before we begin let me just indicate for the record and for the benefit of anyone who is listening to will be listening to these proceedings which are being conducted of course with the ongoing pandemic still ravaging our country and most parts of the world that oral argument is being conducted in this matter both with two of my colleagues appearing by audio and video from their respective courthouses i am here in philadelphia on other business and so i am taking the bench but what i want to make clear is that while we have both of counsel with us they were not required to be here i appreciate very much into the panel does their willingness to to appear in person who argue this matter the policy has been that if either or any of counsel does not wish to be present physically for argument they certainly will not be required to be present but that if all agreed are agreed on being present for the presentation of their arguments we will go forward that way no one is compelled to be physically present here in light of the circumstances we have all endured versus francis raya and i pronouncing that name correctly or thank you i ask the question because i am as my colleagues know and it's not that i brag about it often but i hail from altoona pennsylvania where the name is a very common surname but it's pronounced gray high out in central pennsylvania so i wanted to make sure i got that right glass at various points in the courtroom it does impact to some extent the audio my ability to hear you perhaps gray can turn the volume up a bit so that you won't have to speak too loud mr sanders let me just say at the outset and i don't know that this is the way my two colleagues see it but i thought i might lay this out so that at least in terms of the questions and inquiries i make i set out where my concerns are and so what i'm indicating to both sides here before hearing from you on the issues that are inherent in the district court's application of only a two point sensing enhanced meant for role in the offense and the district courts refusal to apply the obstruction of justice enhanced meant it appears  i need to demonstrate that any procedural errors committed were harmless such of the district court would sentence him to the same to the same sentence even with the enhancements that the government's arguing for and secondly and on and for the other side that the government needs to show that the record before us is clear enough to determine that we should remain and if we find a procedural  here with the instructions to apply either or both of the enhancements so if you could do it for for my benefit in any event address different or higher in this case without that statement this court cannot be sure that the same sentence would have been posed well we certainly don't have anything close to that in this record i have read the transcript of the sentencing proceeding just but two days to direct the district court to to impose the enhancements let's look at the obstruction of justice perjury and hance but for example is there a single case in our circuit from our court where a district court declined to apply the enhancement perjury and we rd circuit then remanded with instructions to impose if i'm not saying we lack the authority but it certainly is a considerable leap from the situation you posit in your response to my question and what you're asking is to do  what can be drawn immediately is that what we did was to extend the obligation of the district court to make findings that is that the district court needed to address the elements either with it position of the enhancement or with refusal to impose the enhancement which if anything under schools the need for the district court to do its i'm hearing a lot of background noise is that me or is that someone else things are fairly quiet in here good amber alert but warmington i know can get a little crazy sometimes although that may be the source  you would pay fifty dollars to those who would vote your way but the slate of candidates has a mission and in my understanding correctly that the government owes to the court that there should be a level eighteen criminal history one so be twenty seven to thirty three months is that correct that's correct that seems to be an awful lot for something that is as compared to the kind of cases we see with regard to reduced it to holes even further i realize that your appeal is only on procedural issues as opposed to the merits of the actual sentence but it just seems in this kind of case that compared to the types of cases we see twenty seven to thirty three months is an awful lot as you know we have  it has frustrated at least for my part because there's one point in the statement of reasons and i'm forgetting exactly where it was where explicitly departure and variance are used to the jobs are made more difficult by the institutional fact that in a criminal case we don't except in extraordinary cases very unusual cases and i don't know that i've had one in all my years as a judge as a trial judge where specific findings were  use we ask for general verdict we get a general over that's what we're stuck with here on the one count of conspiracy so we don't know much about what the church actually relied upon accredited and what and what they didn't necessarily imply from their verdict it seems to me to be a pretty tough row to hoe for either of you if you were him if you were invoking that standard so here's my final question on this point how would the hypothetical fact that mr red instructed the campaign workers to bribe voters in any be any different position from the hypothetical it isn't the district court's judgment here equally consistent with an implicit finding that mr wasn't organizer or leader and the