court my name is robert wood i represent the appellant and these appeals this is an appeal st of all eighteen to eighty eight is an appeal of the trial conviction and sentencing  appeal thirty seven o three is an appeal of a denial of a role thirty three motion for which the issue was ineffective assistance of counsel during the negotiation of  plea during plea negotiations prior to the trial and i will deal with appeal eighteen to eighty eight st with respect to the trial issues i should note also that i came in and substitute n the st issue is the introduction under four of four b of the heroin evidence of prior sales of heroin the thing that needs to be pointed out st is that possession of a stolen weapon and the rd count was a witness tampering charge and there was a hung jury on eleven another conics counts which was which involved so called fake which which is basically items such as potpourri which is sold over the counter in stores and supposedly legal until recent amendments to the criminals scheduling of the  criminal substances act and which people normally would put in a ball and put in their living room to freshen the audience of the room but which other people would put in a pipe and smoke what we're saying is that that the the here once they hear one sales evidence told the jury a story about mr sanford that they didn't need to hear and that is that he is a heroin what let me ask i'm not sure i understand why you're arguing this was or if if the defense of the trial with regard to the synthetic marijuana was that he believed it was legal that was his defense right that was his defense he announced that his opening statement it be an argument of this argument is made to the jury but certainly a dream i think in support of his defense that well if there's evidence that his wife was involved in the in that business he must of thought of his legal because he wasn't involved in his wife and jeopardize her in some illegal activity wouldn't that be a natural thing to argue for a jury to think in that situation yes his his wife was in as was a strange from a prior to that she noticed that the argument or the thought would be involving his wife he mustn't thought this was ok the government it would be highly probative for the government to say wait a nd let's look at the history of their relationship with each other they were dealing heroin together they haven't they don't have a marital relationship they had a criminal relationship and that's a classic reason that courts allow this type of evidence to show how the relationship the criminal relationship got established and that in this case where he's claiming i thought it was legal i think highly probative ok so eighty three dollars where were that is felt fully discussed at that point it went way too far and i'll read from the record not only did i did that come in and there was discussions answer yes i did this is from page eighty three and how did you help him i was with him when he would make the deals i would go with him to rochester question so the supplier was located in rochester answer yes question and he would drive to penny and to get the supply so why was it necessary for opinion to rochester get together and answer yes how often would you go to get the heroin defense counsel objection so why does it need to come up and why does it have to come in  concealed there was a facebook where he is asked do you want that other gun and he gives a thumbs up on a facebook post so the evidence on the gun was overwhelming you're suggesting that these details of how they were dealing heroin together somehow infected the gun charge that's there there are plenty of witnesses who say he had the gun there's not many witnesses at all that say he knew that gun was stolen that's the problem judge and the the conviction was o issues here and there are some very important issues with respect to sentencing and i which i want to move on to if the government has conceded that they were to receive mistake made in the pre sentence report with respect to the defendants criminal history category and the court made a very significant error to in this case the defendant sentencing range was seventy dollars to eighty seven dollars criminal history category six and  sentencing range at twenty at that range at seventy dollars to eighty seven dollars the court increased that range seven points to double his sat his suggested guideline range one point and a set of having true criminal history of sixteen he he he he had seventeen then the court compounded their error by saying at sentencing that he had eighteen you are you were at he says to him you were at level eighteen that's why above the maximum of thirty that's way above thirteen which gets you to category six that's part of the reason why i'm sentencing explanation there's an explanation that doesn't explain but it doesn't explain why it went up seven levels and doubled his criminal history score and ever this court has said many times that the court must have the correct sentencing guidelines before the work and sentence a defendant if the court is operating under a misconception if the court thought he was an eighteen before he sentenced him if the court thought that he had eighteen criminal history points before going up seven levels and the court and he actually had sixteen and he was only three over thirteen at criminal history category six would he still have gone up seven levels and doubled his sentence to what it should have been what any other person a category six would have done any other person would have receive seventy to eighty seven months this defendant received one hundred and fifty six months what do you have an together you're suggesting this was all because of the criminal history but was also because he believed that your client knew it was illegal found that by preponderance of the evidence and that even if he didn't think it was illegal selling this to kids in the manner that he did knowing how addicti it was in the harm it was causing shows that he's a dangerous person overall with regard to his gun use and all other things so it was multiple things going on for that amount of increase well that's very true judgment but what this court could could do that is and that's speculation and quite frankly what the court should do under that circumstance is say speculation he said that i'm not speculating that he was thinking that he's explaining this is why i'm giving you this sentence but he did that based upon and correct information there's no question he had the government considered he had incorrect correct information so he thought that defendant here has eighteen points you cause you have eighteen points but he didn't he had sixteen and then the question is was that was that material to his his ultimate decision of when that's the question was that material to his ultimate decision do we know the answer and usually what that this court would do in that situation is remained it to him to ask him that question good morning and if i could start with the sensing argument that counsel just addressing with the court your honor is correct that there was more than just the number of criminal history category points that lead to the court to impose an above guideline sentence of one hundred and fifty six months in this case the court did make reference to the number of person criminal history category points being eighteen we do you can see that was error there was a prior version of the p s r that did say eighteen points later change case that the court did not besides decision to impose a and above guideline sutton's strictly on a number of criminal history category points although sixteen points is still well above the minimum threshold to trigger a criminal history category six well necessary in this case your honor i think it's apparent from this record that the judge is focused was on two things st the nature and quality of this defendant's criminal history the number of criminal history or number of convictions he  had at a very young age before the age of twenty six the nature of those offenses involved everything from possession of drugs to assault of conduct for convictions for criminal