the primary argument we have this morning is that relating to the federal vacancies reform act and how the fact that the then assistant attorney general the civil rights division was without authority to act and that in turn impacted the validity of the bill of information you'll be pleased that was entered and we also contend that his jurisdiction now as we proceed i would point out that all of the brief writing that occurred in this case is all signed by attorneys from the civil rights division and that here today is only an attorney from the civil rights division there is no one from the u s attorney's office for the western district a louisiana this has been and was a civil rights prosecution from main justice now we contend that the recent supreme court decision in the national labor relations board as and and the case that got in there the  this act is had in other words it is the sole mechanism by which the president can name an acting office and if you have not if you weren't a first assistant so to severance division as well as the assistant u s attorney for under the authority of the u s strike but if you go back if you go back and look at the statutes it's clear that the attorney general was vested with all the authority of the department of justice and through the regulation twenty eight c f r zero point five zero delegated all of that and force them with the exception of some particular areas with the criminal division in the in the hands and in the control use it hasn't been attached to any of their briefs there is nothing to say that that authority that was contained in the regulation is in any way then moved or some delegated by the attorney general who and occurred from under the authority of coop which is part of what the federal vacancy reform act was attempting to forestall from happening yet again because they said it could stand but what it say then our is someone that is subservient or below in order to the control of the a g for the civil rights division can adopt can ratify it and i i don't believe so your honor if if that regulations stands that this all of the authority for the civil rights division or the enforcement of civil rights laws is vested in the assistant attorney general for the rights to vision and with some minor exceptions to the assistant attorney general for the criminal division then there there is no one else they could do it other then the attorney general and filed a bill of information or got like minded people to return an indictment it would not be some a matter instituted by the department of justice co provides that jurisdiction to the assistant attorney general for the civil rights division then only the the attorney general could then have delegated it to someone else and there's no indication no evidence exclusively in the hands in the control of the assistant attorney general for the the civil rights division ok and what's your authority for the fact that you didn't waive it with the put that your client didn't weigh that with the general in finding that coming to that conclusion they said that the signature of the district attorney or assistant district attorney to the document was not merely a ministerial act but it was necessary for there to be a valid indictment and in the concurring opinion a judge wisdom he cites a supreme court decision ponding nation of vessels that have been used during for the confederacy during the civil war and they wanted to forfeit them and the informers were posted yet some of the proceeds from and  attorney general there subsequently to it being filed said we're not going to proceed with this we wanted to have dismissed and the end famers who were seeking to collect some of the funds from this criminal combination objected and the supreme court in reaching that conclusion said we recognize that only actions brought by a competent prosecutor can be can by constitution or if it be by the regulations to act in a certain matter that that will stand and thus the court has conferred with jurisdiction other than to dismiss and i said it out in the sentencing memorandum that i file of record i argued that the guidelines were not properly promulgated for a summer rights violation when it does not provision for someone who commits a failure to intervene as opposed to being the actor that commits the offense and the reason why is because mr to strike this inmate and where mr broussard is there passively he is not participating in the he did not intervene and there is that why is that error well the court could there under the fact that we now the guidelines are not binding they could have guns something you know it could have done something else but the fact that it didn't may be unfair in some grand scheme of things and i'm not it for purpose of your argument but does it make it not according to the law you've been a young both sides of this you understand that sometimes things don't may don't seem fair but we follow the law that is correct but at the same time we try to get things so that they're fair and when you look at the case itself this is the facts of this case of the things and he gets the same sentence as mr broussard who only failed to intervene there's something inherently wrong with that and if i didn't express that to the court i would failing my duties to my client and just that's all i can to that i believe that some of the same issues as far as the errors are concerned mr washington talked about our kind of reflective on my client morning honors i'm still to come sir but i'm still here on behalf of the united states the federal vacancies reform act does not preclude the former principal deputy assistant attorney general's authorization of the litigation in this case even if it did however brossard waived any such argument by entering into an unconditional guilty plea and any bacon cheese act argument any problem would be harmless because the us attorney for the western district of louisiana also authorizes litigation and she unambiguously had the statutory people who convictions i guess in so far as whether this was actually delegated or not is irrelevant any paperwork of actual delegation because it's not a the failure to delegate it doesn't create a jurisdictional problem is that part of your argument no your honor though those are two separate arguments our first argument is that it's waived by the industry i'm just looking at the actual effect of the  under stand your point on that but just moving into what should have happened and what did happen what should have happened and did happen