imposition of a sentence qualified as a separate punishment a separate punishment imposed because the district court expressed frustration with the executive department's imposition of what it perceived to be softening immigration practices and its belief that mr navarro garcia would not be deported upon completion of a sentence of incarceration our challenge to this case we do not bring in lightly we bring this after several sentencing proceedings with the same just or court we provided this court with sentencing transcripts that have indicated that this is a deep seated belief by this district court that the executives deportation practices are not something that the just records is pleased with and the district court has taken it upon itself to more severely punish undocumented defendants because of the leafs that those defendants will not be deported promptly if at all upon completion of their incarceration terms well you do you make a determination that he was referring to the ninth circuit as being inappropriate but there's another interpretation it's true that we have a difficult time getting our decisions made through the process because there are so many of them we have a huge wave of these cases and it's it's literally true that a person can go ten years or fifteen years through the process and eventually come in for deportation so if that's the interpretation i would give the benefit of the doubt to the district court unless you have some specific thing piece of evidence that was before the court what's wrong with taking that into consideration in the sentence i do your honor and i appreciate your comment and each of the transcripts that we provided to the court the district court saw its affirmations from the u s attorneys and asked will this defendant be deported upon completion of the sentence in each of those instances the u s attorney the government meant represented yes there was no indication that there was going to be any sort of delay the process was explained there was no information that the district court offered to support these claims that there was not going to be an expedition of the deportation process we presented to court with the information available publicly that the executive has gone through and hired immigration officials but the bottom line is it is not the role of the district court judge to punish more severely any defendant through supervised release through more detrimental conditions through a single day in prison because that just or court is not pleased with the executives deportation practices so it seems like the government agrees with you that the judge made an incorrect factual assumption about whether the defendant would be deported correct so i'm confused why you're not calling this a procedural error in making an incorrect factual determination as part of the sentencing determination and why you're putting it instead in a structural error biased box could you respond absolutely or twice before on panels that both you and judge wallace have sat on we have raised this issue as a plane air and twice before it has been denied as not being a plane air because in hernandez guzmn and santa baines leon those were situations where there was not sufficient information for the panels to find that the sentence would have been different this case is different and that everyone in the courtroom aside from the district court judge understood this defendant should have received a time served sentence i do believe that this could have been a plain air granted and i do believe that this panel does have a right especially under roussel us morale us to send this back under plain air however and i would not turn down that relief for this defendant don't get me wrong but the history in this particular courtroom with these particular statements with this judge freeland in hernandez koosman noting that there are very troubling statements with this going on historically i think that this has risen to a level of structural air with this particular matter so would you so i know you want this case to be assigned to a different judge but are you trying to have a say that judge jones can never hear an immigration case what  i mean are you do you have a bigger agenda with this one case or it does not matter if we say it's plain error and a factual error or a structural error i'm not sure if it would make a difference which path we take as to this case i don't know if this case is a gateway for the quarter or not that's for this panel to decide i would not i would be candid with the court if its structural error in this case because of the history i think it would have broader implications because of the nature and the history of what's gone on previously but i'm not asking for that relief broader than what's going on here i'll be clear i plain air under roe sallust morale as i do think as the panel issued the order i do think that gets us to relief we need the supreme court is instructed through that that when you have a case where a factual as a government has conceded a factual error such as this as a government has conceded would allow the panel to find that this increased his sentence erroneous lee mr navarro garcia could receive her leave we still would request that the court look at through the eyes of structural error because i do think it infected the entire sentencing process that said if the court limits it to the relief in this case that's all mr number garca requests he gets out interaction error approach is a little odd because the theory is that the judge is upset with the government and he's taking it out on these defendants i mean usually biases against the party that is concerned rather than against the opposite party it's a very odd if i use the area here the government's been on the it please the court adam flake for the united states i'm not sure if i'm supposed to mention that i'm appearing pro bono but it's a strange time to be alive  i don't need to tell the court that this is a rather unusual case but the one in that that defendant is accusing judge jones of bias against the government seeking relief on that basis another strange aspect is he also accuses judge jones of being biased against him so the judges but biased against if we put all of that aside and just think that judge jones made a factual error about whether the defendant would be deported it seems like you agree that was  and i readily concede that he could meet the first two prongs of plain error but i don't i don't think that my position is that he can't meet the third or the fourth prong of plain error and i'm happy to explain why please do so simply put if  the court looks at that the sentence and the transcript of the sentencing the the what and it's not very long but the way the whole argument went judge jones started out by saying i'm really concerned about this guy he's a recidivist please address the thirty five fifty three a factors address why he why shouldn't give him a longer sentence for being aggressive it is and that the u s attorney we had an agreement the assistant u s attorney said you know i'm i'm bound by our agreement this is why we think sentence he's been in custody for a long time on a state charge and please give him a time served sentence and the defendant echoed that and the thrust of what judge jones said was this man is a receiver this he's dangerous i can't i can't give him credit for