Legal Case Summary

here argument in our second case United States versus Mormon. A little bit of color in this dreadful way. I'm a University of Georgia Bulldog too. I can't help it. Good morning and may it please the court

. My name is Amy Lee Copeland. I represent the appellant Evan Foreman with me today as my colleagues got Morris who represents the appellant Michael Foreman who is also Evan's brother. I will discuss today the issues of the appeal waiver and the 3.1 B claim and Mr

. Morris will discuss his client's career fender designation. As an initial matter this court should decline to dismiss this appeal based upon the appeal waiver instead here its merits. In this case both defend and sign plea agreements that generally waived a sentencing appeal if their sentence fell within the guidelines range and the district court so advised him at the rule 11 hearing. But what happened in this case is that the sentencing hearing the district judge says to the parties

. Can you tell me about this appeal waiver Mr. Morris first responds listen it's the standard appeal waiver as far as I can tell I can double check it if you would like and then the government says about this appeal waiver that listen judge the defendants can challenge whether you whether you the district judge incorrectly calculated the guidelines in order to arrive at that sentence. The judge even asked the prosecutor to clarify this does this go to our career fender determination yes it does this colloquy between the prosecutor and the district judge continues for about three or four questions and then the judge says then well then we need to take up some other issues and then it begins to address Mr. Michael Foreman's career fender guideline

. It's our position this morning that those statements amounted to an oral modification and plea agreement you think the government can unilaterally change the plea agreement sure it's the draft unilaterally unilaterally without any agreement from you so the government could have said the plea agreement is would be more onerous to you and that would be all right you are that would have changed it well and you raise your hands so you so maybe you're right so maybe I don't want to do that but in this situation certainly the way the fourth orchestra it was a sentence it was a sentence and that's correct already you know he's plea had the plea been accepted you're on our I wish I could answer that confidently for you in my district they took the record show whether the plea had been accepted had the plea been accepted at the time of the plea or is the acceptance of the plea reserved till the sentencing procedure I believe it was accepted at the time of the plea but as I'm sitting here I will have an answer for you about that it would but a lot apologize for not being able to answer that to you now that might be that might be the the shoot match then yeah I think you're probably right about that judge King and I like I said I apologize for not know there's the whole there days maybe weeks go by between the time the plea is entered and that is correct your honor months I think is fair to say in this case but looking at this court's jurisprudence about plea agreements she can stir it against the government the drafter because it's not a typical deal between contracting parties of course it's more I hesitate to say it in he's you contract the government really does have greater bargaining power and in this case my clients I think are entitled to hear what the government says the government's interpretation of its own contract and at the sentencing hearing the government interpreted the contract in a way that it gives my clients the right to pursue this appeal on the merits and from a standpoint of having my client being able to trust what the government says I think that you all should hear it's a fill on the merits you know I'm just speaking personally and of course not on the record my client very much did listen to what the government said and and heard the government to say in this case that he could appeal and just from the PSI my client you'd already agreed he couldn't appeal and that at that point you know already entered into agreement now the question whether it's accepted but if he can appeal what if you got what kind of issues you got sure you know the issue that my client raises exclusively and Mr. Michael for me has a second issued just goes to this whole notion of 3.1 B acceptance of responsibility requires a timely notification of intent to plead thereby permitting the government to avoid preparing for trial and permitting the government the court to allocate their resources efficiently my client got arrested in June 2011 at that time he made a confession not to all 11 substantive acts and it eventually complain contained in the third superseding indictment but he admitted to a number of those acts the he tried to plead the negotiations continued throughout the case he in his attorney consented to force speedy trial act motions throughout the case the first two all of them were filed by the government the first two represented that plea negotiations were ongoing the second two talked about the government wanted to avoid preparation for trial or they had an extensive trial ahead and they would need to gear up the machinery at this case had not been resolved your honor my client continued to agree to those and eventually he and the government did strike a plea deal Michael Forman's plea agreement was about 12 months after he first became involved in the federal court proceedings Evan Foreman's pleading was about 15 months after he became involved in these federal how long before trial was your honor I believe that Evans was the later was about a couple months before trial three months maybe he was in August of 2011 trial was scheduled for November of 2011 I think it's significant that the docket sheet does not reflect that any any motions and limiting or dire request to charge anything of that nature had been filed on the docket by the time my client entered his guilty plea what strikes me particularly interesting is that page 153 of the joint appendix in arguing against this extra level of reduction for the Forman brothers the government makes this statement the majority of the conduct was charged in the third superciting indictment and is disputed by the defendants in fact the only conduct to which the defendants were willing to plead guilty was that to which they affirmatively confessed in post arrest statements multiple prior plea offers containing additional relevant conduct by the defendants were rejected so from reading this statement and as the fellow lawyer was not involved I think council's your man my man had I believe eleven substance he pleaded guilty to the conspiracy charge that in comp is guilty to want correct your honor is that what they wanted to do to begin your honor again I was not involved in these negotiations I get that judge you're the only one here answering questions I get that your honor and the record shows as I understand the record the conspiracy offer what was what was on the table plus a 924 C for my client got in that with the with the conspiracy ended up with the conspiracy and ended up with a 924 C you played guilty to the 924 C also he did yes they go to the two counts he did I thought you said to play the one count he played a play guilty to do a conspiracy count I'm sorry not any substantive Hobbes act and when you look at the the elements lead guilty to one count or two I'm sorry I'm he played guilty to two counts correct one count sorry one count was a substantive I was a conspiracy like guilty to two and at the beginning of the plea negotiations and they ask him to plead guilty to two that is my understanding from reading the record and the so the he played guilty there was no change in the and then from the beginning to the end as to what they wanted to complete it that is my understanding from reading the record he was willing to plead guilty to conspiracy to commit Hobbes act which doesn't require any plead guilty two or three months before the trial that is correct after it had been extended enough time he was specifically put to him if he understood that he was waving his right to give up your agreeing to give up your right to appeal any sentence you aren't that yes sir was that was part of the plea agreement and that was undertaken at the rule 11 college and he was expressly it wasn't even just in a written plea agreement he was asked the question by the district court yes you know the facts are what they are and I know but I want you to acknowledge the facts yes the facts are if you read the rule 11 transcript the district judge did go over the appeal waiver with it's pretty much negotiating details wanted to make sure that he understood the difference between the sentence if he were a career fender and the sentence if he were not deemed to be a career fender and that he'd given up his right to appeal you honor that is also part of what the rule 11 college was but then at the sentencing hearing when asked to explain the terms of that agreement the government then says that he can appeal the issue that he now raised what's the impact of the fact that the government didn't raise the appeal waiver in its opening brief your honor I think the rules are pretty clear that you have to raise all issues in contention in your opening brief what about is there is there some established law that you know about that if you raise it in a motion the court denies the motion that you have to rearray the candidly on our cannot find that law right to be perfectly honest with you that knows the fact we have here those those are the fact you know the the the government did in fact file a motion to dismiss raising this grant the government didn't raise it in their opening brief they raised it before that in the motion and they misrepresent the court what it's what the agreement say it about waiver correct that is correct your honor but that all kinds of twists and turns here it does your honor and then you and then the one you just want to raise that one issue that's it your honor is the three one point one B issue based on a client who would have pleaded to this early and agreed without opposition to all sorts of speeding trial motions thank you and I'll finally answer your question judge yeah no we appreciate it may please the court I'd like to address the issue of whether the district court aired when it concluded that my client Michael Foreman was a career offender and in this case the district court did air because it applied the wrong burden of proof and analyzing two of Michael Foreman's three credit convictions underlying that determination now he's got the same issue on the appeal waiver that we just argued yes you're identical yeah we have heard that identical issue and I did not put arguments that if you get past that you want to raise the the career offender and the acceptance responsibility yes your honor okay and I would rely on the comments of my esteemed colleague with regard to those first two issues that she's addressed Michael Foreman introduced substantial objective evidence from the court files with regard to both of the convictions that are at issue both of those prior convictions and that objective evidence cast serious doubt as to whether he was represented by council when he entered his guilty please to those counts in Baltimore City thus Michael Foreman met his burden of production by introducing objective evidence sufficient to support a reasonable inference that his pleas were unconsult however the district court aired by assigning Michael Foreman the ultimate burden of proof the district court should have assigned the burden of proof to the government and required the government to show by preponderance of the evidence that the pleas were in fact counseled even when in fact we are supposed to apply a strong presumption of regularity to these records that suggest that the only this is on your client to show other ones your honor is clear from the park decision by the Supreme Court and other other decisions of this court that there is a presumption of regularity that attaches to final judgments the applying to the defendant a burden of production does not undermine and in fact supports the presumption of regularity the presumption of regularity assumes that the underlying conviction is valid until the defendant comes forward with some objective evidence to show otherwise but once the defendant has come forward with something other than a silent record other than his own self-serving statements but comes forward with objective evidence that then satisfies that burden of production which overcomes the presumption of regularity and at that point under circumstances like we have here where the defendant's claim is that he was on his plea was unconsulted then the burden should shift to the government to show by preponderance of the evidence that the guilty plea was counseled so we're not arguing against the presumption of regularity we believe that applying a burden of production takes into account that that presumption of regularity if the district court had applied the correct burden I believe the record is clear that the government would not have met its burden and the district court would have then found that the two prior convictions could not be counted for sentence and guideline purposes and thus that Michael Foreman was not a career offender and this would have had a dramatic effect on the advisory guideline range that would have been applicable to Michael Foreman. As the court found it his advisory guidelines as a career offender were the range between 151 to 188 months whereas if he were not a career offender and those convictions were not counted against him then his guideline range would have been in the range of 51 to 63 months so a difference of more than 12 years down to a sentencing range more in the realm of five years of course the district court in this case said that even if there was a mistake that it would have applied would have entered the same sentence suggesting that any error in this case was harmless how do we deal with that? Yes, Your Honor but as the courts aware the the harmless error rule has two aspects to it and we believe that the second prong is not satisfied that is that the resulting sentence would have to be reasonable despite the error and we submit that it would be patentally unreasonable for the court for a court a district court to impose a sentence of 12 years on a defendant whose sentence and guideline range was more in the range of five years

. Personally I'm not familiar with or aware of any decision in the district of Maryland where a judge would have made such a dramatic change from the advisory guideline range typically judges stick pretty close to the guidelines if there's a departure it's often downward even a slight upward departure would be somewhat unusual but in the district of Maryland and perhaps through this circuit but you would know better but I would argue that an upward variance going from a five-year range up to a 12-year range would be unreasonable and I would further argue that it would be patentally unreasonable for the district court in this particular case if the court remains for the court to impose the exact same sentence if in fact this court's determination is that as a result of playing park that Mr. Foreman is not a career offender. Thank you. Good morning

. Good morning. Good luck first. I want to credit you for coming yourself. Thank you Your Honor

