welcome to the th circuit from your vocations mr page was getting you across the street from each other i don't know if that is true in this new presentation the three judges are across the hall from each other or on different floors in the jackson honor may it please the court i represent mr portable into my goal today is to communicate three points the st is that this court's decisions and they all and white and the consensus of out of circuit authority strongly support a miscarriage of justice exception it always second that the most reasonable understanding of what a miscarriage of justice exception includes is punishment for conduct not proven criminal that is an actual innocence claim either the conviction or sentencing phase is this formulation would ground the exception in the accepted legal meaning of the term as it has been defined by the supreme court and thereby provide structure and clarity to the parties and it would allow the court to reverse what the supreme court in a lotto has recognized as the most serious kind of error in criminal cases and it would capture the instant error rd i hope to communicate that the court communicate committed plain and reversible error of this kind so turning to the st issue can the court entertain the appeal spite of the waiver this court recognized in lay  that parties enter into plea agreements with the assumption that the court will act lawfully and that reason from this premise that parties do not intend to waive relief from that an anticipated outcome but just as the parties do not expect or even accept an  l outcome they don't x expect and can't accept the punishment of defendants for non criminal conduct that in concert outcome is fundamentally inconsistent with the function of the justice system and i would submit that a defendant may reasonably expect that that prosecutors would also not bargain with this goal in mind because the role of a prosecutor under berger is to see that justice is done and i've cited berger i just want to digress a moment and make clear sometimes he will cite berger as a form of an phatic speech or to chastise that's not what i'm attempting to do here i'm merely pointing out that the holding a burger tells us something about what defendants might expect a prosecutor's goals to be so further if it were if this court were to reject a miscarriage except an exception it would be difficult to square with this court's decisions in white and baby monitor and meacham and the other cases that reverse inadequacy of a factual basis because in those cases they are reversing in spite of the total absence of any exception that would pertain to the issue an error pertaining to the punishment of conduct mistakenly believed to fall inside a criminal probe mission so i would also say that holding that there is no exception would create a circle that split if there are there are six at least six circuits that recognize a miscarriage of justice exception and that's a majority of this court sister circuits and i am not aware of any case explicitly rejecting the idea as to implications that shows that the reasoning urged by appellant here is sound six other courts agree with it and it shows a little bit about of the legal background and the assumptions with which the parties negotiated  justice exception doesn't apply to those i would tell you st i don't believe this is a relatively standard guideline error in this case rather it is a case where a district court has eroni asli imposed  punishment based on the iranians assumption that that the defendant violated a criminal statute that was not proven and that that is a new era guideline error that is different in kind from other kinds of guideline errors and different in kind from the ones in which  the other courts of appeals have suggested that no miscarriage of justice exception would apply i would also submit that it would be the government appears to argue for a categorical exclusion of guideline errors entirely from this character justice exception i think that would be an untenable position we might imagine for instance that suppose the defendant received a career offender justman based on the mistaken assumption that one of his prior convictions was his when it in fact wasn't his at all i think that it whatever even if we have a looser formulation of what miscarriage of justice might be that it would have to capture like a case like that where the defendant receives justice is the conduct is the punishment of the defendant for conduct not proven criminal that or at least the eroni as punishment of the defendant for conduct not requirement and so that that is the reason where the court may increase or decrease the the sentence based on factors that are not that are not criminal just you know whether the factors that made make the court think that more deterrence is necessary or less or more recitation or less but but where the court is concluding that the defendant has violated a criminal statute and that conclusion is eroding as it is a miscarriage of justice in order to increase the sentence on that basis or you look at what was before the district court on the relevant conduct and why what you're talking about even apply to that sure so there are two potential bases for the bodily injury and hips when in this case the st is the conclusion that officer cross on the whaler suffered an injury and there is no evidence of that fact there is evidence that the defendant struck the officer with his head and that he was evaluated there was there were no marks there was no sign of a visible injury and he declined any further treatment there is no evidence that he complained of pain so  government points out that pain is adequate to show injury but there is no evidence of pain here to the rather to the contrary the circumstantial evidence is that there wasn't evidence of pain because he declined treatment we might say that there is you know error but not plain or not plain error if there had been sufficient basis in the p s r that describe the force of the injury or its location something that with the allowable accord to draw an inference that an injury occurred home violation of that particular sol i don't think well that it was a crumb it was certainly a crime and it was a crime for which he was punched but he was punished for the additional crime of causing injury which would have satisfied b in this case and there isn't any evidence that he there is no evidence in the record that he suffered pain or any injury and i don't believe the p s r says that there's any evidence that he knocked him to the ground there is evidence that he may  that's not an assault i mean that's not a criminal assault if it is an assault it certainly isn't assault but the defendant was punished for as though he violated a more aggravated form of that statute than the one that he pled to and the one that was proven it is a crime and the defendant is not attempting to get out of those of the police in any way i'm not claiming that he is he's committed no crime at all i'm saying that he is actually innocent of these d that's you that underlies the enhanced in this case now that the other basis for concluding that the defendant is liable for this was what it says during this incident so it doesn't show whether they were this injuries occurred as a result of assaultive conduct or criminally a base of conduct or whether they were merely the consequences of passive noncompliance which doesn't violate one hundred and eleven dollars it's as though the defendant and the three officers went into a black box into came out with injuries it might be plausible in that situation to say that it is it is sustained the night before playing basketball or something so they arose during the event and the end event itself is described as not enough for the district judge are you saying that just a judge cannot infer from that  that those injuries arose from this to use a non technical term discussable which would be criminal by the resistance to the officers well no i don't think that the district court could infer that for all the record shows the defendant could have sat there like gandhi and the officers could have injured themselves while attempting while tackling him facing the record has no support in it for the kind of physical conduct that your client engaged in at the time of his arrest it certainly does have it does have support for the suggestion the defendant engaged in physical conduct and criminal conduct he head butted somebody but it doesn't say it doesn't show that that criminal conduct gave rise to the injuries in this in this case we have to have some effort the the court needs to have some ability to visualize out that my friend of the car turns the standard of review on its head even if this court were to review the merits of the issue it is his burden to show a clear or obvious error by the district co and its application of the guideline provision my friend began by pointing out that this court if it declined to adopt a miscarriage of justice exception would create a circuit split the court need not even address whether it should adopt a miscarriage of justice as it has done in the past it can simply find that the court has not recognized it in the past and not necessary to address it in this case based on the claim of error presented in the waiver the defendant also points out that tries to argue that he's being punished for iranis sleep impose punishment that is not the case the district court is simply applying the sentencing guidelines and the sentencing guidelines take account of all relevant conduct the p s r as plain as day that the injuries for all the officers occurred during the alter cation and that is sufficient to apply the guideline often slow increase i want to dress one other thing that  argues and that is that the guideline provision tracks section one hundred and eleven be eighteen u s c section one hundred and eleven b that is that is correct insofar as a one  qualify but the contours of the guideline handsome and are not necessarily coterminous with statute the guideline makes clear that a an injury that is obviously painful will qualify and that is what officer custer knew ala suffered here course we don't need to rely solely on officer casting away low because we have officers who also received injury and receive medical treatment those are all the points i have to make apart from that o rest on my brief and if the court has no questions i'll see the balance of my time and ask the court to dismiss the appeal page well the only point i'd like to address is that as my friend's point about the inverted burden of persuasion here i don't think it's the defendant's burden to prove what happened but rather it's it is his burden