a separate sentence that's why the word separate kept coming up he was referring to the stat was also inaccurate wasn't it he could have given him credit he just chose not to above i think i don't mean to look into judge jones as min but my reading of it would be he didn't feel like he was able to not that he was legally barred from doing so he said was wrong as a matter of law i don't i don't think again i don't i don't know how much i can parse out his words but i didn't interpret what he said as thinking that he is legally for clothes from doing so i think what he meant was he couldn't feel good about doing so based on the circumstances but i mean he says i cannot give him credit so literally that's false that he could give him credit right if the court reads that literally the court is literally correct but i don't think i think that the court should give him the benefit of the doubt and saying that he so if that's true then why shouldn't we also read him that i does word when he says because the government can't deport people all and the very next sentence is therefore i have to enter a separate punishment at all very upward yeah again i think that he's talking when he's talking about that separate punishment i mean this is just a disagreement we have been in trying to parse the judge just words i think that what he's talking about i have to give a separate punishment he means i have to give us a punishment separate from from what he received in the state court again and objection would have allowed the judge to  to clarify what he was saying that there wasn't an objection made and so there's some lack of clarity on the record but on one plane there review the i don't like any any lack of clarity is a problem with the defendant and the defendant should have sought clarification from the district court judge if they if they felt the judge was making their position did your adversary lawyer on that was very specific objection made calling the  way you've reviewed the transcript i mean it's very very ancient you know it's a very uncomfortable position for a defender to be in when the judge is going off you know you think you have a deal you've worked it plea agreement and then all of a sudden the judge starts bringing in extraneous matters is he still doing this with the change in administration or was it mostly oriented at the prior administration this was during th district attorney of the state of haggis the one that i had in mind your honor the washington lawyer issue yes and also made some rulings in a case with the bureau of land management that were found to have been improper right on appeal yes yeah he made one sentence one incorrect factual statement in one sentence that that's that's not sufficient to show a structural error so as i understand it your argument about reassignment to a different judge is just that this case doesn't need to be reminded at all correct am i right you haven't argued that if it does need to be reminded it should go back to the same judge we have not argued that  biased then i if that's not my position i'm disagreeing with that but if the court should make that finding i wouldn't object to it being assigned to a different judge in fact if when i did he finding that he is specifically biased yes but it seems like you also i know plainer wasn't at the brief but if we were to find that there were factual errors or a legal error and whether he could have taken into account the state sentence and it was plain error and needs to be reversed you haven't said you're not saying now you know that that means it should go back to him you're not disputing that it could go to a different judge if it's plainer i'm not sure that the court would have a basis on the finding of bias would be the basis of basis to assign it to a different judge i'm not sure that a finding of plain error would a sufficient reason to assign it to a different judge and i'm not asking the court to do that i'm not taking the position that it needs to be assigned to a different judge if there's if there's not a finding of bias sorry let me be super clear about this i don't want to mess this up because it's important if the court finds that judge jones is biased that would be a basis to assign it to a different judge if the court finds that judge jones committed plainer affecting substantial rights it is my position that that would not be a basis to assign it to a different judge just so we so cleary let's say that the trial judge of the sentencing judge had sat on the ninth circuit and heard the first case about somebody who he had a trial judge had given  prison with no possibility of release and then twenty years later he's not only released from custody but he's making an argument he should be allowed to stay in this country because if he sent back because of the crime and the gang that he belonged to and everything else he should be allowed to stay here and a judge articulated that that might be a reason why i give a longer sentence to somebody would that be structural  coming from but taking a case away from a judge is one of the most hurtful things that can happen to a district court judge i can assure you of that and we have to be very very careful about what we do but i respect your argument you've done you've done it middle ground i mean an appearance of impropriety based on this record is also possible under us versus hage the statements that are in this record based on the language of a separate punishment that alone i think could get the court to a position where no discrete specific findings would need to be made just because the appearance based on this record so if but if we just said this is factual error and legal error and plain i had thought actually the government wasn't arguing that it needed to go back to the same judge but now it seems like they are arguing it should just go back to the same judge so what is your response to that it cannot go back to the same judge your honor because at the very least it's appearance of impropriety but we would need that would need to be an additional we couldn't just get there with a plate straight up plain or analysis like we would do in any other case where there is an air i thought if you were inclined i think you could do the plain error analysis although again i'm not conceding that's all but i think based on the appearance of impropriety on this specific record with the additional information that we provided in the notice i think that is sufficient to ask for remained and i would note that the government didn't even provide any argument on the remained they waive that argument it's a little awkward though because you didn't argue plain error so this base this verse thing wasn't really an issue either so undersell so what if everything that happened had happened but he had just stayed within the range and gone to the twelve months instead of above the range asleep i think now takes us that one step closer to where we have a stronger argument with the structural errors these well also these are more definitive statements are right so it's more clear it's plainer error here corrected ok thank you much thank you both sides for the very helpful arguments we appreciate you coming despite the shutdown and the case is submitted ok the next case under is united states versus valverde rumba one six dash one zero one eight eight and one seven dash one zero four one five