scar on the left side of his i believe the left side of his face and that the photo montage included a photo with five other individuals none of whom having scars on their face the  significance of that i think became very clear during trial where first the identification of mr jones some of the witnesses had to walk down so they could see him a little clearer and attempt  see if you had a scar on his face additionally in the jury deliberations and somewhat of an unusual situation the jurors asked to have mr jones walk in front of them so that they could attempt to see if there was a scar on his face and so i think that became somewhat critical in the entire case i think that demonstrates the significance of it in the edification where the sheriff's department took those the photo montage that photo montage is included in the government's case or a copy of it in there and there briefing they have a copy of that and it does show a scar off on the on the left side of this cheek so that highlights the importance when the significance of that photo montage in the identification and the way it was handled throughout the trial even into jury deliberations  and we believe that that is an appropriate basis for the case to be remanded for a new trial suggestiveness of that is as clear i see i'm more focused on the sentencing so maybe if you don't mind if we know that's fine to the sentencing well and the sentencing argument is that there were three state cases in front of the washington superior court zero three one zero zero nine six four five and zero three days one zero zero six five six days five and zero three one zero one four zero nine days six where he was  not represented on one in the entry of a plea his attorney mr armstrong williams withdrew from the case and and to the of the cases he was  not there was no attorney representing him at all so he pled without any represent we don't we're trying to figure out what happened during that time period and i guess one of the questions i have where the parties and the district court in this case where the government's two thousand and six and seen memorandum judge i didn't represent him at at his trial and sentencing and it appears that from what i can determine from the record that the defense attorney that represented him was not aware of that of that at the time that she handled the sentencing  so it appears to me that they were not aware of what it occurred in that earlier case as i completely and and there's a reference judge quackenbush well i will i will clarify the judge qui that and the government's counsel has was aware of the two thousand three transcript because i think he had it and it was aware of the plea plea agreement and so it's just it's interesting and i some of the transcripts from the cole or the the questioning the state court judge about whether or not he was going to represent himself and i think that was provided to the defense counsel by mr here in court today and she filed a sentencing memorandum raising that issue of the court and asking the court not to consider those charges where he was under represented in state the court did have before it that transcript where judge levaquin state court questioned him about being on representative not having attorney and going forward although i don't know it was fully explored by the state court judge but they did have the court did have that before it at sentencing in the district court and then serious to one of the i'm counseled state convictions from two thousand and three that was used to enhance mr jones the sentence was for second degree possession of stolen property but mr jones doesn't challenge that conviction the for the he didn't charge for this trick or it doesn't seem to challenge it on appeal and i'm trying to figure out if there was or a reason for that i i think that i would be speculating as why it didn't happen and went before with the trial council and handle that i guess it appears to me that the argument that was put forward to the court was he didn't have an attorney you shouldn't cat you shouldn't use it for anything because he didn't have an attorney and he wasn't adequately represented and again i i wasn't the attorney there but but from what i can gather from the record that i have available the attorney that represents them was just arguing that he wasn't represented you sentencing what's well if i were handling it if it's remand and i'm handling it i'll go back and try and more fully develop the record from what happened in state court and present a more complete record but i would also argue that under united states sentencing guidelines section four a one point to that if judge quackenbush has made that determination in the prior case that under the sentencing guidelines the court cannot consider that for any purpose at re sentencing if if he was if judge quackenbush has said and that earlier case and adopted the findings  that he wasn't properly represented shouldn't be represented shouldn't be considered them under the sentencing guidelines of the set of the court with judge nielsen that we're here on today he should not consider that  if you've gone back to the state court and had the the conviction removed and that and then in the last section for i think it's sub four is says or if it's been adopted by prior court and federal court it should not be used for any purpose and we don't have to determine the guidelines here of course but have you if you should prevail here for and argued before the district court what would be your suggested gag guideline range i would i would be in agreement with the defendant's attorney that i handle the case below i will advise the court that that may change though the trial the trial attorneys calculation but i would advise you that the defendant