. These self-inflicted wounds are the worst. They are. We're certainly here today because I made a mistake at at sentencing and as much as AUSA strive to be perfect in their representations to the court sometimes mistakes are made and the question here with respect to the waiver is what should the effect of my mistake at the sentencing hearing B and I would submit to the court that there should be no effect with respect to the plea agreement because of the specific circumstances here. So we let lawyers negligently misrepresent facts to the court willy nilly

. I certainly wouldn't go so far in our former United States attorney and those are the people as you may know from the district of Maryland that hold the United States attorney's office to their highest best and I certainly want respect back. I think it was a rule out of plot every lawyer. If a judge asked a question here this court room or in Maryland or anywhere else the judge expects to get the straight scoop from the lawyer and I'm not asking any expertions on you intentionally that you intentionally mislead the judge but if you don't know the answer you don't you say you don't know we do that you did that all the time and when need be sure. Sir Your Honor

. But when you make representations to the judge they got to be accurate and we all agree with that absolutely and if it if it's a situation like this. So he's made a simple solution for the government would be and would offend when it came up here we're not going to seek to enforce the leeway because he he agreed to it and we mistakenly misled the court at the sensing proceeding as to what it provided so we're willing to litigate the issues on the merits and let the sheriff fall. Well 98% of the time when you come up here you win anyway. Certainly that was one option but and certainly had I made this mistake at the time of the agreement I would not be here asking for this case to be dismissed there's no question about that and certainly if the mistake at sentencing had been one that was to the detriment of the defendants I would not be here asking for my statement to be ignored but in this particular case this was not a situation in which there was detrimental reliance by the defendants at the time that they entered the plea there was not even I don't think the record shows any detrimental reliance by the district court based on my statement in making his sentencing finding there and frankly I think it would be improper for him to take into account whether or not his decision was appealable in making his ruling his obligation is to make the best finding that he can and there's nothing in the record that would suggest that he did otherwise

. The district court have written waivers in front of him to sound like from my reading of the record he was relying on you to tell him what the way he certainly he certainly had them at the at the time the pleas were entered I'm not sure he certainly must not have been looking at them at the time he asked me the question and frankly neither was I and that was my mistake but is the provision sort of unusual the no appeal no this is the standard and in fact both Mr. Morris and myself are initial response to Judge Boudard was it's the standard way of her appeal and then they were follow up questions and that's where I misspoke I'm sorry I'm not my question was not clear was the the the actual thing that exists the norm or was what you told the district court the norm the actual provision in the plea agreement written paragraph in the plea agreement is the norm is the norm what I said was not the norm right and frankly there were this plea negotiation was was protected and I'll talk about that a little bit with respect to the the acceptance of responsibility point but there is a presumption in this case or presumption in this in this circuit that written appellate waivers are to be enforced and there and there is an integration clause in these plea agreements paragraph 14 of Michael Foreman's agreement at joint appendix 2018 paragraph 16 of Evan Foreman's agreement at joint appendix 139 that say these agreements cannot be changed without a writing signed by both parties and to and to permit an oral modification here where that were the mistake did not harm or cause prejudice to the defendants anyway basically renders integration clauses in plea agreements well but your concession which you know good for you where you said that there had been detrimental reliance you wouldn't be making this argument that would seem to be contrary to the integration clause as well if there'd been an oral representation by the government upon which the court or the parties had rely right it would but that's the situation where fundamental fairness and due process may trump the integration clause but there isn't that here and indeed the detrimental reliance case from this circuit which is would that's really a plea colloquy but why do we need the detrimental reliance in a situation like this why wouldn't we just sanction the government or a situation like it or sanction whichever side it comes from where a lawyer misrepresident negligently misrepresents the court if the lawyer intensely misrepresents I think it's probably a disbarment offense we don't have that here but if you but if the lawyer negligently misrepresents to the court we can't have that either it just had it off at the past kind that's certainly an option for to get however no worry about any of these other things you just say we're not going to pay attention to this this thing you can go right on to the merits of the case and here you didn't even raise it in your in your first pill brief anyway well and you got the argument well we raised it in a motion which was denied so we didn't think we had to raise it anymore it was less that we didn't think we had to raise it and more that we thought that the issue had been resolved against us and and at that point we didn't see the need to believe or an issue that the court had ruled on when the supplemental briefing order came down it became clear that that was a misunderstanding on our part which we apologize for but certainly the fact that the motion was denied suggested that this was not a proper issue for for briefing an argument I certainly understand your concerns regarding my misrepresentation and if I could address I'm sorry I don't know well that was nice of you to put it on the evenist I guess that your argument is that in this case it doesn't really make any difference to you because you think that you win if we look at the merits of these arguments what you might be worried about is the next case where there is a negligent misrepresentation by the government after there has been a written plea agreement accepted by the defendant and should the government the people United States if you will be put in be held against them where it would make a difference on the merits if there wasn't the and I think you're hoping there is not going to be a next case at least as far as you're coming well there won't be for me but yes your honours point is correct this is the reason why we have integration clauses because despite our best efforts occasionally mistakes are made but see I again I come back to the fact that you've said that if there had been reliance you wouldn't have relied on the integration clause well we just supposed to I mean I'm probably willing to defer to the United States attorney's office as much as anyone else but is this all within your discretion whether you're going to rely on her or not certainly seeking to enforce it is within our discretion and the reason why I say if there were detrimental reliance or a violation of fundamental rights that we wouldn't that we would stand by or our misstatement is because that's what the case law has suggested that's what would suggest that's what Martin suggests and those are very very different cases from what's here in Martin the the government said that the defendant had earned a 5k motion but they were going to wait for a rule 35b motion and that motion was improper and and the defendant was thereby deprived of something he was entitled to that's a very very different situation from this and in wood there were misstatements made at the time that guilty plea was entered about what exactly the defendant could challenge at sentencing so that is a very different case this is this case is more like the cases that we cite with respect to judicial misstatements regarding the waiver of appeal and I still certainly take judge King's point very seriously but but the effect on the defendants with respect to other reliance or were fundamental rights is is the same as if the judge had mispoken about the about these other posters still no con question as to when this plea was accepted does that matter to the it might in fact I believe that it would however in this case these pleas were accepted at the time of the rearrangements for my go for my second they were accepted at the plea proceeding at the docket at that time and that's reflected in the good and the judge said I accept the pleas of guilty yes and the plea agreement yes and and that would be contained in the transcripts I attached to our motion to dismiss exhibits a and b I don't have the specific page site but he certainly at the conclusion of those guilty plea hearings accepted their pleas of guilty let me with the few minutes that I have remaining let me address the the two substantive issues which if the court decides to consider them I think that they I think they're interesting points for clarification for our practice in the district court with respect to the 3E 1.1 issue with regard to the third level if this is not a case in which the government is not entitled to withhold the motion and I'm not sure that there's any case where the government could withhold the motion as early as February 7th of 2012 and this is in district court ECF number 79 I filed a letter with the district court stating that plea negotiations were not ongoing with that informant and that a plea with Michael appeared not imminent and in the context that was filed in the context of a speedy trial motion that had been challenged by Evan for me to say in the context of trying to get a speedy trial order that plea negotiations that's how far plea negotiations had fallen off in this case and it wasn't simply an issue of how much conduct Evan and Michael were willing to agree to it was a question of how much time they were willing to serve my initial plea offer to Evan forman was 25 years see plea and he could you know I certainly provided a statement of facts but if he had said I'll take the 25 but I'm not willing to admit to this and that then he would have been able to plea and we would have gone our way so it was not simply the conduct that was an issue it was the length of the sentence and as the court knows the plea agreement that we ultimately arrived at reflected just how difficult these negotiations were there was a provision if he is found to be a career offender a provision if he's not found to be a career offender these this was all the result of a protracted discussion and and he was never willing to admit I wouldn't even say that this is true relevant conduct I would say that this is part and parcel of the offense of conviction the conspiracy count one to which he pled guilty that his admission of guilt with respect to count one the conspiracy was not sufficient to permit the district court to impose a just punishment he was willing to admit that he conspired but he but he was unwilling to admit the scope of the conduct that would allow the district court to understand what a just punishment would be and that is why we had this this extended sentencing here and that lasted almost the entire day but he said a couple of months before the trial was going to be said well the timing of his actual plea in advance of trial doesn't necessarily reflect the amount of trial preparation that is my was her represent correct that he played a couple of months before the plea for the travelers again the trial was originally scheduled for September 10th well let me back up one step further there was a motions hearing in May and there was a motion for severance and after analyzing the evidence in the case to determine whether or not we could successfully proceed on a on a joint trial the government conceded that motion and agreed to a severance Michael forming was then set for trial September 10th and Evans trial was not scheduled until November Michael pled in July Evan pled in September so both of them pled two months before their trials few months before their trials however from May from May 15th until July 2nd when Michael form and pled I was preparing for two trials at that point and from July 2nd until September 13th when Evan form and pled I was preparing for Evan form and trials that was essentially four months of trial preparation that I was engaged in with respect to these defendants and that included interviewing witnesses it included issuing subpoenas it included obtaining new evidence in the form of phone records the agent in this case listened to literally hundreds of hours of jail calls and that's reflected in the sentencing transcript hundreds of hours of jail calls involving the defendants in order to obtain new evidence for trial and and so that work was all trial preparation and the fact that it wasn't ultimately used for a trial doesn't affect my determination that I had expended significant amounts of resources preparing for a trial because we could not reach a plea agreement and to their point that well they would have pled to you know they would have pled a year earlier had I been willing to accept what they were willing to plead to that's not how pleading negotiations were so you're so they get more time because they'd drive a hard bargain or they're all your drives a hard bargain well that's sort of what the adversary system is all about and they could have pled guilty at any time without a plea agreement they could have pledged right up that's right that's right or they could have pledged just to the counts that they wanted to plead to so you're taking the trial or the rest of that or not then it would have been my choice but they certainly would have been entitled to it would have been they would have been entitled to the acceptance of responsibility credit so I think that and if you look at divins this case isn't they aren't compelled to receive the third point by divins I don't think divins even truly supports their argument for a third point when you look at the cases cited favorably in that decision and I know the judge Mott's is very familiar with that decision but the BADD case cited favorably that is a case that deal almost entirely with the efforts that the government had to make at sentencing in order to resolve issues of factual dispute so I think that I think divins ultimately supports our position that that third level is not appropriate here and with respect to the burden of proof with respect to the prior convictions I think that this is if not settled law in this circuit certainly the case law strongly suggests that the burden not only of production but also proof is on the defendant when collaterally challenging a prior conviction in federal court not only does park V. Rayleigh cite approvingly a variety of decisions in which the entire burden is placed on the defendant but the Jones case out of the fourth circuit and then followed up by Honda in 2004 the court says that this is an especially difficult burden that the defendant bears that he has the burden of proving that the conviction was invalid that's from Honda and in Honda you're on or dissented on the facts of that case but even in your dissent you recognized that the burden of proof was on the defendant you said I recognize that the burden is on Honda to demonstrate that he was not aware of the dangers etc. I believe that he has made that burden improved by a clear preponderance of the evidence that the that his right to counsel was not effectuated there so even in dissent you're you're on it recognized that this is a burden for the defendant and the facts of this case don't support invalidating the convictions the robbery conviction from 1996 listed an attorney James Salkin present at the time of his guilty plea and there was an earlier reference that that entry is at joint appendix 204 at joint appendix 226 there was a reference from almost a year earlier of a letter from mr. Salkin to the clerk's office that was forwarded to the office of the public defender which indicates that that's the point at which mr. Salkin entered the case there be no reason for him to be referenced in the docket if you were simply stand in counsel so the the record on that in that case supports finding that the conviction was valid and where i'm sorry i'm over time um i have one question i wanted to ask you and i appreciate your discussion of the merits of these claims but i want to get back to a point that judge king made is that obviously without a concession by the government we're going to have to address the question of waiver and it may of course i'm not predicting how that's going to come out but given the unique circumstances of this case and you're and i appreciate your honest concession that you made a mistake here wouldn't it be appropriate that just king suggested to say under the unique circumstances of this case we're simply not going to rely on the waiver um and you also said that these issues present interesting points of law that might clarify our practice in merrill which might suggest that you might want us to reach the merits you know you have been jerked around by us on this you know first we denied it then we asked you for briefing on it then we asked you if you we could reach it so i would be in favor of letting you go back to your office and talk about whether or not you would be willing to to drop the waiver on my response was going to be i don't think that i have authority at this point above my pay you don't want to misrepresent it i'll give you some more advice then if you come down here again in one of these tough situations have authority okay that's the bike we need to be able to do whoever we have stand in there but in fairness we in this particular case we need to keep one thing one day and one thing the next day i can understand why you were there i appreciate that your honor and i will um maybe check with my office and send us a letter to the other side telling us what your position is with for going the waiver point absolutely thank you we're gonna have to wait for coming instructions on that argument but you can go ahead make your art useful thank you judge king my opponent is correct the judge did accept the play agreements at the guilty plea and i apologize for not knowing that pretty of course do it differently i mean we we've seen where they hold it off to the sentencing and prove the plea agreement the last minute and that's my home courts practice also judge uh if you'll look at the ja 294 the judge does make a statement after going through what the plea says about the appeal waiver all right that's for the record in light of that i think it's necessary then mr. morris to review the third conviction so there is some indication from the record at least that the judge did make some different decisions or go into some areas that perhaps he would not have without this uh indication prior to that discussion of what the appeal waiver said on j a 288 the district court does say for the court of appeals opd and merlin means office of public defender so there's a little bit of suggestion that the judge is conducted sentencing somewhat differently based upon the representations uh j a 293 also has what was said about the time or the repellent waivers in your plea agreement mr

