morning my name is cynthia and i'm representing defendant appellant randall char on appeal there are two issues before the court today regarding mr charles sentencing the first having to do with whether one  one point ten should apply to him and the second having to do with whether or not the district court's consideration of the substantial assistance with respect to the one the one point ten is i'm happy to address the court as to either way if the case is upheld i believe that the same type of arguments would apply to mr char which we've conceded however the government never f across appeal and so under green law this court should not be able to send it back to enlarge mr charter sentence even if rodrigo soriano was held on but really for you asking for well before down was asking for we were asking for the court to apply one of the one point ten as directed by dylan and first father one would be one thing ten to the comparative reduction that guideline when the case got sent back down by a prior panel i thought the parallel just vacated his sentence until the district court judge to do it over well the district judge did not treat it that way if that's what but that's what the mandate right just such a centrally receive sentence mr char and then considered whether he should be eligible for this motion to reduce the sentence and there would be one point ten  if the court and even if i ask you one question if if the judge has the sense you know just taken place for the very first time yes on the second the second time that was the very first time it ever been since when he had gotten the benefit of the reduction of the guideline at that time if i could just clarify are you asking would if you had been me sentenced no no no not forget we sentencing if you just been sentenced for the very first time if you'd been sentenced for the very first time in two thousand and fifteen yes yes he would have gotten the benefit of the reduction well my argument would be that he should have then gotten the reduction of one the one point ten regardless because it would be unfair to treat him differently than the any other defendant just based on the timing of when he was sentenced i mean this argument another case where it's an equal protection violation to treat somebody differently just because they were sentence on a later date and november first two thousand and fourteen this guideline reduction applies to defendants who were sentenced before november two thousand and fourteen and if one of the one point ten is applied those defendants do stand to benefit even if they've had a mandatory minimum in cases where they provided substantial systems so you know this kind of is essentially just substitute his own opinion for that of the government the government's it's just it's a recommendation correct but you know the guideline does say under five k one point one that the court should give substantial weight to the government's recommendation and this is your position that that we could theoretically send this case back to ask him ask the just tell me just where judge you've got to give better reasons for why you rejected the government's recommendation but whatever you do you can't impose a sentence higher than a hundred what is it forty four months hundred forty four months that year but i don't think that's correct because the government does not violate cross appeal and greenland and this court and they'll try merino are very clear that when the government doesn't do that mr char should be able to anticipate that he's going to receive nothing higher than one hundred forty four month sentence so the only possible way he could get a lower sentence would be for us to tell it took to conclude that when the judge rejected the hundred twenty month reduction only went for half that he still hasn't given adequate reasons even though he tried his best i g he made an effort to tell us what he was doing right right i mean i agree that the judge did good for the reasons on at the reception seeing hearing as to his reasons however i think the problem is you know that the district court originally said i'm treating mr char as if you testified at the struggle and then on re sentencing he said he didn't testify so he didn't get that much benefit so right there those two things are recommendation but about the reasons it was objection to his stated reasons there was not a specific objection on the record to his stated reasons however it was clearly argued at sentencing that he should be given he should be getting one hundred twenty months and i just want to address too you know the district court said i can look at what he did i can see the end result and therefore i can determine what that's worth but the problem i think is he doesn't know what mr charge it behind the scenes and he doesn't know how much he worked with people behind the scenes the nature and extent of his cooperation the risk that he put himself out there didn't the government sort of i don't know mind that or did they just sort of you know went just not say anything and we stand by  recommendation when i went i think the government since you said we stand by our recommendation you know it's best that they did they sort of bolster with some facts not really  know the judge know why they didn't call him as a witness that was not discussed in the courtroom however it is a matter of record i know it is for the judge to know that the reason he didn't was unable to testify was the government's decision suspicious so and apparently that had nothing to do with mr char's behavior riches whatever and so the deal didn't go through to the judge or anything judgment right and that case had several problems i'm sorry i mean i relied on lot of time that case had several problems where they were having problems with getting their evidence and in that case please the court my name is marion purcell i'm the system u s attorney representing united states in this matter i'm afraid i probably should begin where the court left off and admit that i am not fully familiar with  details of the defendant's cooperation i would not they us say below i was not the a would say below that i would say has left the office and i am not fully familiar with that i am familiar with of course the  transcripts and it seems to me that the assistant u s attorney has an obligation and a met his obligation to provide the information that he believed was appropriate to the court in the court had the information the court had y all the things that he was willing to do and what's troublesome is mr char wasn't responsible for those decisions he was prepared to do it and  doesn't seem fair if they get particularly given these fellows record otherwise and circumstances to say well too bad the government didn't call in you were in court and too bad you're going undercover didn't