[00:00:05] Speaker 04:
Good morning.

[00:00:11] Speaker 03:
Ken Miller on behalf of Amir Gulshan, and may it please the court.

[00:00:17] Speaker 03:
Mr. Gulshan did not receive a fair sentencing hearing.

[00:00:23] Speaker 03:
Defense counsel noted his need for more time in a stipulation to which the government agreed an ex-party application

[00:00:30] Speaker 03:
And then he repeated it in his sentencing position.

[00:00:34] Speaker 00:
Okay.

[00:00:35] Speaker 00:
I've been a, we've all been judges at different levels.

[00:00:39] Speaker 00:
So when lawyers come in and say, well, we agree that we should continue this 60 days, you know, judges kind of say, well, okay, that's fine that there's no objection or that you agree, but I manage my calendar and I'm deciding.

[00:00:53] Speaker 00:
So my question is, just because the other side agreed that you could have that continuance, I don't think that entirely focuses this.

[00:01:02] Speaker 00:
So what I would like to hear is you submitted the first draft of Dr. Phillips' report along with your sentencing memorandum on November 21st.

[00:01:12] Speaker 00:
I took a look at the report.

[00:01:15] Speaker 00:
What would have been different in the second draft of Dr. Phillips' report if the court granted your continuance request?

[00:01:23] Speaker 03:
I don't know, because... Well, don't you have to make some sort of proffer?

[00:01:28] Speaker 03:
Well, yes, Your Honor.

[00:01:29] Speaker 03:
What they would have done was establish the connection between the mental health issues and the childhood abuse and the crimes.

[00:01:36] Speaker 03:
As I put in my brief, I believe it's self-evident.

[00:01:39] Speaker 03:
And I believe it's even in the first draft.

[00:01:41] Speaker 01:
Well, it is.

[00:01:42] Speaker 01:
It is in the first draft.

[00:01:43] Speaker 01:
Yes.

[00:01:43] Speaker 01:
And the judge, or the first draft.

[00:01:45] Speaker 01:
It's an 11-page report.

[00:01:48] Speaker 01:
And the judge looked at it and took it into account, didn't give the sentence you wanted.

[00:01:54] Speaker 01:
So I'm trying to figure out, as Judge Cowan is asking,

[00:01:59] Speaker 01:
How can we find that the result would have been different had he gotten a more fulsome report saying exactly the same things that the preliminary report said?

[00:02:11] Speaker 03:
I think, well, I don't know that it would have said the same thing.

[00:02:14] Speaker 03:
I think that this was a first draft.

[00:02:17] Speaker 01:
It was.

[00:02:18] Speaker 01:
But you didn't make any, at the time when the judge said no, you didn't say, well, here's what a more

[00:02:25] Speaker 01:
Here's my witness.

[00:02:27] Speaker 01:
He's going to take the stand and tell you what the next report would say or what more it would say.

[00:02:32] Speaker 01:
So that we were left with not knowing what it was that you were prevented from presenting, other than your quite informed speculation that it might have been better than what he presented.

[00:02:50] Speaker 03:
It was presented, but it was a first draft.

[00:02:53] Speaker 03:
It was done on an expedited basis.

[00:02:55] Speaker 03:
The timing was something like the court denied the continuance on November 15.

[00:03:01] Speaker 03:
The trial counsel received the report on November 17, filed a sentencing position four days later, and then there was a sentencing.

[00:03:12] Speaker 03:
At that point.

[00:03:13] Speaker 00:
But he entered a plea in July, right?

[00:03:16] Speaker 00:
Yes.

[00:03:18] Speaker 00:
You've been working on that since July, and the sentencing was November what, 21st?

[00:03:24] Speaker 00:
Yes.

[00:03:25] Speaker 00:
Just for the record.

[00:03:26] Speaker 00:
No, what was it?

[00:03:28] Speaker 00:
It was the 27th.

[00:03:29] Speaker 03:
November 27th was the sentencing.

[00:03:32] Speaker 03:
I wasn't counseled though.

[00:03:33] Speaker 03:
Just so we're clear, but I've reviewed the record.

