that morning your honour's may please the court counsel my name is christa hart i represent appellant jeffrey green my goal is to reserve three minutes for rebuttal we will try to help you again thank you we're going to focus on two aspects of the sentencing hearing both regarding the acceptance of responsibility adjustment st whether the district court erred in ruling prior to hearing allocution from mr green and secondly whether it was appropriate for the district court to consider the rd party witness statement in its analysis in denying the existence of responsibility downward departure downward adjustment before elocution the court specifically said that it had to rule on it before hearing elocution which creates a bit of a catch twenty two for a defendant in this situation the defendant has the burden of proving that he is remorseful that he has contrition and that he's accepting responsibility for his actions however according to what the district court did and said in this case the district court is precluded from even considering that so it's  did he rule before the allocution where did the rule but it's at page twenty three the district court said the fact that the th circuit very clearly said that but i want to know where he actually ruled before the allegation  she ruled at page thirty four dollars i'm going to deny the acceptance of responsibility under the guideline and that was before the elocution that was before the allocution that was well before the allocution the gal accused and begins at about response the the defendant personally remained silent until as his lawyer his lawyer did actually have page twenty one of the excerpts of record the lawyer did specifically  say my final note here and this has to do with the history of mr green's approach this case one element or sort of background element the court is to consider is contrition so mr greene intends to allocute to this court and i think the only way he'll be able to express that contrition given the situation so that his attorney did say mr green will be allocating mr green will be expressing his contrition which is relevant to the acceptance of responsibility downward adjustment but the district court found that it could not hear that the district court found that it was bound to determine the guidelines calculation at the very beginning of the hearing no ifs ands or buts about it you see what's odd about it is he didn't i mean in fact i know he did before the elocution but he didn't do it at the very outset of the hearing they had a whole discussion about the guidelines and song right there was very limited this is a very lengthy sentencing hearing and the discussion about the guidelines went  all the way up to page seventy six of the excerpts of record where the defendant began his elocution the court ruled page twenty three dollars of the excerpts of record so there was a significant amount of discussion after the court's ruling so it was only on page actually fourteen of the of the actual transcript itself which is page twenty three dollars of the excerpts but it was fairly early in the sentencing hearing that the court made that decision and that precludes a defendant from ever being able to exercise their rights under rule thirty two i for to elocute and to provide information to the court puzzles me and this her that was the only thing i could think of and i cited to it in my letter brief was the cardi case where they say at the outset the court should determine the guidelines but my reading of that and other supreme court precedent is that a determination of the guidelines have to start the analysis but not necessarily in time the hearing because i think because well here is your position right  briefs any error in calculating the guidelines is substantial and and would would be harmful because here the court imposed a mid guidelines sentence of one hundred and eight months and if the guideline range were lower it's very likely the court would have imposed a mid guideline range sentence of the lower range and additionally here during the change of clearing there seems to be some language that the government agreed it would not oppose the rd point level of production for acceptance of responsibility if the court found the two levels were appropriate so here it appears that even if the  two levels were awarded he might even be entitled to a rd level reduction you also have an argument that this case is not comparable to an end case and i was appointed general again i don't know how to pronounce it either but greedo the cases that were discussed at length of the sentencing hearing involve convictions and counts of conviction here mr green pled guilty to the sole counts in the indictment a felon in possession a firearm there were two additional firearms mentioned in the indictment but they are separate counts they weren't charged a separate count there for those cases are in apas that there are because they don't compare the same analysis this is good morning to please the court judge walker for the united states if i may began before making my argument just responding to a bit of counsel's argument the government did not persuade judge gleason to rule on acceptance of calculation they're supposed to proceed in response if i may take one though by correctly calculating the applicable guideline range including that didn't happen here either right because in fact she went on for many pages discussing the guidelines questions as one would expect her to do right with as a matter of law with beginning and say here is my guidelines calculation before anybody gets to say anything your honor the answer is it depends in this case that did not happen and now but but what is your understanding of what you just read you of the government's understanding is consistent with what judge police and in this case which is st