thank you so i wanted to start today by talking about the sentencing argument and where there is some degree of agreement between the government and myself now as you know what happened in this case was that after the jury's verdict  the trial court took the very unusual step of going into chambers with the jury and then polling them each as to what each would recommend as a sentence for the defendant after the contention now is whether or not this met the standard error under a plane or a review and i also agree that that's the proper motive analysis here because there wasn't an objection from the defendant at sentencing to the specifically condemned that procedure or ruled on it sort of as a matter of definition the error can he claimed because the courts never ruled on it our position is no that's not accurate there are fundamental principles that play here that made this  right while the jury makes the recommendation of any nineteen point two or nineteen point four years and it's twice as high as what the judge deems his maximum potential sentence could be under the constitution and under the guidelines so the judge gives him the maximum sentence that the judge feels that he can give him and in this situation where he's taken into account the jury's recommendation which was twice as high as what the jury what the judge could give him there is an indication that the judge was trying in that instance to give meaning to the jury's recommendation by giving the defendant the maximum possible sentence that he possibly could under the other restrictions that were applied to the judge  right you mentioned there was a due process interesting you mentioned thirty five fifty three trying to figure out which of those is the legal violation are you saying it's a yeah you don't need to worry about constitution if it's a constitutional issue that is just a constitutional right no i get that but i think that i think that whatever the way that i understood this was when you're dealing with a sentencing you know you say the first question for the court to answer is was there some kind of procedural error here and did that procedural error a factor the outcome of this sentence and i would say yes it did and what the nature of that procedural error was that there were there were and what makes that procedural error plain which is what we have to demonstrate here is that it included within it several constitutional violations which included the violation of the defendant's right to a fair trial the violation of the sentencing right now it's clear no one can dispute so is the idea here this is part of sentencing and he didn't have a right to be present so there's this person it's over so you know the argument here is a stage at which the judge is gathering important information that the judge is then going to use to determine the ultimate sentence that the defendant it's going to be subjected to the defendant's exclusion from  the information is given from a probation officer to the judge has to be done in open court with the defendant present when it's given as opposed to just being made the information being made available to the defendant so that they can then challenge but i don't know but i think what has occurred i'm just trying to figure out i hear you saying that the problem is that the friend wasn't present when the polling occurred or is the problem that there's not a sufficient record so he c challenge the information that was gleaned from the polling sites that he could make a meaningful contention to the judge who shouldn't rely on i just trying to see what the right what is the violation right why i think the main violation is he's not stage in the trial and the defendant has the right to be present for that under waller and presley and all the other cases that address the defendant's right to be present during any critical critical stage of the of the proceeding you know it might have been had there been a record exactly what had been said to the jury in the circumstances here then you could make an argument that this didn't this didn't prejudice defendant because the jury was instructed about what the proper considerations were because the jury was given information about the defendant that would be relevant to the sentencing which is you know supposed to be aimed at the individual and not aimed at just sort of kind of an abstract notion of what the what his record of the defendant was told about what did with respect to the pole i'm sorry can you say that again just the record show the defendant was told about what happened with respect t poll those at the time of the sentence being issued to defend it and those polling has occurred so the way that i understood the procedure here is that at the very beginning of the trial the judge makes this comment he says i read this law review article i think it's a great idea i'm going to do it in this case and then you know there's the trial there's no more mention of it and then sentencing comes up a few months later and at the beginning of the sentencing hearing the judge says by the way i  gave in this procedure i took a poll from the jury i got there needed an average recommended sentence and i you know this is what it is and there is a suggestion first of all  as i understand what you just said your client and his counsel knew before the judge did it that he was planning to do it so don't we start to move from fortune to waiver now because then you get a little bit a feeling of well but the judge do it with a look at the literature probably will help defense is going to be right and he's he's about to start a jury trial right then the sentencing doesn't take place for months afterwards right and then the judge announces at the beginning of the sentencing hearing by the way i did this right and here's what it is now at that point i concede the defendant should have objected but i think you can review that for playing air without saying there's any waiver here there's no express invitation for the defendant to object to it at that point and i think  gathering because this information is coming from a jury and the context of this sort of immediate hearing post trial right the information that was at issue enron and garcia is information that you know gathered by a probation officer been disclosed in time the defendant would have had an opportunity to go interview those witnesses and that that information in the sort of typical investigative way there is no real way to do that and then context of what occurred here whe jury where the charge is taking a poll from the jury and then using that information to formulate a sentence at last the defendant is there present at the hearing when the jury poll is taking place to place and is there to ensure that the jury right