case the sentencing judge relied on unsafe allegations from a confidential informant that was never cross examined the the court relied on that evidence or that testimony hearsay testimony to apply across reference that essentially doubled mr young skyline range from around forty five years to the statutory maximum that cross reference or that evidence was admitted based on the idea that the government had testimony involved in disarray or a liability the problem with the ruling is that the government corroboration in this case also corroborated the defense theory which was that the competent to informant was the shooter the actual person that had shot into the on may eleventh of twenty thousand and sixteen i believe there are really two ways to think of the informant on the one hand maybe he's an innocent bystander just a mere tipster or a witness or on the other hand he is a participant in the crime or possibly the actual perpetrator the undisputed facts in this case demonstrate that it's much more likely the informant was the shooter was the perpetrator the government will not dispute the statement of shaquanda walker which refers to an unknown male that's picked up right around four thirty in the morning that this unknown male goes to the scene of the shooting and this unknown male is running back to the vehicle with mr young i don't believe the government will dispute that and i think it's a fair inference certainly i think it's when the court found that this unknown male was the confidential informant now one of the other undisputed circumstances that should cause the court to find you know what this evidence is not reliable it doesn't i have a real question about the reliability here well number one the d n a of the confidential informant is found on the slide of the firearm and this is five days after the shooting the police recover the firearm from mr young which he had made it it was his gun he admitted he had owned the gun and yet the slide mechanism of the gun they find a from the confidential informant the government's great says he was included as a possible contributor the actual lab report which was admitted as an exhibit says the odds are one in two thousand and twenty odds that that was his d n a so pretty pretty significant odds showing that the competence will inform at some point handle that gun and possibly move the slide to loaded or unloaded so this one fact is undisputed it's there in the record what's another fact well we know the confidential informant after the shooting he expanded hips grounded for a year he didn't show up for a probation violation we know he had  broke cut off his ankle bracelet we know he was gone for more than a year until he was finally arrested and certainly there's a jurisprudence in this court that says flight after an incident that's evidence of consciousness of guilt we  that also is applies to the circumstances of this case despite the informants relationship with law enforcement which the government describes several years this company in one form and we were able to subpoena this informant submit that also is a basis and a fact that the court should consider in determining whether or not such evidence is reliable and again these facts are undisputed here finally  the government theory in this particular case and this is government exhibit thirty three it shows the back of the house where the shooting occurred there is a deck wooden deck at the rear  and it's a second story deck and the government theory assumes that mr young who about a month prior had been shot several times in the leg in the waist in the face about a month after that and surgeries he's able to scale basically a wooden beam to quiet to this deck and then fire into this house that's what the government theory at really rest on because there's no dispute the shooting occurred while the shooter was on the stack so we believe all of those undisputed circumstances show a very a finding that the informant was the shooter not mr young and that would be a basis to exclude that testimony while the government decision to not bring the informant in or to simply rely on the text of was a good decision a good strategic decision we believe that person should have been produced the credibility of that person should have been exposed to the sentence in court so for those reasons we ask that mr young's sentence be reversed and remanded thank you  i represented the government at young sentencing likewise i filed a brief for the united states and young's appeal young was sentenced to one hundred fifteen months by the district court and the government respectfully ask that this court uphold the district  respects the record shows that the hearsay statements introduced at sentencing hearing more than necessary sufficient condition of reliability to support his probable accuracy furthermore young had the opportunity to cross examine the government's witness to offer evidence to rebut or explain the hearsay testimony that was all afforded to this defendant at sentencing accordingly the district court properly relied on most statements when applying the cross reference of assault with intent to commit murder now additionally there is a second issue in this matter that was raised on appeal that being missouri's attempted robbery in the second degree now the district court correctly determined that missouri's attempted robbery in the second degree is a crime of violence under the sen guidelines robbery qualified as a crime of violence under the enumerated felonies clause and the force clause of the sentencing guidelines at the time of young sentencing on august fourteenth two thousand and seventeen and robbery also qualified under the residual clause in force clause of the guidelines at the time of the underlying offense which occurred on may sixteenth of two thousand and sixteen for all these reasons we respectfully suggest that this court should affirm the district court's rulings and young's hundred fifteen month sentence now t issue number one in response to my colleague's comments concerning the evidence of the confidential informant all of that was presented to the district court at the at the sentencing hearing and and particular what i would like to point out is at the conclusion of all the evidence that being the witnesses presented by the government that being the witness presented by the defendant that being the evidence offered in exhibits offered by both the government and the defendant at the conclusion of all of that the district court stated mr young the burden of proof the government must carry is by a preponderance of the evidence which is lower i will tell you i believe they exceeded that i believe they've more than exceeded that burden but all i have to find is the preponderance of the evidence now again this finding this conclusion falls within the sound discretion of the sentencing court now moreover at the conclusion of the evidence the district court went on to state that it found the government's witnesses to be credible and once again citing united states versus wall street a district court's assessment of witnesses credibility is almost never clear error given the court's comparative weighting credibility the court likewise at sentencing found the proper testimony of to the witnesses to be good and thereafter the district court determined that the cross reference was appropriate finding that and quote clearly on equivocally more than necessary the government has met their burden of proof