my name is walter mack i represent the defendant appellant my client is currently in state custody in connecticut serving he was here when he was sentenced on a read from connecticut pursuant to his two thousand and fifteen arrest which is that's up to the record he was returned there and is serving what i believe will be considered state time the issue on this appeal is whether or not whether they district court can depart below a mandatory minimum without the in primitive or of the united states of the prosecutor our position is that if you look to the guidelines in themselves they do not impose a obligation that the united states is the only party who can unleash the power of the five k two point zero departures and you can you help us help me anyway by pointing to a statute or a decision that says that provisions of the guidelines can can override statutory minimum sentences what i would my argument on that joyner is that done title twenty eight section nine ninety four gives a discretion to the sentencing commission to in fact enact and provide instruction and or guidance to the district court in terms of its sentencing decisions i would argue and i will argue here today that the provisions that are statutory thirty five fifty three thirty five fifty has ever gone below or statutory minimum on his own or her own i think there is some uncertainty on some of the cases and some of those cases can be read but i cannot a den of five opinion where i can  authorizes the commission to authorize judges to go for mandatory to go below a mandatory minimum my first argument is that sob and nine ninety four does not require a sub  twenty eight yes and of twenty eight united states code section one ninety four and again this is a a matter of some comment my by people far wiser than me were writing treatises indicating that there was no obligation in the enabling statute for the sentencing commission that required that there be an initial or a b an application or an approval by the government in order to permit the district court to sentence and it is clear that it says that the guidelines reflect the general appropriate s but there is nothing there or in the legislative history that indicates that at that time there was going to be an obligation that such a request for substantial assistance was in fact had to be entirely within the control of the prosecutor a ninety six case the commission has had many opportunities as has the board in assassin the constitutionality and in fact has evolved a number of practices which are now current and what i am arguing here is we're asking that under exceptional circumstances which i never had an opportunity to demonstrate because judge charles and this is the classic case of why it is the subject of so much criticism by judge torrens came down after the sentence and spoke directly to the family of my client and said that the reason she did not give me i'm interpreted as i was there she went specifically to the family to say that she felt that she had to give the mandatory minimum because of the statute which the government was citing and i'm suggesting oh so the the did you make the argument in the district court you made the argument in the district court that i think that the court has authority to to depart below a mandatory minimum notwithstanding the absence of a letter from the government yes i did and the judge said the yes and said specifically that he did not feel she had the authority or the power to do so i indicated that there were a lot of other grounds i think there is direct  s computes the sounds will actually have the impact of if it's larger so the mandatory minimum of such could actually be exceeded by what's connecticut's ruling the state so there is a if you could you point to where in the record you made that what i would say it's obviously the appellate record one way or the other but at the time i have now that i understand you're making an appeal but i'm saying that i'm asking in the district court in the district court where did you make that argument i did i did not make it specifically other than this way and that was by saying i felt and i think there is plenty of authority that i should be entitled to demonstrate what is happening in connecticut why he did when he was originally arrested i had myself personal conversations with stay private state law enforcement people early on and that i was asking the court to issue an order directing that whatever he did for other authorities whatever his status was in connecticut that i have the benefit an opportunity to observe those and be able to argue that and that in fact  give you could you maybe when you step in when you sit down could you just point to where the page is where you made that argument where you made the argument specifically that the court should have imposed a term below the the statutory minimum not make that argument drop the i made the argument that i did not have sufficient information and so i was in writing clearly asking for statements from connecticut authorities asking for what information connecticut could provide and i would not be able to make ice i actually did not know what connecticut was doing and i felt since he had cooperated with local authorities in waterbury torrington various other places i knew only from him that i needed to have that information to be able to completely break the issue and tried to convince judge torres that there were such exceptional circumstances that would justify a departure as the guidelines to there's nothing in the guidelines which indicates that that they will those departures under five pay two are stopped by mandatory minimums and i do point out the very formal approval where there's where