able united states court of appeals for the st circuit is now in session all persons having any business before the court gives their attendance and they shall be heard god save the united states of america and this honorable court understand those photographs were introduced for the st time at the sentencing hearing without any prior disclosure to the defendant or defense counsel is that what you're use those and she was still counsel is still unclear exactly what you're saying are you saying that the photographs physically were not present at the sentencing date premier you're you're describing something pretty serious here there was a meeting between the probation officer the judge with the probation officer showed the torch pictures were never part of the p s r that were never disclosed to defense counsel and the judge that used those pictures never disclosed to draw an inference of your client's past participation in summer activities do you really make that argument in your brief i don't meet let me be very specific that they were given to the defendant in discovery the photographs so defense counsel had the photographs and was aware when the judge reference them what she was referring to saying that assuming your client is photographed with a rifle and given the length of time he was in the united states that photograph somehow depicted him somewhere else in another country perhaps or another was nothing that prevented counsel when he approached her she approached to talk about cooperation that would have also been an opportunity for him to object or kind of it's a male or female attorney but for the attorney to and that's that's it they did that's because the only thing he said when he approached was to take into consideration cooperation he didn't put any other objections on the record are making up the requests  was a big part of the sentence from her point of view plus the fact that she had concluded that he was involved in psych to be more that what's what why would that have been occasion for counsel to object to the please mistress yourself on the record mr clark may please a court thomas klemperer on behalf of the united states in this case the government's position that either one the defendant waived these arguments that he's presenting extraction i mean the defendant with on page five of the p s are with express in form of this report and he even concedes on appeal he was given this report in discovery it was a report not just a picture picture but a report was given weapons were referenced in the p s r were included in the p s r were were they not already taken into consideration in the p s r either as relevant conduct or otherwise no i think i don't think it was it wasn't taken into consideration as as relevant content because they just took this one time offense and because of the photos we're way past in the previous in the past the court didn't consider as relevant conduct but if you look at what the widest the p s r not not reference them so that they would be part of the sentence the guideline sentence out because in this case you have to look at it look at the difference one with a pistol versus a rifle a rifle in the past i mean there is no connection let's say at this point as well the conduct related to this a p s r make any just the probation officer make any recommendation to the judge in the p s r about what to do about this additional information this additional evidence in terms of sentencing is there a suggestion that this would justify a variance s but it's not reflected in the sentence that's recommended because you're on it's case we had to agree to a ten month sentence it would give basically lip service if we would have presented additional evidence or any factors like they're like to report anything in any way in this case of probation officer and the guy and the court had the report already as it was hayden is is there any serious argument that the government would not have known that that the judge was likely to give a very and sentance in this case that's why the defendant was informed it was left to the discretion of the court what sentence would be given open that's a bit but that's before the p s r is is prepared correctly and but everybody but the government at least knows that there's all this additional information and sure enough as night follows day the p you say recommends that maybe the judge should consider a variance sentence because of all of the stuff that wasn't taken into account in the plea negotiations but in fact the government was aware of them there's something about this that i and he was informed at the change of plea that it would the court could consider other condo so he wasn't caught off guard he was aware that this could be a potential it could get a potential variance because of court's discretion and in this case that is why the let me let me speak let me spell out what what i think is unsettling because what we're witnessing in this case is happening in seemingly a lot of cases out of one rico which is that there is a negotiated plea agreement at a certain lower level but this seems to be a general understanding that the sentencing judge is very seldom go along with the low recommendation so it's sort of everyone knows that even though the defendant may rely on the plea agreement that that's not really what's going to happen and sentence saying time comes around and that's what's factors would come into effect if he wanted he could have gone to trial then if he didn't think he would get a sentence he thought it would be an appropriate sentence in his case i mean it's the government's position that it offered this deal it exceed accepted understood the consequences at the time and in this case the court used information based on the digital extracted report to enhance didn't draw any conclusion about the significance of these pictures in terms of his ongoing involvement was trying to criminal activity didn't say anything like that you know he just left it generally to the discretion of court to take this information because it also ga information to the court that also it's a case in his financial difficulties and he's worked and been married to eight he gave the court an opportunity to look at both sides of the picture too so and in this case a court decided on the flip side that if found this offense and actually what it did focus on in this case was the seriousness of the fence what it focused on at the beginning was this guy had three hundred thousand over three hundred some one thousand dollars and a weapon that is what apparently focused on which is the nature of the offense in this case and then it throughout ok had in the past substantial sums of money and also prior weapons ok so family wife and other factors like that and had an opportunity to address and in this case he didn't also when at sentencing you had another opportunity and actually a rd time at the end of sentencing instead raised the candor issue in this case would like to ask you a question about the community base factors yes i'm aware of our precedent of course  of a full throated explanation by one of the district court judges in the district on it along the lines of kim bro where in the end the district court judge says for puerto rico purposes the sentencing commission has not adequately does not have an appropriate policy do you know are you aware of that sort of an opinion being out there on because what i tend to see a lot of are references to newspaper reports comments like it's well known that sort of thing and i've never really at least i haven't run across something that was similar to what was done in kimber oh are you aware of anything at this point the top of my head i know that i recall i think there may have been pushed a one time