break but i think it's significant i don't think we can ignore that in terms of the government's argument regarding a harmless error i think it's essential in evaluating the the prejudice to my client in this case and i think that's really the ultimate question is whether or not watching a stretch of due process it's more than just an error it's a fundamental process question of whether or not anyone in this country should ever be questioned where was it what would you like to have happen here for your client i would like the government particular application form allegedly uniform application by the government of a harmless error doctor works to tremendous harm to my client that it raised to process i did it and my argument you're absolutely correct my argument is that the due process mean anything pending and we got motions for you know they didn't find brandishing in my case i've been in prison for five years well toll lanes in hell to be retroactively applied you know those are those are out the window you're just lucky yours is in  just presented the defense brief by mr shavers was very careful and very specific because i think it whitely recognized how the defense is boxed in by various supreme court decisions over the years there are two errors that took place here there was a la sentencing element to a jury is subject to harmless error review and then the second reason as i understood the shapers brief was what started all this that they didn't argue harmless there is because you can't win the i mean these people obviously brandish or harmless but that runs that just totally up and everything that prendre and elaine and everything else and for that we as a court of appeals on review suddenly we say oh the jury would have obviously found it so this is absolutely fine that he was sentenced to a seven year not that's not what elena should then have said you know again charged with a detectable manic ok under the statute that means a twenty year maximum they go to sentencing before they and their sentence a thirty years and they come in and make the exact same argument that's been presented here you can't do that the quantity wasn't  sentencing that gets reversed in a plane but you still have to prove it is still have to have a judge fine print in order to say your mandatory seven years instead of five years you still have to present evidence to the trial so it was anything presented when i was presented because it was not also wasn't tried any issue of brandishing for say was not put before the jury and it wasn't submitted to the jury of your instructions and the jury didn't return a verdict based on that section and twenty four carat range so when you say it wasn't disputed is that enough to say that it was poured as well in addition your honor it was supported because we were relying on the trial record this was a case in which the recommend the seven year man three so what happens then in every case is we go to sentencing and we see whether there's a dispute or not have they stood up and said you know there was proof apprenticing the prosecutor was stood up and said look at the record you've heard all the evidence and on the basis of that evidence we ask you to fight it we don't say that as all sorts of sense in facts when we're not called upon to do so but yes this was absolutely squarely supported by the record and to such an extent that the defense did not do what it could have done it could stood up to judge joyner and said even you should apply these actually two years because the evidence was insufficient nobody could say that on this record that's what makes it harmless there that's the heart of it it's harmless because if the air had not been made if we'd known about a life if we had a crystal ball to know that we should have tried that we can say dion reasonable doubt that grand jury would have returned it and that trial jury would have found it that's what quite does and i think it's very notable what your honor mentioned that in the very careful brief that was prepared on behalf of mr shavers and mrs lewis is why not they never argued harmfulness they put all their chips are structural there now you're only doing that when you can't win armisen this argument you say well this isn't amenable to harmless or plane air review and all that is why the shavers brief is written the way it is it's not your honor i think that things were brief i think they were very carefully thought through and we responded thousand of the supreme court changing the law every year or two and whenever that happens we have a rash of these decisions where we have to address standards on appeal standards on a b s as retroactivity that obviously is not what the supreme court's primarily focused on it's focused on the law going forward for the next twenty fifty one hundred years were charging elements that increase in many parts minimum were in this interim right now where we have to deal with the cases in the pipeline to make sure i'm correct you would think they would do what elaine did say listen the jury found x and that's the basis on which you should be sent and i think that the government had decided to argue harmless error did which it didn't put its chips are harris but if the government had argued hama's there the right to a remedy where the error is harmless and that's the case here so as i said if we go back to the brief we hold the defense here to what was brief what was brief was omission from an indictment structural hair everything else has really been boxed out line we've learned very clearly in the last ten years that when the supreme court and congress in the fair sentencing act and in any body changes the law a line gets drawn people some people benefit and some people down there are thousands of inmates as a result referred to have something charge against you in the indictment and we say that's harmless error here there's no due process right to be treated the same as your codefendant her to get the same sentence as you put i wish i could stand here and say i don't get any great pleasure  which is all those inmates were filing the petitions the church fisher is seeing every week are going to say the the appellate chief just said what the heck let's let them all have it we're between a rock and a hard place we have to apply the doctrine of the law which is you look at each case individually and decide where you fall house of apply now i can say also that i don't lose sleep over this i mean there are troubling things that we face because the fact of the matter is this was harmless is when it gets say is look at whether the evidence is overwhelming and undisputed we have more here they found there is a finding of the grand jury in that county and we all know that the only reason it's not in the one twenty four seek out is because my twenty first accounts were don't need to be drafted that way under the instruction and it's even if you go beyond that and expand the issues beyond what's in the brief this is harmless beyond a reasonable doubt thank you very much subsequently do that even with booker interceded will on this law you make a very good point but the footnote recognizes i think in a significant way it really is almost like a blaring trumpet clarion call that in fact that's was is limited more time how is that not a fundamental judicial of a fundamental issue due process issue that affects the integrity fairness of the judicial system it does and cotton says significantly the court did not address it again this is this is because the injustices in this case is what it is i don't think that that's the need to go to schools which yes you're a little bit this is also reports out at the sentencing hearing that there was no there was no objection there was no question about  and you end up in the jury's verdict no one questions that unless there's you know issues of sufficiency but if you never short it's never present that seems to work a twisted irony and a twisted sense of justice especially in a case where the more innocent only this is a fact that yes thank you this is on is there a problem with the idea of our looking back at the trial and saying oh of course it was shown the defense counsel never knew it was an issue  defense counsel never had the opportunity at trial to challenge or contest the brandishing happens or never knew it was it had anything to do with anything and therefore wasn't able to properly defend his client against the