whenever you're ready council good morning your honors may please the court when the over mire for the defendant rafael medina and i'll reserve three minutes for rebuttal and watch my time thank you so they were here to address the unconstitutional upward variance from the parties jointly requested three years to nine years in prison and while this case presents some unusual circumstances medina does not request new or unusual law to be applied in this case it's a longstanding role that major variances such as from three years to nine years must have significant justification and that's the supreme court's ruling in gaul and the due process  clause is what drives that so no matter the standard there must be significant justification for this variance and here the due process clause is violated because a person cannot be sentenced for an offense that cannot be proven or defended and that's this court's williams case from one thousand nine hundred and four is that both rule thirty two which embodies the due process clause guarantees the defendant an adequate opportunity to challenge information used against him at sentencing and that's what was lacking here because the evidence all material evidence of the dismiss counts that was dismissed on due process grounds it was destroyed counsel read the plea agreement in this case  d is there anything in the plea agreement that would have barred the government from putting on evidence that your client murdered his father well the parties agreed to jointly  i understand that i mean the judge specifically at the plea colloquy made sure your client understood that he could still deem the murder or the alleged murder relevant conduct but i don't see anything specific in the plea agreement that would have barred the government from putting on evidence that your client murdered his father if they had wanted to so is there anything in there that in your view would have barred them from doing that as long as they complied with the rest of the plea agreement right as long as they complied with the sentencing request no i don't believe there was anything in there barring them from supporting some type of relevant conduct finding to support their thirty six month requests which could include  the alleged murder by your client of his father if they had sufficient evidence of that correct and if they had decided to do that or if they were remained and they decided to do that you'd have the opportunity to argue to the district court due process prevents you from no matter what evidence they present because the circumstances here due process prevents you from making a finding as relevant conduct that my client murdered his father well they would be barred from that and remain because they've waves the opportunity so this court is held when the government has the opportunity to present something as sentencing in the st place and they do not do so that's waived for any subsequent it's the government shouldn't have i believe it was called a nd bite at the apple is what this court said and so because the government did not present any evidence to resolve the known dispute that the defendant had with the p s r that was raised to the p s r it was raised in the sentencing memorandum the government didn't file any sentencing memorandum in response it was argued at sentencing the government didn't present any evidence specifically said we do not rely the dismiss count in support of our sentence and so it's our position in this court's case law that the government has waived that right so should this go back for recent unsing it's limited solely to the  is that here the sentence the six years beyond what the parties asked for is violates the due process because it is materially unreliable information that's demonstrably the basis for the sentence that's the standard and so the disher court already found one that dismissed the st count on due process grounds it already found that there was no evidence available to corroborate or defense you know either way for the prosecution or the defense but then the court when against its own ruling sentencing to say where there was no new evidence presented well now i find the defendant was very much involved and very closely involved with this conduct that medina's unable to defend because the evidence is has been destroyed it  missed and so that was the sole basis for the variance because a district court said should i get there was a discussion of appeal because the court noted that this objection was preserved so if should this come back and i can't consider that relevant conduct i will impose the high and i mean i'm a little confused by the sentencing transcript it seems at one point the judge is saying he is finding your client murdered his father and it seems to me that in another point he's saying he's not relying on the fact that your client murdered his father my mis reading the transcript oh no i agree that it is inconsistent and when the court st makes the relevant conduct discussions yes the court specifically says medina murdered his father and then later after the final objection after imposition of sentence the district court said well i'm not finding that i'm finding that he was very much involved and very closely involved in that conduct and what that difference is i'm i'm not entirely sure but it's clear that the six year variance was based soley on the conduct of this alleged conduct that medina could not defend against because the evidence was missing well i mean that's a question whether or not he could or couldn't defend against it i mean i from what you've submitted it's not entirely clear to me exactly what evidence was left exactly what evidence was destroyed and when your client was asked by the district judge at the plea you understand that i can basically rely on this murder is relevant conduct your client said yes and you didn't object or your i don't know if it was you at the play but your colleague didn't object and say no you can't judge there's a due process probably because you're correct that the court did say he could be in titles to consider the relevant conduct which is a true statement of law