have placed the court my name is robert ruth i represent david martin in this appeal he is the defendant appellant there are two principle issues that i want to bring to your attention today and that is was there a plane there was the air harmless i think the question of plane air is answered by the district judge after she impose sentence she issued an order acknowledging that she erred on multiple occasions now curiously she didn't note all of the instances of air but she did acknowledge that she erred even without her acknowledgement of the error it's pretty straightforward because we had a stipulation a limited stipulation to what facts are on the record for the revocation and she made findings well beyond those facts that's just it it doesn't get any plainer than that as far as the harm of it th much trickier question and i think that's where the government gets its best traction it's puzzling how this unfolded and i think that if you take the government's argument that in basically the government's argument is this stuff doesn't matter these things didn't matter now the judge didn't say that the judge actually said if we take what she said at face value she said i am sentencing you based on your to be held accountable for your violations so she listed the violations many of which were not in the record or not proven in the record and then she said i'm sentencing you to hold you accountable for those violations ok well that to me that's you know she listed him she held him accountable for there's air i mean that it's hot he was harmed by where it gets trickier though is so during the proceedings one mistake she had to one of the mistakes that you made came to her attention she made a finding of a violation of special condition number nine and when the government brought that to their attention just like that she said well i'm not considering that ok i don't remember what her exact words were but to that effect now that i think that on the one hand you would you could say well see the got it shows that she just wasn't considering all of these things on the other hand you could  say that it's kind of looked like she was trying to clean up the record and just say well i'm not considering that when she when she had already stated all right will we get let's get past that one then she goes on and makes a bunch of factual  she made a mistake and goes back and does this written order the written order if she wanted to say it was harmless she had her chance and that written or she could have said i didn't consider any of this in the sentence now that i think that would have been suspect when you have this many facts then you say i wasn't considering it but we're not at that point she didn't say that she said i made him have these where she said it was in it now that the work gets a little is he said it was inadvertent i'm not really sure what that means in this context if it's i suppose you could say well if it's inadvertent it's just something that she didn't consider but we're not talking about one thing or even we're talking about eleven facts that she found that weren't supported by the record that so the fact that she described the errors that she acknowledged as inadvertent that doesn't show that she didn't consider those facts in her sentence mistruth mr martin what's his current status he is in prison state prison yes no i think the last time i contacted him was about four weeks ago he was in state prison ok and well we're talking about here is a twelve month federal sentence that will be consecutive to his state correct and it's also correct that the government chose not to go after him on the distribution charge was a right well i'd much rather phrase it that way he was not prosecuted for distribution in this in the context of this case that was let's put it this way there was some evidence available to the government of distribution during this period of months when he was supposed to be on supervised release when he was basically a war all right well there was this there's a there's a reference and the one of the reports that supposedly he sad that he had distributed heroin on behalf of a local drug that sounds like evidence of distribution to me well it is some evidence i mean if you believe it and if it's corroborated and if it's not impeached i think sharp yeah ok and without any pursuit of a distribution great a violation claim the district judge gave him a revocation sentence that was still well below the advisory guideline range correct well could take a fresh look so new violations could be brought into it a different district judge could look at it perhaps and he could wind up with a stiffer sentence and i think he's kept it twenty four yes does he understand it you from twelve twenty to before well i i mean that was always a real possibility we had a conversation with him i honestly can't tell you this all the specifics of the conversations but we always understood that we faced up to twenty four  twelve right now it's twelve and i you know the government didn't there wasn't a specific allegation say you made a great a violation but the church made the finding that he  sentence considering the fact that he's for the same conduct he got twenty from the state we certainly don't want more we want less and that's our our goal is to get us and i think that i think that if the judge would have considered only the facts that were proven at this hearing i think that he would have a good chance of getting less of us a little time for but i do thank you thank you sue t please the court my name is meredith do spend and i do represent the f l e in this criminal case which is the united states i do want to just bring one thing right away to the court's attention because i think it's significant and it is violations that are grade c violations that some of them are at issue today and you'll have to go to the supplemental appendix because the portion of the transcript where this is contained as it is only in the supplemental appendix not in the that's fair yes it was there was confusion below there's absolutely no doubt about that and in fairness to