good morning may please the court i'm wendy over my are with the federal public defender for appellate christopher calhoun and i'd like three minutes for rebuttal calhoun is before this court seeking as he has all along for the sentencing guidelines that were in effect at the time of his sentencing to apply to his case christopher to whom he pled right after the fair sentencing act was enacted and he was sentenced after its guidelines took effect and since that time the supreme court has decided and dorsy that both be fair sentencing act and its guidelines apply to defendants such as calhoun and that's not really in dispute here before the court today what is dispute is whether mr calhoun's plea agreement prohibits the application of the sentencing guidelines that were in effect of the time of his sentencing the lowered guidelines for effective under the fair sentencing act and this court looks at that issue to know to the issue of a plea waiver and the dispute here is in paragraph four of the plea agreement where the parties talk about the waiver of calhoun's waiver of the retroactive application of the fair sentencing act and future guideline changes and this has been in dispute since sentencing before sentencing really when the parties filed their sentencing memoranda it became clear that mr calhoun had a very different interpretation of those words than the government it mr calhoun believed that the language in the plea agreement meant that the future change meant the changes coming after his sentencing date because it is statutor saying why wouldn't the proper remedy be to vacate i think the plea itself big when there's an ambiguous term i don't know that that vacates the entire plea agreement itself i think that term is read in the defendant favor and here that would mean that it just goes back to recent syncing under the guidelines in effect at the time of this and so what you're arguing is clearly not with the district judge interpreted what was going on that's right that's correct pretty expresses this is just not what was on the table he was there is a very heated debate as to what's going on to the district judge who's there well again also what's going on presumably this is reviewed by this court they can look at the  parties had very differing interpretations that became apparent immediately and they didn't really rather they didn't really make much difference until the subsequent events occurred at the time he was sentenced carrying was still controlling  the circuit and it was not until dorsey came out that that was overruled and it was clear that the guidelines would apply to mr calhoun but he asked before sentencing and after sentencing that they apply to his case and didn't believe that that violated his the district court in the very beginning of the sensing hearing it didn't take very long i think it's only three or four pages of the transcript talked about the plea agreement and how it had sided with the government's interpretation and earlier in the case the court had stated that if the six circuit or the supreme court decide that the new law applied to calhoun that was up to them but he was obviously bound by this court's law at that time and was locked in by carradine and calvin argued that the  was clear about the guidelines should take effect but of course that wasn't me completely clear until the supreme court made this decision and dorsey and that's what grants this power or this court power to correct his sentence and here i think the ambiguity comes not only from the disagreements but from the plea agreement itself there are conflicting provisions and paragraph seven and even eight and paragraph seven it states that the guidelines in effect at the time of sentencing will control and paragraph eight also says the range will be determined at the time of sentencing and when you read all of that together the portions conflict and that's what calhoun a said all along that that does not lock him in to the guidelines in effect to his plea he could still get the guidelines in effect of his sentencing and i wildly different circumstances under the fair sentencing act he would face a five year mandatory minimum instead of ten that could have gone up to only to a ten year minimum with one hundred fifty one he never would have been subject to a mandatory life sentence which is what he was subject to in this case before signing the plea agreement and that was a very realistic probability they had filed one a fifty one the very morning of the plea and they had another one ready to go if he wouldn't if you didn't sign  that things may change and you bargain there's also a chance for at that point in time that he might go to jail for life this have acted differently right there's a very good chance we precluded that very good chance and i think would significantly be held to his agreement i guess that's what i think the district judge below is like looking at this and saying all this stuff was on the table we didn't know exactly what was going to happen and so you decided to avoid certain kinds of high end risks by giving up certain kinds of low end possibilities that might occur all right so it might look really bad if you play it this way and it might look really great if you play it the other way so just settle for the difference but now you're trying to renege on the settlement that certainly seems to be with the district court saw that is with the district court sign that says that practically as a practical matter what was there  at sentencing calhoun again made