. I believe that he has made that burden improved by a clear preponderance of the evidence that the that his right to counsel was not effectuated there so even in dissent you're you're on it recognized that this is a burden for the defendant and the facts of this case don't support invalidating the convictions the robbery conviction from 1996 listed an attorney James Salkin present at the time of his guilty plea and there was an earlier reference that that entry is at joint appendix 204 at joint appendix 226 there was a reference from almost a year earlier of a letter from mr. Salkin to the clerk's office that was forwarded to the office of the public defender which indicates that that's the point at which mr. Salkin entered the case there be no reason for him to be referenced in the docket if you were simply stand in counsel so the the record on that in that case supports finding that the conviction was valid and where i'm sorry i'm over time um i have one question i wanted to ask you and i appreciate your discussion of the merits of these claims but i want to get back to a point that judge king made is that obviously without a concession by the government we're going to have to address the question of waiver and it may of course i'm not predicting how that's going to come out but given the unique circumstances of this case and you're and i appreciate your honest concession that you made a mistake here wouldn't it be appropriate that just king suggested to say under the unique circumstances of this case we're simply not going to rely on the waiver um and you also said that these issues present interesting points of law that might clarify our practice in merrill which might suggest that you might want us to reach the merits you know you have been jerked around by us on this you know first we denied it then we asked you for briefing on it then we asked you if you we could reach it so i would be in favor of letting you go back to your office and talk about whether or not you would be willing to to drop the waiver on my response was going to be i don't think that i have authority at this point above my pay you don't want to misrepresent it i'll give you some more advice then if you come down here again in one of these tough situations have authority okay that's the bike we need to be able to do whoever we have stand in there but in fairness we in this particular case we need to keep one thing one day and one thing the next day i can understand why you were there i appreciate that your honor and i will um maybe check with my office and send us a letter to the other side telling us what your position is with for going the waiver point absolutely thank you we're gonna have to wait for coming instructions on that argument but you can go ahead make your art useful thank you judge king my opponent is correct the judge did accept the play agreements at the guilty plea and i apologize for not knowing that pretty of course do it differently i mean we we've seen where they hold it off to the sentencing and prove the plea agreement the last minute and that's my home courts practice also judge uh if you'll look at the ja 294 the judge does make a statement after going through what the plea says about the appeal waiver all right that's for the record in light of that i think it's necessary then mr. morris to review the third conviction so there is some indication from the record at least that the judge did make some different decisions or go into some areas that perhaps he would not have without this uh indication prior to that discussion of what the appeal waiver said on j a 288 the district court does say for the court of appeals opd and merlin means office of public defender so there's a little bit of suggestion that the judge is conducted sentencing somewhat differently based upon the representations uh j a 293 also has what was said about the time or the repellent waivers in your plea agreement mr. morris i believe they're the standard turns i'd have to double check your honor mr. block it's the standard waiver of conviction that they have not waived the right to contest the court's sentencing determinations with respect to criminal history and talking again about the briefing issue candidly i thought the issue the appeal waiver is why you said it for our argument because i got the world argument notice immediately after the motion to dismiss in the response so as an advocate i was just surprised not to see it in the brief but i do understand that they made their motion uh turning back then to the three in 1.1 b issue the government says that the plea negotiations initially weren't focused on conduct but more on the time that he would get this or a fact you plead guilty to an office of conviction not a particular sentence in this case it's my position that evident michael were both willing to plead guilty to the conspiracy charge and count one and have it later but also to the 924c in count 11 of the third super seating indictment and that the conduct they pled guilty to enough because the 951 elements don't encompass any sort of admissions to specifically to conduct i mean you have to have a factual basis to get you through the plea colloquy but the 951 is a little bit more bloodless than that the elements of the offense so it's our position today that when he offered to plead to count one and to give enough to make it and 951 conspiracy a Hobbes act in spheresy did timely agree in a timely fashion to admit the offense truthfully admit the offense comprising the offense of conviction and as a result the speedy trial motions everything that continued to delay it were outside of his his can and he should have been given the 3 1.1 b reduction i'm out of time is any questions very much addressing the government's points with regard to the issue of whether michael foreman was was determined correctly to be a career offender the government discussed briefly park jones and hondo park of course is the controlling case in this case from the supreme court in that case the supreme court made it clear that they that it's fair to impose a burden of production on the defendant the court used that term production and it's holding and again in another instance in that decision so parks clearly stands for the proposition that a defendant has a burden of production it does not stand for the position that the government is advocating that the defendant further bears the burden of proof the jones and hondo decisions of this court are both distinguishable and the the distinctions are set forth in our reply brief but briefly and perhaps most importantly jones was decided before both park and custis and so i believe at the analysis and discussion in jones is in applicable after the park decision and custis decision came out further more jones was about uh

. morris i believe they're the standard turns i'd have to double check your honor mr. block it's the standard waiver of conviction that they have not waived the right to contest the court's sentencing determinations with respect to criminal history and talking again about the briefing issue candidly i thought the issue the appeal waiver is why you said it for our argument because i got the world argument notice immediately after the motion to dismiss in the response so as an advocate i was just surprised not to see it in the brief but i do understand that they made their motion uh turning back then to the three in 1.1 b issue the government says that the plea negotiations initially weren't focused on conduct but more on the time that he would get this or a fact you plead guilty to an office of conviction not a particular sentence in this case it's my position that evident michael were both willing to plead guilty to the conspiracy charge and count one and have it later but also to the 924c in count 11 of the third super seating indictment and that the conduct they pled guilty to enough because the 951 elements don't encompass any sort of admissions to specifically to conduct i mean you have to have a factual basis to get you through the plea colloquy but the 951 is a little bit more bloodless than that the elements of the offense so it's our position today that when he offered to plead to count one and to give enough to make it and 951 conspiracy a Hobbes act in spheresy did timely agree in a timely fashion to admit the offense truthfully admit the offense comprising the offense of conviction and as a result the speedy trial motions everything that continued to delay it were outside of his his can and he should have been given the 3 1.1 b reduction i'm out of time is any questions very much addressing the government's points with regard to the issue of whether michael foreman was was determined correctly to be a career offender the government discussed briefly park jones and hondo park of course is the controlling case in this case from the supreme court in that case the supreme court made it clear that they that it's fair to impose a burden of production on the defendant the court used that term production and it's holding and again in another instance in that decision so parks clearly stands for the proposition that a defendant has a burden of production it does not stand for the position that the government is advocating that the defendant further bears the burden of proof the jones and hondo decisions of this court are both distinguishable and the the distinctions are set forth in our reply brief but briefly and perhaps most importantly jones was decided before both park and custis and so i believe at the analysis and discussion in jones is in applicable after the park decision and custis decision came out further more jones was about uh... the issue there was the uh.

... the issue there was the uh... ineffective assistance of council claim uh..

.. ineffective assistance of council claim uh... hondo also is distinguishable and i want to make sure that i i mentioned that i would uh... the supplemental authority that i filed earlier this week when i became aware of it your sister circuit to the north the dc circuit in martina's crews addressed a situation that's directly on point with the contention of michael forment in that case uh

. hondo also is distinguishable and i want to make sure that i i mentioned that i would uh... the supplemental authority that i filed earlier this week when i became aware of it your sister circuit to the north the dc circuit in martina's crews addressed a situation that's directly on point with the contention of michael forment in that case uh... the defendant asserted that his plea was uncounseld the defendant produced objective evidence casting doubt on whether his plea was properly counseled he did not rely on a silent record he did not rely on self-serving testimony and under that limited set of circumstances the dc circuit held that the burden shifts to the government to prove by a preponderance of the evidence we believe that that analysis is the appropriate analysis for a situation like this the narrow circumstances just described and that under that analysis the court should find that michael forment was not a career offender and should remain for resettancing thank you very much um.

