please the court my name is paul gilman the federal public defender here in richmond i represent kevin hall on this appeal mr hall urges reversal of the district court's decision to vacate its original sentence of probation  pose a new sentence of twenty one months imprisonment on jurisdictional grounds i have three basic points to urge upon the court today first rule thirty five a clear error does not encompass a district court reopening the record to take in new evidence to justify a different sons whether for fraud or any other reason second the acknowledged errors and mistakes it applies to again are not errors contingent on facts not existing or in the original record and found only after the original sentencing and third there exists no other statutory or inherent authority of the court to support the district court's authorit exercised in this case with respect to the meaning of clear error within the the meaning of rule thirty five a i and three things where you get to that so is it your position that notwithstanding  we the defense counsel below i was just ok notwithstanding your consent to the resentencing that it doesn't matter judge i would agree as i think the government briefing in this case points out that i did at one point say i agree with the government's i think that to quote myself i have no issue having reviewed the words with the jurisdictional proposition that ford's letter authorizes the court to reconsider sentencing i would also fully agree with the government's observations that rule thirty five a is a jurisdictional matter and there is no waiver of the jurisdictional matter there with respect to the issue of whether that means somehow this is a very knowledge error a mistake i  think again that misperceives the the meaning and and the very limited scope of rule thirty five and then going back to what the advisory committee said and what it did in terms of adopting the language that now appears as rule thirty five day is significant first of all of course it did say it intended to codify in that rule the holdings of two cases rico a second circuit case and cook case actually from this court second it indicated that its intent was the for the rule to be very a narrowing to extend only to those cases in which an obvious mer error or mistake has occurred in section thirty five sixty two imposition of a sentence of probation apply and allow the judge to revive the probation and rethink them well just i guess   the act done by the court in that situation so i guess that would be the first thing the second thing would be i think it would be problematic to room folks someone for for a probation violation based on something he did or did not do before he was placed on probation so that's like saying you have a bond violation because you tested positive on your on your first drug test well what what the what always happens is you know that's presume that's free bond so we don't we can't prove that the day you're put on bond and you test positive that you took drugs provoking no judge i beg to differ if if one is one is charged with a crime before one is put on probation and then convicted of that crime after it is still conduct something more and it's it's a saw her catch all phrases in some way and and you certainly don't want to open it up but it is a safeguard against opening it up with the presence of the fourteen day limitation period but it seems to me it visor committee makes very clear how narrow it is and in fact the advisory committee in explicitly rejecting a proposal to have allowed the reopening of the record essentially based on new evidence to bring a rule thirty five a motion but this is this is this really new evidence let's say something comes to life irrespective of a forged letter that indicated that  from submitting before sentence or prior signs forged letter to a court judge it may be different in kind it's not it's not a material evidence that comes to life after a sentence and it's also different from additional information that comes to the court just in the normal course of years that should have been our job is to get to the truth of the matter and the district course job is to make an accurate terminations what kind of sentences person should get so accuracy and truth finding is a core of what we do and we just are we just sort of granting you know setting up some sort of template well here's how you game the system and here's how you  perjury prosecution right and judge i think what i'd say this is first of all it's it's the court's a duty in terms of interpretating rule thirty five to interpret it based on its language and the prior history of it and its holdings and otherwise the other thing i'd point to is as judge back upon it out there are other methods of addressing this kind of conduct the third point i'd make before i mention a case from this on court that i think is significant but but the third point i'd make is that if we if we adopt some sort of rule that says well this is different we're going to carve out this rule never mind the fact that other than an unpublished decision fourteen which is really not well considered there is never been a court to carve up that exception and if we carve out that exception then what we're essentially saying is that rule thirty five a means that the original sentencing is like a practice or dry run and as long as some time within fourteen days thereafter you can do further investigation and figure out that something that the other side proffered or presented to the record is not really accurate but well again i think that's a problem now the case out of the fourth circuit fraley is the fourth circuit not what we're talking about during just bringing up some sort of additional information about the background or or whatever