was perfectly appropriate because the power to authorize litigation under twenty eight is comes to the assistant attorney general's office under twenty eight c f r zero point five zero and that's all duties assigned by statute or regulation to a federal officer or presumed delegate ball to their assistants and subordinates  was him being exercised by anybody properly by the u s attorney in the western district know it so that the authority to authorize prosecution rests in the office of the assistant attorney general and for the assistant attorney general here there was no assistant attorney general there was no acting assistant attorney general and because it's a delegate will duty it automatically goes to the next person in line in that office which is a principal deputy assistant attorney general and all duties are presumed unless there is unmistakable statutory or regulatory language suggesting that only that officer and only that officer can perform that duty and we my me are you saying that this was actually signed on the title of principal deputy acting assistant that's correct signed under the title of principal deputy ok and that was permitted under under the under the vacancies act and the c f r but the right of the u s attorney separate complete does that you don't have to go through that to get to that back up argument or exactly like twenty eight u s c five forty seven simply says that a u s attorney has the authority to prosecute for all federal crimes in her district and that is the beginning and the and as far as the vacancies act argument goes if i could turn to the substantive sentencing issues on this the court has any further questions on the vacancies act the sentence here was fifty four months that was a downward departure again from the sixty three to seventy eight month guideline range and that guideline range was properly calculated  the starting point for the guidelines calculation is two h one point one that's the guideline that applies to section two forty two offenses and you look to the con to any underlying offense that the defendant committed and here  and and in looking at conduct you look at not only the defendant's conduct but any conduct of those with whom he engaged in a joint criminal activity here pleaded guilty to a felony violation of section two forty two he had met so that he knew lasalle was going to beat up before he walked in the chapel he had met that he and he admits that he walked in the chapel not only knowing that but intending to advance that unlawful objective and this is all in a stipulation and the factual circulation on his guilty plea he admits that he was one of the most senior officers in the chapel and then he watched as well sal repeatedly struck the pretrial detainee and he did nothing to intervene despite his constitutional duty to do so and despite the fact that he was back in the cells direct do you have any comment argument that it's unfair to put the person who's the perpetrator have the same sentence or less than the person who was supervisor yes your honor i have to answer t first i'll note that the guidelines here do treat the perpetrator and and the and the the perp the person who actually did the beating and the person that failed to intervene with the same guideline range but that's of course not the end of the in of the fairness and if you're looking at it from a purely fairness perspective because section thirty five fifty three allows the district court to consider the actual facts of the offense conduct and deciding where to land within the guidelines range or below the guideline range and so forth long history of wrongdoing as part of the sheriff's office he was the supervisor of the narcotics unit which if the arkle trial transcript reveals was the office was the unit of the the same day as the assault to which he pleaded guilty pleaded guilty the assault of s s e also struck and mate anthony day so the fifty more four month sentence here which is below the guideline range and already  a downward departure from the guideline range and is therefore presumptively reasonable is well justified by broussard's extensive wrongdoing his supervisory role and his actions on the day of the assault and in the very chapel where he where he committed these offenses and his comparison of a sentence to those of his co defendants is contrary to this court's laws we laid out in our brief you have to look at it against similar conduct nationwide and looked at it in the proper lens there's been no showing whatsoever that that the fifty four month sentence is inappropriate for this level and this amount of wrongdoing and by noting that if there are no further questions that none of the same none the particular areas that we discussed with hatley sentence which had to do with the intermediate step of the one thousand and one calculation or your testimony you know a line in the transcript are present in this case so the idea that broussard can just sort of brutes bootstrap his appeal to a different appeal which has different facts and different issues is not appropriate so we would ask that you affirm the fifty four months on  factors including the prosecutor's perception us their forthcomingness their perception as to who was trying to work the investigation behind the scenes and so it lies on a host of factors that are obviously not in the record because they're not it's not something that is usually within the purview of this court or the district court unless there is some sort of allegation of prosecute and i know that to the extent that they are on the other case the attorney for th honor if i may if i would i would like to first go to supervision the facts in this case were that at the time that the shakedown took place bret broussard even though he was a supervisor and there are products division was called going at the direction oh of the sheriff the overall commander and he was being escorted by the person that was the supervisor for the prison so to say that he was a argue that all of this information that he provided pursuant to this castor ghar letter can now be used to pillory him and i would i would object and feel that that is not the appropriate information and the thing that i was going to talk about before then now hard for him an opportunity is the fact that when the judge says i remember you testify to someone who didn't test drive trial and my client testified at trial you wonder then do you remember that my client testified at trial so it's a matter at that point of how much confusion do we have about the