[00:03:37] Speaker 03:
He is getting jammed.

[00:03:39] Speaker 03:
And I've never been a judge, but I've been a lawyer.

[00:03:41] Speaker 03:
And you request a continuance with a stipulation.

[00:03:44] Speaker 03:
You request another continuance, and it gets denied.

[00:03:47] Speaker 03:
It's time to suit up.

[00:03:48] Speaker 03:
You just have to go.

[00:03:49] Speaker 01:
But the fact that it was stipulated to is not enough for us to reverse.

[00:03:54] Speaker 01:
I appreciate that that is not enough.

[00:03:56] Speaker 01:
So you have to have some prejudice from the absence of the continuance.

[00:04:01] Speaker 01:
Let me finish.

[00:04:02] Speaker 01:
You can respond.

[00:04:03] Speaker 01:
And so I'm still trying to figure out, the judge got a preliminary report that actually urged what you're now urging.

[00:04:12] Speaker 01:
These crimes were all caused by things that occurred to him previously in life.

[00:04:18] Speaker 01:
And the judge said, OK, I've looked at it.

[00:04:21] Speaker 01:
I'm not going to give the sentence you want based on it.

[00:04:26] Speaker 01:
And you're saying, well, he was prejudiced, and I'm trying to figure out how I can determine that, other than by simply saying denying the continuance when it was stipulated to is an abuse of discretion.

[00:04:41] Speaker 03:
The stipulation is just the other side thought it was reasonable.

[00:04:44] Speaker 03:
Then there's the next party where he explains it in greater detail.

[00:04:47] Speaker 03:
Let me switch to the fact that probation never even got to review this.

[00:04:50] Speaker 03:
They never considered it.

[00:04:52] Speaker 04:
Probation was the driving force between- Why did they not get a draft?

[00:04:57] Speaker 03:
I do not know, but it was not discussed in the pre-sentence report.

[00:05:01] Speaker 03:
It was not considered in the addendums that they were submitting.

[00:05:05] Speaker 03:
It was a very high-level statement that he does have these issues, but probation didn't have it.

[00:05:11] Speaker 03:
And that would have been, that went right to probation's issues.

[00:05:17] Speaker 03:
If you look at talking about the bail hearing and everything that, these misstatements at the bail hearing,

[00:05:26] Speaker 03:
The mental health issues were all over that.

[00:05:29] Speaker 03:
ER-186, he has bipolar.

[00:05:31] Speaker 03:
ER-194, he was depressed.

[00:05:34] Speaker 03:
ER-196, he's been on meds now and he's doing better.

[00:05:38] Speaker 03:
Because probation and pretrial are now one combined organization, it seemed to me that the fact that pretrial didn't like him really worked its way into probation not liking him.

[00:05:49] Speaker 03:
Probation needed this information because it goes directly to what their concerns are.

[00:05:54] Speaker 03:
The inability to be an accurate historian is a byproduct of mental health issues.

[00:06:01] Speaker 03:
And they were just going past each other.

[00:06:04] Speaker 03:
Everything that Mr. Golshan did was viewed in the absolute worst light.

[00:06:10] Speaker 03:
And that, you know, he did a lot of bad stuff.

[00:06:12] Speaker 03:
And I understand that.

[00:06:14] Speaker 03:
But the proceeding has to be fair, and the parties that make up these decisions have to be informed.

[00:06:20] Speaker 00:
Okay.

[00:06:21] Speaker 00:
Dr. Phillips evaluated Mr. Golshan on September 8th, I think is what I have.

[00:06:27] Speaker 00:
Did anyone check in with him for seven weeks between then and November 1st to see how he was progressing in his report?

[00:06:34] Speaker 03:
I do not know if anybody checked in between those dates.

[00:06:37] Speaker 03:
I know that when they checked in on November 1st, he said, I'm really busy, and I haven't been able to get it done.

[00:06:43] Speaker 03:
And so Mr. Eisner, you're going to need more time.

[00:06:48] Speaker 03:
Mr. Eisner said that he started that right after the change of plea.

[00:06:52] Speaker 03:
He started the process.