... the defendant asserted that his plea was uncounseld the defendant produced objective evidence casting doubt on whether his plea was properly counseled he did not rely on a silent record he did not rely on self-serving testimony and under that limited set of circumstances the dc circuit held that the burden shifts to the government to prove by a preponderance of the evidence we believe that that analysis is the appropriate analysis for a situation like this the narrow circumstances just described and that under that analysis the court should find that michael forment was not a career offender and should remain for resettancing thank you very much um... we will come down and read the lawyers and then take a short break oh are you court appointed yes we appreciate your efforts we couldn't do these cases without the

.. we will come down and read the lawyers and then take a short break oh are you court appointed yes we appreciate your efforts we couldn't do these cases without the

here argument in our second case United States versus Mormon. A little bit of color in this dreadful way. I'm a University of Georgia Bulldog too. I can't help it. Good morning and may it please the court. My name is Amy Lee Copeland. I represent the appellant Evan Foreman with me today as my colleagues got Morris who represents the appellant Michael Foreman who is also Evan's brother. I will discuss today the issues of the appeal waiver and the 3.1 B claim and Mr. Morris will discuss his client's career fender designation. As an initial matter this court should decline to dismiss this appeal based upon the appeal waiver instead here its merits. In this case both defend and sign plea agreements that generally waived a sentencing appeal if their sentence fell within the guidelines range and the district court so advised him at the rule 11 hearing. But what happened in this case is that the sentencing hearing the district judge says to the parties. Can you tell me about this appeal waiver Mr. Morris first responds listen it's the standard appeal waiver as far as I can tell I can double check it if you would like and then the government says about this appeal waiver that listen judge the defendants can challenge whether you whether you the district judge incorrectly calculated the guidelines in order to arrive at that sentence. The judge even asked the prosecutor to clarify this does this go to our career fender determination yes it does this colloquy between the prosecutor and the district judge continues for about three or four questions and then the judge says then well then we need to take up some other issues and then it begins to address Mr. Michael Foreman's career fender guideline. It's our position this morning that those statements amounted to an oral modification and plea agreement you think the government can unilaterally change the plea agreement sure it's the draft unilaterally unilaterally without any agreement from you so the government could have said the plea agreement is would be more onerous to you and that would be all right you are that would have changed it well and you raise your hands so you so maybe you're right so maybe I don't want to do that but in this situation certainly the way the fourth orchestra it was a sentence it was a sentence and that's correct already you know he's plea had the plea been accepted you're on our I wish I could answer that confidently for you in my district they took the record show whether the plea had been accepted had the plea been accepted at the time of the plea or is the acceptance of the plea reserved till the sentencing procedure I believe it was accepted at the time of the plea but as I'm sitting here I will have an answer for you about that it would but a lot apologize for not being able to answer that to you now that might be that might be the the shoot match then yeah I think you're probably right about that judge King and I like I said I apologize for not know there's the whole there days maybe weeks go by between the time the plea is entered and that is correct your honor months I think is fair to say in this case but looking at this court's jurisprudence about plea agreements she can stir it against the government the drafter because it's not a typical deal between contracting parties of course it's more I hesitate to say it in he's you contract the government really does have greater bargaining power and in this case my clients I think are entitled to hear what the government says the government's interpretation of its own contract and at the sentencing hearing the government interpreted the contract in a way that it gives my clients the right to pursue this appeal on the merits and from a standpoint of having my client being able to trust what the government says I think that you all should hear it's a fill on the merits you know I'm just speaking personally and of course not on the record my client very much did listen to what the government said and and heard the government to say in this case that he could appeal and just from the PSI my client you'd already agreed he couldn't appeal and that at that point you know already entered into agreement now the question whether it's accepted but if he can appeal what if you got what kind of issues you got sure you know the issue that my client raises exclusively and Mr. Michael for me has a second issued just goes to this whole notion of 3.1 B acceptance of responsibility requires a timely notification of intent to plead thereby permitting the government to avoid preparing for trial and permitting the government the court to allocate their resources efficiently my client got arrested in June 2011 at that time he made a confession not to all 11 substantive acts and it eventually complain contained in the third superseding indictment but he admitted to a number of those acts the he tried to plead the negotiations continued throughout the case he in his attorney consented to force speedy trial act motions throughout the case the first two all of them were filed by the government the first two represented that plea negotiations were ongoing the second two talked about the government wanted to avoid preparation for trial or they had an extensive trial ahead and they would need to gear up the machinery at this case had not been resolved your honor my client continued to agree to those and eventually he and the government did strike a plea deal Michael Forman's plea agreement was about 12 months after he first became involved in the federal court proceedings Evan Foreman's pleading was about 15 months after he became involved in these federal how long before trial was your honor I believe that Evans was the later was about a couple months before trial three months maybe he was in August of 2011 trial was scheduled for November of 2011 I think it's significant that the docket sheet does not reflect that any any motions and limiting or dire request to charge anything of that nature had been filed on the docket by the time my client entered his guilty plea what strikes me particularly interesting is that page 153 of the joint appendix in arguing against this extra level of reduction for the Forman brothers the government makes this statement the majority of the conduct was charged in the third superciting indictment and is disputed by the defendants in fact the only conduct to which the defendants were willing to plead guilty was that to which they affirmatively confessed in post arrest statements multiple prior plea offers containing additional relevant conduct by the defendants were rejected so from reading this statement and as the fellow lawyer was not involved I think council's your man my man had I believe eleven substance he pleaded guilty to the conspiracy charge that in comp is guilty to want correct your honor is that what they wanted to do to begin your honor again I was not involved in these negotiations I get that judge you're the only one here answering questions I get that your honor and the record shows as I understand the record the conspiracy offer what was what was on the table plus a 924 C for my client got in that with the with the conspiracy ended up with the conspiracy and ended up with a 924 C you played guilty to the 924 C also he did yes they go to the two counts he did I thought you said to play the one count he played a play guilty to do a conspiracy count I'm sorry not any substantive Hobbes act and when you look at the the elements lead guilty to one count or two I'm sorry I'm he played guilty to two counts correct one count sorry one count was a substantive I was a conspiracy like guilty to two and at the beginning of the plea negotiations and they ask him to plead guilty to two that is my understanding from reading the record and the so the he played guilty there was no change in the and then from the beginning to the end as to what they wanted to complete it that is my understanding from reading the record he was willing to plead guilty to conspiracy to commit Hobbes act which doesn't require any plead guilty two or three months before the trial that is correct after it had been extended enough time he was specifically put to him if he understood that he was waving his right to give up your agreeing to give up your right to appeal any sentence you aren't that yes sir was that was part of the plea agreement and that was undertaken at the rule 11 college and he was expressly it wasn't even just in a written plea agreement he was asked the question by the district court yes you know the facts are what they are and I know but I want you to acknowledge the facts yes the facts are if you read the rule 11 transcript the district judge did go over the appeal waiver with it's pretty much negotiating details wanted to make sure that he understood the difference between the sentence if he were a career fender and the sentence if he were not deemed to be a career fender and that he'd given up his right to appeal you honor that is also part of what the rule 11 college was but then at the sentencing hearing when asked to explain the terms of that agreement the government then says that he can appeal the issue that he now raised what's the impact of the fact that the government didn't raise the appeal waiver in its opening brief your honor I think the rules are pretty clear that you have to raise all issues in contention in your opening brief what about is there is there some established law that you know about that if you raise it in a motion the court denies the motion that you have to rearray the candidly on our cannot find that law right to be perfectly honest with you that knows the fact we have here those those are the fact you know the the the government did in fact file a motion to dismiss raising this grant the government didn't raise it in their opening brief they raised it before that in the motion and they misrepresent the court what it's what the agreement say it about waiver correct that is correct your honor but that all kinds of twists and turns here it does your honor and then you and then the one you just want to raise that one issue that's it your honor is the three one point one B issue based on a client who would have pleaded to this early and agreed without opposition to all sorts of speeding trial motions thank you and I'll finally answer your question judge yeah no we appreciate it may please the court I'd like to address the issue of whether the district court aired when it concluded that my client Michael Foreman was a career offender and in this case the district court did air because it applied the wrong burden of proof and analyzing two of Michael Foreman's three credit convictions underlying that determination now he's got the same issue on the appeal waiver that we just argued yes you're identical yeah we have heard that identical issue and I did not put arguments that if you get past that you want to raise the the career offender and the acceptance responsibility yes your honor okay and I would rely on the comments of my esteemed colleague with regard to those first two issues that she's addressed Michael Foreman introduced substantial objective evidence from the court files with regard to both of the convictions that are at issue both of those prior convictions and that objective evidence cast serious doubt as to whether he was represented by council when he entered his guilty please to those counts in Baltimore City thus Michael Foreman met his burden of production by introducing objective evidence sufficient to support a reasonable inference that his pleas were unconsult however the district court aired by assigning Michael Foreman the ultimate burden of proof the district court should have assigned the burden of proof to the government and required the government to show by preponderance of the evidence that the pleas were in fact counseled even when in fact we are supposed to apply a strong presumption of regularity to these records that suggest that the only this is on your client to show other ones your honor is clear from the park decision by the Supreme Court and other other decisions of this court that there is a presumption of regularity that attaches to final judgments the applying to the defendant a burden of production does not undermine and in fact supports the presumption of regularity the presumption of regularity assumes that the underlying conviction is valid until the defendant comes forward with some objective evidence to show otherwise but once the defendant has come forward with