the judicial conference and the guidelines could very easily say you cannot depart below a mandatory minimum the form itself all the whole it is not for public use specifically provides for the district court making factual findings permitting it to go below the mandatory minimum so and in this way in this particular case the government does not make the distinction they have the power it's not really the authority i would agree to ok thank you now you say that the it is you agree do you not that that the government   court to take the position that it may not go below a mandatory minimum without a five k one letter or that it's i think i got that correct i am arguing that in far as the united states government can talk about substantial assistance given to the united states government the law as such in the status of the united states the prosecutor is the only one that can enable bad under five  was pointed out by far smarter individuals and i ask how these why how a defendant does not have an opportunity to realistically we plead bargain given the terms and admissions that are available to him when he's facing a mandatory minimum the only way he can get below them is because the prosecutor is willing to to confer that right and i'm saying that is something that i it least and i'm glad to argue that i've been through that many times three they have to have some rush now and that is an issue one of the issues here is that i did not have the opportunity i do not accuse anyone of bad faith or arbitrary behavior without pretty substantial evidence for them to do so and i have great respect for the prosecutors will work on this case but what i'm suggesting is that it's not only arbitrary it also has to be reasonable especially if the court's interpretation is we need a governmental proposal to we've been permitted to go all the mandatory may please the court my name is just represent the united states and i represent of the united states below this is a simple case it's controlled by can it is decided by controlling supreme court precedent will end as be united states and by the plain text of section thirty five fifty three which reads upon motion of the government the core shall have the authority to impose a sentence below a level established by statute as a minimum sentence so as to reflect a defendant substantial assistance yes the supreme court made clear in melendez this is actually not a unitary system but in a hypothetical case in which there was a mandatory minimum sentence facing a cooperator and which the government filed a motion pursuant soley to section five k one point one of the guidelines in that hypothetical scenario the district court would still not have the authority to depart to go below the mandatory minimum imposed by statute what that five k one point one letter would allow the district court to do what the government would be recommending would be a departure from the guidelines this is separate from a mandatory minimum sentence imposed by statute as the plain text of the statute makes abundantly clear the only way in a cooperator scenario that the district court can go below a mandatory minimum imposed by statute is if the government files a motion not soley pursuant to five k one point one but also pursuant to title eighteen united states code section thirty five fifty three b here of course the government filed a motion pursu to neither because the government and the government acted both in good faith and reasonably in making this decision there is although defense counsel has repeatedly both below and here demanded that the government produce discovery there's no need for discovery in this case the basic facts here are undisputed fact the government agreed as to many of the facts of the defendant's assistance here and put them forth in a letter in a sensing submission to judge to it was because of those facts that the government took the unusual step of recommending a bolo guideline sentence for cooperator who had violated his cooperation agreement in multiple ways including by committing new crimes w on bail as they signed up cooperate or in addition it is not so it is not disputed that the defendant committed additional crimes in connecticut while on bail those crimes were serious they involve trafficking in substantial qu cocaine even more serious in a way in the context of a cooperating witness is that the government rigid the defendant from state custody in connecticut to the southern district of new york to give him an opportunity to redeem himself the government post questions to him about what had happened in connecticut at that time the government the the government asked the defendant how many times he had engaged in an approved narcotics transactions defendant said once the government asked him again in the defendant repeated that answer the government had information of course as set forth in the record that the defendant had engaged in multiple on authorized cocaine transactions while on  when you want to give him a chance to redeem himself how could he have redeemed himself in your eyes given the information that you had yes your honor it is our position that had the had the defendant made a grave error in judgment by committing additional crimes however the defendant come in and been completely forthcoming and honest with the government about the multiple times in which he dealt cocaine it would have been a question to the government at that case at that point about what was the appropriate outcome one outcome at that point would have been to repleat the defendant to a nother charging instrument which either expanded the timeframe of the conspiracy or added additional charges to take into account the crimes that