[00:06:54] Speaker 03:
And that's going to be in his ex parte application to continue.

[00:06:58] Speaker 03:
And then he also talks about it in the sentencing position when he says,

[00:07:03] Speaker 03:
I mean, he goes to lengths to say, this is only a draft, and it was expedited.

[00:07:12] Speaker 03:
And probation, he hasn't even had the opportunity to consider it, Judge.

[00:07:18] Speaker 03:
And in this case, that's really important, because probation was really important.

[00:07:22] Speaker 03:
Probation made the 96-month recommendation.

[00:07:25] Speaker 03:
They have the two-year upward variance, which was, what is that, was a year

[00:07:31] Speaker 03:
or two years longer than the government's requested upward variance.

[00:07:35] Speaker 03:
And they had experience with Mr. Golshan that made them an adversary.

[00:07:42] Speaker 03:
And I tried to lay out in the brief what I thought was unfair about the PSR in this case.

[00:07:50] Speaker 03:
I'm reading that, and it looked like they were just going after him.

[00:07:55] Speaker 03:
Every little possible inconsistency.

[00:07:58] Speaker 00:
I think that just trying to see what was before, there were words like it was unusually cruel, and the report does say he was bullied, that he moved around a lot and talked about his growing up and why, but there was a lot of money involved, but there was the cruelty of these

[00:08:21] Speaker 00:
young women that he took over their Instagram and then held them hostage.

[00:08:29] Speaker 00:
And there's some pretty aggravating facts in terms of that he threatened their children, made them take off their clothes, that he masturbated looking at just so that they could get their, they needed their Instagram in order to make money because they were influencers.

[00:08:47] Speaker 00:
you know sometimes it's like you can have all the mental problems in the world and or you can have had the bad life and we see these cases all the time but still people say well but not everyone that has all these problems commits a capital murder not everyone that has all these problems you know does the acts I mean this was kind of the factually a bit unusual and I've seen a lot of criminal cases in all my years

[00:09:16] Speaker 00:
And I think that's what, when you're looking at prejudice, he has problems.

[00:09:23] Speaker 00:
But the problems don't always say you would not have committed these crimes if you didn't have these problems.

[00:09:30] Speaker 03:
And that's the- But I understand that, Your Honor.

[00:09:33] Speaker 03:
And it's mitigation.

[00:09:35] Speaker 03:
It's not a complete excuse.

[00:09:36] Speaker 03:
But the point that I just want to make is that the process has to be fair.

[00:09:41] Speaker 03:
You come into a hard case.

[00:09:42] Speaker 03:
You've got a hard client.

[00:09:43] Speaker 03:
Really bad things have happened.

[00:09:46] Speaker 03:
as a defense attorney, you have to put the best foot forward.

[00:09:50] Speaker 03:
And defense counsel in this case was not allowed to do that.

[00:09:53] Speaker 03:
And so the process was fundamentally unfair.

[00:09:57] Speaker 03:
And because of that, you can't rely on the outcome.

[00:10:00] Speaker 03:
And saying things like, you know, you don't deserve, I'm going to treat you basically, I'm paraphrasing.

[00:10:07] Speaker 03:
I'm going to treat you the same way you treated your client, the victims.

[00:10:12] Speaker 03:
You know, the defendant's a criminal.

[00:10:14] Speaker 03:
The judge is a federal judge.

[00:10:16] Speaker 03:
You don't get to treat people the same way.

[00:10:19] Speaker 03:
And so I'm just saying, in summary, this process, I submit, was unfair.

[00:10:26] Speaker 03:
I think we understand your argument.

[00:10:28] Speaker 04:
Thank you.

[00:10:29] Speaker 04:
Thank you, counsel.

[00:10:36] Speaker 04:
Mr. Roach.

[00:10:42] Speaker 02:
Good morning, Your Honours.

[00:10:44] Speaker 02:
Andrew Roach on behalf of Appellee United States.

[00:10:48] Speaker 02:
May it please the court.

[00:10:50] Speaker 02:
Your Honours, the defendant had a fair sentencing.

[00:10:53] Speaker 02:
I want to address the issue of the continuance, first of all.