i mean obviously that's not a fair characterization of what happened here but judge that there is no mistake on the original record as to what the record was and that and again rico for example there was no dispute that the actual record at the original sentencing reflected that there was a binding plea agreement with a binding excepted and approved by the court three year prison sentence that for whatever reason when it came to the original sentencing i think that as i recall it the prosecutor was unfamiliar with the plea agreement the court had forgotten the terms of it and the court construed as not a three year agreed prison sentence but a cap of three years so impose something lower when the when the government recognized oh well this is not what happened it brought that to the tension of the court again there's no further fact finding necessary to establish in that case that the record as originally made included an absolute agreement to impose three years that's the kind of thing the advisory committee wanted rule thirty five a cover the cook case out of this court involved a case where the do court correctly articulated there was no dispute about it three different options it had her sentencing it said it was going to pick option number three and then for some reason it actually imposed a sentence inconsistent with that announcement and in fact inconsistent any of the three available options under that mandatory guidelines so again neither of those cases involve looking to facts first discovered or evidence first seen after the original sentencing freely and that is a case from this court what happened there is the district court initially imposed ten months straight imprisonment on the defendant the defendant then later said well you know again i'd really like to get less time because my my father is s family business situation simply changed its mind about the continued appropriateness of fraley sentence the court identified no error in free leaves original sentence and consequently it needed no correction the court reiterated that  again the history of the rule is that it's limited to the kind of thing that happened in rico and cooke and this is simply not what happened here it chose to announce based on its understanding and what actually was the been presented to it in the prior sentencing worst they have been represented the court was perfectly content with that it didn't revisit that is it change its mind it's only when it when it about the propriety of what it did if it had been dealt honestly raff judge again the issue is whether the district court whether whether the district what the district court did here was based on new evidence it was a prior piece of evidence there was an utter total order judge if if this court intends to carve out some sort of forgery exception to  right and that meaning should be drawn judge i see my time is up i just like to respond to your question i'll sit for rebuttal in the meaning of the term still should be drawn from what the visor committee please the court richard cook for the united states i'd like to start with the fraley case which i think is eliminating in this context of this case in frailty the defendant was coming in there to get a new sentence under rule thirty five when he was bringing up evidence of a problem with family business and saying that something new that i want to get a lower sentence because of that problem and that really doesn't fit with the plain language of the rule and the language i particularly like to focus on in thirty five a is that it says the court may correct the sentence that resulted from arithmetical technical or clear air and a defendant like really who's coming in and say look at clear air air here it's the judge believed that the letter from a sponsor was genuine t and then he received new factual information about the letter so how is that not foreclosed by the committee notes here that explain you can't use new factual information to old rule thirty five before the sentencing reform act review come in and argue for a lower sentence and it said we think that that having in the new rule thirty five a similar period to come in earlier would be returning us to the old practice that we don't want to do and so they weren't talking about a situation where you had new facts that met a now clear error standard they were talking about a open ended one hundred twenty day period to come in and i have another thought here's something else i want you to consider and that was definitely not what the  change the new rule the something reform act we're contemplating i don't read that committee notice saying look facts are off the table in the text of the rules certainly doesn't draw a fact and law distinction i think that there's a useful analogy to be drawn between the treatment of guideline error here and the treatment of facts in light of the background that there isn't a fact law distinction in the text of the thirty five a and here's the point about the guideline there is that could mean scuse me the committee notes say about guideline error that the rule is quote not intended to afford the court the opportunity to reconsider the application or interpretation of the sentencing guidelines or for the court simply to change its mind about the appropriateness of the sons that language with might lead you to think that you can't come in with guideline air under thirty five makes a mistake in the report vs r and omits a conviction that would change the guidelines range effect a guideline range in some way had a judge improperly apprised of the defendant's record within the fourteen day window the government comes back and says whoops your honor it turns out that we we we didn't get it right what happens in that case right i think that one