something other than a silent record other than his own self-serving statements but comes forward with objective evidence that then satisfies that burden of production which overcomes the presumption of regularity and at that point under circumstances like we have here where the defendant's claim is that he was on his plea was unconsulted then the burden should shift to the government to show by preponderance of the evidence that the guilty plea was counseled so we're not arguing against the presumption of regularity we believe that applying a burden of production takes into account that that presumption of regularity if the district court had applied the correct burden I believe the record is clear that the government would not have met its burden and the district court would have then found that the two prior convictions could not be counted for sentence and guideline purposes and thus that Michael Foreman was not a career offender and this would have had a dramatic effect on the advisory guideline range that would have been applicable to Michael Foreman. As the court found it his advisory guidelines as a career offender were the range between 151 to 188 months whereas if he were not a career offender and those convictions were not counted against him then his guideline range would have been in the range of 51 to 63 months so a difference of more than 12 years down to a sentencing range more in the realm of five years of course the district court in this case said that even if there was a mistake that it would have applied would have entered the same sentence suggesting that any error in this case was harmless how do we deal with that? Yes, Your Honor but as the courts aware the the harmless error rule has two aspects to it and we believe that the second prong is not satisfied that is that the resulting sentence would have to be reasonable despite the error and we submit that it would be patentally unreasonable for the court for a court a district court to impose a sentence of 12 years on a defendant whose sentence and guideline range was more in the range of five years. Personally I'm not familiar with or aware of any decision in the district of Maryland where a judge would have made such a dramatic change from the advisory guideline range typically judges stick pretty close to the guidelines if there's a departure it's often downward even a slight upward departure would be somewhat unusual but in the district of Maryland and perhaps through this circuit but you would know better but I would argue that an upward variance going from a five-year range up to a 12-year range would be unreasonable and I would further argue that it would be patentally unreasonable for the district court in this particular case if the court remains for the court to impose the exact same sentence if in fact this court's determination is that as a result of playing park that Mr. Foreman is not a career offender. Thank you. Good morning. Good morning. Good luck first. I want to credit you for coming yourself. Thank you Your Honor. These self-inflicted wounds are the worst. They are. We're certainly here today because I made a mistake at at sentencing and as much as AUSA strive to be perfect in their representations to the court sometimes mistakes are made and the question here with respect to the waiver is what should the effect of my mistake at the sentencing hearing B and I would submit to the court that there should be no effect with respect to the plea agreement because of the specific circumstances here. So we let lawyers negligently misrepresent facts to the court willy nilly. I certainly wouldn't go so far in our former United States attorney and those are the people as you may know from the district of Maryland that hold the United States attorney's office to their highest best and I certainly want respect back. I think it was a rule out of plot every lawyer. If a judge asked a question here this court room or in Maryland or anywhere else the judge expects to get the straight scoop from the lawyer and I'm not asking any expertions on you intentionally that you intentionally mislead the judge but if you don't know the answer you don't you say you don't know we do that you did that all the time and when need be sure. Sir Your Honor. But when you make representations to the judge they got to be accurate and we all agree with that absolutely and if it if it's a situation like this. So he's made a simple solution for the government would be and would offend when it came up here we're not going to seek to enforce the leeway because he he agreed to it and we mistakenly misled the court at the sensing proceeding as to what it provided so we're willing to litigate the issues on the merits and let the sheriff fall. Well 98% of the time when you come up here you win anyway. Certainly that was one option but and certainly had I made this mistake at the time of the agreement I would not be here asking for this case to be dismissed there's no question about that and certainly if the mistake at sentencing had been one that was to the detriment of the defendants I would not be here asking for my statement to be ignored but in this particular case this was not a situation in which there was detrimental reliance by the defendants at the time that they entered the plea there was not even I don't think the record shows any detrimental reliance by the district court based on my statement in making his sentencing finding there and frankly I think it would be improper for him to take into account whether or not his decision was appealable in making his ruling his obligation is to make the best finding that he can and there's nothing in the record that would suggest that he did otherwise. The district court have written waivers in front of him to sound like from my reading of the record he was relying on you to tell him what the way he certainly he certainly had them at the at the time the pleas were entered I'm not sure he certainly must not have been looking at them at the time he asked me the question and frankly neither was I and that was my mistake but is the provision sort of unusual the no appeal no this is the standard and in fact both Mr. Morris and myself are initial response to Judge Boudard was it's the standard way of her appeal and then they were follow up questions and that's where I misspoke I'm sorry I'm not my question was not clear was the the the actual thing that exists the norm or was what you told the district court the norm the actual provision in the plea agreement written paragraph in the plea agreement is the norm is the norm what I said was not the norm right and frankly there were this plea negotiation was was protected and I'll talk about that a little bit with respect to the the acceptance of responsibility point but there is a presumption in this case or presumption in this in this circuit that written appellate waivers are to be enforced and there and there is an integration clause in these plea agreements paragraph 14 of Michael Foreman's agreement at joint appendix 2018 paragraph 16 of Evan Foreman's agreement at joint appendix 139 that say these agreements cannot be changed without a writing signed by both parties and to and to permit an oral modification here where that were the mistake did not harm or cause prejudice to the defendants anyway basically renders integration clauses in plea agreements well but your concession which you know good for you where you said that there had been detrimental reliance you wouldn't be making this argument that would seem to be contrary to the integration clause as well if there'd been an oral representation by the government upon which the court or the parties had rely right it would but that's the situation where fundamental fairness and due process may trump the integration clause but there isn't that here and indeed the detrimental reliance case from this circuit which is would that's really a plea colloquy but why do we need the detrimental reliance in a situation like this why wouldn't we just sanction the government or a situation like it or sanction whichever side it comes from where a lawyer misrepresident negligently misrepresents the court if the lawyer intensely misrepresents I think it's probably a disbarment offense we don't have that here but if you but if the lawyer negligently misrepresents to the court we can't have that either it just had it off at the past kind that's certainly an option for to get however no worry about any of these other things you just say we're not going to pay attention to this this thing you can go right on to the merits of the case and here you didn't even raise it in your in your first pill brief anyway well and you got the argument well we raised it in a motion which was denied so we didn't think we had to raise it anymore it was less that we didn't think we had to raise it and more that we thought that the issue had been resolved against us and and at that point we didn't see the need to believe or an issue that the court had ruled on when the supplemental briefing order came down it became clear that that was a misunderstanding on our part which we apologize for but certainly the fact that the motion was denied suggested that this was not a proper issue for for briefing an argument I certainly understand your concerns regarding my misrepresentation and if I could address I'm sorry I don't know well that was nice of you to put it on the evenist I guess that your argument is that in this case it doesn't really make any difference to you because you think that you win if we look at the merits of these arguments what you might be worried about is the next case where there is a negligent misrepresentation by the government after there has been a written plea agreement accepted by the defendant and should the government the people United States if you will be put in be held against them where it would make a difference on the merits if there wasn't the and I think you're hoping there is not going to be a next case at least as far as you're coming well there won't be for me but yes your honours point is correct this is the reason why we have integration clauses because despite our best efforts occasionally mistakes are made but see I again I come back to the fact that you've said that if there had been reliance you wouldn't have relied on the integration clause well we just supposed to I mean I'm probably willing to defer to the United States attorney's office as much as anyone else but is this all within your discretion whether you're going to rely on her or not certainly seeking to enforce it is within our discretion and the reason why I say if there were detrimental reliance or a violation of fundamental rights that we wouldn't that we would stand by or our misstatement is because that's what the case law has suggested that's what would suggest that's what Martin suggests and those are very very different cases from what's here in Martin the the government said that the defendant had earned a 5k motion but they were going to wait for a rule 35b motion and that motion was improper and and the defendant was thereby deprived of something he was entitled to that's a very very different situation from this and in wood there were misstatements made at the time that guilty plea was entered about what exactly the defendant could challenge at sentencing so that is a very different case this is this case is more like the cases that we cite with respect to judicial misstatements regarding the waiver of appeal and I still certainly take judge King's point very seriously but but the effect on the defendants with respect to other reliance or were fundamental rights is is the same as if the judge had mispoken about the about these other posters still no con question as to when this plea was accepted does that matter to the it might in fact I believe that it would however in this case these pleas were accepted at the time of the rearrangements for my go for my second they were accepted at the plea proceeding at the docket at that time and that's reflected in the good and the judge said I accept the pleas of guilty yes and the plea agreement yes and and that would be contained in the transcripts I attached to our motion to dismiss exhibits a and b I don't have the specific page site but he certainly at the conclusion of those guilty plea hearings accepted their pleas of guilty let me with the few minutes that I have remaining let me address the the two substantive issues which if the court decides to consider them I think that they I think they're interesting points for clarification for our practice in the district court with respect to the 3E 1.1 issue with regard to the third level if this is not a case in which the government is not entitled to withhold the motion and I'm not sure that there's any case where the government could withhold the motion as early as February 7th of 2012 and this is in district court ECF number 79 I filed a letter with the district court stating that plea negotiations were not ongoing with that informant and that a plea with Michael appeared not imminent and in the context that was filed in the context of a speedy trial motion that had been challenged by Evan for me to say in the context of trying to get a speedy trial order that plea negotiations that's how far plea negotiations had fallen off in this case and it wasn't simply an issue of how much conduct Evan and Michael were willing to agree to it was a question of how much time they were