clear that he did not believe that's what the plea agreement had said but the future guideline changed with a retroactive application a future guideline changes that meant something that was going to tap in after his sentencing not before and the is guidelines here they still allow the parties to seek what the plea agreement intended his range under the new under the f s a as guidelines his range is one hundred ten to one hundred thirty seven so it still allows the government to seek their sentence one hundred twenty months to me agree not to argue about the retroactivity of the guidelines but this isn't a retroactive application of guidelines as my question he did agree to that right he did agree agree to that and example of if he agreed to not i mean isn't isn't carradine wasn't carrying discussed in general terms as whether the guidelines are retroactive or not carrying talk he's not he it looks like he's giving up on an you know that was possible and you gave it up and sure looks like that's what he gave up when he says i'm not going to argue about the retroactivity of the guidelines for he was he did give up his right to future guideline  effect at the time he pled it was the controlling law at the time he pled and was sentence of course under prior precedent it didn't control but that the supreme court has since changed that i can follow the are even those kind of an assault  get i'm not going to make an argument but if somebody else makes and is successful and it's retroactively applied to right now then i'm not making a retroactive argument i mean that's basically what you're saying right it's not retroactive because later on it was determined that that was the law and so it's so i'm not making a retroactive argument so the nature of that was and i was the nature of his argument at sentencing and i can say sure seems logical for the district judge to say you know that's not what you bargained for the destruction is just wrong according to the terms of what was agreed to there i think the plea agreement was ambiguous and  is ambiguous it's construed against the government it's up to them to choose wording they could have made that very clear and again this this is not a case where he did receive a life sentence and he's now going to go down to five years and he received a twelve and a half year sentence and his range under the f s a is one hundred ten to one hundred thirty seven so again the government can know that at the time he made the deal was that you didn't know that at the time he made the deal at the time mean everyone thought that there was a possibility of a whole lot more it was not clear what the amendment would be at the time he signed the plea agreement the sentencing commission has not released that information yet and i think an example of a future guideline change is the one that's coming up this year is where the drug table is going to be lowered by two levels and that is something that calhoun clearly his give that is a future guideline change to crack cocaine sentencing that he would not be subject to and he's still locked in seeking a sentence within the range he can seek a sentence below one hundred ten here so it's not that he can see down at the mandatory minimum of five years the government can still see double the mandatory minimum  of saying i won't make any arguments regarding the retroactivity of the f s a he said i won't make any arguments based on the impropriety non applicability of carotene then he would lose if he had said that change date that that were you know that is that we're looking at here and he assumed it was sentencing the government assumed it was the time of his of his plea and when that when that happens it's a constitutional issue here to be narrowly construed against the government it's the time really answer my question if he had if the language about if he agreed not of saying i won't challenge the retroactivity of the f s a he is i except carradine as the law for purposes of the sentencing and i agree to that because i'm getting some other foregoing of of possible greater sentencing time then it would be clear right i think it would be clear i think that's very different than what the pleading that was my next question which is how is it i mean in practical terms that's what saying i won't challenge the retroactivity of the guidelines means at that time don't you still have your argument about paragraphs seven and eight yes in the hypo if your graph seven and eight still exist consider the advisory guidelines in effect at the time of sentencing paragraph a think the government could have taken those paragraphs out and that would but of also made it less clear but that's not what happened in this case when was carrying decided compared to the various events here let me see ca good morning my name is kelly gelfand i represent the united states of america may it please the court your honest answer your first question carried it was decided on september twentieth of two thousand and ten which was in fact prior to the time of sentencing in this case mr calhoun has been trying to renegotiate his plea agreement basically ever since he signed it probably no other defendant in the district court has had the opportunities that mr calhoun ha by way of an advisement from the court of what it intended to do it is highly unusual for defended to know well in advance of the time that he pleads guilty to sentenced that the court is going to apply a very specific law now the defendant makes much of the term retroactive it is in fact the