he committed while on bail that would have been a potential outcome however i mean when you say  someone has a chance to redeem himself that suggests that the government would look favor well i don't know about upon his being forthcoming and it doesn't seem that that's what you're saying i'm trying to understand what it means you use the word redeem himself and what you're saying yes your honor the cover for to sign up a cooperating witness one of the most critical things as a set forth in the cooperation agreement is that the defendant be forthcoming and honest when it was about his own conduct conduct of others and to answer any questions truthfully that the government poses to him so in this situation we had  that because we did not try we no longer had faith that the defendant was telling us the truth and so in that way we could not in good faith put him on the witness stand as a witness for the government because we do not believe that he was being forthcoming are the circumstances and if so what are the circumstances in which a court is permitted by law to deport below a mandatory minimum without a cooperation letter without a motion by the government asking you about what is the law does the law allow any circumstances in which a court is permitted to go below a mandatory miss dodge atory mandatory minimum by reason of cooperation without a motion of the government urging that departure no your honor as as the text of thirty five fifty three makes clear and that would be true you're saying even even in the event that the that the government's withholding of the letter is in bad faith no your honor i think in that context then ask you know what are the circumstances my apologies i meant i misunderstood the court's question yes i believe that if the government acted in bad faith and i think the case law makes clear what bad faith is to that would be acting for an unconstitutional motive such as the defendant's race or national origin and or gender it would also be if the if when there is a cooperation agreement and the government doesn't fails to abide by the terms of the cooperation agreement or if the government's decision not to file the five k one point one and thirty five fifty three emotion was not rationally  is not rationally related to any legitimate government and i'm sorry i'm going to ask you where is the authorization for the court to do that to be found in the law to to review i believe that that would be a constant constitutional because there is the constitutional requirements that the government of course does not discriminate or and that the government acts it does not act arbitrarily or in bad faith those i think would all come under the auspices of there's no there's no statute or court decision that authorize that you're just saying that you think the constitution that it follows from the your honor i would argue that wade while not authorizing necessarily a departure below the mandatory minimum in the first instance would allow a court to inquire further if there was some evidence in the record that the government had acted either unconstitutionally or in bad faith or there that the refusal was not related to a legitimate government and but here there's what about if the if the if the government's reason for not giving the motion is an unreasonable one as for example one determined by the court to be unreasonable as for example might be the case if somebody undertakes to cooperate and he cooperates in one case and he cooperate in the second case and cooperate in the third case and then the government says well this is going really well we now want you to cooperate against john gotti and the the cooperators says i just can't do that i can't put my my my extremely fine unimpeachable cooperation in prior cases the government demands go on and on and on in a manner that the court regards as unreasonable can the court depart in those circumstances because of the unreasonable ness of the government's refusal to give the letter because of because he brought his cooperation to a stop but i would answer that question in two parts your honor the first part is that the language  the cooperation agreement and as we explained to defendants who are tempted him i'm presupposing that the cooperation agreement on its face requires the defendant to cooperate as much as the government asks us here so that's so that's correct so then i would say actually that the case law does not really use the term reasonable that is a term that i think the defense counsel has interjected here the case law looks first at whether the government's refusal to move was on constitutional that's under wade then there's there's cases that from this court that say that recommend a more searching review if the government was operating under the auspices of a cooperation agreement and in that circumstance the review is still limited and the and the review is limited to one whether the government has abided by the terms of its cooperation agreement and secondly as i have maybe botched the quote before but the quote from you know escape states scarpa is if the prosecutors refusal to move was not rationally related to any legitimate government and and so that case law does not inject the term recent poll it looks again a rational a legitimate government and and i think that there would be an an argument in the in the scenario that your honor has posed that the defendants don't get to pick and choose against whom they cooperate clearly defendant safety cooperating witnesses safety is is a paramount importance to the government it's why the cooperation agreements often provide that the government will upon defense request recommend to the united states marshal service that the