willing to serve my initial plea offer to Evan forman was 25 years see plea and he could you know I certainly provided a statement of facts but if he had said I'll take the 25 but I'm not willing to admit to this and that then he would have been able to plea and we would have gone our way so it was not simply the conduct that was an issue it was the length of the sentence and as the court knows the plea agreement that we ultimately arrived at reflected just how difficult these negotiations were there was a provision if he is found to be a career offender a provision if he's not found to be a career offender these this was all the result of a protracted discussion and and he was never willing to admit I wouldn't even say that this is true relevant conduct I would say that this is part and parcel of the offense of conviction the conspiracy count one to which he pled guilty that his admission of guilt with respect to count one the conspiracy was not sufficient to permit the district court to impose a just punishment he was willing to admit that he conspired but he but he was unwilling to admit the scope of the conduct that would allow the district court to understand what a just punishment would be and that is why we had this this extended sentencing here and that lasted almost the entire day but he said a couple of months before the trial was going to be said well the timing of his actual plea in advance of trial doesn't necessarily reflect the amount of trial preparation that is my was her represent correct that he played a couple of months before the plea for the travelers again the trial was originally scheduled for September 10th well let me back up one step further there was a motions hearing in May and there was a motion for severance and after analyzing the evidence in the case to determine whether or not we could successfully proceed on a on a joint trial the government conceded that motion and agreed to a severance Michael forming was then set for trial September 10th and Evans trial was not scheduled until November Michael pled in July Evan pled in September so both of them pled two months before their trials few months before their trials however from May from May 15th until July 2nd when Michael form and pled I was preparing for two trials at that point and from July 2nd until September 13th when Evan form and pled I was preparing for Evan form and trials that was essentially four months of trial preparation that I was engaged in with respect to these defendants and that included interviewing witnesses it included issuing subpoenas it included obtaining new evidence in the form of phone records the agent in this case listened to literally hundreds of hours of jail calls and that's reflected in the sentencing transcript hundreds of hours of jail calls involving the defendants in order to obtain new evidence for trial and and so that work was all trial preparation and the fact that it wasn't ultimately used for a trial doesn't affect my determination that I had expended significant amounts of resources preparing for a trial because we could not reach a plea agreement and to their point that well they would have pled to you know they would have pled a year earlier had I been willing to accept what they were willing to plead to that's not how pleading negotiations were so you're so they get more time because they'd drive a hard bargain or they're all your drives a hard bargain well that's sort of what the adversary system is all about and they could have pled guilty at any time without a plea agreement they could have pledged right up that's right that's right or they could have pledged just to the counts that they wanted to plead to so you're taking the trial or the rest of that or not then it would have been my choice but they certainly would have been entitled to it would have been they would have been entitled to the acceptance of responsibility credit so I think that and if you look at divins this case isn't they aren't compelled to receive the third point by divins I don't think divins even truly supports their argument for a third point when you look at the cases cited favorably in that decision and I know the judge Mott's is very familiar with that decision but the BADD case cited favorably that is a case that deal almost entirely with the efforts that the government had to make at sentencing in order to resolve issues of factual dispute so I think that I think divins ultimately supports our position that that third level is not appropriate here and with respect to the burden of proof with respect to the prior convictions I think that this is if not settled law in this circuit certainly the case law strongly suggests that the burden not only of production but also proof is on the defendant when collaterally challenging a prior conviction in federal court not only does park V. Rayleigh cite approvingly a variety of decisions in which the entire burden is placed on the defendant but the Jones case out of the fourth circuit and then followed up by Honda in 2004 the court says that this is an especially difficult burden that the defendant bears that he has the burden of proving that the conviction was invalid that's from Honda and in Honda you're on or dissented on the facts of that case but even in your dissent you recognized that the burden of proof was on the defendant you said I recognize that the burden is on Honda to demonstrate that he was not aware of the dangers etc. I believe that he has made that burden improved by a clear preponderance of the evidence that the that his right to counsel was not effectuated there so even in dissent you're you're on it recognized that this is a burden for the defendant and the facts of this case don't support invalidating the convictions the robbery conviction from 1996 listed an attorney James Salkin present at the time of his guilty plea and there was an earlier reference that that entry is at joint appendix 204 at joint appendix 226 there was a reference from almost a year earlier of a letter from mr. Salkin to the clerk's office that was forwarded to the office of the public defender which indicates that that's the point at which mr. Salkin entered the case there be no reason for him to be referenced in the docket if you were simply stand in counsel so the the record on that in that case supports finding that the conviction was valid and where i'm sorry i'm over time um i have one question i wanted to ask you and i appreciate your discussion of the merits of these claims but i want to get back to a point that judge king made is that obviously without a concession by the government we're going to have to address the question of waiver and it may of course i'm not predicting how that's going to come out but given the unique circumstances of this case and you're and i appreciate your honest concession that you made a mistake here wouldn't it be appropriate that just king suggested to say under the unique circumstances of this case we're simply not going to rely on the waiver um and you also said that these issues present interesting points of law that might clarify our practice in merrill which might suggest that you might want us to reach the merits you know you have been jerked around by us on this you know first we denied it then we asked you for briefing on it then we asked you if you we could reach it so i would be in favor of letting you go back to your office and talk about whether or not you would be willing to to drop the waiver on my response was going to be i don't think that i have authority at this point above my pay you don't want to misrepresent it i'll give you some more advice then if you come down here again in one of these tough situations have authority okay that's the bike we need to be able to do whoever we have stand in there but in fairness we in this particular case we need to keep one thing one day and one thing the next day i can understand why you were there i appreciate that your honor and i will um maybe check with my office and send us a letter to the other side telling us what your position is with for going the waiver point absolutely thank you we're gonna have to wait for coming instructions on that argument but you can go ahead make your art useful thank you judge king my opponent is correct the judge did accept the play agreements at the guilty plea and i apologize for not knowing that pretty of course do it differently i mean we we've seen where they hold it off to the sentencing and prove the plea agreement the last minute and that's my home courts practice also judge uh if you'll look at the ja 294 the judge does make a statement after going through what the plea says about the appeal waiver all right that's for the record in light of that i think it's necessary then mr. morris to review the third conviction so there is some indication from the record at least that the judge did make some different decisions or go into some areas that perhaps he would not have without this uh indication prior to that discussion of what the appeal waiver said on j a 288 the district court does say for the court of appeals opd and merlin means office of public defender so there's a little bit of suggestion that the judge is conducted sentencing somewhat differently based upon the representations uh j a 293 also has what was said about the time or the repellent waivers in your plea agreement mr. morris i believe they're the standard turns i'd have to double check your honor mr. block it's the standard waiver of conviction that they have not waived the right to contest the court's sentencing determinations with respect to criminal history and talking again about the briefing issue candidly i thought the issue the appeal waiver is why you said it for our argument because i got the world argument notice immediately after the motion to dismiss in the response so as an advocate i was just surprised not to see it in the brief but i do understand that they made their motion uh turning back then to the three in 1.1 b issue the government says that the plea negotiations initially weren't focused on conduct but more on the time that he would get this or a fact you plead guilty to an office of conviction not a particular sentence in this case it's my position that evident michael were both willing to plead guilty to the conspiracy charge and count one and have it later but also to the 924c in count 11 of the third super seating indictment and that the conduct they pled guilty to enough because the 951 elements don't encompass any sort of admissions to specifically to conduct i mean you have to have a factual basis to get you through the plea colloquy but the 951 is a little bit more bloodless than that the elements of the offense so it's our position today that when he offered to plead to count one and to give enough to make it and 951 conspiracy a Hobbes act in spheresy did timely agree in a timely fashion to admit the offense truthfully admit the offense comprising the offense of conviction and as a result the speedy trial motions everything that continued to delay it were outside of his his can and he should have been given the 3 1.1 b reduction i'm out of time is any questions very much addressing the government's points with regard to the issue of whether michael foreman was was determined correctly to be a career offender the government discussed briefly park jones and hondo park of course is the controlling case in this case from the supreme court in that case the supreme court made it clear that they that it's fair to impose a burden of production on the defendant the court used that term production and it's holding and again in another instance in that decision so parks clearly stands for the proposition that a defendant has a burden of production it does not stand for the position that the government is advocating that the defendant further bears the burden of proof the jones and hondo decisions of this court are both distinguishable and the the distinctions are set forth in our reply brief but briefly and perhaps most importantly jones was decided before both park and custis and so i believe at the analysis and discussion in jones is in applicable after the park decision and custis decision came out further more jones was about uh... the issue there was the uh... ineffective assistance of council claim uh... hondo also is distinguishable and i want to make sure that i i mentioned that i would uh... the supplemental authority that i filed earlier this week when i became aware of it your sister circuit to the north the dc circuit in martina's crews addressed a situation that's directly on point with the contention of michael forment in that case uh... the defendant asserted that his plea was uncounseld the defendant produced objective evidence casting doubt on whether his plea was properly counseled he did not rely on a silent record he did not rely on self-serving testimony and under that limited set of circumstances the dc circuit held that the burden shifts to the government to prove by a preponderance of the evidence we believe that that analysis is the appropriate analysis for a situation like this the narrow circumstances just described and that under that analysis the court should find that michael forment was not a career offender and should remain for resettancing thank you very much um... we will come down and read the lawyers and then take a short break oh are you court appointed yes we appreciate your efforts we couldn't do these cases without the