defendant who first brought up the term retroactive the defendant first use that term in his motion before the court pretrial to determine whether or not the f s a wouldn't fact apply the f s a was passed on august third of two thousand and ten the defendant filed his motion on august fourth of two thousand and ten the court gave the parties the opportunity to brief that issue and in fact held a hearing and the court ultimately determined that the f s a would not in fact apply to mr calhoun situation he subsequently pleaded guilty on august eighteenth of two thousand and your honor i would agree that in almost all cases it in fact would apply what makes this case so very different is the fact that the parties specifically negotiated that issue upfront we were well aware at the time that the f s a was likely to be in acted at almost any time and the parties took great pains to train make a determination of what the appropriate sentence perhaps could end up being and as you can see from what we bargained for we were looking for that specific sentence which was within that guideline range which was a significant reduction from the potential of life imprisonment where there are ambiguity or conflict could have applied was obviously by be retroactive secondly as i stated the defendant first used the term retroactive in his pretrial motion so the government obviously was cognizant of the fact that that's how the defendant thought the f s a could apply to his case was retroactively again your honor paragraph seven does not state that the court shall use the united states sentencing guidelines in effect at the time of sentencing it says the court will consider it and if you look at the sentencing transcript the court the district court definitely said it would consider however it was going to construe the plea agreement in this case which was obviously very much hard bargained for the defendants waiver is not ambiguous and in fact  specific instance i don't know that this court has seen any other cases like this one where the parties specifically bargained for this in advance no your honor i don't believe they are bargaining away the intent of congress we bargained for something very specific which was that the defendant would not receive a life sentence of imprisonment i your honour's the defendant is the one who has sort of construed this ambiguity if you would at the time of the defend it entered his plea he had already been told that the f s a would not be applying to his case the very thorough plea colloquy by the district court judge did not indicate that the defendant was ambiguous about any of the terms in fact his plea agreement which was august eighteenth of two thousand and ten after the f s a had already been enacted he specifically agreed not only to the guideline range he agreed that the statutory penalties were in fact the pre f s a penalties he agreed to the mandatory minimum of ten years that was a political in this case he agreed to all the terms of the supervised release violation and the potential fines and other penalties he that agreed to waive the f s a application either retroactively or with any future guideline changes he agreed to the base offense level in this particular instance he agreed to an appellate waiver the twenty to fifty five every time the district court asked him questions he never indicated that there was any ambiguity he never indicated that he did not understand any of the terms of his play agreement and he was given that opportunity that again at the november so in november we knew at the time that he was going to be sentenced that carradine said the f s a would not apply here to me didn't know about dorsey correct your honor certainly no one could have anticipated what dorsey can you distinguish this hard  e yes your honor hog was in fact eight direct appeal from the denial of the defendant's motion to withdraw his plea certainly in this particular case mr calhoun was given that opportunity at the time of sentencing when the defendant persisted that he felt that these terms were in fact in big us it was actually the government who first suggested that the defendant's plea be withdrawn and the case set for trial and the defendant specifically decided that he did not want the court to do that the district court language and i understand the context is different but isn't there language that suggests that the dog didn't knowingly and voluntarily agree to something because he didn't know about dorsey when dorsey had been cited  the opportunity to withdraw his plea and in haunch he was denied that opportunity so mr calhoun was given yet another thing and i understand that's a distinction but there still is this idea that we've accepted at least in one published opinion that  how how how knowing something is and you said he knew all this he knew he knew he knew but he didn't know about dorsey however in the hard case he did not specifically agree to waive the application of the f s a or any future guideline changes so that this i'm sorry your honor i deeply agreement says to waive the retroactive application and i'm wondering whether dorsey because the application of the cases such as this retroactive again your honor i think the very big distinction in this case is the fact that he did specifically agree to waive there are no other gillies hasn't answered my question does dorsey say  that it is a retroactive application of the episode that dorsey is requiring or is dorsey saying this is what they say should apply to i believe it's the that's the