try to get through arguments one in two there are included in mr bowman's brief argument one is fairly straightforward it's simply a claim that the guideline range was calculated in correctly mr bowman actually had five criminal history points not seven he should have been in category three rather than category four that's now the guideline rage would have been sixty three to seventy eight months not seventy seven to ninety six months the government does not dispute that an error was made but it does argue that the error does not rise to the level of plain error and it focuses on there are four factors under a lot o it focuses on the third factor saying that mr bowman has not demonstrated that the error affected substantial rights meaning he has to show prejudice which requires a reasonable probability that he would receive a lower sentence but for the  r i believe that there are two factors that show why he is satisfied the third element of all llano first of all would be the rule of molina martinez when a defendant is sentenced under an incorrect guideline range the air itself can and in most cases will be sufficient to show a simple probability of a different outcome absent the error but i think you can also go back and look at how the district court imposed sentence in this case and it will show you that the court's imposition of sentence was in fact anchored by the guideline range so originally mr bowman was sentenced back in two thousand and five as an armed career criminal at that time the guideline range would have been one eighty eight to two thirty five he received a sentence of three hundred one thousand months  when he came back was reset and without the aca status line ranges calculated seventy seven and ninety six and he gets two hundred sixty four months he comes down roughly four and a half years now we contend he needs to be reset and a second time with the proper guidelines of sixty three to seventy eight months there's nothing in the record that indicates that the district court would not give the sentence follow the two hundred sixty four that has already imposed on the first three sentencing we show that the court was in fact influenced by the guideline range now  saying regardless of guideline range this is what i think the appropriate sentences and so this is what i am imposing one other point although the defendant did not object a criminal history calculation he did object to an enhancement for obstruction of justice and the courts are sponsor on that argument was simply to overrule the objection the court didn't go on to make a comment or remark that you know mr bowman even if i had danger objection to the obstruction i would have the same sentence so there are no clues there's no remarks like that by the district court saying look no matter what you're getting two hundred sixty four just so i'm just not influenced by the guideline range convicted of a nine twenty four c count the punishment was enhanced for portly because the firearm was brandish during the course of the attempted robbery the problem with having the mandatory minimum at seven years is that the jury was not required to find that mr bowman brandished a firearm or that he aided and abetted a codefendant in brandishing a firearm but the mandatory minimum on count three should be five not seven years if you look at the jury instructions and i pointed these out in my brief the relevant instructions are twelve twenty twenty five twenty eight and twenty nine and each of those instructions to the jury is directed that it can convict on the one twenty four see if i were he used a weapon or some variation always of use of a weapon the jury instructions never say anything about brandishing the weapon a weapon now when we get to the special verdict forms those forms read the jury was required to find that in the course of count two a firearm was brandished or possessed so the verdict form was phrased in the disjunctive we don't know if the jury actually concluded that it was brandish or concluded simply that it was possessed so my my argument is you can't increase the mandatory minimum to seven without a specific verdict form and instructions that tell us definitively that the jury even under the the correct guideline range he's still going to get an upward variance and it's going to be a significant part variance it may very well be pretty close to the two hundred sixty four that he has now but based on these everybody made a mistake nobody noticed it and the problem was that this client was sentenced back in two thousand and five and there litigating a johnson issue saying that his prior convictions don't qualify under aca everybody comes back we're up whatever that is twelve years later ten years later and forget about the criminal history points they don't realize that the guidelines have changed since that time and there's no longer a two point hands meant for being convicted within two years of being released some from in prison on a prior conviction so it's i would call it an inadvertent error that nobody caught just because so much time had passed and they were so focused on the johnson argument klein if it be if it was something that well the air is plain because all parties the court the probation officer obviously have the guidelines manual available to them and so they can go back and i think it was guideline for a month point one easy and look at the new guideline will realize that that provision is no longer there is this what is this what were those cases where when you look at the sentencing transcript th judge makes a statement like regardless of what the guidelines calculation yields i would say no it's in the same way no he did not and that's what i was referring to when i said you know the other objections were  transcript i am of the opinion that given the posture of this case that i have the discretion to decide whether to reset ins on all counts or only on count four and i believe that is most appropriate to fashion appropriate sentence to look at all counts and to consider re sentencing on all count and so the court allowed defense counsel to make its a bit of objection to the obstruction enhanced meant and you know fully considered the objections in order to new or an updated p and i guess i would point out that the government asked for it and over sentencing at sentencing memorandum this is what they wanted they wanted another shot at re sentencing on all of the four counts so