[00:10:56] Speaker 00:
Well, I think that it's not supposed to be arbitrary, right?

[00:11:01] Speaker 00:
Correct.

[00:11:02] Speaker 00:
And the record's a little bit, you know, making the best argument for your friend on the other side.

[00:11:08] Speaker 00:
There's not a lot of explanation about why the continuance wasn't granted, so we sort of have to look at everything in the record to see if it was reasonable.

[00:11:19] Speaker 00:
Because the judge didn't make any, there was some email or something, there was a copy of an email exchange that defense counsel said the parties exchanged with the courtroom deputy, that Judge Wright was denying all continuance requests regardless of the request merits.

[00:11:39] Speaker 02:
Yes, yes, there was an email conversation between the courtroom deputy clerk and defense counsel after the first stipulation was denied.

[00:11:49] Speaker 01:
So what reason did the judge give for denying the continuance?

[00:11:52] Speaker 02:
Well, the judge gave no official reason.

[00:11:54] Speaker 01:
No reason at all.

[00:11:55] Speaker 01:
He didn't give an unofficial reason either.

[00:11:57] Speaker 02:
Correct, but if one credits defense argument that the courtroom deputy clerk was speaking on behalf of the judge.

[00:12:05] Speaker 01:
Okay, so let's assume the judge had a policy.

[00:12:08] Speaker 01:
of no continuances whatsoever for any reason, which is what the courtroom deputy said.

[00:12:14] Speaker 01:
Isn't that an arbitrary and capricious policy?

[00:12:17] Speaker 02:
That might be, but that is not sufficient to find that that is abusive discretion.

[00:12:23] Speaker 01:
I know the government's not to blame here.

[00:12:24] Speaker 01:
This is the rare case where

[00:12:26] Speaker 01:
where the defense is not arguing that the government did something wrong.

[00:12:30] Speaker 01:
They're arguing that the judge did something wrong.

[00:12:32] Speaker 01:
You all stipulated for the continuance.

[00:12:34] Speaker 01:
And the ex-party motion says, I just need another month or two months.

[00:12:38] Speaker 01:
It's sometime into January to get this done.

[00:12:41] Speaker 01:
I think it said, we'll have it done by the middle or end of January.

[00:12:45] Speaker 01:
And it would be useful for a judge to see the complete report.

[00:12:50] Speaker 01:
And whether or not it prejudiced him is a separate issue, but we got this problem here.

[00:12:56] Speaker 01:
If a judge comes in and says, I don't care how compelling the excuse is, I'm going to deny all continuances because I'm not a continuance person.

[00:13:07] Speaker 01:
Isn't that an arbitrary and capricious policy?

[00:13:09] Speaker 02:
I don't think so, Your Honor.

[00:13:10] Speaker 02:
So first of all, the Garrett case talks about that the court has discretion to consider the congestion of its calendar.

[00:13:17] Speaker 04:
Right, but here there's no discretion being exercised.

[00:13:22] Speaker 04:
Yes, he does.

[00:13:22] Speaker 04:
Yes, you can manage your calendar.

[00:13:27] Speaker 04:
But where you don't exercise any discretion, you're just saying in all cases, you're not exercising discretion.

[00:13:36] Speaker 02:
Well, your honor, we really don't know.

[00:13:37] Speaker 01:
So that's a problem.

[00:13:39] Speaker 02:
We don't.

[00:13:40] Speaker 02:
Well, I didn't.

[00:13:40] Speaker 02:
I go back to my point really for this court to find that it was abusive discretion.

[00:13:45] Speaker 02:
Defendant still has to show that he was prejudice at this point.

[00:13:50] Speaker 02:
Defendant

[00:13:51] Speaker 02:
fails to do that.

[00:13:53] Speaker 02:
At its core, what he claims is that he needed additional time for his psychologist report.

[00:14:02] Speaker 02:
But the psychologist report made all the arguments that he wanted.

[00:14:07] Speaker 00:
The psychologist report- Wasn't it a question of a first and a second draft, as it were?