two point and i think is equally available under the sentencing guidelines whether ray was an organizer or leader or simply a manager or  also there was no dispute that there is a conspiracy involved at least five or six people and so if that's the case then imposing only a tool on the hands of a judge marketing necessarily after rejecting the argument that he was an so that was certainly some evidence ross i wonder you know that the chief judge just mentioned that there are factors in the note and you valiantly try to argue them but isn't this best left to the district court in the st instance to weigh these things properly maybe i would say yes and that in and what is efficient guide seems to me is made a very good point in fact a point that by suggesting to is quite accurately that record martini did not touch on any of the seven incident you're request to us to send this back with a direction a direction to impose well beyond anything we have to do it wh is the government just satisfied to say we've got procedural error here we get procedural errors numerous places we don't know the difference in the record from a variance or departure in pulling the point right here is th judge martini didn't even allude to the seven points in the application oh why isn't enough for the government to just point out for us to just point out these errors and send it back i think that would be had a quick i think the would what your answer is telling us at least in part is that the judge's ruling with respect to compassionate release doesn't have an impact on whether or not the original sentence was correct or at least correctly explain correct but of course the district court upon recent using would have the authority to take into account factors that occurred incidents that occurred after the original sentence have to go back into prison in this is this is not the case where we would be remaining after vacating a judge even a sentence which found errors in the conviction this is provide the prosecution or right to appeal a sentence if welcome it lee a showing a very found to be year by an appellate court said you can't have a sentence that's any more than what was originally im because i think that really cuts to the heart of much of my presentation this morning and much of the dialogue this morning it's our position that even if one or more procedural errors were committed at the dish brickwork that any such error was harmless and we saw that for three main reasons the st reason is that the sentence the district court imposed here was the product we believe of both the departing six level or batting six level from the guidelines as calculated at step one or step two of the three step process instead where he says i would submit that the record is quite clear on this point that he was arriving at his sentence due to a variety of different factors and that the guidelines to the ski were not informing his ultimate sentence because he believed that the guidelines well it will usually be difficult for an appellate court to conclude with sufficient confidence that the same sentence would have been imposed a clear statement to that effect by the sentencing judge we don't have this clear statement to that effect right and rather spend considerable time at sentencing there are multiple pages in the transcript where the district were quite clearly chronicles that extraordinary late history how can we say looking at this record that notwithstanding the position that was amply demonstrated by the defense that there was a very significant contribution to the community at large elsewhere that if your age martini knew that he had heard or thought that he might have in his calculation sentencing transcript is quite robust and chief judge i would point you d to two particular comments in particular the two particular comments that they make the point well that there is a high probability that the sentence would be the same for the same reasons judge martini said that in his eighteen years a judge plus the time before were as a defense attorney plus the time before that as a prosecutor he had never seen a defendant present as mr ray put it meaning he had never seen a body of charitable work quite like that extending over decades he also made very clear that mr  wilcox would have extended if he went through them well or letter of reference by letter reference it would have extended the sentencing hearing by several hours is what he said in the record so based upon those two what i would say extraordinary comments it is clear that there was a high probability that this case were remanded by this court that he oh is it seems that i would also like to me given the confusion here at least confusion i see into whether a variance or a departure was imposed at least in one instance your argument is that the judge martini would have imposed this sentence irrespective of what any guidelines or the one that he determined was applicable or whatever should have been correctly calculated that it's accurate and that's why i started my argument by saying that there was no stated d relation anywhere in the record between you want to mid sentence of three months and any particular guidelines a pencil at that quite a stretch from the sense that was ultimately imposed here you need three months and again just more to make that quite clear on pages forty eight and fifty in the transcript so to your point and the fact that this case or this this matter has already been remanded for resetting affectively probation as opposed to a three month custodial sentence and i reckon route i recognise certainly in providing my answer to the court there's some degree of surmise in all of this and that i'm sure provides some consternation but i've got to