has had some of those cases that were  significant amount of fine that we're talking about because it would have affected his base offense level and his criminal history that's correct and and so i think there's at least four bases for this court to remand back and and not an orderly the district court not to consider those factors that's the government's the statement of the got a usa at the time of sentencing and i think he was trying you know subtle way at least to advise the court and i think we cited to it again in our brief but he said well so the court is not out considering those represented cases and then the judge the judge responded that well he wasn't going to consider him for the armed career criminal act but he was going to considering them on the other matter and therefore he didn't like it made much difference at the chalet we now know the prior position of the government and i don't know th the court was fully advised on the government's position but we now have that information and then as i pointed out the sentencing guidelines where as under for a one point t haven't and i don't know that i've been able to present it i guess right all right and i don't know that i can show up completely given the record that we have here today that the got that the court adopted that position so i think th the record is less than complete and perhaps the best the best course of action would be to remand for the record to be more fully developed but it is seems seems that the court at least in part adopted the position that i think it's clear that the court in part adopted the position that those three cases should not be considered and i don't know how the court says these were up he was not properly represented and we're not going to consider those for the on career criminal act yet i'm going to consider them in using the arriving at the calculation of the guideline range would thank thank you court my name is tim holmes i'm from the u s attorney's office in spokane here representing the government can you speak right into the microphone have and i'm sorry i think i can so  court asked whether the parties or the court was aware of the two thousand and six sentencing memorandum i wasn't aware of it i it's clear that judge nielsen was aware that judge quackenbush had found that there were problems with those prior on counsel convictions and didn't use them but it's not it's not clear two thousand three transcript well i provided it to the defense counsel and it had been something that i had discussed with the prior defense counsel i was aware of it because it was an archive file that i had brought up from archives but there was not a sentencing memorandum i'm assuming there may be another hard copy file but there was in it was the plea agreement that i drew certain inferences from my conclusion because of the way it was pled that case was pled down from a instead of having the defendant plead to now in the possession of a firearm i believe he pled guilty to an amended charge of possession of a stolen firearm based on my experience i read that as a usa who handled the case recognize that there was an issue here and was just simply trying to avoid it in order to then provide the defendant an opportunity to go back in the state court do you think that the government can go back and argue something differently not on the record not on the current record you only thing that concern me is that i saw what happened in the prior case as a as a negotiated resolution the sentencing memorandum makes clear that the government's position went beyond that to asserting that the prior and counsel's convictions were not work constitutionally  but i don't know that there was a complete record available to to fully assess that because i haven't seen counsel i'd like to clarify your answer on this question are you saying that there a development of the record on that point i'm saying i'm sorry it sounded like a little of each and i wasn't clear well the government's position based on the record if it were remanded would be that the court should not consider them for any purpose but but since i don't believe that even the position previously taken by the government was based upon a complete record i think it would be preferable to give the district court the opportunity to have that issue further developed by the defense counsel and by the government but they feel on the record though that you are aware today you would agree with your fellow a usa back in two thousand and six i wouldn't because the defendant was essentially stripped of his counsel you know it was a situation where he was saying i don't want my council to withdraw and it's it just was a very unfortunate situation where the judge at that time did not make a sufficient inquiry and allowed the council to withdraw and it sort of last the defendant to negotiate his way with the stay with the state prosecutor on his own and it doesn't appear as though anybody was there really protecting the defendants interests at that point well and the two thousand three transcript apparently you did have but nobody included that in the excerpts of record here on appeal i think that would have been helpful to have you didn't submit it you were aware of the two thousand and three transcri yes i thought i thought i did submit with with my my supplemental brief but it was it was made i believe an issue in the part of the record through the defense sentencing memorandum so it was referenced through that nobody submitted for two thousand and three transcript i agree with that it just seems like on reflection hopefully think that might have been a better idea to submit it yes i do and on reflection i think that you know my role at that sentencing hearing was much too passive and and i was not i didn't provide