[00:14:13] Speaker 02:
Defense counsel argues that, but again, I think it's unclear what more the second draft would say, and the district court

[00:14:20] Speaker 02:
quite clearly understood the argument.

[00:14:23] Speaker 02:
He just found it not to be a justification.

[00:14:26] Speaker 02:
He mentioned, and if you look at ER 30, he mentioned that people come in and they were bullied, and then they become the bullier, and he doesn't really see that as a justification.

[00:14:37] Speaker 02:
So it's quite clear he understood the argument.

[00:14:40] Speaker 02:
He understood all the evidence that underscored that argument, including defendants' bullying, defendants' immigration in this country.

[00:14:50] Speaker 02:
But ultimately, when he exercised his discretion under the 3553A factors, he just didn't find that mitigating evidence.

[00:15:00] Speaker 02:
outweighed the substantial aggravating harm.

[00:15:03] Speaker 04:
And if you look at the court's cases on this, on abuses of discretion with continuance, this court has found no abuse of discretion where- So counsel, what bothered me about what the judge says is, so the prejudice that's articulated is that the defendant was unable to demonstrate a connection between the lifetime of bullying

[00:15:29] Speaker 04:
and is wrongfully taking control of other people's lives.

[00:15:33] Speaker 04:
And so you have the judge saying, yeah, of course, being bullied, et cetera.

[00:15:38] Speaker 04:
Yeah, I've seen that many times.

[00:15:41] Speaker 04:
And then he says, and I don't know if we're supposed to consider that as justification.

[00:15:46] Speaker 04:
for then sort of bullying other people, hurting other people.

[00:15:50] Speaker 04:
And if that is the message, then I'd like to hear more about the justification because I'm not seeing a connection.

[00:15:57] Speaker 04:
Isn't that the exact prejudice that's being, that they weren't able to demonstrate to the judge sufficiently the connection between his lifetime of bullying and his conduct in taking

[00:16:08] Speaker 04:
control of other people's lives?

[00:16:10] Speaker 02:
No, I don't think so.

[00:16:11] Speaker 02:
I think he completely understood the connection they were trying to make.

[00:16:16] Speaker 02:
But really, I think when he says, I don't see the connection, I really think it's shorthand for, I don't see that as justification.

[00:16:22] Speaker 02:
And that's what he used over and over again, several times elsewhere in the record, he said, I don't see that as justification.

[00:16:30] Speaker 02:
He knew quite clearly what was going on.

[00:16:32] Speaker 02:
And I'll note too,

[00:16:33] Speaker 02:
Probation didn't see that as justification earlier.

[00:16:36] Speaker 02:
And there's one point I want to correct with what defense counsel said.

[00:16:40] Speaker 02:
If you look at the record, actually defense submitted his sentencing position on the 21st November, which included Dr. Phillips report.

[00:16:50] Speaker 02:
The following day, probation issued revised documents as normally is the course after views those submissions.

[00:16:58] Speaker 02:
So to say that the probation didn't have the opportunity to consider this, I think is incorrect.

[00:17:03] Speaker 02:
The probation did have a brief period to consider it.

[00:17:06] Speaker 02:
It didn't change their conclusion.

[00:17:08] Speaker 01:
Let me test your argument and make sure I understand it.

[00:17:11] Speaker 01:
Let's assume that defense counsel had gone to the judge and said, my expert's diligently working on a report.

[00:17:18] Speaker 01:
He can't have it by the date of sentencing.

[00:17:22] Speaker 01:
It'll take him another week.

[00:17:24] Speaker 01:
And the government, as reasonable as you were, said, fine, we don't have a problem with that.

[00:17:29] Speaker 01:
And the judge said, sorry, my policy is no continuances.

[00:17:34] Speaker 01:
Would we have an abuse of discretion?

[00:17:36] Speaker 01:
And therefore, they couldn't submit a report at all.

[00:17:38] Speaker 01:
Would we have an abuse of discretion?

[00:17:40] Speaker 02:
Looking at the facts, you could.

[00:17:41] Speaker 02:
And I think that is very similar to Flynn's.

[00:17:42] Speaker 01:
So your argument has to be in this case that there was no abuse of discretion because what the judge got was, given what he got and given what he looked at, the absence of a further continuance didn't prejudice.

