i think that this case though is relatively and i use that word advisedly relatively straightforward the trial judge committed error at sentencing in this case  years concurrent on each of three counts ten years in excess of the statutory maximum of twenty years for the crime for which he was committed the crime for which the crime which he committed only real issue here is what is the remedy for this error and we propose that this court remain and the case with instructions to the district court to impose a sentence of twenty years on each count to be served as it was originally imposed concurrently now the government has two arguments why this should not be done they rely on the government relies one on the stacking the so called stacking theory of five g one point two and relies on an argument about plain vs harmless error standards of review problem the issue in that case however arose after jones was decided by the supreme court so there was already a ruling that under constitutional doubt in any event a priority was the law of the land now well i think there were there were no there was no such differentiation in the objections of the pre sentence report that is true i think there was some amount of crack cocaine found on him or in the residence where he was arrested and the rest of the drugs the methamphetamine concerned what happened at the trailer the next day the search found in the trailer but my point your honor is that if this this court should follow the sixth circuit and say that mean none of the cases really spend a lot of time clarifying what the exact magic language would be to preserve an era for harmless error review i mean they've just said it's one way or the other so i think this math the trial transcript only reveals defendants payments of past due by an ex wife as testified to by the property managed it manager defendant objects to the base offense level thirty eight based on the lack of defined evidence lin are about as specific as the ones made by mr mcdaniel trial lawyer and they're emphasizing to the court that it's just not prudent it's self destructive of the most important part is factually bucklin was arrested on three separate occasions over three months and each of those arrests formed the basis for separate counts of the conviction they found an entire quantity of drugs actually at the site and then the chemist testified about what the laboratory could produce in terms of quantity of additional quantity of drugs and so it's very that sentencing on multiple counts at the same time is imposed concurrently and not consecutively in order for the judge to impose consecutive sentences and that reflects a long tradition in federal fifty three which has the traditional purposes of sentencing rehabilitation protection the defendant's educational vocational needs etc the five point five g one point two is clinton that says that despite the mandatory language in five she won the court has discretion but the problem really is the buckland seems to endorse a that it makes sense and it's and it's consistent with the guidelines to impose consecutive sentencing when there has been substantial additional criminal conduct but but the statute in statute section nine ninety four l two of title eighteen talks about when there is conspiracy in the same object of the conspiracy in war and judges that that should not time there were three counts of the indictment your honor one is for conspiracy to manufacture the other is for manufacturing and the third is for possession with intent to manufacture third to thirty seven and another case called mora which is the fifth circuit case two fifty three fred third two eleven which discusses the evils of allowing the government to break the conduct down into several determined amount of of drugs please the court i'm kathy servatius on behalf of the united states i was that both the attorney who invited the defendant tried to defend it and has been responding to the defendant complaints for the last seven years i want to point out to the a petition for rehearing that's not what i wanted to point out because i'm sure the courts where that but as a petition for rehearing you would expect that the defendant would be coming to you in arguing that you misunderstood something that he said in his brief or that there was something in that if anything stated in his brief that it was plain error was a political his argument for getting out of the plane or review and his initial supplemental bring to this court was based upon the fact that he found that a failure of the indictment to allege the quantity should be treated by the however that argument was not made to the court initially it is something new and i think that's important because as the law gallops in this area so do the defendants arguments when he initially filed his appeal in this case and he's had from trying to find out i think that's one way of getting around all of the issue but you'd have to concede that i mean buckland although it speaks of mandatory language doesn't really hold the stacking as man you know in the courts the ninth circuit has never said it's mandatory it's that there's usually there's there's got to be a reason to depar from the guidelines when it comes to finding that you're not going to give the guidelines things to somebody when you could very well get there by stacking multiple counts right so i mean if you look at the stacking argument it seems to me that i mean it's difficult  sentences then you have to make sure that the defendant has notice with th i think that the court should distinguish this case from jordan one because it isn't a properly preserved pretty argument it's not a properly preserved constitutional argument and there was only ever one quantity of drugs that the defendant was being convicted and that quantity has never been disputed it wasn't disputed in the grand jury it wasn't disputed at the trial court level and it wasn't disputed at the sentencing level so to find now that it could be disputed based on arguments that were never made which could have been and would have been if there was something there i don't think violates the defendant's rights and i take your point but i think the the argument counter to that is that you still have to show beyond a reasonable