contempt including one for aggravated criminal contempt in the st degree involving him assaulting and threatening a female victim his ex wife with a shotgun the court also noted various bumb parole and  but in this case it was an above guideline sentence that the court ultimately imposed and in doing so with the he relied not only on the criminal history and the nature a number of convictions but also relied on that aggravating circumstance and that well here the miscalculation did not lead to an improper criminal history category and what it could have led to even if we could say with a lot of confidence maybe almost one hundred percent confidence that even with sixteen points he still would have gone above the guy no i ain't but the critical question would be would he have gone to the same level above that range in other words when he was trying to figure out how much higher to go could he have been influenced by simply the points then sixteen versus eighteen to differ you know that's that's not an insignificant we're talking about how much higher he would have gone that that's really the the argument is that he may not even if you for all these other reason he would have gone above he may not have points it st or thirteen is a criminal issue six right yes so he thought it was five points above and in fact it was only three points so i don't know that in the context of if that's the measuring stick that's hardly represented in the briefs and i submit to you that you know that testimony was essential to set the stage for this wheeler's testimony where she testified about the defendant's involvement  and trafficking synthetic marijuana during the course of her marriage to him so explain how she became privy to his involvement in trafficking synthetic marijuana number two and this is the way that i used it and  transactions indicated that he knew that what he was trafficking in this case was in fact a controlled substance that is the answer to that argument i get the arguments about the nature of the relationship with his wife nature  quality of that relationship that this nd this argument is that it was miscible on the subject on the issue of end of intent or knowledge that he dealt drugs he dealt heroin the same way he was dealing synthetic marijuana so synthetic marijuana they may do it in open spaces like a store parking lot of park or somewhere out in the open when it wasn't in their apartment but during those transactions they may be out in the open but they were done in such a way is making sure nobody was looking and maybe turning a back to conceal what was happening the actual nature of a hand to hand transaction that that was the substance or testimony on that issue and our point was partially to anticipate the argument of the fence that this was  happening in the in the wide open with for everybody to see was that it may have been in the wide open but it wasn't obvious what they were doing they were concealing it because he knew that it was illegal and not just incense popery aroma therapy as the bags would indicate with respect to just to go back to sentencing someone to touch on as the judge did as part of his findings in imposing the above guideline sentence make essentially an alternative finding that he believed the defendant knew that what he was trafficking was an illegal substance there is ample evidence in this record to support that finding and i've done my best to summarize  based on allegations of ineffective assistance of counsel as the record shows that there was a hearing that took place in which both mr sanford and his attorney testified his trial attorney testified and the district court reviewed the transactions the proceedings reviewed the testimony from the hearing and determined made a determination that mr sanford simply was not credible with respect to his allegations that because he relied on his counsel's representations that he would be i guess in his words almost guaranteed term of imprisonment of between forty six to fifty seven months if convicted on weapons charges and potentially the witness intimidation motion and as the district court recognized this case is nothing more than a case of buyer's regret throughout the testimony mr sanford was inconsistent with respect to his statements that he was reliant purely on the forty six to fifty seven months representation when during why dear of the trial at one point he turned to mr harvey and flashed a you know flush the hand signal for six years because he was basically indicating to mr harvey at the more dare portion that he was ready to take seventy two months so if he was truly relying on his trial counsel as part of representation that he was guaranteed forty six to fifty seven months he would not have done so so based based on the record and based on the hearing testimony the government respectfully request that this court affirm the denial of the world thirty three motion and unless there are any furthe objections at that point the court sentences the defendant and that's the end of the case a defendant obviously will make his points known prior to sentencing as to what his position is nonsense and i believe the court will agree with that with respect to rehab i did do a supplemental brief with respect to that as the court is aware that case came down long after the finance trial the government recently submitted a letter  and one thing that i think that the court must take into consideration is that many criminal defendants are not very bright and they and some are some are some of them have ninety  most of them don't really remember of them don't remember what they did yesterday much less what they did five years ago and to impose constructive knowledge on all of them as to what their prior records of are is is asking way too much  panels yes it is there is many cases and i would ask the court to take those arguments into consideration i'm see i've run out it not if it ran out of time so with respect to the ineffective assistance issue prior to trial was perhaps might have been a good approach in a state case where they could you look at the charges as categories this is the gun case this is the drugs case this is the tampering case and here's our chances if you beat the you can beat the weapons case you can't beat that or you can beat a drug case you can't beat the weapons case he never told you to find and if you get convicted of the up the weapons charges even if you're acquitted of the drug charges the judge is going to use those and he has your sentence which is what he did he's going to hear your sense way out of the way out of whatever he can't believe and if you get convicted of the tampering charge he'll use the drug charges to enhance your sentence way beyond whatever you you think is going to be possible he yeah he told him the maximum was was was ten years on the on the gun charges which is correct but he told me he's going to get three or four years on the tampering if he got convicted and that's right in black and white mr davis testimony and he also told mr naif and said that in his in his filings it became clear that he was it never was familiar with the watts case and what what defense lawyer who's representing someone who's facing decades of time in prison is not familiar with the watch case which says that a defendant can be sentenced for acquitted conduct or his sentence can be enhanced for quote it cannot agree with you whether he would have taken a plea so so so what mr davis said was if we if if you paid to drug cases you're going to do fine but and he did beat it he wasn't convicted of the drug cases so so  davis also said if you lose on a drug case you could do up to twenty years so if it was taken a chance but he beat the drug cases so early or didn't he didn't beat them but it was a hung jury so so he  issue is now so he did beat the drug cases he still got thirteen years because of the drug cases and the tampering charge he got thirteen years that so we're submitting that that was ineffective incomplete incomplete legal advice and ineffective legal advice prior to and not just based upon the defendant subjective testimony at the hearing but based upon the defense attorney's testimony