[00:17:58] Speaker 01:
Correct your own.

[00:18:00] Speaker 01:
Okay, I just want to make sure I understand.

[00:18:03] Speaker 01:
I understand the judge has lots of discretion in setting scheduling, but it seems to me his policy here strikes me as arbitrary.

[00:18:12] Speaker 01:
It may well have been error to apply that policy.

[00:18:15] Speaker 01:
I'm still trying to figure out how we can find out whether or not Mr. Goshen was prejudiced.

[00:18:21] Speaker 02:
And it might very well have been inappropriate for him to just, for the courtroom deputy clerk at least, to make that statement.

[00:18:28] Speaker 00:
But still, if you look at this court's case... Does it matter that it was seven months or whatever since the time?

[00:18:35] Speaker 00:
Or not, I don't know.

[00:18:37] Speaker 00:
It was July that was the play and the end of November that was the sentencing.

[00:18:42] Speaker 00:
Does that matter?

[00:18:43] Speaker 00:
It does.

[00:18:44] Speaker 02:
So I know we've spent a lot of time on the fourth factor for how this court looks at it, which is prejudice.

[00:18:50] Speaker 02:
But if you look at the other factors for how this court determines, I don't think those other facts cut.

[00:18:55] Speaker 02:
And to your point, the seven months goes to the defendant's diligence.

[00:18:59] Speaker 02:
So the plea here was in July.

[00:19:01] Speaker 02:
This expert was retained in August.

[00:19:06] Speaker 02:
As you mentioned, this expert actually interviewed the defendant in September.

[00:19:12] Speaker 02:
So there was a lot of time for this argument and this evidence to be created.

[00:19:17] Speaker 02:
So I think that factor hasn't cut his favor.

[00:19:19] Speaker 02:
The other factor that I really don't think cuts in his favor, really none of them, but whether the continuance would meet his needs, I think that sort of dovetails with the prejudice and having additional time

[00:19:30] Speaker 02:
to make this argument, I don't think would have actually met his needs because the district court understood the argument, understood what he was trying to say, and just found it was not a justification for the substantial harm he caused the victims.

[00:19:45] Speaker 00:
And then obviously- If there had been no report, would that be a different situation?

[00:19:50] Speaker 02:
Yes, Your Honor.

[00:19:51] Speaker 02:
I think if there had been- Yes.

[00:19:52] Speaker 02:
And I think if there was no report, I think that could be an abuse of discretion.

[00:19:56] Speaker 02:
And that's very similar to the Flint case.

[00:19:58] Speaker 02:
where the Flint case where Mr. Flint was not allowed to submit a psychiatrist's report.

[00:20:05] Speaker 02:
In that case, the court found an abuse of discretion.

[00:20:09] Speaker 02:
But here, and that because it went to the issue of Flint's competency, but here the defendant was able to submit that report and the court did consider it, the court understood the arguments and so we don't believe he's prejudiced.

[00:20:24] Speaker 02:
And we also believe the district courts

[00:20:27] Speaker 02:
sentence in this case was ultimately reasonable.

[00:20:31] Speaker 02:
The court considered all the factors as it's required under 3553.

[00:20:35] Speaker 02:
And if you look at the record, it really engaged in a thorough and meaningful review of the factors in very network.

[00:20:43] Speaker 02:
So we believe there was no abusive discretion, and we ask this court to affirm the sentence.

[00:20:48] Speaker 00:
Thank you.

[00:20:49] Speaker 04:
All right, thank you.

[00:20:50] Speaker 04:
Mr. Miller.

[00:20:57] Speaker 03:
Thank you.

[00:20:57] Speaker 03:
I just want to reiterate Judge Wardlaw making the point.

[00:21:04] Speaker 03:
It's the nexus between the abuse and the mental health and the crime.

[00:21:09] Speaker 03:
It's not to justify it.

[00:21:11] Speaker 03:
It's not to completely excuse it.

[00:21:13] Speaker 03:
It's only to mitigate it.