is close i think that would be the kind of thing that seeks to reopen the proceedings within the fourteen day window what's the result in that case i think that that's probably not going to meet the test in the way that and why is it because it's the judge obviously is the judge obviously is sentencing on a mistaken record a mistaken impression of the defendant is it simply because the defendant was particularly sinister and malevolent in this case that makes the difference no i think it's the reliance in the result so that in your example it's not clear that the district not left without a remedy backing i alighted in your brief you intend to exercise remedies in this case doesn't go your way sure yeah i mean to be clear i mean this defendant got a pretty good deal on not being prosecuted for new crimes and so a reversal is hardly you know a huge loss to the government frankly going forward this is a defendant who would be beneficial people knew that he was willing to engage in the kind of conduct here and people knew that knew convictions but i think that this does fall within the scope of thirty five a and it doesn't you don't want to render the rule useless and to amplify on the example you were giving me about criminal history let's suppose that the district judge did help complete the criminal histories say five and that was definitely wrong because there was a conviction that he thought counted that just flat out  didn't that would be definitely reversible error on the in the context of the case let's suppose that you know that's a guideline sentence in the judge's going with the guidelines thirty five days meant to allow a district that we just don't open up sentences to revision on the basis of additional level so just how would you phrase i think there are a series of limits that apply the first is this  resulted from point about the language that you really have to have had it be a point that the district court relied on in making sense so new evidence about mitigating factors into evidence about aggravating factors those don't count because those don't get within the rule because the judge didn't rely on that stuff and so the judge the sentence can't be said to have resulted from an error on that point it's just something somebody could have but didn't bring up previously so that would be a limitation number one limitation number two is much like the in the context of guideline error or the committee notes say look if you've got just a asking the judge to ric reconsider application or interpretation of the guidelines that doesn't get you to clear error but we know from cases like coke and ward that guideline error isn't walled off from correction and so and cook which is the case that led one of the cases that led the committee to introduce thirty five a they said there was a guideline there likewise and ward that it was a guideline error that was corrected under thirty five they properly and as i read the cases what they're saying is look you've got a gross error or what were referred to as a miss perception of the governing law that would be an error under the guidelines that you could come in and fix whereas if you had a hearing where you debated a point on application of the guidelines the court considered it weighed the factors and reached a conclusion about how to construe the guidelines thirty five days not a chance a chance to come in and really argue t witness turns up or said wait a minute the defendant really didn't have this kind of role in the conspiracy i was the one that perform the kinds of duties the language of the rule doesn't seem to draw a distinction suppose you had a you know a leadership enhanced not like he said and it was supported by a coconspirator testified at sentencing and said provided the factual basis for the enhancement and then within the fourteen days the witness says to the government i lied we believe that it's agreed upon that witness lied if the case were to go up on appeal we would does not distinguish between evidence that comes in to the detriment of the defendant as opposed to evidence that comes in for the benefit of the right i think this is a proceed for rule that applies  was across the board you the point you're making is that where the is a forged letter or someone deliberately lied and and tells the court could work with defendant five and your your point is that whether it works to the benefit of the detriment of the firm that if somebody allows for somebody to submit forged documents that's really that's within the scope of clear error and there will be many instances where the alternative of perjury prosecutions simply isn't available and  you don't want to simply provide a clear pathway for corrupting a judicial proceeding where the integrity is there capital our stock in trade i agree and i think that the screen here is the clarity of there and the court doesn't have to say anything terribly sweeping here i mean this is a case of a undisputed and confess to err and how you might deal with one situation where that was not the case that could be a harder different question for another day but the rule does the and i may not be pronouncing it right because the latin accusing generis and the you know that the rule there is you have a i don't series of two or more specifically enumerated items followed by a general term you generally interpret the general term till mirror or be of the similar kind as the enumerated items you look at the rule here it says arithmetical in technical and so you think well it's going to be something really narrow but the that doesn't get applied so constricted that you end up making terms redundant where you've got it you've got a you've got a phrase which is an omnibus phrase it was put in the rule for a reason exactly what