activity in two thousand and eleven the charge in federal court was her failure to register and twenty fourteen and he would end state to be when the government be what happened to those charges subsequently they have not yet been to trial in october the judge was not available and so it has been continued i think sometime in february and when did this the interstate compact on detainers and it gets very complicated so tell me tell me why this the problem that you're perceiving in this case doesn't arise from the fact that there's a double jeopardy exception for dual sovereign prosecutions so in other words you can have the same underlying incident and the state can prosecute in the federal government can prosecute they obviously can't prosecute at the same time so you're always going to have one that's first and you're going to always have this dilemma i mean doesn't that to doesn't dilemma you're talking about the kinds of problems you're talking about always arise in that situation twenty four i don't think you're you're not understanding my question the point i'm making is after sentencing in the federal case you're allowed at sentencing to bring up related conduct that's how the sed the acts underlying the state charges got brought in so i'm just making the point you have the same x at issue in the federal sentencing as you do in the pending state criminal prosecution right back to my question i'm not sure i prosecutor or not charges would be brought but what's the answer what's the punch line answer could could the government bring up this evidence of this other conduct say ms davis let me try this out anya i'm not really sure how this question is frankly so am interested in your guidance if if we've established so far that under the dual sovereignty exception to double jeopardy that a prosecution in federal court can go ahead even though there is pending state charges on the same charge the same crime pending in state court and that can happen in a context when you get your full panoply of constitutional rights in that initial federal prosecution it seems to me that you're saying that the person has more protection when it's a supervised release violation and in different charges because of of these double jeopardy concerns and it seems to me it just seems to me intuitively i'm not expressing myself very well that you wouldn't get you wouldn't get more protection in a supervised release violation where you don't get your full panoply of all protections in connection with a different charge than you than the protection you would get if you were being tried for the same charge where you get in a case where you get the full panoply of constitutional protections with that sort of muddled attempt at five we have understood it's exactly what i'm asking about if it's more harmful to do that in connection with do a prosecution but you can do it why wouldn't you be able to do it here's what i'm really trying to say i don't think  good morning brooklyn soul yours for the united states of america if they please the court defense counsel concedes and the united states agrees that there is not a case on point that supports what it appears the defendant is seeking here which is a narrowly constructed constitutional rule that requires the united states to postpone its federal sentencing until a defendant who has pinning state charges resolves those charges in state court as judgment keek ask a moment ago defendant had hasn't failed to acknowledge the fact that that rule itself would calls the defendant a greater level of unfairness because the federal charges could languish for an undetermined amount of time there's nothing in the wrecker or any reasonable conclusion to draw on how long that might take although it's not a part of the current the council asked your question answered your question that those state charges are still pending in the state court so here the federal case was resolved very quickly from indictment to sentencing in under eleven months our charges would still continue to be pinching that delay and unfairness goes to the defendant's detriment witnesses lose their memory they disappear they die that certainly would have hurt the defendant in proceeding at the federal sentencing here where he did call a witness where he did put on a robust defense including cross examining the united states witnesses additionally and i think it's very important this proposed rule by defendant interferes with the executive branch's ability to do it business and proceed with the swift administration of justice i mean you you must agree it does put the defendant by i mean they do want to they've already got this one conviction they want to do the best they can with these other charges and this does complicate things to be forced to answer in a sentencing proceeding where different rules exist and i mean obviously everything they do can be used in the state proceeding absolutely your honor that is true it is a difficult position as defense counsel refer it at the hobson's choice definitive faced with those types of decisions every single day it is part of what comes along with the criminal justice system when you commit crime here however it does not violate his due process rights or the constitution in any way the united states followed the federal rules of criminal procedure of evidence the case law that we have and the district court imposed a substantively reasonable sentence here in fall or followed per appropriate procedure in imposing what was a substantial upward variance there were plenty of reasons in the record to support that including that the defendant violated the sex offender registry within a year of being released from state prison on the underlying sexual conviction  six he was convicted again in two thousand and twelve and then a third time in the instant case which was from two thousand and fourteen he ducked and dodged law enforcement testimony came in about that in the sentencing hearing he was in three different states without registering or updating his registration complying with sora he assumed at least two false identities while on the run to two had from law enforcement and last but not least although definit continues to emphasize just this one piece of the support for the upward variance he committed the ongoing hands on offense of his stepdaughter while register so the united states in a position where it had to put on evidence of all of these circumstances which in total supported the upward variance in this case the defendant proposed rule defendant more than it would help him hear the defendant was apprised of the testimony of the sexual assault this time he had a preview of the state's case when the sexual assault victim victim came in and testified against him and he did have the opportunity to cross examine her and certainly has that transcript available to him to use in his defense in the state court system i don't know i'm not sure all defendants would agree that your position makes them better off and so i mean i could see how it could play out that way from time to time but all things considered i would guess they would generally prefer to separate the two being prosecuted would generally not be viewed as a defendant is a good thing correct your honor but despite i know we're from the government we're here to help them through that yes your honor that is true but that is a different issue than what  defendant has presented here which is this due process claim and that it's just not a political