things to consider with regard to the confidential informant statement that statement in of itself is not in a vacuum in this matter there was cooperating testimony and facts presented at sentencing the information relayed by the informant to detective strobl corroborated statements made by young by young's girlfriend misha quander walker of which there's been no objection to that testimony that was offered a sentencing as well as the physical evidence observed and recovered by law enforcement and in addition to the cast report prepared by special agent williams with the federal bureau of investigations now what the confidential informant stat leading up to the shooting were prior to the shooting is that the confidential informant and young were picked up in north kansas city by miss walker they were picked up in a black dodge dart that young dro once they were picked up bus unio the confidential form was explicit were all of the occupants sat within the vehicle the destination to which they went and that young and the confidential informant exit in the car while miss walker remained behind all of those statements are consistent with what miss walker offered then at the location of the shooting the physical evidence revealed that the shooter stood on the back deck and fired into the home there are five shell casings that were recovered on the deck itself that is consistent with the explanation a confidential informant gave as to how the shooting occurred that young got onto the deck that young peered into a window and that young fired multiple times into that home one thing that i find interesting though is that a suggestion that because young had been shot a month earlier that he possibly could have been infirm and unable to climb there is no such evidence of that but what there is on the record is evidence of five days after the shooting on the date in which he was arrested for possession of his firearm he led law enforcement on a high speed chase he had been exit the vehicle and then on a foot chase and was apprehended he certainly could do all of those thanks another suggestion by the defendant in this matter or m young in this matter is the fact that it was in fact young was the shooter and that was the defense and are excuse me that the cia was the shooter and that young was not responsible at the c i was was pinpointing young for this however there is absolutely nowhere in the record any motivation for the c i to to have wanted to shoot louis pelton that was the intended victim that person was in the home at the time that was the older brother the fourteen year old what we know is that during his in custody interview young told detective porter that he in fact believe that lewis belton was the person responsible for shooting him there's motivation in and of itself what we also the shooting that occurred earlier that day and has by virtue of that contact a law enforcement that detects trouble later that same day meets with the confidential informant and then they learn of the shooting any provides again more corroborating evidence he describe where it is that young is residing who is residing with the type of vehicle that he is driving the description of the firearm that was used during the shooting all of that information was used by law enforcement to locate and apprehend young five days later and lo and behold we find him with the same firearm we find him driving the same car all of which was described by the confidential informant what is an interesting note is that the confidential informants testimony of young being present in any area at the time of the shooting that co operates missed walker's testimony that young was in the area at the time the shooting that's cooperated by the cash reports the only inconsistency we have is actually young himself young is the only one that offers an inconsistent statement because he tells law enforcement after his arrest that actually at the time lee shooting he is at miss walker's apartment asleep and that further he knows no one or not of his friends anyway who would be responsible for the shooting that would be the only inconsistency here if there is an inconsistency now again factors considered by this court in reviewing the reliability of hearsay double hearsay unquote ready hearsay are the consistency of the hearsay statements the timing and nature of the declarant statements and the witnesses impressions conversation of do you know about a shooting it was a confidential informant reached out to him and that is how the information was re one other note that i would make is that there was an alligator or there was an issue raised within issue number one as to the confrontation clause of the sixth amendment and they do not apply it since in hearings or launched a longstanding case law that says as much but i did want to bring that to the court's attention detective the day of the shooting and the competence of the informant was paid i believe five hundred dollars for that information so that is what the court to imagine a second here early in the morning  confidential informant is even by the government's theory is president goes to the house runs and flees and then sometime later calls back the informant to provide this information for money we believe that that is problematic and it is not indicia of reliability that would justify admission of the statement the detective in this case met with the confidential informant prior to him bonding out after he had  attempt to produce that witness now that i've not found a case that applies that rule here in the sentencing context but i certainly believe it is relevant to this court's inquiry who had the power to compel this informant to show up at sentencing i did everything i could do and that was subpoena him which he ignored on the other hand the government that just detective strobel met with him weeks before and apparently had a relationship with him that went back several years and yet they did nothing to produce this confidential informant senate saying absolutely nothing i would submit to you that's a strategic decision and obviously a very wise strategic decision that paid off for them because it allowed them to get a very severe sentence without actually having to produce this confidential informant for testimony we agree that credibility is key but we're what we think is key is the credibility of the informant the judge in this case did not have an  evaluate that i'd like to address just a few additional points the government did say we had no objection to the admission of miss walker's testimony i didn't raise that as an issue on appeal but we certainly made the same objections to that at the district court level at the informants statement there's no there's not sufficient evidence to conclude that mr young fired into that into that dwelling even by a preponderance even by a preponderance of the the evidence  believe considering all the circumstances many of which are undisputed the bottom line here is if we're going to double mr young senates are and basically since five months shy of the steps toward maximum after he pled guilty to the offense we believe more is required and based on the court's authority we believe that the case should be remanded and he should have a chance to cross examine the informant based on all of the undisputed facts that would show the informant was the actual perpetrator thank your arse thank you for your argument the case is now submitted and we will take it under consideration