doubt for instance if we had a defendant who was convicted of three separate counts of distribution and he was only responsible or even about it only one of those the question would be the jury would have to find that the other two counts were foreseeable to him as having been committed by somebody else however in this case the defendant was going to jury finding in that case but in this case there's only one quantity and the crime is only one crime so he's either guilty of conspiring for that crime or he isn't  grand jury proceedings other circuits who have interpreted cotton have applied patents similarly to a harmless error they've not found that i never an indictment is structural and they have found that it's harmless error if once you see all the evidence that would be presented and you know there however you can determine what was said to the grand jury and what they would have convicted on based on looking at the transcript what evidence was presented to the grand jury and it's a probable cause standard you can similarly look at whether to defend it was on notice of what was and now th court in thomas has said that these are not elements of the offense so the arguments regarding indictments were an element of the offense is not alleged in the indictment therefore it automatically has to be reversed isn't a political because these are fundamental they are like elements but they not elements so there is no impediment to the indictment by failing to allege the quantity functionally equivalent of elements whatever that means what i would suggest to the court what it means is that it's not in doubt that since the it doesn't have to be in the indictment for purposes of charging the crime that the court can look to see whether or not it was harmless that makes it different than other cases with indictments where elements are not charged it's not actually an element but it should be shown to the grand jury and when this court in jordan talked about it they talked about what the defendant was on notice of and i pointed out to the court that this defendant was charged by a complaint that told him he was looking at ten years to life based on quantity and he was advised by the magistrate judge that defendant didn't make the objections because he didn't have the evidence to suggest that he wouldn't be subject to the term unlike jordan i provide the court with information that can make that determination and i think that to argue that a defendant who's looking at thirty years under sentencing guidelines wouldn't have objected to quantity if you had some evidence that it w with conspiracies you have one crime that you might have different events that make them up in this case the defendant sentence was higher perhaps the most because of other other items that he got enhanced it's because of his obstruction of justice for his perjury trial testimony he failed to get accept responsibility for going to trial i mean having the multiple counts now permit him to be distinguished from another individual i mean the guidelines say based on these circumstances to sentence should be this high and  that way because the arguments that would have been made on the availability for example of the departure of not doing it would have been available to be argued to the district judge and it wasn't here so that's a difference you're talking about the radicals but when you actually see the facts there weren't arguments made forgot there were arguments made for going to departures the overrepresentation of criminal history category there was another argument that was made about getting a minor role which is not exactly a departure was facing thirty years it is a downward departure the court has said that the mandatory nature of five g does not violate the court does not conflict with section thirty five eighty four because there is a part of pop possibility that the court can exercise discretion for downward departures but the courts discretion is limited to the basis is that would otherwise be available for downward departures the court couldn't for instance say i don't believe that these cases should be other staff of the sentencing guidelines are mandatory if the court finds there's more than three kilograms of actual methamphetamine the court must provide a level thirty eight it's mandatory to the same extent as any other factor that went into the defendant's se it seems to me that you were construing his objection to being one as to quantity in my mis reading your comments are i'm saying he was convicted of a crime and that was the amount that was proven right but your but in the sensing i'm just i'm getting back to the question of whether he's weighed just a sufficiently raised quantity at the sentencing hearing where the court asked you to address the contractions you respond not to saying well he was obviously connected to it strongly believe if there was a fashion dispute the facts would have been in the sentencing hearing and there weren't any and when the questions thanks very much we are i don't think so your honor and i think that goes back to valid and vasquez the more of the fifth and third circuit cases i don't think that's the only area that unless you're going to depart then you must follow that because thirty five fifty three takes an into account require the district court to take into account other factors besides departures rehabilitation of the defendant protection of the public deterrence and so forth  so i would i would ask this court first of all to hold that button is factually and legally distinguishable and to follow the jordan case if it does not however it decides to follow the buckland sacking analysis more point your honor that at sentencing in fact the pre sentence report did suggest that that judge crocker could depart downward from level three mr mcdaniel does not have any prior felony convictions and  that was an option that was put out by the crease in this report and the judge crocker finally decided not to go with that option but i think that there would be a basis for downward departing and there would be a basis for not following five g one point two should this court remain on so i don't think it would be a an utterly futile remand and i think more importantly that this record should know how to interpret