she took the defendant's plea and made sure that it was a knowing intelligent voluntary plea then she held a lengthy evidentiary hearing which was necessary because the court had to make findings fact regarding how many guns green possessed only after judge gleason could hear the evidence and make factual findings could she reach the factual findings necessary to calculate the guidelines at the conclusion of the evidence you're hearing judge leeson found the government proved by a preponderance of evidence the green possess three firearms and that two of those were stolen that was essential to correctly calculate the guidelines the guidelines also require the court to decide whether or not the defendant has accepted responsibility judge leeson recognized that because contrition is so important to the th circuit that sometimes it might seem as though just record judge should wait honor it could if i may just explain why i think it didn't happen in this case number one the custom in the district court is that the defendant gets to speak last because the defendant is the one with the skin in the game and district court judges at least my impression as a prosecutor is that judges want to make sure that the defendant has the last word nd there's a significant constitutional issue here if a district court judge were to come on the bench and immediately turn to a defendant and say defendant i'm about to determine whether you have accepted responsibility one of the most important factors is your contrition what do you have to say to me that puts the district court in a very difficult position and it puts defendants in a difficult position and defense counsel because if it just record judge did that and a defendant relied on his or her right to silence then the record would suggest that the district court was unconstitutionally punishing  defendant for exercising his right therefore i didn't because you know in spite of the defendant silence the district court could still say well these are factors i rely on in concluding that  at the beginning of the sense in proceed but i think the difference here is and then you know those calculations are subject to testing during the sentencing proceeding right and you know and another words they aren't they aren't final and binding i would feel just who judges change sometimes change their minds on you know what the proper guidelines are but in this case and forbade the defense from revisiting it well no she did in the sense of except as a responsibility yes she said it with respect to that i'm not going to listen to what he says an allocution with respect to that particular provision leeson said that her ruling stood and she wouldn't further elaborate but i think judge schumer's comment is very illustrative here green below had the opportunity and did not take it to revisit the acceptance after allocution and that's why we greene has waived any argument i mean by had the opportunity you mean just in the course of the normal tenting pretty proceeding is that is that is that the customary rule that whenever a judge makes a ruling before you can challenge it on appeal you have to make a motion for reconsideration i don't think so your honor typically the way it happens and in my experience in the sort of fluid dynamics sensing hearings is that if the defense believes that something has changed if there's some material difference that changes the guidelines the defense counsel is not shy about raising the issue you know except when the judge says except when the judge says  know i have to make my final decision before we start and i've made it and that's it now that's what you're saying that the defense that's a challenge right you're at the very least what the defense needs to say is charged three times in one cow yes right so i only had to prove why and he pleaded guilty to one that's correct so that's it he pleaded guilty to the charge and so the other two guns at that point become relevant content they're not challenge your honor from the government's perspective their offense conduct but ultimately it doesn't matter whether their offense conduct a relevant conduct line because the answer is in thirty one point one as the court knows the defendant has the burden of proving acceptance of responsibility i'm in right that that in so in thirty one so in thirty one point one the last sentence of no three a defendant who enters a guilty plea is not entitled to an adjustment under this section as a matter of right green argued below and refer to green sensing the mo in the supplemental excerpt of record that he was entitled to acceptance of responsibility merely by pleading guilty that was his posture below that's a position not based in the law but was urged by you and accepted that he needed to plea he needed to admit all three guns because all three were in the original charge you're out of the government's position is that at the very least to prove that he accepted responsibility green needed to not falsely deny the two guns and he also needed to not minimize the one gun that he admitted to in this case judge gleason found that green did to minimize his conduct one to have his counsel file the dosage affidavit and to in his allocution talk about the fact that he committed this crime because he was stupid and judged police and disagreed with that and said no this is a very sophisticated man who understands the system very well and he's well from the government's perspective manipulating the process to artificially reduces guideline calculation but ultimately your honor if i may simply refer back to thirty one point one because that's really the law that controls here green had the burden of proving to judge gleason that he accepted responsibility there are eight factors identified in thirty one point one in the black letter law and i do see that my if i may