latter that the f s a that this is what it should apply to a lot of people call that a partial retro to a given that congress did not specifically state in the statute obviously that is what has caused a lot of this to begin with were destroyed to figure out what the words in the plea agreement mean your honors in addition to this the defendant did have also an appellate waiver provision which was contained within his plea agreement and specifically that stated any sentence to the extent it exceeds the maximum of the sentencing range determined under the advisory sentencing guidelines in accordance with the sentencing step you lay sions and computations in this agreement and in the criminal history category found a playable by the court so the defendant by very definition in terms of his twenty two fifty five is disagreeing with the sentencing perhaps one of the most compelling quotes from this case was from the district court which was at the time of the court's order from the twenty two fifty five and the court explained multiple times over the essence of the agreement the defendant would give up its right to file a section eight fifty one and handsome and a significant concession considering calhoun would have otherwise faced a mandatory life sentence in return for calhoun giving up his right to request the application of any future guideline changes the practical effect which the court went over with calhoun at both the change of plea in sentencing hearings was that the biggest offense level for the ninety two point seven grams of cocaine base would be thirty calhoun understood the terms of the agreement and made his choice knowing full well the consequences of accepting or rejecting it his current motion which aims to sweeten and already generous deal in a way that neither calhoun the government nor this court envisioned is there for tonight and that is that page id five o seven there you know properly that paragraph four calls for not filing plea is when it should be construed so anything which would happen after the time of the plea and at the time of the play those guidelines were not in effect yet because the plea was on august eighteenth  again your honour's what is most important in this case is the fact that the defendant waived a potential right just as the defendant may waive any of his constitutional rights or other rights so this is a bargained for thing in the plea agreement the defendant gave up the chance to have a life sentence of imprisonment and the government gave up filing those eight fifty one and he has meant this was a significant concession by the government and it was one that the defendant did nothing really to warrant this case had been pending for an extremely long period of time and the government and the defendant both anticipated that the f s a perhaps might apply that was in fact one of the reasons this case was continued for the time period that it was because the parties were hoping and waiting to see if the f s a wouldn't fact be enacted so mr calhoun received great benefits by the numerous continuances which even allowed him to be in this position because he consistently and persistently asked the court to continue his case until the f s a had been acted under the majority case obviously a defendant can in fact wave a substantial right as in that case the defendant agreed to be sentenced under pre booker conditions likewise the wilson case which is that the defendant can waive any particular right even those constitutional rights the district court also said in this particular case that it certainly seemed that the defendant was arguing both for and against the plea agreement depending on which provisions he liked and which provisions he did not like and the district court emphatically informed him that he couldn't argue for the agreement and against agreement at the same time that is what calhoun has been doing since the which it is that the defendant waives the retroactive application of the fair sentencing act of two thousand and ten or any future guideline changes for cocaine based sentences future guideline changes it's not future developments in the law speech or guideline changes are correct your honor because at the time the f s a had been enacted but the guideline amendments had not been made yet it answers my question think thank you your honor is very much thank you case and the government stood up here and said that mr calhoun didn't deserve the deal that he got at the time because the case had taken so long oh mr calhoun didn't deserve a life sentence in nine violent nonviolent street level offense that involves only ninety two grams of crack and the supreme court agrees with that and acting the f s a to apply to those who were pled in sentence after state that's not a revolutionary statement of the law is some that the law in control at the time of cleon sentencing controls this case and that is what calhoun has sought all along and bad law in the poorly worded plea agreement shouldn't interfere with due process need for fairness and crack cocaine sentencing and so justice decided that the first sentencing act with apply to people in calhoun's position and now also that eight fifty ones should not be filed in cases such as such as calhoun's where there was no gang activity there was no large scale trafficking there was no violence here in this case and so calhoun asked this court to remain and him for recent unsing under the f s a guidelines and threshold in effect at the time of his sentencing thank you thank you both for your