to the facts of this case it's really more of an argument of this is unfair to me but it ignores our long history of jurisprudence on this subject including the separate sovereign doctrine which you all pointed out in asking your questions earlier the united states proceeded as it was allowed to proceed as a separate sovereign we went first someone had to and we did and we acted swiftly again the case was brought and concluded all within eleven months and throughout that process each step of the way the defendant's rights were protected and he was afforded fair procedures in the district court  i mean the one way in which i might agree with you is i do think loose rules at sentencing evidence and otherwise can benefit defense because you can put in anything that helps you character and so forth and so i suppose in that way it potentially  helps doesn't look like it helped that much for the i'm just trying to figure out how this would work mechanically so i mean i probably sentenced hundreds of people for supervised release violations the underlying violation often being a violation of state law and it seems to me more often than not they were essentially pleading guilty to both the underlying conduct and violation and supervised release violation so this didn't come up but if it does come up and somebody is going to plead not guilty in the state court proceed you were going to do what miss davis is arguing you're obligated to do in this case would you then have to return him to state court well in this case the united states proceed via a writ we did not have an obligation to return him saying if if you were obligated to let that charge go to fruition you'd have to return him and then what do you put a detainer on him if we were to operate that way yes your honor that's what would have had to have happened however we did not break pursuant to the detainer but i understand your hypothetical so so if you return them you don't you don't punish them for the federal supervised release violation until the underlying charge done they can't get out of jail in the sense that unless they were otherwise bondable anyway because you're going to send him back to the state and if the state does choose to release some pending the state charge being tried then you're it is going to require that you have a detainer and they're going to deliver him back to a federal court in the meantime anywhere and you know the way i work yes that's correct under that hypothetical however so what what's the problem with that from the government's standpoint it interferes with the united states being an independent and separate salt when it interferes with the executive branch conducting its business how it sees fit we do not have a duty or an obligation to defer to the state court and we didn't as is the case here we would have been waiting potentially for years to come prior to proceeding with with our case just say it interferes with the united states as a separate sovereign of course the constitution protects people against constitutional violations by the sovereign so what's the practical problem i mean i suppose you could say the witnesses to the supervised release violation were going to disappear or something like that but this is just some simply a failure to register question right either he did or  ability to are you for a more harsh penalty because of the other things that he did relevant conduct would be harmed by allowing him to return back to court first absolutely and is that your argument yes yes yes you honor that is our argument i think that evidence by the record including the testimony of the actual sexual assault victim who confronted the defendant at the sentencing hearing she took the stand and testified about the events the closer in time in which her testimony occur those of to those events certainly is an advantage to the party calling that witness here in the united states so yes your honor that delay would have harmed our prosecution and there would be no strategic reason for us to choose that course of action particularly when there is no role whatsoever that would require us to do so and defense counsel has been unable to cite anything that would require us to wait and defer the way in which she suggesting no role exist so what test do you think we apply in balancing these rights of the federal government against these alleged violations of the defendant's due process rights i think the court looks at the fairness of the procedures and view of this record reflects that the proceedings were fundamentally they are here again that if it was represented by counsel the defendant did receive discovery including as it related to the conduct the government relied on for the v e the defendant received notice that the government was seeking not only a variance but a substantial upward departure that was denied the defendant cross examined the government's witnesses the defendant put on witnesses of his own  the defense counsel at the sentencing hearing put on a robust argument and including challenging the government's ability to proceed this way and when the district court weighed those arguments and the evidence before determined that the defendant had been afforded fairness in the proceedings and allowed the testimony because the evidence was certainly relevant to the court's ultimate sentencing decision under thirty five fifty three i understand that perspective your honor however i think it's the defendant if that were his position he could have solved a continuance from the district court so relief from the district court seeking to have his body returned to the state that argument was never put forth in to the district really you would have objected to a continuance arguably and had you objected in the continuance speed had been then denied we be right back where we are now with me we could be right back where we are but when the defendant is arguing that he wasn't afforded fairness because he didn't get to deal with the state court and he never made an effort to do so before the district court i think it goes against his his underlying argument ject continu i would think there'd be times where if the state charges i mean they're just about of the trial it would actually be quite in your interest to let that go forward because you might have some more convictions and that's pretty easy for proof at sentencing that's absolutely true and  that under that hypothetical there are circumstances in which we would not object to a continuance but under the facts of this specific case given the amount of delays at the point you're making yes your hon one question just i'm just trying to work through this i guess i can think of ways given that federal sentences are often longer than state sentences i'm wondering if it would have been worse to have the state trial first because that you have a state trial the feds can watch they can see what happens i don't i don't understand why your client doesn't have the same anxieties in the state trial in terms of its implications for the federal trial so why isn't when we have the same problem either way it's kind of a conundrum but it would be very strange to say your client has a constitutional right not to let this happen and the next day a person has a constitutional saying in our case today they should've gone ahead with federal sentencing they should have stated constitutionally to let the state court criminal case that trial go forward or guilty plea or whatever it's going to be and i'm just