sentencing the court predicated the sentence explicitly predicated the sentence on a fact that was not true namely that mr ok was willing and predisposed to participate in th transaction we wanted to present to the court the testimony of the informant who had approached mr ok and drawn him into this transaction that informant was then at the time of the sentencing  serving time on a murder conviction in california state court but the information information available to me primarily through my current client was that mr ok at the time he engaged in the sale of drugs plotting not to sell drugs but to extricate himself from him as thirteen the gang that he had more or less been born into by was really willing to sell three point five grams but not more i think your honor i think he would was not really willing even to sell three point five grams but if we said three point five grams that would have been a much lower sentence in fact when he had really already served  his time in austin so the real question was whether he was willing to sell that much larger amount that was in fact so how do you deal with the fact that prior appeal we found that there was sufficient  found and required in this direction to be given how do you square that with the district court judge you're saying that it was unequivocal that he had the predisposition can you square  as as judge as the judge at sentencing articulated his decision he says he said there was there was a clear predisposition not contrary terror permanente i'm sorry that is contrary exactly contrary to retry the defendant he was no longer exposed to the mandatory minimum of ten years and so i'm curious is there oath already for the fact that  the court in sutton saying the defendant should have relied on a guideline that would say that the three point five would have  appropriate way to assess the guidelines as opposed to the over fifty grams is there any authority for that i'm not aware of any authority not the right you know if the case had been retried on that issue and a three point five grams the there's an issue of sensing entrapment that's that's been in the case obviously and the court was not willing to find that there was a sense in entra problem was it was your appeal is that you're really appealing an abuse of discretion in failure to grant a continuance to get c i a vegas testimony yes but you i had not yet put him on the stand then there's always questions about how someone will perform on the stand in the thing would be credible but i don't understand how the judge could have accepted all of these facts and still rendered court having to do with the custody of his children having to do with the whereabouts of his wife and so forth so he was very concerned about his family circumstances which he might be able to play a role in if he got out of custody so the judge was aware of that as well from and still are not clear whether you want whether you want to as to what you're asking for you are asking for us to reverse because there is a piece of discretion in not granting th continuance are you asking us to reverse because there is no way judge andersen could have found unequivocal evidence in light of what our prior disposition  not the first sensing but this isn't the second sense of yes and so the judge didn't give you the chance to go an interview they go right and you had to wait a while for for fons or something to go and visit but we we  just wanted to have this evidence before him and it was almost as it was going over his head at this point that i don't understand why he would be willing to give us the short time this is terry in order to flesh out i mean  about his effort to get out of town and get away from the gang and so forth and if vega came in and said those things then i think that judge anderson would give that a fair a fair appraisal well what do you think about the government's argument that some kind of affidavit or letter would have sufficed to be presented at the sentencing court but your response to that argument that they made i don't think of letter from some guy sitting in jail as is anything close to having a life testimony i mean there you're obviously dealing with with the witnesses you want to look at it's easy to write a  letter but you would really need to evaluate his his credibility and i think you can only do that in person and it made a phone flap but i think the sentencing guidelines give us the right on a such an important issue that would have such a big impact on the sentence to be able to draw that witness in and have him testify and the only i don't understand why judge anderson was resistant to it obviously it clutters up a scoundrel a little bit head in the sentencing been adjourned once before and i think he might have been ready to well it has been it had been adjourned but not for any any cause from the defense ok there was there was an issue of the client not being brought to court because he was ill in the detention center there may have been one other procedural problem that but those are both short continuances and they were not in any way the attributable to me or my or my clients all right good morning your honor may please the court kathy on behalf of the united states between march and april two thousand and ten the defendant before you negotiated and ultimately sold to a confidential informant and fellow m s thirteen member proximately fifty five point one grams of methamphetamine agree with defendant a simple issue and i'd like to start with ward last question relating to the mandate if that's ok the question was raised as to whether judge anderson failed to follow the mandate by rejecting defendant sentencing entrapment claim and i don't think so this wasn't fully briefed or borne out by the papers but what happened in the first case was his failure to give a jury instruction entrapment in the context of a jury trial here though at this resentencing stage before judge anderson it was at a stage in which there was no jury and defendant or the burden of proving sentencing  evidence tending to show that when judge said that he was unequivocally predisposed he was this agree with the assessment of the evidence by the ninth circuit he was disagreeing