the assistance of the district court that i i believe  guideline was affected yes and it could affect his base offense level and his criminal history can i believe that to be true so are you agreeing that  well i i don't know sometimes when you concede things it's sometimes when you can see things when you have to concede things it's the right thing to do yes i did i i acknowledge that that that that that sentencing memorandum should have been provided to the court in response to the pre sentence report that was prepared so that the court could have considered that independently  that's the position that i should have taken based upon that sentencing memorandum so i don't know how i mean i i'm not trying to be overly quite with the language but i  that's i think that my position is clear you take that position today but you also take it recency yes i wasn't a lot of argument on the other issues with regard to trial deficiencies and i don't know if the court has questions about those i i just wanted to make sure the court is clear that you know some of these issues for instance the whole issue of identification only applies to count one it's not an issue with regard to counts two and three there were two trials two separate trials so some issues are only only relevant to to one trial versus another identi identification was only at issue with regard to count one the government's position is that the material question isn't whether the defendant had a scar on his face but whether it was visible within the photo montage i don't believe it's visible the district court didn't believe it was visible and couldn't see it you can and then you can make that comparison yourself with with governments exhibit nine which is the separate booking photo that does show the scar  what about the issue of the bringing the defendant out after the jury deliberating from the jury take a look at him a closer look at him well it's an interesting question i didn't advocate for that procedure  that a reopening of evidence which under some circumstances the court can do or is it simply allowing the jury or analogous to allowing the jury to see something that's already in evidence but that won't go back into the jury room like we do with drug exhibits or firearm exhibits and i would i would argue that it's more analogous to allowing the jury to see something that's sensually in evidence because the scar was discussed photographs of the defendant were placed in evidence some of the jurors perhaps could have had a better view of the defendant from where they were were sitting that could have been a discussion in the jury room and they asked the question can we see him and it was really the defendant i mean if the defendant didn't want to do it he certainly had an opportunity to tell the court that but he told the court that he was was ok with it and and that was his consistent position so to ask for a remedy now it's it's inconsistent with the position taken by the defendant at the time when he had an opportunity to jack to the procedure if he didn't didn't want to do it so i don't want to think a lot of benefit that would be to have a scar look look closer well keep in mind that exhibit nine which was the booking photo that shows the scar was already in evidence so the jury could see the photo of the defendant with the scar and they could compare that to the photo montage if they if they wished so perhaps they just wanted to see how noticeable the scar would have been is throughout both trials was very active with his defense seemed very intelligent and i'm sure that within his mind he had his reasons why he thought that that was an appropriate thing for him to do but the bottom line is you know he clearly expressed his preference to the court to go ahead and go forward with that procedure so thank you very much i sure thank you convictions for any purposes it appears that the the judge well it is clear that the judge and the district court here in this case adopted the position that the prior convictions were invalid based upon the lack of representation if indeed that's true the court shouldn't consider those those convictions for any purpose can you clarify because you just said something before that things may have happened well here's been determined yet he had to have trial or anything and sentence this case since he was sentenced on this case he's gone back to court in the state court and those cases those cases of  want to be clear which ones though what i mean by that is there are pending there were pending criminal cases in the washington courts that he had not gone to trial yet and they haven't been there hadn't been any determination sensitively he's been sentenced on this case in federal court those cases that were not yet decided have gone to trial and so there may be additional criminal history that that arguably the court would have to consider it could go back up to one hundred forty months well i don't i don't think it's that bad but but i think there would be a change in his position and so there is some prejudice to him if he  the jury is already focused on that evidence so they're going to be giving that greater consideration than something that might have been admitted the trial him getting up and walking in front of the jury obviously there was some focus on that scar so that's going to be getting greater emphasis and other evidence was presented during the trial and i think there's a great prejudice to the kind of that point admittedly that the trial counsel did not object and the defendants seem to be very willing to do that and i don't disagree with the record but i think that it is playing their own review but i think that the and do an emphasis that that evidence would have at the time of trial in the midst of the jury deliberation