next case on the calendar united states versus russell  and yes please morning your honor sgt kenneth caruso i represent jamal russell my appointment under the criminal justice act the district court found that russell was a career offender and i challenge that because the evidence in the district court raised a question of fact with respect to russell's withdrawal from the conspiracy when he was arrested on state charges and jailed at rikers island the statute city guideline forgive me the government had the burden of proving that he committed the narcotics conspiracy subsequent to sustaining the convictions in the state court committed subsequent to sustaining russell sustained the two felony convictions on january twenty six two thousand and fifteen so the question is whether you mean that in the narcotics conspiracy subsequent to withdrawal issue which is why and which is why which is why this is for review here is for planner and he said that but i think there's an issue here about withdrawal so the government points to evidence that while even when he was in jail continually part of the conspiracy was threatening a cooperating witness and e mailing with coconspirators i think that that evidence was really really pretty thin and ambiguous but the point is there were they haven't been any fact findings on that the withdrawal incarcerated plain or there was no objection of course there are no fact finding if you can there's no objection so the question on the planer is could have been it is there any possible way right that there could have been an argument that he did not  think that's an issue that would have to be explored factually i'm sure that there are find witnesses to whom the plaintiff kidney to whom the defendant while he was in jail said i'm out of this now i mean neither side put in evidence on that and the reason why i'm suggesting it's plainer is because the fact of incarceration by itself is sufficient to raise a question of fact on withdrawal standing alone and i think that that was a big red flag in the district court which was overlooked you have here with drawl twenty or at least a question of fact as to withdraw twenty three months before russell sustain these convictions and if if if he did withdraw and it would be his burden of proof by a preponderance on the on remand that are at a resurgence and then he could not have sustained he could not have committed i should say this offense subsequent to sustaining those at sentencing was already there was it there was no objection was there was no objection to that either and again that's reviewed for plain error but i think that the error there was an error here and that it was plain considering the  well established case law in a circuit that recognizes of course sometimes quantity has to be found by extrapolation but the foundation for that extrapolation has to be firm and specific and here called twist in the package and i multiply that by one hundred dollars because that's our estimate of how many times he would he must have we did sell but there's no evidence to support that they have mr nash testified that he saw your client selling crack extrapolate what russell did from what ashe did the case law is very clear on that the evidence must be specific to the specific defendant he said he saw your client selling crack in winking nearly every other day for two years right and sixty five so we multiply that by fifteen and multiply that by a one hundred i think there's foundation is completely infirm deplane are you yes that issue is subject planner review as well a witness and my position on that is that the findings of fact made by judge woods were entirely conclusory there was evidence on cross examination that impeached the witnesses credibility with respect to the witnesses failing to make timely reports which leads to a lack of corroboration and with respect to the witness having declared that he had suicidal fantasies in order to get himself into a better living situation in the jail that at least raises the question of credibility and it's insufficient now i defer to the district court largely in that circumstance yes but only if the judge makes reason findings here the judge only said i find the witness credi conclusion statement like that in the face of a conflicting record under the case law is not enough it's not enough to permit proper appellate review so i'm suggesting that the least which case says that you have to go through the cross examination explain why any answers then the cross examination didn't affect your view which cases you have to address when the defendant's lawyers arguing or in consistencies question that's what you're what you're suggesting like that you thought their points made on a cross examination undermine the credibility  court didn't explain why what i'm suggesting is there's no case that says that no course not i'm certainly not suggesting that every point raised on cross examination has to be addressed and rebutted by the district judge when finding facts of course not but here you have one major point brought out on cross you know the normal course would be to make a finding about that i'm would like to come back to the career offender point perhaps i can do that  think that it's quite an unusual situation for someone to have been held to have had a career and anything lawful or unlawful that starts at the age of seventeen and ends at the age of eighteen which is what happened may please the court my name is adam hobson and i am an assistant united states attorney in the southern district of new york i represent the united states on appeal as i did at the trial below i'm going to start by addressing the career offender issue which which appellants counsel focused on in his in his argument of course as the as the court noted the defendant did not raise this issue below in fact the defendant conceded to judge woods that as a technical matter mr russell was in fact  career offender he is raising a factual issue now for the st time in which he is saying that there might be evidence that mr russell withdrew from conspiracy he is not saying that mr russell did withdraw from the conspiracy he is simply saying the judge would should have sue a sponsor called for a hearing to investigate that issue there's no support for that in this court's precedent i will note that the jury in the time period in the indictment the conspiracy ran through two thousand and sixteen the evidence the only evidence defense counsel has pointed to of the defendants withdrawal is the fact that the defendant was incarcerated in two thousand and fifteen this court has held that that is not enough evidence to meet his burden of showing withdraw from the conspiracy and in addition as the court pointed out the government did have evidence before the court in which if the defendant had raised the factual issue with of withdrawal it would have showed that the defendant w continuing to communicate with members of the conspiracy while he was incarcerated so there there's certainly not plain error in showing in the court failing to call a hearing to determine whether or not the defendant withdrew from the standard of review that the defendant is proposing here and of the court's precedent and jass and his failure to object to it to a clear finding in the in the pre sentence report means that he waived that argument it is not on plain error it is waived the court's preceden clear on that he had an opportunity to object to it then as the court noted the persons report detailed the evidence that was presented at trial that supported judge woods is a finding of white he chose not to object to that in the president report that constitutes a waiver and is no longer a reviewable finally as to the issue of witness credibility the court is correct that there is no opinion requiring judge woods to explain why he believed  this particular defendant was credible he said through the cross examination he observed the witness who testified both the trial and the fado hearing and he stated for the record that he believed that mr ashton's testimony was credible that is sufficient under this court's precedent if there are no further questions i will i will now rest on our submission russell had was when he committed these offenses and indeed still is because obviously the career offender finding put the guidelines range up above the statutory maximum and you know i believe i think it's framework i believe is the phrase in the case if the sentencing proceeding proceeds on an incorrect guidelines framework then that skews the entire process so i think that the review is a little bit more relaxed than it used to be on guidelines issues seriousness and the connections rights not as if and that did the dishes and then if you recognize that authority to you and and obviously there's a as a matter of law i can't appeal from that refusal by the district judge but i nevertheless think that the same issues are relevant to inform the analysis on the career offender issue even though i'm not directly appealing from that let me just address a couple of points that the government's counsel made he said the only evidence of withdrawal was incarceration and that's not enough to prove withdrawal of course that's not enough i agree with that but it is enough to raise a question of fact this court has said time and time again a coconspirator who presents evidence of imprisonment during the course of the conspiracy isn't title to a jury instruction on withdrawal so the mere fact of incarceration raised a question of fact on withdrawal and the way i think the burden of proof works in this case is the government initially bore the burden of proving career offender status including that russell committed the narcotics conspiracy subsequent to his guilty plea in state court the government to carry that burden simply by invoking a presumption that every coconspirator is responsible entirely and in the conspiracy so the burden shifted to russell russell carried his burden of going forward simply by showing incarceration because that raised a question of fact on withdrawal then has the burden of persuasion by a preponderance and there should be a hearing to allow him to try to prove that so i think it's important to set to know what incarceration shows and what it doesn't it shows it raises a question of fact on w drawal it doesn't prove withdrawal but the young man is entitled to an opportunity i suggest to prove that the last point that i would make is that the point that the government proved that the conspiracy ran until tw sixteen which is later then my client's withdrawal and the point i suggest is irrelevant because withdrawal was not a defense on the merits in front of the jury the pre was due withdraw