the parameters of that are us suppose that needs to be sketched out on a case by case basis but what you're saying the integrity of the judicial system  is on the line here they're going to be cases where the alternative to having you of perjury prosecution of something use is not available and we want to be very on the other hand within that small window allowing correction or arrows that go to the very heart of what the judicial process is supposedly about that that's our stock in trade but we do oftentimes have to make compromises in our system in order to promote what we think are higher value so when on the merits stage of the cases there's a aerial process for this and what role does you have as a government attorney sense for you to police this kind of practice i mean you somebody must have been present at this letter maybe it was the day of the trial you may not have enough time to investigate but it seems to me that one remedy is to engage in the adversarial process and test the other well that is the case and if this court reverses that process will happen i mean i would point  out as a practical matter one of the backgrounds here is you know if there's a if we're going to do a prosecution under a thousand and one a three well i'm not talking about prosecution that's obviously had a remedy but i'm talking about during the sentencing proceeding itself it seems to me that the government has some responsibility to police the process and gauge with the evidence and investigate make sure that the evidence is being presented is in fact that that's certainly the case i mean here we know through a mission that it was a forgery so you can say that well it would've been better if the government had caught it before hand it certainly would've but in a world of scarce resources the sponsors letter is just something that there isn't going to it's just not going to happen that an agent is going to go out and in advance of the sentencing interview somebody saying that's a letter like that there just aren't enough resources around to do everything like brought him into the sentencing and cross examine who is him about the letter and so it really is it raises a good point i mean if you would if you was expected to be there granted we didn't subpoena him but he was expected and didn't show up presumably because he discovered the forgery and just didn't want to be there so that you know that that's what happened i mean i see my time is up but one point i don't want to fail to make before leaving is that when we do say a perjury or a thousand and one prosecution in this case  naturally we're going to be asserting crime fraud to get privileged information because the communications between the defendant is counsel here are going to be critical to the case that's a pretty destructive step to be taking it's not something that the government is hearing and that's not something that you just want to do without a very good reason this was an intermediate step one that i think the rule permits yury prosecutions and notoriously difficult they are just they're just honestly i don't know the answer to that the district judge is the one who brought it up and the defendant upon you know the bigger court are i don't know i can i can guess but it's only a only dress without going outside the record your honour's last question what is apparent from the words that the district court used in the orders i have and i maybe it's not necessary to give me this ends up happening is what is fairly apparent from the record is that judge give me whether initiating it or not somehow i have had some ex parte information indicating that again even though at the after the second sentencing it's clear this gentleman was in fact a sponsor and other things about that letter really were accurate he discovered somehow some information that the sponsor did not in fact author the letter question the government says well there's a presumption of regularity that's used to these things we thought it was going to show up we did we don't have the resources to look into you know many government says we don't have the resources to track them all they are now who could this in your view have been discovered prior to the imposition of s judge i think the answer to that is yes i think that is yes in part because it was it was a publicly filed document well before the sentencing date was about a week before as i recall and second of all i know i don't i don't other remedies available here there just seems to me as the record indicates here there is the remedy of contact and contempt is a very different and frankly much looser sort of proposition than then perjury is so again i don't know that that is a dispositive factor on what rule thirty five eight means but to the extent the court is concerned about that issue there are clearly in a criminal proceeding other means of essentially rectify is even if the government has no additional revenue is in the letters why a forgery there's nothing there that can be done about it even if it could not have been discovered indicated is obviously the there is a rule thirty five doesn't allow itself to be used to rectify that situation so in other words when when significant if a government witness  lived and that the defendant really did not play the kind of role of the defense that the witness said he played the witness said no played played that advantage of the defendant was nothing route thirty five has to say about too bad it's done it's a law it's really understands the law but we can't we can't do anything about judge i think that's correct again because of of the history and the language of the rule and then visor in committee notes regarding it again there is there has to be an error in construing the records made that is not