discuss this afternoon with the court the issue involving the grouping analysis under the grouping guideline in which the mr ho is contention is that the two obstruction count should have been grouped together and i submit there are three reasons why that is so number one under paragraph b of the grouping guideline to obstruction counts involved a common scheme and plan and closely related societal interest nd that the government agreed in the plea agreement that paragraph b of the grouping outline applied here and number three that under paragraph c which is an additional round that the obstruction counts were adjustments to the to the drug count and therefore should have been grouped under paragraph c now before we get to those three i just want to address one thing and that is both were very clear pre sentence report and plea agreement said paragraph b applies to obstruction counts should be grouped together so i submit it it's a preserved issue turning to the st reason which deals with paragraph b of the guideline of the grouping guideline if it were playing a review you'd have a difficult row to hoe would you not not just because generally plainer is har but because the real question is in which sequence do you apply the two different grouping rules the and c and there's very little authority and the one court that i've seen i think it was one of our sister circuits that actually addressed that goes against you so it's not hard to see how it could be plainer for the district court not to have come to a conclusion that as far as i know no other guideline is as we argue is is the way it should be interpreted i don't think this court has explicitly held in in the opposite   turning to paragraph a paragraph b of the grouping guideline states that if you if it's part of a common scheme or plan and if there are closely related societal interest the count should be grouped well here there is a common scheme a plan and the common scheme and plan was to obstruct the grand jury investigation that was investigating mr hoey clearly that was that was it the societal interest i would submit are clearly or closely related no to the acts that were committed here were the sought societal interest is in investigating this crime the it was the grand jury investigating the crime it was the united states attorney's office conducting the grand jury investigation that so the two of those are closely related that really two sides of the same coin and you know i wouldn't operate exactly the way of these and be a very strong argument that the grouping rules would apply the way you argue but the problem here is that the structural counts also  interrelate with the substantive count in a different way so why is that it's really a matter of sequencing is i take it your argument is that step one would be to group the two obstruction counts and step t a an obstruction and the other one then gets whatever treatment it would get under the grouping rules and so if you apply that rule st and you make one of the two obstruction counts and enhancement and disregard it from then on you still have the other one floating around and you have nothing to group as between the two obstruction counts you are saying we do it the other order yes just so why do we do with the why do we do the sequencing of that way is it or is this just an  ambiguity in how the guidelines are constructed that doesn't tell us i think there is a clear guidance in the rules of what you do and it would be actually in the group   st step is to group closely related counts so i would submit that that's the guidance that says that and you look at the obstruction counts and you make the determination whether they closely related and it would make several reprise for me please mr just as to obstructions yes one was born and yes and one and it's i would say walton there was a charging decision made which is valid that you know you can charge one is as perjury and perjury statute charge another is obstruction the question is whether was a charging decision also that really what they were talking about is substantially the same harm that's what the grouping guideline is talking about essentially the the count two which was dealing with perjury if you read the account it's saying what is it it was a conspiracy to obstruct the grand jury investigation book by this witness  perjuring herself the count you can see it's dividing the same conduct in a sense is this common scheme and plan because the rd counts as with others well what i mean conspiracy with others obstructing the grand jury investigation it's still that language in count three by having zocor giving a false statement to the united states attorney tourne 's office that is conducting the grand jury investigation so it was the whole focus was the obstruction of the grand jury investigation it's two acts aimed at the same thing and by the way i know that it according to the accounts in occurred at the same time so we have this thing of common scheme and plan closely related societal interests obstructing the grand yes you would group those two counts together because they are the substantially the same harm if if a be the no one's a grand jury and one's the trial six months later oh i'm sorry i misunderstood i post shine off my problem i think that you start to get as you create  facts that distance the conduct from each other for example time sequence and what the proceeding is you get into creating situations where you make arguments that they are not closely related  interests or something else you have a trial it's a it's a good question it's a fine line so i would say it becomes gray is about the best i would say i'm sure as you proceed out supposing two years later something like that where you haven't enough time difference it's ok sure supervised release or something yes yes yes you are now the government as far as i'm both paragraph b of the obstruction of the group in guideline and paragraph c that rely on this application note five and it's actually an exception described in apps application note five having to do with well if you sometimes you may have multiple counts and this is what judge launches referred to there are two things about that where i submit the government is wrong st of all as far as application as far as paragraph b is concerned the application notes expressly say application no five applies to paragraph c it does