[00:21:14] Speaker 03:
The other aspect of the prejudice is another basis for the continuance was a huge PSR

[00:21:20] Speaker 03:
The defense counsel was saying, I need time to address.

[00:21:25] Speaker 03:
And he was not given that time.

[00:21:27] Speaker 04:
Did the motion for the continuance ever get to the judge?

[00:21:32] Speaker 03:
Oh yes, the ex parte.

[00:21:33] Speaker 03:
There was a stipulation first and then there was an ex parte application to continue.

[00:21:38] Speaker 04:
Was it stamped denied?

[00:21:41] Speaker 04:
I don't understand how the court clerk got in the middle of this.

[00:21:45] Speaker 03:
I can't remember if it's an actual separate order.

[00:21:48] Speaker 03:
I looked at the docket sheet this morning and all I saw was denied.

[00:21:52] Speaker 03:
I don't remember what it looks like, but no reason was given.

[00:21:54] Speaker 01:
But there was a denial by the judge of the motion.

[00:21:58] Speaker 03:
Yes.

[00:21:58] Speaker 03:
Yes.

[00:21:59] Speaker 03:
But that ex parte is really important because that's the one where he explains the arbitrariness that I was told by the clerk that you're not continuing anything, you're not continuing any sentences into next year.

[00:22:10] Speaker 03:
That was filed with the court.

[00:22:12] Speaker 03:
And the court never corrected that record.

[00:22:14] Speaker 03:
So that arbitrariness is there.

[00:22:18] Speaker 03:
And it was not just an email.

[00:22:20] Speaker 03:
It was in Mr. Eisner's filing back to the court.

[00:22:23] Speaker 03:
The court never corrected that.

[00:22:24] Speaker 01:
Yeah, but you're not arguing that.

[00:22:26] Speaker 01:
You relied on the representation of the court clerk.

[00:22:29] Speaker 01:
No.

[00:22:30] Speaker 01:
You filed a motion, the judge denied it.

[00:22:31] Speaker 01:
Yes.

[00:22:32] Speaker 01:
The clerk later said he's just not granting any of them.

[00:22:34] Speaker 03:
Right.

[00:22:36] Speaker 03:
And just the last thing so I can make sure that it's clear is there's a lot of arguments that weren't made.

[00:22:42] Speaker 03:
My colleague on the other side pointed them out in their brief.

[00:22:45] Speaker 03:
And that's another form of prejudice.

[00:22:47] Speaker 03:
Because there is, as I argued through that opening brief, I think there were a lot of points that could be made under the guidelines, a lot of points that could be made on the reason for this.

[00:22:56] Speaker 00:
Can I hold it against your side that you've never made a proffer that another report would be any different?

[00:23:03] Speaker 03:
Pardon me, Your Honor?

[00:23:04] Speaker 00:
Well, you haven't made a proffer that

[00:23:06] Speaker 00:
if he had had the time, which there's been substantial time from now, that a second report would be any different than the first report.

[00:23:14] Speaker 03:
It would be because you have to address the judge's concerns.

[00:23:17] Speaker 03:
You have to have time to sit down and look at it.

[00:23:20] Speaker 00:
But you haven't presented anything like that.

[00:23:23] Speaker 03:
I'm stuck with the record that we have.

[00:23:24] Speaker 03:
But I know looking at what happened before, you would tie it up to Judge Wright and say, look, there is a direct connection between this

[00:23:33] Speaker 03:
and this, and it doesn't justify it, but it explains it.

[00:23:37] Speaker 03:
And when your probation officer says that he keeps lying to him and he can't get his story straight and that really frustrates him, well, that's a product of a lot of the issues that Mr. Goldstein has.

[00:23:50] Speaker 00:
Could you have made a motion for reconsideration with the finished report?

[00:23:54] Speaker 03:
No, you'd have to file your appeal within 14 days.

[00:23:57] Speaker 03:
I mean, you could file, but that wouldn't even give you enough time to do the new report, and you've already been denied.

[00:24:03] Speaker 03:
I do not want you to hold that against me.

[00:24:06] Speaker 04:
All right, United States versus Gulshan will be submitted and this court will be in recess for about five minutes.