sentencing under rule thirty two by failing to resolve material disputed facts before sentencing mr thomas specifically mr thomas raised a timely objection to the quantity of drugs that was involved in the case and it was a the pre sentence report and of course the quantity of drugs that's drives the sentencing guidelines in such cases it was not clear from the p s r or from the discovery provided to the defense whether the asserted quantity of drugs was net or gross in that it may have been properly included the weight of the packaging and that shouldn't be taken into account at sentencing and mr thomas himself had no personal knowledge of the weight of the drugs and the facts of this case mr thomas was literally left holding the bag he was he pleaded to the indictment that he did not agree with the factual basis that was proffered by the government the district court specifically asked him do you disagree with anything that the government attorney has just said and he said yes i do he said what she said is valencia which this court issued after that the court could have done then of course the court didn't have the benefit of a lancy at the time and the court the court did not refuse to accept the plea and neither party is challenging the  this time so the question is now where do we go from here and i think that posture it's a fairly straight up rule thirty two question it was error for the judge to sentence mr thomas based things the guideline level whether it's below or above fifty grams of crack cocaine net and also the man it's very minimum so it is something that did affect the sentencing range in this case and you know package  can be up to a third of the amount and it's really not clear from the discovery from the pre sentence report whether it was a net or gross because there was no admission during the day itself and because there was no stipulation among the attorneys  is the matter should be remanded to the district court for the sentencing and the only thing tricky about this case is then what should happen and remain you know this court is held in buckland and then later subsequent to that that the issue of quantity of drugs  determined by a jury understand it to prove beyond a reasonable doubt now it's an unusual situation where you could have a sentencing jury typically that only comes up saying capital cases but henry the case circuit said in such cases as this that would be appropriate that you could actually convene a sentencing jury after a guilty plea where the amount of the drugs was not determined at the time of the plea and in fact that would be and referenced by the district court and by the government to benson is also misguided the benson case said that it missed all the elements of an offense and this court is made clear in the majority decision in butler and then following that in the minority case that quantity of drugs is not an element of the offense judge huggin a separate opinion invoked and suggested that that would be the better interpretation but that was not the interpretation adopted by the majority of course i will make no and it's not clear to the person how much money was involved whether it's more or less than a thousand dollars it's more than a thousand dollars it's a felony it's less than a thousand dollars it's a misdemeanor the defendant wants to plead guilty but does not know how much money he or she grabs and the government whatever opinion or your own romex i'm actually buying the majority opinion buckland which said that the days of seeing magical hair splitting between elements of the offense and sentencing factors are over and i submit that the only distinction t must be proved to a jury and trucks in the indictment and our position is that that if the matter had gone to trial the government would have proved it would have been would have had to prove in accordance with  next case on the argument calenders u