come back to what the government started with in its presentation and i'm quoting we cannot be sure that the sentence would be the same that is not the standard under some bielski it's a high probability and when you look at a fifty has a predicate and the predicate is that the court must explicitly state that the enhancement has no effect on the sentence imposed and if you don't make that explicit statement saying in effect i'm going to i'm going to sentence you to x no matter what it will usually be difficult to ascertain that there was harmless so in this case when you what the govern has done is they're saying look there are so many procedural questions we have here we want the court to it to address them because we've had i guess for fourteen years now a certain process that we go about  sentencing go through the sense and guidelines you don't necessarily have to follow him but you have to agree gree as to what they or the range secondly you rule on any departures and then rd in connection with these th a factors you determine what applies to this particular individual and in that case you may vary yes pages forty eight and forty nine talk about variants page fifty talks about i don't know what i did i don't know if it could be a departure could be a variance so who knows but this almost seems like a law school exam in terms of what  that requires that to a failure to accept the facts that are necessarily implicit in a jury verdict where you have testimony of witnesses that contradict mr ray's testimony and thirdly the failure to make explicit findings as to whether perjured himself so and those just let's just stop with those three what tells you that there was not a procedural error with regard to each of those particular matters corroboration of a crime there need not be d written crop aeration i don't think that judge martini was applying a new requirement to greasy one point  one i don't think that he was saying that there needs to be an email or something dispositive in order to in order for the government to meet its burden look i think to ninety five as far as the argument that assessment points for structured justice is concerned i have a difficult time with that in the sense that there's no other testimony there's no corroboration of any kind of e mails letters or recordings that would be helpful to this court in determining that there was obstruction i can't find anything that says that that's a requirement i don't believe it to be a requirement your honor but i also don't believe that judge martini was imposing any such requirement i think he was considering the factors under done again  city with respect to mr ray or testimony and the key here and again it was alluded to in some of the questioning of the government that the key judge embryo is in fact that there was this was a single count indictment mr ray was charged with one count of conspiracy d d the elements of the conspiracy are well known to you all in agreement d in this case an agreement to violate the travel at the mr a knowingly doing that agreement and that someone or not mr achieved so i agree that irreconcilable inconsistency is the appropriate standard for this court that is what the that is what this court applied in the united states versus johnson but there is nothing inconsistent about m verdict the jury could have found that mr ray and the others conspired to commit murder by bribery but were never successful and there's no way to speculate as to what was happening in the jury men d there were certainly no x and mr ray gets up and says why and then says of those who say that they are quote liars close quote isn't logically you you either believe one or the other and if you find him convicted guilty then you believe the witnesses and let's just but even skipping the are skipped that for you if that issue is joining doesn't the district judge at least have to make an explicit finding as to whether he perjured himself or not in other words the argument that you're now making the  are considerably different in my view than they were in a politician they were to go back and look at the politician in that particular could not answer my question my question is if the issue has been joined doesn't the judge have to make a decision think as to whether mr ray a perjured is tell me where you think i should buy did implicit but i wouldn't be able to point your honor to a specific page reference i'm saying it's implicit in his decision not to apply the enhanced math in this particular case that that doesn't when it comes to us on appeal that doesn't work we need to find something that tells us that he did he found that the persian gulf or he didn't persian himself and i guess also and well because it seems logical back to my initial question that if three witnesses say x and he says y and he calls the people may have fires if the jury finds against russia by convicting him they implicitly find just the opposite of what you said they implicitly find that he obstruction enhancement was applied for someone was charged with conspiracy as opposed to a substantive offense if you were up to the gray the government mentioned japs and you looked in a politician of those particular cases involve brick with your reconcile irreconcilably inconsistent with mr gray's testimony that's not the case here what was he convicted conspiracy to violate the travel here given the number of points that were a lot it is in the district court's judgment equally consistent with an implicit finding that mr ray was an organizer or leader no because i think again based upon and it's it's important i think in addressing the judge's question remember that this was a trial where judge martini had st hand opportunity to see hear and evaluate all of the