finish this thought there are eight factors in thirty one dollars green didn't do any of them the very st factor is he cannot falsely deny relevant conduct so in so far as  see key things that the government said during their argument is it depends and that each sentencing hearing has to be specific and particular to the defendant and the facts and circumstances of that hearing so it depends in a case where acceptance of responsibility is not at issue yes it may be appropriate to determine the guidelines calculation immediately at the beginning of the hearing however in a case where acceptance of responsibility is at issue and the burden is on the defendant to demonstrate contrition for the court then maybe that specific guidelines should be determined after the defendant has had a chance to allocute the government indicated that the only thing m was that he was stupid and that's not the case at all and page seventy seven of the excerpts of record this is one example of many the defendant said everybody talks about there not being a victim in my crime of ex con in possession of a firearm or excelling in possession and since i have been in the top in the time that i have the eighteen months thinking about the no victim i think that's wrong there is a victim and that's my family my family is a victim i just kids are victims my friends of my friends my work but above all you know i think that the sides of people that i interact with who love me who like me and i can go on and on but he didn't just simply say oh i made a mistake he demonstrated contrition the governor the court ruled in the district talking to procedure but during the government's argument the government counsel asserted that the only thing mr green said to accept responsibility was that he did something stupid and that's not the case he did express contrition so i am attacking it on the procedure and then on the falsely denying the allegation as judge burton noted judge gleason made a finding that the just that mr green did not falsely deny but the action of the two extra firearms that he exercises constitutional right not to admit the other two but it isn't clear that he actually applied for him rule with regard to his eligible any for the exceptions because he didn't myth to the other two or that she just take into account i believe she just took it into account so then really what's the legal problem with the way she proceeded with the family not on the allocation issue on the three guns issue i'm not quibbling with that i haven't raised that i what i'm not quibbling with that i haven't raised i thought you had a nd another argument which was that all that was guns and one charge so he did admit to what he was charged with and so the other two guns were relevant content and she could have accorded him the acceptance responsibility is that not an argument you were if i thought it was evidentiary i don't believe so i don't remember specifically but i do know that at the sentencing hearing she made an explicit finding that mr green did not falsely deny possession of those two additional firearms and in my understanding is that when courts find that a defendant falsely denied something it's when the fact defendant takes the stand swears under oath those were my guns or gives some other implausible explanation for for the evidence and here he did not do that the contradiction she finds that then you say he didn't falsely deny that there was a gun but you also found that there were  expresses either denies under oath that they are not his guns or give some other impossible explanation that the court does not believe because  make a specific the nile here to the police i'm sorry you need to the police that's possible i can't i can't say that for certain i don't recall that but but the point here is that he pled guilty to the sole count in the indictment well he the guns were one rd of the full go well all he needed to plead guilty to he pleaded guilty to everything he needed to plead guilty to in order to be found guilty a felon in possession of a firearm once you pleaded guilty to the one firearm the other two firearms became relevant conduct and so for three or more guns there is a two level enhancement and the fact that two of the guns were stolen is also a two level enhancement then the burden is on the government to prove those the facts underlying the upward adjustment for those that's where this comes into play and that's a separate argument than the allocution argument right and i thought that you were representing your concern was that the judge had said that this was similar to the gyn case and it is my concern it is because the given case and the greedo case that they discussed both involves separate counts right this is one count it's a single count indictment he pled to the show without benefit of a plea agreement that wasn't your argument so now i'm really confused oh i'm sorry  but my concern is she said it was analogous but she said it wasn't the same and it didn't appear that she was she did recognize that this was relevant conduct and not the two other and not the count two which she had to plead guilty right she found to be relevant conduct yes right so what the permanence or the problem with the fact that in her musings so to yes hello i know i'm trying to i mean i guess maybe your point that it was simply musings is the key here because  i don't know if that's i don't know if that's critical to this issue i don't know of critical to the because what if you are hostage and i was that he because it was relevant conduct he could put the government to its proof and he could deny it in a legal sense saying i'm not going to tell you whether it's true or not you go prove it but not i deny it in the sense that it didn't happen correct and so she certainly recognize that it was to be treated differently than if it was a