but he doesn't need a plea agreement with the government in order to do that you can't you that's that's h your client engaged in i lasted for a long period of time and involve several other are individuals  the government is committed to proceed by this information resources and there isn't anything in the green or pre agreement that specifically notes that the government is for growing its ability to get added bushnell charges and at the end of the day when mr goodman  well he's going to wind up with a life sentence anyway and that may be true but i don't think the fact that it that he didn't receive a commitment from the government have and the question is like commitment valuable testing my memory and i am not sure i'll have to look this up and i should be able to find it promise to proceed by promotion rather than indictment can you say that again i'm sorry my understanding was that the government did argue that the consideration here was the promise to p range the judge now knows that the government of the view that the for it is a defendant who's provided more than the ordinary assistance with somebody who pleads guilty i  if we're making an argument there's no consideration i guess i just don't understand why it was not you said they didn't promise anything when they promised to do something they didn't have to do which was to recommend good option rather than two and that's clearly to your clients benefit because it makes your client look better in the eyes of the court why isn't that enough well i don't think that that is a real benefit because what the but the government is ultimately doing with this agreement is saying this is what we're going to recommend to the court when you look at what their recommendation is and what their ultimate promise is they're saying we're going to recommend a life sentence to the court because if that to t peter is an example of a case for where that happened there were several there were several concessions that the prosecution made to the defendant was not a concession about the amount of reduction under the guidelines you're entitled to use a reduction in charges not you know the sentence would be the same why wouldn't a reduction in the guidelines calculation recommendation even though the sentence would be the same also some consideration i just enough it's you have to look at the whole agreement right and the agreement that sort of product i would make the analog my minus three is forty six dollars and that is still about forty three dollars which is the cutoff so the government's only functional promise is to say we are going to recommend a sentence of life i just don't think that promise has a meaning and i think you have to you have to look at the entire agreement to murder to understand what the ultimate promise is here just just one more question and go ahead  little eleven challenge did you just explain to me how that relates to the waiver issue are you saying that that under teter unlike the consideration argument or of sexual molestation on his own children as well as their friends and digitally memorialize those events or court deemed his conduct a level of depravity absolutely beyond comprehension and the prosecutor said it was the worst case of child mercy of the court the defendant was between a rock and a hard place in this case he had he knew he was probably looking at a life sentence no matter what he did and it only choice was either to create a guilty without it some kind of agreement or plead with an agreement accept responsibility and as much as possible and hope that the court would cure grant him leniency norm took the defendant and his counsel at her remove the execution for you if you look at the agreement paragraph five and six speak specifically to  part of the agreement of the two sides true of the information you should self sufficient consideration coupled with the waiver are present for the grand jury to support the didn't make the argument so what are we to do with that fact the governor also can rely as judge karen pointed out on the argument that he gave up a point acceptance of responsibility that it could not  nd circuit an analogous to the circumstances in this case in that case the defendant pled guilty he had faith a mandatory minimum life sentence and all the government promised him was a potential for cooperation agreement he eventually he did not especially got the cooperation agreement and he ended up with a mandatory minimum sentence and the nd circuit held that it chanced i don't know where sentence was sufficient to  act as consideration for the police and the circumstances are analogous to this case because the defendant by entering into this agreement who tried chance at a less than guidelines ranged range thank you it didn't work out for him that way but he did have that chance and without the agreement he would not have break through your eye with the rest of my trip which thank you  that wouldn't affect the recommended guideline range of life sentence anyway and what then was that he meaningful confession that could be consideration could you just address yes your hon this defendant needed to do anything he could cue have a chance i don't know or sanctions and entering into the agreement provided him with that chance in this court in conway in other cases had held that a chance at a lower sanctions is sufficient that i get a ration the question that i'm left with after the defendant's argument in what way does the reduction of allowable given that it doesn't affect the recommended guidelines range really produce a chance for a lot i'm not saying that he's right on that but i haven't  explain why does that reduction in the level increase to some extent however marginal the likelihood that you would get i think it in the context of you creaming it on her your honor if you look whether the government going to be represented to the court that might be helpful to the defendant in getting a left than guideline range what is the extra thing that government's going to be into the corner representing to the court a that might make it more likely that the judge will deviate from the recommended i might read that even though the mere fact that that level of adoption occurred doesn't suggest that the judge should i don't think in this case the government did that i can't write a check for one hundred year sanctions which while lower than two hundred and sixty davi asli a life sentence so if you're asking can the government agree to make a recommendation of represents anything more than that the defendant has cooperated has agreed to plead affirmative action and that defendant did distribute it and there is no affirmative evidence suggesting he did not what the cover but the judge did what infer from the stipulation that defendant entered into that because he  that the energies of the miners were on the images he possessed and because he distributed the images that you therefore distributed the miners images to the defendant is not correct to correct the record it was a mistake and infringe on the judge's part i would suggest that you give them a call that that were driving the sentence which was to incarcerate the defendant so he could never harm any other children again even if he gets tripped usually an inference was wrong it could not have an impact on the sentence such that it would have dropped the low life sanctions it may have dropped to one hundred and fifty years from two hundred and sixty years if it was driving the last part of that sentence but given all that the court pursued me and higher record i don't think it's at all likely that it made a difference it made a difference in the sentence that was imposed but counsel but yours are d i think that the courts that the district courts while i made a logical deduction i think that there was no objection to it i cannot point the court to any additional evidence that supports the inf other than the logic of the facts and the facts that the law just like you i think i agree with your stand in there that there that on this record there is no other evidence whether a grand jury investigation would have turned up other evidence i cannot say something that is six and a half times higher than an average life sentence twelve times higher than the average sentence for sexual exploitation of a minor much higher than any of the other cases in rhode island cited by the prosecutor at sentencing and far higher even than most of the cases that the government sites including breton which is just a three hundred and forty month center twenty eight years post trial and they got that of that to judge their ass for seven hundred and twenty months but i think it really fails to adequately itself as far as the merits of the issues before the court i believe the waiver is in forcible the defendant has not kedar at length and argument about lack of consideration is not supported by counsel present for the next ok just checking call that one