witness testimony and having done so he made a determination that certain of the testimony and saying that directed certain things or at the ability to direct certain people was not accepted do you do you concede is there any dispute that there were five or more what other findings if anything did judge martini make that would suggest this was two three point four points it would be or see  quite candidly it looks to me as if the district court wanted to impose two points as opposed to four or even three and that's where he went but i can't find here in the record any explicit findings that point to any of that and the application of a b or c again i don't know that there an organizer or leader you have to exercise some degree of control over other participants other members of the conspiracy and again having sat through the trial having been privy to all of the witness testimony firsthand there is a good ample evidence in the record for judge martini to find that mr ray did not exercise the right with that level of control and i can i'm certainly happy to go through the facts that would support enjoyed amber i think that you're both correct about that but then not to repeat myself and i won't go through all the same arguments again but we're back to where i began my my discussion this morning with harmless error because certainly that would be only one additional point so instead of starting at a porting fifteen to twenty one months you now move to the guidelines offense level fifteen and i would submit to the court that based upon this record and i do believe it is robust that there's a high probability even with that want to dish out all point that mr ray would receive the exact same sentence for the exact same reasons that's like going from st to rd across pitchers  well you may be right i wouldn't bet against you the point is that there is a process that has to be done in order that we can have meaningful review and that's where it's procedural problems  i certainly understand the court's concerns and appreciate the th concern but i come back to the language and the bielski which which i do believe here is telling because that judge was doing meaning the judge found that the guidelines for that particular defendant were too severe and decided to i think in that case that part downward through an offense level twenty four the same thing is true here and that's why i started the presentation by saying that there was never a point in the record where judge martini said that i'm departing or burying my six level of the government in the reply brief mr sanders references chart on page twenty and he calls it a six level discount there is nothing so explicit in the sentencing transcript to say the judge or to any was only departing by six level or varying by six levels what the transcript does say is that he believe never anything so explicit in the record tiny amount of the departure were variance to a particular there is no point did he say i'm departing six levels or varying six i'm wrong in terms of the the way i depart down by six levels or perhaps he should i none the less will sentenced to three months no matter what so that's that's the box that has to be checked and it wasn't checked here you can see that and i wouldn't bet against you in terms of people but but again we're talking about what needs to be done procedurally for meaningful review by  specifically said we're less concerned about adding we're subtracting two points the mechanical application of the guidelines post poker and so it's a bit about just the bills you talk about whether the court explicitly states that the ask from from my vantage speaks about it but i think that it's important in considering whether there's a high probability that the same sentence would be imposed for the same reasons too to remember here th ere was no significant pushback in the record over the five hundred and eighty one point one one departure from the government at the time of sentencing in fact on the record explicit explicitly said by the government was that mr ra to be d the same for the same reasons because even the government at sentencing recognized the mystery of charitable works were very significant and should be factored into the sentence i think affectively what you're doing is making an appeal to our intuition about what church martini would do and i'm not going to argue that point with you however as reviewing our concern is that we have a record not intuition from which we can make the determinations that need to be made concerning the propriety of the guideline calculation the propriety of any departure or variance whatever may have occurred and i think and if you have anything else on either of the enhancements that you'd like to bring to our attention no i don't at this point then i guess very briefly and this was stated i think clearly in our brief it's important to remember that the standard of review here d on the procedural errors is clear error because the district court's decision was based on its findings of fact and not on its interpretation of the guidelines so i think that course needs to inform in  frame the entire entirety of this morning's discussion that it's a clearer standard of review and that judge martini sat below as not only the sentencing judge but also more importantly the trial judge my here's where i watched the clock closely with him at step three you both of counsel not only for the briefs and their rigorous arguments here but also for their willingness to appear and i hope that you it was clear to you from the outset that by no means were you being compelled to be here but it was your choice as to whether you wish to argue in open court or from a far as has become our usual practice but we thank you