good morning i'm assisting federal defender david korten i represent the defendant princeton humming way the government's argument on waiver is unsound for three reasons first mr humming ways actions speak louder than his words that's that the phone call on the morning before the hearing so the reason he didn't return the form according to the record was because he didn't want to agree to his pings counsel that might be a reason a other reason might be that he didn't wa well that the court did not further inquire about whether the waiver was knowing involuntary well he refused to produce in the sentencing even when he was there the first time that's not really i think that's what the government says however your honor if you look at the supplemental excerpts of record at pages nine to ten mr humming way ask the court about his notice of appeal he asked about going pro per on the appeal in judge leavy gave him that yes they would well that's that's correct but the important thing is that his presence at that sentencing was very important the judge gave him advice he ended up following that advice i mean his presence there wasn't a mere formality into the court's record but the court noted that because of the presence of the fact that the defendant's mental abilities had been called into question in that case the court was required to engage was a good part of the deal your honor but there was also a question wasn't he concerned i mean we concerned that being in fort worth he was relatively close to the end of the system is that if they put him on con air and brought him out to sacramento that that might take more time than the tiny had left wasn't you concerned about i don't know whether he was concerned i don't think there's anything in the record i think that was speculation on the part of the attorneys about what his motives were but i don't think that they knew one of the facts on has he been released yet is there any likelihood that he would show up if we if he should prevail in this we'll get another sentencing hearing they away from here i believe so you them but you know as i said in the first sentencing it's the fact is that while he said to the judge i don't want to just bam want to answer your questions he did in the end have questions and he did of restitution it was almost a quarter of a million dollars in restitution it was ordered in this case so that was another aspect of the sentence that he said he got a good deal that the deal was a good deal in terms of the time served but there for the court to look at it and he said what it would have done and then somebody put at the bottom line vacated with you shouldn't have been but it was to us and you want to save us to have her sure i'll just it was a twenty two fifty five motion the entire sentence was vacated and the court held that sentencing the defendant  they please the court thomas flynn for the united states i don't think the standard here is knowing him voluntarily although i think he did knowingly and voluntarily waive his right to be there if the rule provides rule forty three that you can press the better word would be forfeiture but the rule says you waive your right to be there if you don't if you voluntarily don't show up to say that you have to voluntarily waive your right to be present your sentencing would mean that somebody who just doesn't show up is entitle to have him so free sentenced later because there's been no inquiry by the court that he was knowingly and voluntarily waiving his right the problem with this case is that both the government and is represented in a very limited capacity were trying everything they could do to get mr humming way out of prison by following the rules and he wasn't cooperating as early as mid october the government had agreed to allow him to time served and mr ballasts was trying to get mr humming wait to follow the rules to do that by either having him appointed as counsel by waiving his right to be there and humming way wasn't  time that it can be determined that he wasn't going to cooperate the only alternative for anybody would have been to bring mr humming way against his will to sacramento for a proceeding he didn't want to cooperate and that at the time would have required a lengthy trial to establish the facts and would almost certainly have resulted in the same sentence since judge levy gave him a sense at the top of the guidelines so in order to prevent  that it's important to realize that during the entire almost the entire pretrial proceedings and during the trial mr hemingway was in custody because he's homeless so that if he was brought back to sacramento judge levy had tried mightily already found that he was not only competent in the general sense but competent to represent himself he's not incompetent he knows what he's doing and when he said i don't want to come back he knew what the consequences of that were he had done that before at the first sentencing so it's not like he did not know what he was doing and as i said apart from dragging him against his will up from texas for a proceeding that the court had basically already had before to see if he really wanted to do first of all the the waiver goes only to the presence of the waiver did not go to his quest that he continued to represent himself secondly the defendant the importance of having a defendant at sentencing is so that he knows exactly the sentence is and here judge leavy reimposed the same conditions but there was possibly that he might not have it's important for that it's crucial for the defendant to be personally present at the sentencing well he knew that when he decided to boycott the process well he said he didn't want to be present he said he wanted to continue to represent himself and he could have done so at a hearing through written submissions doesn't want to hear what what what is going to be accomplished well i think what would be accomplished is that the defendant would be personally present and be able