when you come  i believe he gets the benefit of the lang and i don't think that elaine needs to be retroactive to cases on collateral leave he is now being reset and in a new sentencing proceeding and so he gets the benefit of any constitutional rules that exist at that time and by that time elaine had been decided and said you cannot increase the mandatory minimum sentence unless the fact that's going to increase the sentences have been found by a jury and the problem with the special verdict forms in the instructions is we just don't know if the jury ever made a finding that he actually brandished the weapon and that at that time at the time of trial it wasn't  thirteen right and the the real question i've got if elaine is not retroactively applied and i think that that's true for place for cases on collateral review does it get resurrected once we get to novo sense and that's really the argument that there was kind of kicking around in my brain when i was reading it is whether if it can't be if it can't be raised on collateral review what you're prevailing collateral review  opinion it's not an eight circuit opinion but it goes through that analysis and so i think that would be helpful to the court to review that and in that instance the defendant had filed a twenty two fifty five motion claiming book or error he had been sentenced under mandatory guidelines he wanted them to be advisory and the court said i can't grant you that as it is raised in your twenty two fifty five motion because it's not retroactive and i agree with you about it i think it's sort of predominately now that elena is not retroactive i agree on that the mat issue but then the court in henderson said you know ironically even though i can't grant you booker relief on the merits of your twenty two fifty five i am going to order a dinner of over a sentencing and i cannot unconstitutionally sentence you now that the guidelines are advisory i have to follow that case decision and so that henderson court you know acknowledges it is kind of a  way of getting the booker claim in through the back door it said but i think it does make sense that we're not going to apply an unconstitutional standard on a reset and saying simply because elaine didn't exist at the time he was originally sentenced thank you very well i'm here from good morning i'm paul bucher an assistant u s attorney for the western district of missouri good morning a numeracy dr thank you judge let's go back to the discussion that you will the court had with counsel about what actually happened at this hearing in preparing for argument i realized that it really wasn't adequately covered in the government's brief judge erickson talked about that the court indicating  just looking at the transcript again it looks like it was the defense attorney saying that oh is that who it was i thought yes and the court was moving on and in the context of the discussion of whether this is three hundred nineteen months had a sentence of sixty months on count one conspiracy to commit bank robbery a count two attempted bank robbery those to run concurrent and then on the armed group criminal act two thirty five that to run concurrent with the brandishing of a firearm eighty four consecutive on the re sentencing the court imposed the identical sentences on counts one two and three the court impose  document three nine three o four pointed out you could get back to three nine thousand three hundred nineteen months of the court chose by running all of them consecutive and the firearms the ammunition charge being three hundred fifteen consecutive alternatively the government recommended that the sentence remain the same sixty months sixty months eighty four months ammunition of one hundred twenty months to run consecutively that's what the court eventually did so if the focus on both the first argument and the second argument really is determined by what actually happened at the recent scene here we are only resetting ston count for to make that within the statutory maximum one hundred twenty months i think judge woman is correct that the in terms of the district court judge found never really had a chance to say this is what i would have done anyway because there was not an objection to that sentencing guideline range the pre sentence report details the background this defendant needless to say it's a somewhat  in kansas city legal circles because of the prior conviction of the defendant that was later vacated because two groups of people were prosecuted for the same crime but nonetheless that information was contained in the pre sentence report and the judge properly took that into consideration the fact that he sentenced him not anywhere near whatever the guideline range was determined but to the statutory maximum certainly speaks or was adequate at that time but no longer would be so the defendant did not object to that at the sentencing hearing in the in the objections of the pre sentence a den done which is document year sentence that was imposed on count three has not been vacated the fact that the sentence represents a mandatory minimum which should not have been applied can be considered by the court when determining the appropriate sentence thing discussion occurred at the sentencing hearing that we were not on unwinding the eighty four months consecutive but that was a factor that the court should consider in ten fed third class sixty eighth circuit twenty sixteen that is not retroactive i don't believe the fact that the defendant is successful out of johnson claim  on the final point of the subset of reasonableness i believe the court considered the all the factors under thirty five fifty three the history and characteristics of this defendant judge friend or was the only one in the courtroom who actually tried the case and had been in the me is the way we thank you for the you as well judge thank you each other but consecutive to three and four so they're actually you can't really say that sentencing was exactly the same when you're changing one into two consecutive rather than concurrent time and so that's where i just disagree with plain you made reference to hander so and i think you were referring to hernandez the opinion by judge bennett i think that's right iowa yeah just annoyed i'm going to sorry if i got that wrong but but yes it goes into that issue and i think that would be helpful for the court thank you thank you very much through all the cases submitted