here argument in our second case United States versus Mormon. A little bit of color in this dreadful way. I'm a University of Georgia Bulldog too. I can't help it. Good morning and may it please the court. My name is Amy Lee Copeland. I represent the appellant Evan Foreman with me today as my colleagues got Morris who represents the appellant Michael Foreman who is also Evan's brother. I will discuss today the issues of the appeal waiver and the 3.1 B claim and Mr. Morris will discuss his client's career fender designation. As an initial matter this court should decline to dismiss this appeal based upon the appeal waiver instead here its merits. In this case both defend and sign plea agreements that generally waived a sentencing appeal if their sentence fell within the guidelines range and the district court so advised him at the rule 11 hearing. But what happened in this case is that the sentencing hearing the district judge says to the parties. Can you tell me about this appeal waiver Mr. Morris first responds listen it's the standard appeal waiver as far as I can tell I can double check it if you would like and then the government says about this appeal waiver that listen judge the defendants can challenge whether you whether you the district judge incorrectly calculated the guidelines in order to arrive at that sentence. The judge even asked the prosecutor to clarify this does this go to our career fender determination yes it does this colloquy between the prosecutor and the district judge continues for about three or four questions and then the judge says then well then we need to take up some other issues and then it begins to address Mr. Michael Foreman's career fender guideline. It's our position this morning that those statements amounted to an oral modification and plea agreement you think the government can unilaterally change the plea agreement sure it's the draft unilaterally unilaterally without any agreement from you so the government could have said the plea agreement is would be more onerous to you and that would be all right you are that would have changed it well and you raise your hands so you so maybe you're right so maybe I don't want to do that but in this situation certainly the way the fourth orchestra it was a sentence it was a sentence and that's correct already you know he's plea had the plea been accepted you're on our I wish I could answer that confidently for you in my district they took the record show whether the plea had been accepted had the plea been accepted at the time of the plea or is the acceptance of the plea reserved till the sentencing procedure I believe it was accepted at the time of the plea but as I'm sitting here I will have an answer for you about that it would but a lot apologize for not being able to answer that to you now that might be that might be the the shoot match then yeah I think you're probably right about that judge King and I like I said I apologize for not know there's the whole there days maybe weeks go by between the time the plea is entered and that is correct your honor months I think is fair to say in this case but looking at this court's jurisprudence about plea agreements she can stir it against the government the drafter because it's not a typical deal between contracting parties of course it's more I hesitate to say it in he's you contract the government really does have greater bargaining power and in this case my clients I think are entitled to hear what the government says the government's interpretation of its own contract and at the sentencing hearing the government interpreted the contract in a way that it gives my clients the right to pursue this appeal on the merits and from a standpoint of having my client being able to trust what the government says I think that you all should hear it's a fill on the merits you know I'm just speaking personally and of course not on the record my client very much did listen to what the government said and and heard the government to say in this case that he could appeal and just from the PSI my client you'd already agreed he couldn't appeal and that at that point you know already entered into agreement now the question whether it's accepted but if he can appeal what if you got what kind of issues you got sure you know the issue that my client raises exclusively and Mr. Michael for me has a second issued just goes to this whole notion of 3.1 B acceptance of responsibility requires a timely notification of intent to plead thereby permitting the government to avoid preparing for trial and permitting the government the court to allocate their resources efficiently my client got arrested in June 2011 at that time he made a confession not to all 11 substantive acts and it eventually complain contained in the third superseding indictment but he admitted to a number of those acts the he tried to plead the negotiations continued throughout the case he in his attorney consented to force speedy trial act motions throughout the case the first two all of them were filed by the government the first two represented that plea negotiations were ongoing the second two talked about the government wanted to avoid preparation for trial or they had an extensive trial ahead and they would need to gear up the machinery at this case had not been resolved your honor my client continued to agree to those and eventually he and the government did strike a plea deal Michael Forman's plea agreement was about 12 months after he first became involved in the federal court proceedings Evan Foreman's pleading was about 15 months after he became involved in these federal how long before trial was your honor I believe that Evans was the later was about a couple months before trial three months maybe he was in August of 2011 trial was scheduled for November of 2011 I think it's significant that the docket sheet does not reflect that any any motions and limiting or dire request to charge anything of that nature had been filed on the docket by the time my client entered his guilty plea what strikes me particularly interesting is that page 153 of the joint appendix in arguing against this extra level of reduction for the Forman brothers the government makes this statement the majority of the conduct was charged in the third superciting indictment and is disputed by the defendants in fact the only conduct to which the defendants were willing to plead guilty was that to which they affirmatively confessed in post arrest statements multiple prior plea offers containing additional relevant conduct by the defendants were rejected so from reading this statement and as the fellow lawyer was not involved I think council's your man my man had I believe eleven substance he pleaded guilty to the conspiracy charge that in comp is guilty to want correct your honor is that what they wanted to do to begin your honor again I was not involved in these negotiations I get that judge you're the only one here answering questions I get that your honor and the record shows as I understand the record the conspiracy offer what was what was on the table plus a 924 C for my client got in that with the with the conspiracy ended up with the conspiracy and ended up with a 924 C you played guilty to the 924 C also he did yes they go to the two counts he did I thought you said to play the one count he played a play guilty to do a conspiracy count I'm sorry not any substantive Hobbes act and when you look at the the elements lead guilty to one count or two I'm sorry I'm he played guilty to two counts correct one count sorry one count was a substantive I was a conspiracy like guilty to two and at the beginning of the plea negotiations and they ask him to plead guilty to two that is my understanding from reading the record and the so the he played guilty there was no change in the and then from the beginning to the end as to what they wanted to complete it that is my understanding from reading the record he was willing to plead guilty to conspiracy to commit Hobbes act which doesn't require any plead guilty two or three months before the trial that is correct after it had been extended enough time he was specifically put to him if he understood that he was waving his right to give up your agreeing to give up your right to appeal any sentence you aren't that yes sir was that was part of the plea agreement and that was undertaken at the rule 11 college and he was expressly it wasn't even just in a written plea agreement he was asked the question by the district court yes you know the facts are what they are and I know but I want you to acknowledge the facts yes the facts are if you read the rule 11 transcript the district judge did go over the appeal waiver with it's pretty much negotiating details wanted to make sure that he understood the difference between the sentence if he were a career fender and the sentence if he were not deemed to be a career fender and that he'd given up his right to appeal you honor that is also part of what the rule 11 college was but then at the sentencing hearing when asked to explain the terms of that agreement the government then says that he can appeal the issue that he now raised what's the impact of the fact that the government didn't raise the appeal waiver in its opening brief your honor I think the rules are pretty clear that you have to raise all issues in contention in your opening brief what about is there is there some established law that you know about that if you raise it in a motion the court denies the motion that you have to rearray the candidly on our cannot find that law right to be perfectly honest with you that knows the fact we have here those those are the fact you know the the the government did in fact file a motion to dismiss raising this grant the government didn't raise it in their opening brief they raised it before that in the motion and they misrepresent the court what it's what the agreement say it about waiver correct that is correct your honor but that all kinds of twists and turns here it does your honor and then you and then the one you just want to raise that one issue that's it your honor is the three one point one B issue based on a client who would have pleaded to this early and agreed without opposition to all sorts of speeding trial motions thank you and I'll finally answer your question judge yeah no we appreciate it may please the court I'd like to address the issue of whether the district court aired when it concluded that my client Michael Foreman was a career offender and in this case the district court did air because it applied the wrong burden of proof and analyzing two of Michael Foreman's three credit convictions underlying that determination now he's got the same issue on the appeal waiver that we just argued yes you're identical yeah we have heard that identical issue and I did not put arguments that if you get past that you want to raise the the career offender and the acceptance responsibility yes your honor okay and I would rely on the comments of my esteemed colleague with regard to those first two issues that she's addressed Michael Foreman introduced substantial objective evidence from the court files with regard to both of the convictions that are at issue both of those prior convictions and that objective evidence cast serious doubt as to whether he was represented by council when he entered his guilty please to those counts in Baltimore City thus Michael Foreman met his burden of production by introducing objective evidence sufficient to support a reasonable inference that his pleas were unconsult however the district court aired by assigning Michael Foreman the ultimate burden of proof the district court should have assigned the burden of proof to the government and required the government to show by preponderance of the evidence that the pleas were in fact counseled even when in fact we are supposed to apply a strong presumption of regularity to these records that suggest that the only this is on your client to show other ones your honor is clear from the park decision by the Supreme Court and other other decisions of this court that there is a presumption of regularity that attaches to final judgments the applying to the defendant a burden of production does not undermine and in fact supports the presumption of regularity the presumption of regularity assumes that the underlying conviction is valid until the defendant comes forward with some objective evidence to show otherwise but once the defendant has come forward with something other than a silent record other than his own self-serving statements but comes forward with objective evidence that then satisfies that burden of production which overcomes the presumption of regularity and at that point under circumstances like we have here where the defendant's claim is that he was on his plea was unconsulted then the burden should shift to the government to show by preponderance of the evidence that the guilty plea was counseled so we're not arguing against the presumption of regularity we believe that applying a burden of production takes into account that that presumption of regularity if the district court had applied the correct burden I believe the record is clear that the government would not have met its burden and the district court would have then found that the two prior convictions could not be counted for sentence and guideline purposes and thus that Michael Foreman was not a career offender and this would have had a dramatic effect on the advisory guideline range that would have been applicable to Michael Foreman. As the court found it his advisory guidelines as a career offender were the range between 151 to 188 months whereas if he were not a career offender and those convictions were not counted against him then his guideline range would have been in the range of 51 to 63 months so a difference of more than 12 years down to a sentencing range more in the realm of five years of course the district court in this case said that even if there was a mistake that it would have applied would have entered the same sentence suggesting that any error in this case was harmless how do we deal with that? Yes, Your Honor but as the courts aware the the harmless error rule has two aspects to it and we believe that the second prong is not satisfied that is that the resulting sentence would have to be reasonable despite the error and we submit that it would be patentally unreasonable for the court for a court a district court to impose a sentence of 12 years on a defendant whose sentence and guideline range was more in the range of five years. Personally I'm not familiar with or aware of any decision in the district of Maryland where a judge would have made such a dramatic change from the advisory guideline range typically judges stick pretty close to the guidelines if there's a departure it's often downward even a slight upward departure would be somewhat unusual but in the district of Maryland and perhaps through this circuit but you would know better but I would argue that an upward variance going from a five-year range up to a 12-year range would be unreasonable and I would further argue that it would be patentally unreasonable for the district court in this particular case if the court remains for the court to impose the exact same sentence if in fact this court's determination is that as a result of playing park that Mr. Foreman is not a career offender. Thank you. Good morning. Good morning. Good luck first. I want to credit you for coming yourself. Thank you Your Honor. These self-inflicted wounds are the worst. They are. We're certainly here today because I made a mistake at at sentencing and as much as AUSA strive to be perfect in their representations to the court sometimes mistakes are made and the question here with respect to the waiver is what should the effect of my mistake at the sentencing hearing B and I would submit to the court that there should be no effect with respect to the plea agreement because of the specific circumstances here. So we let lawyers negligently misrepresent facts to the court willy nilly. I certainly wouldn't go so far in our former United States attorney and those are the people as you may know from the district of Maryland that hold the United States attorney's office to their highest best and I certainly want respect back. I think it was a rule out of plot every lawyer. If a judge asked a question here this court room or in Maryland or anywhere else the judge expects to get the straight scoop from the lawyer and I'm not asking any expertions on you intentionally that you intentionally mislead the judge but if you don't know the answer you don't you say you don't know we do that you did that all the time and when need be sure. Sir Your Honor. But when you make representations to the judge they got to be accurate and we all agree with that absolutely and if it if it's a situation like this. So he's made a simple solution for the government would be and would offend when it came up here we're not going to seek to enforce the leeway because he he agreed to it and we mistakenly misled the court at the sensing proceeding as to what it provided so we're willing to litigate the issues on the merits and let the sheriff fall. Well 98% of the time when you come up here you win anyway. Certainly that was one option but and certainly had I made this mistake at the time of the agreement I would not be here asking for this case to be dismissed there's no question about that and certainly if the mistake at sentencing had been one that was to the detriment of the defendants I would not be here asking for my statement to be ignored but in this particular case this was not a situation in which there was detrimental reliance by the defendants at the time that they entered the plea there was not even I don't think the record shows any detrimental reliance by the district court based on my statement in making his sentencing finding there and frankly I think it would be improper for him to take into account whether or not his decision was appealable in making his ruling his obligation is to make the best finding that he can and there's nothing in the record that would suggest that he did otherwise. The district court have written waivers in front of him to sound like from my reading of the record he was relying on you to tell him what the way he certainly he certainly had them at the at the time the pleas were entered I'm not sure he certainly must not have been looking at them at the time he asked me the question and frankly neither was I and that was my mistake but is the provision sort of unusual the no appeal no this is the standard and in fact both Mr. Morris and myself are initial response to Judge Boudard was it's the standard way of her appeal and then they were follow up questions and that's where I misspoke I'm sorry I'm not my question was not clear was the the the actual thing that exists the norm or was what you told the district court the norm the actual provision in the plea agreement written paragraph in the plea agreement is the norm is the norm what I said was not the norm right and frankly there were this plea negotiation was was protected and I'll talk about that a little bit with respect to the the acceptance of responsibility point but there is a presumption in this case or presumption in this in this circuit that written appellate waivers are to be enforced and there and there is an integration clause in these plea agreements paragraph 14 of Michael Foreman's agreement at joint appendix 2018 paragraph 16 of Evan Foreman's agreement at joint appendix 139 that say these agreements cannot be changed without a writing signed by both parties and to and to permit an oral modification here