it's going to have to allow the jury to be given information about what ought to be considered in a sentence and not just give this sort of you know abstract statement about what they think is the photograph and i guess  well i have to admit i didn't think of anchorage right right now and i'm sure that it does but i think there's a real risk here when you're asking the jury to make  this this this recommendation judges are trained to give deference to the jury the jury is making its recommendation on incomplete information and potentially improper information right against it just a different point his presence isn't relevant to the that's what i'm trying to push on that there's a variety of different possible problems with this procedure right one of them is that he wasn't present for right if that's not a problem because finding it's a problem and it's recommendation because they didn't like the color of his skin maybe they're making a recommendation because they knew that he was from nigeria and they didn't like the fact that he came here and committed a crime maybe they're making the recommendation because they didn't like the particular manner in which this case was presented to them it's your point is it was a given we don't know that there is any instruction we don't know about the instruction once and then it's students in favor of whatever that that that recommendation is even if the judge says well i'm not going to take that is improper factors into account he doesn't actually know what factors the jury took into account so it's going to skew his ultimate decision based on you know just all these potentially improper factors so i think i'm i'm beyond my time so  can't say that it wasn't in the reason is that mean you think it was an error i'll say that i think we agree that was why was it the primary reason i think we can see that was an error is because it's on this record it's impossible to say that this is reliable information to help the judge reliable and that's because we have no idea what happened they don't record there's no question that's the record so in that circumstance what's not clear about the problem well again well i guess i disagree that th entirely unprecedented it's done entirely off the record i'm having trouble thinking of any other instance where a trial judge can be in contact with the jury on a nature issue in the case ex parte without anybody there are no record kept told us that if a judge makes an error in calculating an advisory guideline there's presumptive purchase right well here if the judge thought it was important enough to talk to me that he would do this ex parte day off the record with no core in the circuit and have begun it before and follow procedures it wasn't even like it was in the six or it seems a figure presumption that information the jury gave him loadstone and so there are three and i think the cases that say that you presume prejudice are based on the fact that it's expected the courts will take it seriously in fact they have to explain what when they don't follow it and why there are probably this is not that i mean there's no suggestion in being the voice of the public here and it's a significant enough role to treat your person regard to as did it doesn't seem to be much of a leap to say that a judge who's worked with the jury and hastened close the trouble of asking take the point that that ground distinction wouldn't be available but if i understand it in the six or it was the government taking the appeal because the sentence went down well if it was unreliable that cost and he's the one who's protected by the due process clause not the government greg so i guess i'm just wondering when you say it's unlawful evidence how can it not be a due process problem for a judge to rely on  meaning of the guidelines which with a judge may consider any reliable evidence this course of sentencing precedence whether than as a due process question means due process usually has to rise to a higher level than the mere fact that had a judge had a straight conversation that may not have been particularly helpful question about a due process violation goes magnitude and not merely the fact of reliability or not reliability and in this case we're talking about something that you know there's a very real question about whether played any role and there's certainly do you believe that the defendant are all unsettled issues as well and then we come back to the question of in the absence of one point loss suggesting that those are complicated that we can't make a decision in this case we don't have the records or to make a decision in this case that function of the fact that they pled guilty and they had different guideline ranges as a result of their guilty pleas but the evidence does show i think that he he was sentenced to the maximum possible that he could be most of his co defendants were sentenced sort of ranges that were at the bottom end and you know mr robey or it was the only person in this entire conspiracy that had no criminal history so i think that does suggest that the judge wanted to give effect to the  attorney have made that point in a way better than i have but you know you have that classic distinction between the roles of the judge and the jury is obviously being violated here when the jury's going as to give a recommendation you have the fact that the defendant was excluded from the process and you have the fact that the jury was not given any information about the individual defendant which everybody knows is supposed to be what it sentences aimed at you you sentence individual based on a variety of factors that relate to that individual not just you know some abstract notion of what the crime could be and so for that reason those principles are so clear that this error should have been  obvious the other point is that you know it's never taken place before which is some kind of indication that there might be some some problem with it and then i would go back to the brandon garcia case because that was sort of similar in the respect that judges always consider information that's beyond what their record was a trial and the judges can rely on a variety of different things at sentencing in that case and there's established law that says that what the court said bought the principle of you know notice to this an obvious and plain error and even though the court has never specifically come down and said we condone that particular behavior the exact same thing is through here i think you have i case where it's obvious conducting an ex parte or in camera jury poll for an important piece of information without the defendant's participation without any instruction so you don't know what what the basis of that recommendation is and is as it's been