defendant be entered into the witness protection program we can't promise that because it's not under the control of the united states attorney's office but the government does take steps to protect its cooperating witnesses if it didn't it would honestly be bad for business so but i do think that defendants being allowed to pick and choose against whom they cooperated that would be that would that's not how cooperation to the five k one letter or with that and then and perhaps a new prosecutor came in and wanted to go further and further that i was not saying pick and choose i'm saying that after one has earned what what the court might and in this hypothetical circumstance deemed to have been excellent performance of the cooperation agreement but you can't go on forever and you say if i understand you correctly that if the if the if the cooperation agreement is sufficiently clear that the government is entitled to ask for as much cooperation is it wants entirely in its discretion then the court has no no basis for no look no lawful basis to depart on the grounds that he has performed adequately and it is unreasonable for the government to withhold the letter because of refusal to go still further yes your honor because there is a provision in the cooperation agreement that says the defendant must truthfully answer questions posed to the offending about the defendant's own contact and anyone else that the government asks about i will say that of course the government the government attempts to act reasonably and fairly with any cooperating witness looks at the entire circumstances of the cooperating witnesses cooperation of the underlying conduct a part of the consideration is what did we know about the defendant at the time he was arrested what is the likely sentence the defendant would have served given what we knew at the time what is a likely sentence of the we of course do not determine the sentence what is the likely sentence for this cooperating witness given the extent of this witness's conduct and cooperation and we endeavor to make sure that a cooperating witness is not required to remain incarcerated longer than what would be a reasonable sentence in those circumstances forgive me i'm curious b nothing in the in this particular defendant's case this defendant is so far from the from the hypothetical defendant that i'm talking about and is there is there a basis in the record for a finding that the judge might have contemplated going below the below the mandatory minimum for this defendant if if the if the judge did not consider herself bound by the government's failure to provide the five  and and believe that she and correctly held that she was bound by the mandatory minimum sentence here i do not recall any comments the judge has made on the record that she might have imposed a lower sentence had the law  different at the time if the court had no further questions i know i'm well over time did it in the record i got it was a lot of argument but it was clear but but there is a lot of why with this language it seems to me this language looking at just the page you for ferde to my inclination would be to construe that as meaning that that the judge doesn't consider mandatory minimums to be fair or just laws which is a view taken by a very large percentage maybe ninety nine point we had spent a great deal of time although not always with the family bad day arguing this very point that basically that our position was there were many other bases that permitted under the guidelines for the court to depart there's nothing in the guidelines which it which is consistent with the government's position here they have to rely on thirty five fifty three easy and saying that that's it we're the ones who control any any departure of the law we were at five fifty three c starts with the words like five k one up on motion of the government it out you're right it does no there's no question i'm saying however in my argument there is that the effect of the fact the effect of the cooperation agreements that i deal with and every defense lawyer in this district or in the circuit deals with are so onerous whatsoever i can tell you from personal experience not only with this client was different and there are different facts with him because he was cooperating in connecticut before i ever saw for two weeks and there were arguments that basin could be made under five k two point zero that would permit departure under the guidelines condition and that put him on notice that if he did not comply with the terms of his cooperation agreement that the government would not be required to submit a five k one two or three four or five three and he still would not be able to withdraw his guilty plea absolutely it's in every cooperation agreement i've seen and i've seen a lot of cooperative and i can tell you that in in our earlier allies i probably had as many quite there's no  who stalks who doesn't have some problems along the way that need to be done i'm not undermining i'm this gentleman my client made a terrible error and i'm not going to try to call the ice i will tell you that acted in a way that he believed was authorized whether that's true or not i can't make that showing all i'm saying there was a basis at least to amah what in fact were the wrec what were the state records what were the records that indicate cooperation recognize this defendant was permitted to whites he was doing such a great job and working so hard he was permitted twice to travel to ship to to with the government's put commission in the court's permission and five the government said that he did provide substantial assistance until july i believe it is two thousand and fifteen i'm not trying to s