where that were the mistake did not harm or cause prejudice to the defendants anyway basically renders integration clauses in plea agreements well but your concession which you know good for you where you said that there had been detrimental reliance you wouldn't be making this argument that would seem to be contrary to the integration clause as well if there'd been an oral representation by the government upon which the court or the parties had rely right it would but that's the situation where fundamental fairness and due process may trump the integration clause but there isn't that here and indeed the detrimental reliance case from this circuit which is would that's really a plea colloquy but why do we need the detrimental reliance in a situation like this why wouldn't we just sanction the government or a situation like it or sanction whichever side it comes from where a lawyer misrepresident negligently misrepresents the court if the lawyer intensely misrepresents I think it's probably a disbarment offense we don't have that here but if you but if the lawyer negligently misrepresents to the court we can't have that either it just had it off at the past kind that's certainly an option for to get however no worry about any of these other things you just say we're not going to pay attention to this this thing you can go right on to the merits of the case and here you didn't even raise it in your in your first pill brief anyway well and you got the argument well we raised it in a motion which was denied so we didn't think we had to raise it anymore it was less that we didn't think we had to raise it and more that we thought that the issue had been resolved against us and and at that point we didn't see the need to believe or an issue that the court had ruled on when the supplemental briefing order came down it became clear that that was a misunderstanding on our part which we apologize for but certainly the fact that the motion was denied suggested that this was not a proper issue for for briefing an argument I certainly understand your concerns regarding my misrepresentation and if I could address I'm sorry I don't know well that was nice of you to put it on the evenist I guess that your argument is that in this case it doesn't really make any difference to you because you think that you win if we look at the merits of these arguments what you might be worried about is the next case where there is a negligent misrepresentation by the government after there has been a written plea agreement accepted by the defendant and should the government the people United States if you will be put in be held against them where it would make a difference on the merits if there wasn't the and I think you're hoping there is not going to be a next case at least as far as you're coming well there won't be for me but yes your honours point is correct this is the reason why we have integration clauses because despite our best efforts occasionally mistakes are made but see I again I come back to the fact that you've said that if there had been reliance you wouldn't have relied on the integration clause well we just supposed to I mean I'm probably willing to defer to the United States attorney's office as much as anyone else but is this all within your discretion whether you're going to rely on her or not certainly seeking to enforce it is within our discretion and the reason why I say if there were detrimental reliance or a violation of fundamental rights that we wouldn't that we would stand by or our misstatement is because that's what the case law has suggested that's what would suggest that's what Martin suggests and those are very very different cases from what's here in Martin the the government said that the defendant had earned a 5k motion but they were going to wait for a rule 35b motion and that motion was improper and and the defendant was thereby deprived of something he was entitled to that's a very very different situation from this and in wood there were misstatements made at the time that guilty plea was entered about what exactly the defendant could challenge at sentencing so that is a very different case this is this case is more like the cases that we cite with respect to judicial misstatements regarding the waiver of appeal and I still certainly take judge King's point very seriously but but the effect on the defendants with respect to other reliance or were fundamental rights is is the same as if the judge had mispoken about the about these other posters still no con question as to when this plea was accepted does that matter to the it might in fact I believe that it would however in this case these pleas were accepted at the time of the rearrangements for my go for my second they were accepted at the plea proceeding at the docket at that time and that's reflected in the good and the judge said I accept the pleas of guilty yes and the plea agreement yes and and that would be contained in the transcripts I attached to our motion to dismiss exhibits a and b I don't have the specific page site but he certainly at the conclusion of those guilty plea hearings accepted their pleas of guilty let me with the few minutes that I have remaining let me address the the two substantive issues which if the court decides to consider them I think that they I think they're interesting points for clarification for our practice in the district court with respect to the 3E 1.1 issue with regard to the third level if this is not a case in which the government is not entitled to withhold the motion and I'm not sure that there's any case where the government could withhold the motion as early as February 7th of 2012 and this is in district court ECF number 79 I filed a letter with the district court stating that plea negotiations were not ongoing with that informant and that a plea with Michael appeared not imminent and in the context that was filed in the context of a speedy trial motion that had been challenged by Evan for me to say in the context of trying to get a speedy trial order that plea negotiations that's how far plea negotiations had fallen off in this case and it wasn't simply an issue of how much conduct Evan and Michael were willing to agree to it was a question of how much time they were willing to serve my initial plea offer to Evan forman was 25 years see plea and he could you know I certainly provided a statement of facts but if he had said I'll take the 25 but I'm not willing to admit to this and that then he would have been able to plea and we would have gone our way so it was not simply the conduct that was an issue it was the length of the sentence and as the court knows the plea agreement that we ultimately arrived at reflected just how difficult these negotiations were there was a provision if he is found to be a career offender a provision if he's not found to be a career offender these this was all the result of a protracted discussion and and he was never willing to admit I wouldn't even say that this is true relevant conduct I would say that this is part and parcel of the offense of conviction the conspiracy count one to which he pled guilty that his admission of guilt with respect to count one the conspiracy was not sufficient to permit the district court to impose a just punishment he was willing to admit that he conspired but he but he was unwilling to admit the scope of the conduct that would allow the district court to understand what a just punishment would be and that is why we had this this extended sentencing here and that lasted almost the entire day but he said a couple of months before the trial was going to be said well the timing of his actual plea in advance of trial doesn't necessarily reflect the amount of trial preparation that is my was her represent correct that he played a couple of months before the plea for the travelers again the trial was originally scheduled for September 10th well let me back up one step further there was a motions hearing in May and there was a motion for severance and after analyzing the evidence in the case to determine whether or not we could successfully proceed on a on a joint trial the government conceded that motion and agreed to a severance Michael forming was then set for trial September 10th and Evans trial was not scheduled until November Michael pled in July Evan pled in September so both of them pled two months before their trials few months before their trials however from May from May 15th until July 2nd when Michael form and pled I was preparing for two trials at that point and from July 2nd until September 13th when Evan form and pled I was preparing for Evan form and trials that was essentially four months of trial preparation that I was engaged in with respect to these defendants and that included interviewing witnesses it included issuing subpoenas it included obtaining new evidence in the form of phone records the agent in this case listened to literally hundreds of hours of jail calls and that's reflected in the sentencing transcript hundreds of hours of jail calls involving the defendants in order to obtain new evidence for trial and and so that work was all trial preparation and the fact that it wasn't ultimately used for a trial doesn't affect my determination that I had expended significant amounts of resources preparing for a trial because we could not reach a plea agreement and to their point that well they would have pled to you know they would have pled a year earlier had I been willing to accept what they were willing to plead to that's not how pleading negotiations were so you're so they get more time because they'd drive a hard bargain or they're all your drives a hard bargain well that's sort of what the adversary system is all about and they could have pled guilty at any time without a plea agreement they could have pledged right up that's right that's right or they could have pledged just to the counts that they wanted to plead to so you're taking the trial or the rest of that or not then it would have been my choice but they certainly would have been entitled to it would have been they would have been entitled to the acceptance of responsibility credit so I think that and if you look at divins this case isn't they aren't compelled to receive the third point by divins I don't think divins even truly supports their argument for a third point when you look at the cases cited favorably in that decision and I know the judge Mott's is very familiar with that decision but the BADD case cited favorably that is a case that deal almost entirely with the efforts that the government had to make at sentencing in order to resolve issues of factual dispute so I think that I think divins ultimately supports our position that that third level is not appropriate here and with respect to the burden of proof with respect to the prior convictions I think that this is if not settled law in this circuit certainly the case law strongly suggests that the burden not only of production but also proof is on the defendant when collaterally challenging a prior conviction in federal court not only does park V. Rayleigh cite approvingly a variety of decisions in which the entire burden is placed on the defendant but the Jones case out of the fourth circuit and then followed up by Honda in 2004 the court says that this is an especially difficult burden that the defendant bears that he has the burden of proving that the conviction was invalid that's from Honda and in Honda you're on or dissented on the facts of that case but even in your dissent you recognized that the burden of proof was on the defendant you said I recognize that the burden is on Honda to demonstrate that he was not aware of the dangers etc. I believe that he has made that burden improved by a clear preponderance of the evidence that the that his right to counsel was not effectuated there so even in dissent you're you're on it recognized that this is a burden for the defendant and the facts of this case don't support invalidating the convictions the robbery conviction from 1996 listed an attorney James Salkin present at the time of his guilty plea and there was an earlier reference that that entry is at joint appendix 204 at joint appendix 226 there was a reference from almost a year earlier of a letter from mr. Salkin to the clerk's office that was forwarded to the office of the public defender which indicates that that's the point at which mr. Salkin entered the case there be no reason for him to be referenced in the docket if you were simply stand in counsel so the the record on that in that case supports finding that the conviction was valid and where i'm sorry i'm over time um i have one question i wanted to ask you and i appreciate your discussion of the merits of these claims but i want to get back to a point that judge king made is that obviously without a concession by the government we're going to have to address the question of waiver and it may of course i'm not predicting how that's going to come out but given the unique circumstances of this case and you're and i appreciate your honest concession that you made a mistake here wouldn't it be appropriate that just king suggested to say under the unique circumstances of this case we're simply not going to rely on the waiver um and you also said that these issues present interesting points of law that might clarify our practice in merrill which might suggest that you might want us to reach the merits you know you have been jerked around by us on this you know first we denied it then we asked you for briefing on it then we asked you if you we could reach it so i would be in favor of letting you go back to your office and talk about whether or not you would be willing to to drop the waiver on my response was going to be i don't think that i have authority at this point above my pay you don't want to misrepresent it i'll give you some more advice then if you come down here again in one of these tough situations have authority okay that's the bike we need to be able to do whoever we have stand in there but in fairness we in this particular case we need to keep one thing one day and one thing the next day i can understand why you were there i appreciate that your honor and i will um maybe check with my office and send us a letter to the other side telling us what your position is with for going the waiver point absolutely thank you we're gonna have to wait for coming instructions on that argument but you can go ahead make your art useful thank you judge king my opponent is correct the judge did accept the play agreements at the guilty plea and i apologize for not knowing that pretty of course do it differently i mean we we've seen where they hold it off to the sentencing and prove the plea agreement the last minute and that's my home courts practice also judge uh if you'll look at the ja 294 the judge does make a statement after going through what the plea says about the appeal waiver all right that's for the record in light of that i think it's necessary then mr. morris to review the third conviction so there is some indication from the record at least that the judge did make some different decisions or go into some areas that perhaps he would not have without this uh indication prior to that discussion of what the appeal waiver said on j a 288 the district court does say for the court of appeals opd and merlin means office of public defender so there's a little bit of suggestion that the judge is conducted sentencing somewhat differently based upon the representations uh j a 293 also has what was said about the time or the repellent waivers in your plea agreement mr. morris i believe they're the standard turns i'd have to double check your honor mr. block it's the standard waiver of conviction that they have not waived the right to contest the court's sentencing determinations with respect to criminal history and talking again about the briefing issue candidly i thought the issue the appeal waiver is why you said it for our argument because i got the world argument notice immediately after the motion to dismiss in the response so as an advocate i was just surprised not to see it in the brief but i do understand that they made their motion uh turning back then to the three in 1.1 b issue the government says that the plea negotiations initially weren't focused on conduct but more on the time that he would get this or a fact you plead guilty to an office of conviction not a particular sentence in this case it's my position that evident michael were both willing to plead guilty to the conspiracy charge and count one and have it later but also to the 924c in count 11 of the third super seating indictment and that the conduct they pled guilty to enough because the 951 elements don't encompass any sort of admissions to specifically to conduct i mean you have to have a factual basis to get you through the plea colloquy but the 951 is a little bit more bloodless than that the elements of the offense so it's our position today that when he offered to plead to count one and to give enough to make it and 951 conspiracy a Hobbes act in spheresy did timely agree in a timely fashion to admit the offense truthfully admit the offense comprising the offense of conviction and as a result the speedy trial motions everything that continued to delay it were outside of his his can and he should have been given the 3 1.1 b reduction i'm out of time is any questions very much addressing the government's points with regard to the issue of whether michael foreman was was determined correctly to be a career offender the government discussed briefly park jones and hondo park of course is the controlling case in this case from the supreme court in that case the supreme court made it clear that they that it's fair to impose a burden of production on the defendant the court used that term production and it's holding and again in another instance in that decision so parks clearly stands for the proposition that a defendant has a burden of production it does not stand for the position that the government is advocating that the defendant further bears the burden of proof the jones and hondo decisions of this court are both distinguishable and the the distinctions are set forth in our reply brief but briefly and perhaps most importantly jones was decided before both park and custis and so i believe at the analysis and discussion in jones is in applicable after the park decision and custis decision came out further more jones was about uh... the issue there was the uh... ineffective assistance of council claim uh... hondo also is distinguishable and i want to make sure that i i mentioned that i would uh... the supplemental authority that i filed earlier this week when i became aware of it your sister circuit to the north the dc circuit in martina's crews addressed a situation that's directly on point with the contention of michael forment in that case uh... the defendant asserted that his plea was uncounseld the defendant produced objective evidence casting doubt on whether his plea was properly counseled he did not rely on a silent record he did not rely on self-serving testimony and under that limited set of circumstances the dc circuit held that the burden shifts to the government to prove by a preponderance of the evidence we believe that that analysis is the appropriate analysis for a situation like this the narrow circumstances just described and that under that analysis the court should find that michael forment was not a career offender and should remain for resettancing thank you very much um... we will come down and read the lawyers and then take a short break oh are you court appointed yes we appreciate your efforts we couldn't do these cases without th