that relevant conduct can always be considered as long as it meets the basic elements of due process the judge wasn't just talking about relevant conduct in the abstract he was talking about relevant conduct in the context here of the possible murder by your client of his father correct did mention the dismiss count specifically but then at sentencing when no more evidence was brought up by the government to support you know that that dismissed charge the defense objected to the p s r is reliance  facts in there about what your client's brother said and some other facts and an alleged police report that you say you've never seen but i mean it doesn't specifically say as relevant conduct your client murdered his father that's the general was missing just as medina couldn't put on evidence to refute because evidence was destroyed by the b i a and i'll reserve my all when we had a minute to the clock when you're back up frank morning your honor morning may please the court i'm christopher baker representing the united states disproportionately above the guidelines as it was here but in restruck though the court said that due process does not require a higher standard of proof than preponderance of the evidence to protect a convicted defendant's liberty interest  accurate application of the guidelines what was motivating this core inner strap o was that the defendant has a liberty interest in ensuring that the court properly calculates the guidelines and hence facts then that  undergird enhancements that disproportionately increase the sentence above and beyond the guidelines require something more than preponderance of the counsel putting aside for the minute whether it's a preponderance of the evidence or a clear and convincing evidence did the district court here actually make a finding that your client had murdered was that i mean that defendant had murdered his father i curious along the lines of the questions that proceeded as far as at one point the judge seems to conclude that yes by a preponderance of the evidence he was responsible for the murder but seems to backtrack knowledge that somewhat inconsistent position my best gloss or understanding of that exchange is the district judge was making it clear that he was not finding beyond a reasonable doubt that the opponent committed murder well if he wasn't if the district court wasn't finding that part of the relevant conduct was that the defendant murdered his father what is the possible basis for this enhan variance i think unquestionably was a result of the judge finding by a preponderance of the evidence that the opponent was responsible for his father's murder i think that's i think that's crystal clear and so what it what exactly is the evidence before the district court that supported that finding then that would allow us to affirm let's assume that the district court did make that finding what is the actual evidence before the court that would allow us to affirm that three witnesses saw the pallant at the murder scene on the day of the murder and they said this is from the pre sentence report this is a combination of the pre sentence report and  the attachments the reports that were before the district judge in connection with the motion to dismiss and which the district judge referred to well that's the police report you're talking about is not that's correct your honor and in disputed police report and again i think part of the challenge here is that at the sentencing hearing the appellant never took issue with the facts only stood on the ground that the fact should be disregarded entirely because the underlying evidence was not available it in stark contrast in this court the palin is asking the panel to consider the evidence quite closely with respect twelve pages of the defendant of the pollens opening brief goes through an exhaustive detail why the evidence that the district judge had before it was unreliable hearsay but that argument was never put before the district judge and hence the district judge never had the occasion to wrestle with whether or not in light of the inconsistency as in the other internal consistency is that that evidence was sufficient to justice bennett's comment regarding what evidence was before the district court three witnesses see the palin at the murder scene the day of the murder and report that on the day of the murder there's a witness who sees him in the house shortly before the murder there's a witness kelly man who sees him departs really after the murder and then nathan more later in the day reports to law enforcement that he saw the appellant kill his father separately nathan moore tells his neighbor immediately following seeing the murder that he saw medina kill his father and again several hours later he reports that same fact to law enforcement was just a minute was the police report that you're talking about it was attached to the to the parties papers filed in connection with the motion to dismiss but my question was it offered in the evidence for somebody who has not produced to object to it it certainly was the party certainly had an opportunity to object to it i my my position here is that the appellant chose not to for one reason or the other but i believe that had he advanced that concern that the police reports were either insufficient not reliable just because something is in appeal not entirely accurate i mean the defendant's position was the government lost all the evidence or destroyed or responsible for the spoliation of all the evidence and so we have no ability to make a case because we didn't get any of it i mean the defendant was was in a very difficult position here where you have the district court saying basically at least at one point i'm going to find that the defendant murdered his father and the what might or might not have been exculpatory or certainly relevant evidence was gone i mean what's your response to the defendant's argument that there's a real due process problem here said i don't know that it's it's not terribly it's not functionally different from many cases at sentencing where there are no recordings of the underlying interviews  the