not apply to paragraph be so we can't get to where the government wants to go with this in real and the government does rely on paragraphs on pages thirty four dollars thirty five cents of its brief on this application note five with respect to its argument against paragraph b so that's one basis and now i'm going to jump do with paragraphs the well paragraph c there is a nd argument here because this guideline lets you make more than one argument it says under application seven that the paragraphs more than one paragraph can apply no if we prevail in one paragraph it should be a group but there are two arguments going on here if the doesn't apply see applies so if you look if you then look at the argument they were making with respect to paragraph c i submit that that exception does not apply here and this is what this is why and it's at st reading it's tough to understand this exception when it says and if i could read it to the court and then explain it to the court what it means i think it becomes clear this is an exception says sometimes several counts each each aggravating factor to each of which are an aggravating factor to a more serious count but the guideline for the more serious countenance is it gets confused and provides an adjustment for only one occurrence no that i had trouble with that frankly but it became clear to me once i read it gave this example of robbery and assault and it became absolutely clear what it was talking about and then you look back at that language and you see what it means what is it let's take the robbery case example so you have the robbery guideline that's to be three dollars and so it gives a certain base offense level and then you look at that point so it's the robbery going on itself and it's  that says well if an assault happened in that case you add so many levels and if if the salt was serious physical injury you actually you had even more level sets of things so within the guideline itself the more serious guy is going to happen if it has these well what if you have more than one assault for example one more than one occurrence we're the guideline for the underlying count only gives for one occurrence well then you go through this thing where you say well the more serious one if you count the other one you group separately that's not what we have here because you say what is the underlying count here the underlying count here involving the obstruction counts is the drug charge weapon involved was an aircraft to use was a distribution of drugs in prison there's nothing in there about obstruction but there is a general adjustment for obstruction there is so we can we get how do we analyze this and what so what  am saying is that st of all with this application of five it only applies to see so this whole argument about the if it's correct you don't even get into that issue just look at the and then also this application  each of the grouping guidelines which says the st thing you do is you look at the closely related counts and if they should be grouped because they are closely related you try to work  ok these as when one of the counts in bodies that is treated as a specific offense characteristic in more other adjustment to the guidelines applicable to another count so you agree that that applies to obstruction yes because it's an other adjustment to it's not a specific offense characteristic yes ok so how do we distinguish the example of the bank robbery with the two assaults from the example of the drug offense with the two obstructions is it i thought where you might be going is it that the assault charges are not group a ball and therefore there aegis separate  not apply because it applies to a very narrow situation that we don't have here what is that situation because the example so far that is cited in the rule sounds so far just like this and that is to say there are two obstruction counts the obstruction of justice adjustment only counts once you don't get four points if you obstruct justice twice you only get two points so that's seems just like the robbery plus assault where the solution of the guidelines and it's not just the application of that provides that it's subsection c that's being explained by the application that provides it is that st of all you take the group as it were one of the assaults with the and the other one remains free standing and what happens to in athens do it and you apply the grouping rules why don't we do the same thing with two obstructions why do we st group them and then notwithstanding that the obstruction of justice adjustment says nothing about adjusting for a group of obstruction counts just for an obstruction of justice why don't we do the same thing that we do with the assaults several reasons what i would say is that the approach i'm suggesting as the interpretation here is consistent with overall what the grouping guideline is supposed to do which is supposed to limit the  ability one prime reason is that there can be charging decisions by the government we're separating things that are what they call substantially the same harm and so if we go down we we can get heavily involved in this kind of you know what if this says this or that says that but if we come out in the end where we're not looking at whether something is closely related or not we're at substantially the same or harm which i submit can't happen with the this analysis that's going on supposing for example as i said across trying to think of something that if someone goes and same person perjury one day in front of the grand jury next day perjury again in front of the grand jury it's a separate act you could you could charge them as separate counsel clearly they're part of the same harm going on and yet under this interpretation you would because there are two more than one count you would group one with the more serious and the other and the other and it would be wrong and it is no way theoretically you would say that that should be that should be so and i am not and that's not so about the solves in the other example because there are two different victims the only ground that this with the two assaults is this exception exception language and what i would point to and it took me time it was trouble for me and but i finally understood it it's the language in the application no fifty dollars that makes it clear and that is it's saying but the guideline for the mit