with papers before it's in the underlying trial record your honor and i think you could consider that it's still part of the same case and it was that defendant had a supplier he had someone that he had used regularly he told the confiden brief it wasn't with respect to the mandate and that the judge anderson wasn't abiding by it i don't think that was in that part of this case i think a big part of his case was the district court and whether or not he irrevocably ruled out sentencing entrapment is contradicted by this court's ruling on the first appeal that there was some foundation in the evidence to support sentencing entrapment it was it briefed your daughter it was just one line in the introduction there was no case law for a how often does it have to be repeated in order to be brief well your honor i would say that in the context of the entire trial record it wasn't a logical or implausible to find that defendant wasn't entrapped into providing this larger quantity because i like i said he had a supplier he had used before he told the confidential informant in fact obviously this is it's kind of it's really to what is and the record then there was a call between the confidence between the defendant and his supplier in which the confidential informant was present and the defendant was on the phone call with the supplier asking him to obtain the two ounces and he said i already have the money and everything this time i'm not going to let you down and he's telling the supplier no it's three we're looking for three confidential informant is next to him chimes in and says no himself and he didn't have the money so you know the fact that he didn't have the money shows that he wasn't dealing at that level nor does the fact that he had the drugs himself in fact didn't he offered the confidential informant an opportunity to talk to the supplier and to do the deal with the supplier he did but notwithstanding that the cop the confidential informant and defendant continue to negotiate and defendant stayed on the transaction at no time did he say no i don't want to do this anymore he didn't expect express the type of reluctance or the intimidation that we see in night circuit precedent and with respect to funds it's not that abnormal or so a logic or so implausible for a mid level distributor to not have the funds on hand and to be have to be fronted to have that money in order to pay for the drugs and also there there's more in that in the record so wh decided to was at g r one four four and twenty two and one fourteen leading up to the transaction defendant is instructing a confidential informant on how to stretch out his product how to cut it and he says you used to pure ones and the other one you make it into two you cut the other one and that's that's it man so you have five ounces you get five ounces total you understand and that's a g r one fourteen and he's in essence proffer actually to defend it wanted to bring a witness in a live witness to come in and testify who had previously asserted his fifth amendment privilege and wouldn't testify before once that that case was resolved that he was concerned about he was willing to come in and testify on behalf of the defendant in this case and so the defendant wanted the live witness and i don't know who asked for the proffer but judge really projected that proffer didn't need instead of accepting it i think he exude he say i would even if he said that i don't believe him and to that extent he really didn't accept the prof i think what he did was look at the proffer as the best case scenario of what the confidential informant might say and what that would have been the best scenario because the cop would ensure the best scenario would have been for the confidential informant to be there and testify and exculpate the defendant on the sentencing entrapment i meant that this isn't the live testimony lie because it's always the best evidence of something i think we just heard on defendant say that sometimes you put the confidential informant or other people on the stand and they falter or the testimony falls flat so in that in that sense this was the best case scenario in the sense of if every single fact defendant thought the confidential informant might say was or now and we don't know faltering that's the risk of i'm sick that's a strategy it's not up to the government absolutely your honor but this wasn't the first time they had he had offered a sentencing entrapment argument the judge had already heard his argument four times before i'm talking about a trial no i'm talking about in his original objections to the pre sentence report on october twenty fourth two thousand and fourteen in his sentencing memorandum on november first twenty fourteen at the sentencing hearing on march and fifteen in which not only did the court allow defendant to present a transcript of another transaction between defendant and the confidential informant he also played in open court he allowed defendant to speak and at no time very vigorously late litigated in the trial court proceeding leading up to trial and even after there was a motion to compel post trial proceedings in which defendant asks for asked for recordings involving his client lab no material any evidence tending to indicate that any of the government's witnesses testified falsely incorrectly at trial into each of those categories that defendant asked for there there was no such discovery there no communications between the government and the confidential informant instructing him as to how much to obtain and in fact all add even though this is not squarely before the court that this was asked at trial i don't know why you so much to that is not before the court it seems a little bit of a desperate move if it should have been considered by us should have put it in front of us and i'll were there was no motion to compel any sort of discovery from the government in that regard and nothing taken up on appeal to appeal the district courts now because there was simply nothing brought before the district suffered outside the record is what happened at the trial and the trial to my knowledge existed only of the i'm sure there was a government agent to testify about some of the