appellant had the occasion to conduct defense investigation by way of finding those witnesses who according to the police report said what they said the challenge that subpoena them to the to the sense and something that i mean i think it is different i mean i think in a circumstance where there just isn't a lot of investigation the facts are what they are but that's different from a circumstance where there were tapes there were witness interviews there was all sorts of things there was scientific evidence that might have shown that the defendant's brother was the killer for all i know but it's all gone and i mean the defendant is in a very difficult position to to rebut these these statements in the p s r when the evidence that could have given the defendant the ability to rebut it is gone which clearly was recognized by the government in agreeing to this very low sentence recommendation so what was the defendant supposed to do here the defendant at the very least could advanced the exact same arguments that he's advancing here in twelve pages of his opening brief by laying out and reciting for the district judge that that by a preponderance of the evidence there is not sufficient evidence here because of the internal inconsistencies and the unreliable hearsay he didn't advance that argument he stood on the ground that for a completely separate reason because the underlying evidence is gone the court can't even take take the police reports on the p s r into account and put in issue by objection the defense has never come forward then you think the government has to come forward with proof to support whatever it is and they didn't that's certainly the case your honor i would just i would stand on the fact that this court's case law provides for that that if the p s r of the district judge hears the objections and concludes that the p s are nevertheless a sufficient evidence the government doesn't have an independent burden or duty to to buttress those findings particularly in a case like this where that the appellant put forth no arguments and no evidence and we were to if we were to decide that a remained was appropriate and we didn't agree with the defendant's argument that the government was barred from putting on  evidence and we gave the government that opportunity where the government put on evidence that in this case that the defendant murdered his father with the government take the sort of stand stand mute on it as it did at this or question st i don't believe that the plea agreement prohibits the government from from proceeding like that i would want to not rule out putting on the evidence i think it would be curious if the case re man did and the district court what the opponent has done here which is put into question the evidence and the government at least and not have the ability to to make representations and argue that in fact the evidence was more than sufficient for the judge n that was never ruled on because it was mooted out when the government didn't just challenge the dismissal but conce wrong on the p s r took portions of that and put it into the p s r right it's unclear what reports were relied on there's whatever i read in the p s r where that come from it's not clear if there were no findings of where that that came in your brief you don't know where it came from we don't know where it came from we you know we can look at what's left piecemeal this limited universe of a few police reports and a partial b i a report by the very agent that lost all the evidence  and they're inconsistent they're internally inconsistent which is what we pointed out in our brief and so medina was unable to rebut the claims in the p s r because as a score pointed out there are fifteen recorded witness statements that are missing included at least two recorded statements by nathaniel moore the client's brother and we have no idea if those were inculpatory or exculpatory for medina the he's a co suspect as this court pointed out as well all physical and biological evidence was destroyed and so that was left without any ability to put on evidence and as this court pointed it was the government's burden at that point to show that it had what was left be sufficient for sentencing and that it did not do that and so the government has now waived his position that now it's arguing the government doesn't like government says that you know there was no argument that you made that this was unreliable that it was hearsay and that it sounds like they're saying if you had made that argument maybe they would have addressed that they should at least have an opportunity on on remain and if we're going to say that your argument isn't waived for not having been made why wouldn't it be fair to give the government the opportunity to address those arguments on remand if you've made them for the st time on appeal well the district court found that the objection was preserved forty said your objections to my relevant conduct findings are preserved right but did you make an objection that this was based on unreliable hearsay you clearly made a due process objection but the government says you have you didn't make an objection based on what you've alleged at the beginning of your your opening brief the actual word hearsay was not used in the objections but the there were several objections before sentencing to the use of unreliable conduct that cannot be proven by any standard because it's based on missing or destroyed evidence and then objection has to let the parties in the court know the basis so that they can respond and that's a sufficient basis and that was challenging the sufficiency of the evidence which is a due process claim which the reliability of evidence is the same as a hearsay objection they're all intertwined raising the due process concern that there is no evidence for medina to rebut the government's claims and so he's being found guilty of murder at sentencing where the government admitted it couldn't prove the charges of murder and that the government admitted could not defend against the charges of murder and that's what's critical here things to wrap up thank you very much thank counsel