more serious count what does it mean to guideline in that it clearly when you look at the robbery example the but the guideline for the more serious count is the robbery guideline in our case it's the drug guideline you have to look at examples guidelines so when you look at the robbery guideline it has it assault is a factor that has only want to currents in the drug guideline there's nothing about obstruction if it would be analogous if there was an aggravating factor as one of the things like weapon aircraft prison obstruction of justice one factor why does it matter that the commission put the obstruction enhancement in an across the board provision rather than a specific offense characteristic provision it still applies to the drug guideline and happens to apply to other things too but it applies to the drug guideline and every bit as much as using an airplane or any of the other specific events characterise right but what i would say is what makes sense and i think if we're if we're in agreement if you think if we're saying look the problem the grouping guideline is trying to address is we're not going to have more than one punishment for substantially the same harm and so if that has to be somewhere in this mix of how it's interpreted that you come out that way i submit how you come out that way is you look at application note eight and guideline know if this exception is is really out in left field i would say and i'm just saying it doesn't apply the the general rule is what i'm saying saying this exception application five is an exception  exception the last thing i would say is just simply to look at the remit here too as another basis to say that the government is going to things wrong and plea agreements all the time it seems at least we have many many heels in which exactly this happens that the plea agreement says one thing the district judge and the and sometimes the probation department are sometimes not gets to us somebody figures out that that was not we do have the argument i'm making here in rotation twice is because there was it came out with a level thirty one how do you get to the level thirty one dollars they say well you got to level thirty one dollars by what we say but then it doesn't explain how it was so explicit as to that the agreement  paragraph be applied and they were closely related to count so i would simply say when you have an ambiguity the plea agreement is strictly construed against the government and therefore it is our interpretation  reserved a minute for a bottle mr mcginley thank you may it please the court in mcginley for the united states i also represented the united states below just quickly on the standard of review it is clear that this is a pla error standard at re sentencing judge castille asked many times if there were issues with the guidelines defense counsel said no and as a result this issue was not litigated before judge  castille and now it comes to you on planar view the final flow with the appellate argument here is that he overlooks three c one point one which is the obstruction guideline that guideline specifically says when you have the underlying offense here is the narcotics offense and the obstruction offense you look to three d one point two c which is the land and by the way under that guideline it says you group that count with the underlying offense so in not the group right so in that case you have an issue where you have to look to the commentary of the guideline there which says well what do you do when there's actually more than the one count which is referenced in subsection c and the guidelines say there and as the court the th circuit in jones followed they say well you look too which is the more account of the fact that these instruction counts are closely linked and in the example that's given you have two separate assaults against two separate victims in that instance you would not group those two assault charges into the same group right you would treat them as separate groups and then it makes perfect sense to go take the next step and say they give an example where one is generally more serious than the other but it's not me they were the same neither or both had serious bodily harm you would take one and not the other because otherwise you are not really accounting for a completely separate at all for a completely separate assault and of course the grouping rules are all about making sure that that doesn't mean you just add on cumulative penalties and separate groups you have a complicated calculation to decide how much with obstruction it's not clear in the here and i don't think the government's disputing that other things  of these were just if used applying the grouping rules to two obstruction these two obstruction counts by themselves you would group them because they involve the same harm that's correct right so what is right in saying is that's different than this other one because once you group them then they really should be tacked on together to main charge now i agree there is a substantial linguistic problem with doing that arising out of the way the obstruction adjustment  is worded in but certainly it seems to make sense what he's saying if the i take your honour's point that if there are two separate victims as in the robbery example it certainly makes sense to group one where someone gets hurt and two not to group the other i do think here it makes similar sense but for a little bit of a different reason and that the guidelines do not account for then to obstructive acts in this case law getting someone to perjure themselves before the grand jury but it wouldn't either account for two obstructive acts if there were no drug charge that's correct they would be grouped and there'd be treated that is basically two parts of the same  and would be calculated appropriately don't just met with meld the two in that circumstance so that and his argument is well why doesn't it meld the two even in this circumstance where the obstruction goes along with the drug trade and i think my answer to that your honor is just generally there is just more harm than when you have an underlying count and then two obstructions just one very just key point factually just to point out because the  sound like you know the government kind of laid down these charging decisions and i know he didn't suggest this but that the whiff of that the government kind