the court you've got a large number of violations you've got fifteen separate alleged violations spread over two different revocation petitions you've got the fact that the party has reached to be lation you know right before the hearing then you've got partial stipulations then you've got stipulations that sort of evolved which is the want i want to draw your attention to so after you know i the the judge always calls on the government to summarize here's where we find ourselves what's at issue so i represent ok judge well first we have this one petition with all these administrative violations and then you scans and then he commits a felony absconding certainly that's the most serious thing so during mr routinized conversations what we did to try and help the court was to try and really streamline this process and get stipulations as to the most serious conduct for the court consideration so the court is being told right away hey we're trying to focus you here on the most serious things but that as we're going through and identifying which stipulates or which the court does try and circle back in and i think the court goes to special conditions one the fact that he was failing to provide financial information and says why are you withdraw in that condition and i said with a dry net but in fairness to the extent that he did of scandal he is also not following the administrative requirements during this period of time he's not calling he's not filing monthly reports he's not doing any of that stuff and so some of these administrative violations are really subsumed in this larger violation that he left and the core asked defense counsel if that was a fair statement and that's a fair statement so i think the court sort of moved on from there sort of thinking hey if many of these small or great c violations are sort of subsumes and later violations now in fairness some of those she included as statements of error in her written order and i think i think the judge was just frankly over corrected herself what she did was say ok anything he didn't stipulate to i really should've included even though we really do have this partial concession to quite a few of these violations so i just want to draw that to your attention and i think here it's it's really important to note that the confusion was over these grades c violations there is no dispute in this case the advisory guideline range was driven by the defendant's great b violations there's no confusion at all that he violated supervised release by committing a felony drug crime there's no confusion that he violated supervised rel possessing your control stenson when you combine these uncontested grade b violations with the fact that he had scanned it from supervision totally the basis of revocation i think is plainly justified and when you consider that he received a sense well below the agreed upon advisory guideline range is just really hard to conclude looking at all of this and separating sort of the weeds out here that he received anything other than a fair result in a fair hearing now you know obviously the defendant wants the court to assume that the district court must have considered every single factual finding she read at the oral hearing in consideration of the sense because she d delineate separately which one she considered i don't think that makes common sense you got the very clear delineations here between these gray between these crazy violations and i think that it's consistent with common sense that she would be focused on the more serious ones which were really egregious and uncontested and i think it was consistent also with what the party sort of represented to her at the beginning which was that he were just trying to help the court out here supervision so i think the court just wants to be wanted to impose a sentence but didn't want to fairly consider the fact that he'd already been sentenced for a state revocation sentence on similar conduct so is really trying to cut the defendant a break here in terms of the sentence because clearly his conduct was egregious enough these gravy violations in combination with the fact that he scanned it totally and that he was in a different district than he was supposed to be and when he committed the felony drug offense certainly could have warranted twenty four months i try to take into consideration his state revocation sentence in my recommendation the court certainly did the same i think that the court was trying to address the violations and then be done with the defendant the court did note though that one of the reasons it was not imposing additional term of supervised release because there was outstanding restitution is because he would still remain on state supervision and that the state could help to perhaps still collect the restitution so the one remaining issue for the court in terms of passably supervising him would be restitution but she felt that the state court would adequately stake or supervision would adequately  challenged the revocation so the way i would look at it is he was accused of certain violations he admitted to those violations accepted revocation and then went to sentencing  she can consider if there's new evidence on the record at a subsequent sentencing hearing she could consider it for sure but so i'm not asking that this be sent back for a new revocation hearing we accept only asking that it be sent back burner sentencing hearing and the other topic that i wanted to comment on was the government has said in general this was a fair sentence and i get the impression from all three of you that you think that a twelve months in this situation that sounds pretty fair and i think that's a defendable a point of view i think you could say in the grand scheme of things this is a generally fair sentence but that's really not the question the question here is we had factual findings that were wrong yes and if those factual findings contributed to this sentence he didn't get a fair shake even though in the grand scheme of things we might think no this is generally a fair sentence and someone's individual opinion that's not the