produce anything because the suspect bailed out nature and extent of cooperation i thought under five k well one substantial sense the government includes not only the usefulness of the assistance which is what the district court releasing the focus on when it said that he didn't produce but it also considered the risk that the defendant took the danger that he placed himself and possibly his family and it also include the nature  persistence the extent of that assistance so going undercover as you well know poses unique risks and also if you can conclude includes the completeness and reliability of that i think that's why the government is really in the unique position to fully evaluate the extent of his cooperation and the worth of fit those various factors and make a recommendation to the court did the court adequately evaluate all of those factors or on the record as you review it if he really focused too much on whether the defendant actually produce results or not you are here reduce the sentence by twenty five percent and that is a  very significant number well less than fifty percent you know whether the government's recommendation two hundred twenty months took into account the fact that the government didn't dismiss the fifty one in this case i do not have any insight into the reasoning that took place at the time on the part of the u s attorney's office i we know from the transcript that the assistant u s attorney has asked the court essentially to back off that eight fifty one information i would just be speculating to to say and more than what's in the transcript with what does that mean to back off the fifty one he was because if the if if you want to not been filed in the mandatory minimum would have been one hundred twenty months and that was the sentence that the assistant u s attorney was asking for right and that's what i'm getting at this your office sometimes this miss the fifty one enhanced meant as part of the reward for substantial takes into account the fact that we didn't dismiss the fifty one enhanced meant was that part of the analysis engaged in by the office number one and number two was that in any way relate to the court  i'm sure nothing was relayed to the court that is not in the transcript so i'm sure the answer to that is no i'm sorry but i cannot provide any insight into the thinking of the office with respect to not dismissing the need fifty one i can say that as a general proposition once it's filed it's very rarely revoked but sure we have the discretion to do it if we chose to do it and again i would only be speculating if i were in those shoes i might think gosh the sentence should be at least ten years if i if i take away that a fifty one then the court's going to go down from one hundred twenty months and that's really too low that might have been part of the thinking but i can only speculate i wasn't there and i've asked people who and i have not gotten an answer that  does your office or frequently or is it rare to make a recommendation of ten years on a five k one point reduction for substantial assistance i mean that's a lot it's a it's  i'm yours is a hefty reduction and that must be the only reason i could when i read that i thought of that really was the thought he provided substantial assistance or they would have made this recommendation that's a really significant recommendation it is and i would think it's about as  it taking half off is a very very significant reduction and i guess i can't provide insight into what the actual thinking was all i can do as all your others can do is look what the record shows and the record shows that the assistant u s attorney did in fact ask for a very substantial reduction the district court looked at all of the factors that it had available to it concluded that in fact one hundred eighteen months should be the new mandatory minimum and i want to focus on that a little bit because we haven't really talked about the fact that once the court decided that the downward departure should only go to one hundred eighty months that that then became a floor the this court's case law makes clear that the next step after that is to consider whether he should get that entire downward departure based on the thirty five fifty three a factors which he decided it should and so he sentenced originally to one hundred eighty months and the the major issue before the appeal we did not cross appeal and i should should emphasize of course that we understand that this court absolutely cannot raise the sentence that's not the issue the issue is could could this court women for lowering of the sentence and our position is that that is not possible on these facts because in it's something that again we haven't focused on here the original i couldn't you know if we just think if we thought that the district court judge didn't have enough consideration to the government's recommendation why couldn't we were amended back for that and say you can't go below you can't go and present higher than one forty four but you could go below we could go to the recommendation well i think your honor simply because it's not substantively unreasonable but that's that's just recognizing a procedural error you're i don't think i can emphasize enough that there was no procedural error here if this co court when it reviewed all of these factors could be reversed on these facts i don't know what he could have done to explain his we isn't any more clearly  and your honor your point is there if anything it's a procedural error it's not it's not substantively unreasonable to go down twenty five percent wearing an individual has tried hard but didn't actually testify didn't actually produce a new case it's not substantively unreasonable so the only question really could be did he explain it well enough and i don't know what more we can ask from a district court than what was done here about in the courtroom would if the government were to go back and amplify on why they had recommended the one twenty months and fight for the recommendation more aggressive would i think your honor that the position that the government takes in and our departure motion is within the discretion of the government and the and we think it's justified or your honor we think it's justified and let me tell you why it's really justified in this unique case and so on and so you wonder the government is not asking for that relief and so i and i can't think of any basis short of the government having cross appealed and ask for that relief i can't think of a basis for this court to order that to occur is correct that the government should amplify the reasons for why they recommended the hundred twenty months miss purcell has indicated that she doesn't really know what the reasons were for that and the reasons are not amplified in the transcript either are there