of manipulated this this was a negotiated plea the defendant pled to an information  there were plenty benefits to him in that plea he was originally charged with death resulting which would have carried a twenty year man and a guidelines of life under this negotiated plea that he agreed to he was kept at twenty years at the drug count rehabilitation attending storytelling all of those factors he also accounted for the fact that henri sentencing the defendant had a separate federal investment conviction at the time which undercut his argument that he was doing this all for his workers so unless the undercut his argument that what your honor at the st sentencing the defendant had said you know despite what i did with these drug and obstruction crimes i was a good boss i took care of my workers and then after that he was subsequently convicted of stealing from those exact workers that was a new fact at the novo sentencing and i think justified along with a number of other factors why judge castille went above the guidelines by a small amount  so unless the court has any further questions the government would rest on its submission and asked that the judgment clear on the preservation issue i think the easiest thing to do is is read a short excerpt from the record here and the judge asks defense counsel if there is anything the defendant wishes to say reading from this is appendix page five hundred and eight if there's anything the defendant wishes to say on the guideline issue as framed by the government submission i'd be happy to hear it this has to do with this group and  can go back and look at the government's submission our position as your honor knows so there's a prior history is that we are comfortable with the calculation set forth in the p s or she's what she's referring to is calculation is paragraph b applies we are also mindful that we have stipulated we have a stipulation a calculation and a plea agreement from which we are not backing away save that is in a nutshell in the most succinct way preserving the issue the judge knew exactly what she was talking about it is a preserved issue that government has mentioned three c one dollar application eight and what i would simply say you look at that and it the government says well it only says obstruction offense and it doesn't say offenses well i simply say what that means is it's silent  and if it satisfy offenses you would group these counts a got there but it doesn't mean because it doesn't talk about it there's not an adverse inference it just simply means that that grouping paragraph in the obstruction guideline doesn't cover yes you know i want to go back i have to go back to the plain earthing because in reviewing this this is the nd time that the sentence occurred right and the judge had already at the previous sentencing given his grouping analysis and come to level thirty one dollars now and this point mr howe his lawyer says we're comfortable with what's in the p r that strikes me as a far different thing than saying we think the p s r was correct and you should not do what you did the last time the judge then says i'm going to do what i did the last time i reviewed independently review the guidelines this is what i do and then we have two lawyers seeking a different lawyers speaking than mr ho his behalf and nobody neither of those lawyers any point mentions that they have some objection to court at all i mentioned application note each of the grouping analysis i mean it's couples two sentences ordinarily the st step in determining the combined offense in a case involving multiple counts is to identify those counts that are sufficiently or related to be placed in the same group of quote closely related counts the section identifies for situations in which counts are to be grouped together i simply mean that to i would say what that means is you st look at the obstruction counts are they closely related you look at a through the a through d doesn't apply then you go on and you you  would apply then that group as being an adjustment as an obstruction of justice meant to the underlying counter drug count if i may this is not so much directed to you but i and it just occurs to me that someone who has an interest in the case might wonder given both the substantive harms that mr know he caused and for that matter the various negating circumstances that he claims that we're talking about something that sounds like greek rather than like anything to do with how much punishment should be meted out  admitted crime and something i always pointed out when i was living with mandatory guidelines in the district court for the benefit of any such people with an interest in the case is that st of all what we're talking about however technical it sounds is actually related to the question although it's phrased in a very technical way in relation to these sentencing guidelines it is really about how we want to cessna's the seriousness of at least one piece of mr howie's conduct and secondly whatever happens with our determination on that if for example it goes back to the district  fortunately for the world these guidelines are no longer mandatory and the judge will have every opportunity to make a global assessment of the circumstances and indeed another argument that the government essentially makes here is that the judge already has made a global assessment of the overall conduct so this may sound like a technicality but it does have a erring on something seriousness and the technicality part of it is not the exclusive thing that the courts consider in deciding what's an appropriate sentence and i may be the spectators are all just people who wandered in and have no interest in this case at all but it always felt very odd to me when i knew as a district judge that the people listening to the sentencing had a vital interest in the case that the language in which we sometimes do these things seems so divorced from the actual seriousness of the crime or the actual nature of the person that i didn't want people to get a wrong impression of what the courts are ultimately concerned with here you know it's judgment and maybe it would be even helpful for me to say that i fully recognize that this is it's just a step too and ultimate decision if this were to have to be recalculated back by the deuce record and the district court is fully within its province at that point and would