may please the court counsel my name is george crazy i'm from the district of new mexico and i represent the united states your honor in this case we're asking the court to reaffirm it found that the defendant in this case was not subject to the arm career criminal act the district court here in finding that three prior felony bank robbery convictions did not occur on occasions different from one another these bank robberies occurred in fact on three separate days at three different locations violent felonies occurred and on occasion separate from one another and that the prior felony conviction exception under a print the applies and that the court can determine the time and place of a prior conviction based on separate documents and that these are not facts such as the elements of a prior conviction that a defendant necessarily circuit and every other circuit has held are sufficient to prove the time and place of a prior conviction and these documents were the indictment plea agreement and the judgment the indictment to which the defendant pleaded guilty set forth the time and place of each of the bank robberies at the defendant pleaded guilty to the to the date of these prior bank robberies were nov twelfth two thousand and five november twenty fifth two thousand and five and november twenty sixth two thousand and five those are clearly different dates different times different banks yes your honor and the indictment in this case the stablish that the bank robberies occurred in different places one occurred at the first financial credit union the other occurred at the ironside bank and the third bank robbery occurred at the san sandia federal credit in different places time the time and place of the prior felony and in this case that was well established well beyond the preponderance of the evidence standard that the united states w and because of drugs the defendant never had the opportunity to of prevent further conduct or to terminate his or seek that conduct exactly your honor and we believe  in making this finding your honor the district court actually admitted it actually found that these bank robberies occurred on different occasions different times and places and i'm quoting from the district court's words here this is it page five of the sentencing hearing transcript the court says quote given these facts the court cannot conclude that in between each of these robberies mr dodge had a meaningful opportunity ceases conduct well if there's an in between in between the robberies then those robberies clearly occurred at different times and that pretty much  are there is simply no evidence in the record establishing or reviving the clearly plain facts here which are that the fank robberies occurred at different times in different evidence in the record to show that mr dutch aided and abetted the commission of robberies on three separate occasions this despite the government's reluctance to embrace the protections of the sixth amendment neither the government nor the district court nor during this court can convict mr dutch can punish him for offenses that were not admitted into stockton a conspiracy this is eating and abetting who are prison eating in a vending can be discreet and singular for each event so i would at least want to listen to your argument on conspiracy i think it's robbery on november twenty fifth and november twenty sixth did i commit aiding and abetting on two separate occasions or on one separate occasions if i was the mask in the gloves that you are going to use to commit a what sticks but in doing that the government undermines its own proof because we don't know if you committed one activating a betting that facilitated three crimes so i get back to my earlier point so you say the issue meet its burden and that was that these documents are not sufficient fact that there's no and disregard judge best because other comments about inabilities conduct irrelevant to your honor you can certainly point out in your in your opinion that brief i think step it up pretty well we have a lot of cases where we cite you have two guys ago when one guy brought this trailer the other guy rob that trailer they're both charged with robbing two trai but this gentleman who was guarding a victim in this trailer even though he is liable for this robbery did not commit this luxury on a separate occasion that's the  while his accomplice committed the other and in that sort of simultaneous situation there's no opportunity to do that that's not the case here we don't know what the case is here judge phillips we simply don't know now don't get me wrong when we don't we don't have to have answers occurring simultaneously and one offense is being aided and abetted while the other is the principal to burglaries or something where three separate occasions it unless of course the honor about language which career criminal act i think since ninety six and aiding and abetting forever and in cases like this with bank robbery aiding and abetting zim different dates of the bank robberies early on first impression fro here do we know that on the on the november twenty fifth and november twenty sixth despite the owner about why would the man occurred on the same day and that one committed one robbery over here while the other committed the lobby over there we don't know we don't know support those plea with adequate facts to support each of the plea to say well there are no facts up brought to you but to the judge in the district court you are you as culpable as the performer but we are putting you in the shoes of the performer doing what the performer did and the performer did three discrete acts if you're in the shoes  that person as a performer yourself you are then legally accountable for three discrete separate accessor but not on you haven't proven that those three separate acts occurred on trees i'm going to have to see if you're basically as nea well established authority on in response to some of the points that mr mori made i'd like to point out first of all that the shepherd documents that were provided to the district court a stablished vent defendant pleaded guilty not just aiding and abetting he pleaded guilty to bank robbery three different bank robberies which as stated in the indictment occurred on three separate dates at three different locations and in the judgement which is a proper shepherd document the there is no mention of aiding and abetting at all he was judged guilty and convicted of three separate bank robberies according to the judge and it occurred on three separate days so they were easy dragging aiding the betting also aiding and abetting after all the different bank robberies i believe there were ten bank robberies but some were charged with aiding and abetting some and some were charged with aiding and abetting others so that even if we were to re there remains the substantive conviction absolutely your honor and i also want to point out that the burden that the united states had that was fairly light on it was proven by preponderance the evidence that the defendant committed three prior violent felonies on occasions separate or i should i should we say that our burden was to show that the defendant was convicted of that is the focus of that of the statutory language it's when those events occur that matter that when mr deitsch was involved he could've has as he hypothesized he the judge basket did find that there were three bank robberies occurred on three different occasions but you are thorough what your authority to say that the key is inundating and abetting conviction i the date that the crime is actually committed for purposes of the a c c a if you have it sounds like you're honoring the language of the statute itself and also the fact that the inquiry in this circuit put it is subsidiary to the ultimate question as when and where did these offenses occur but if we go back to mr parys example and that is that the defendant says yeah you can use my car i don't need it for a week and there are however many bank robberies that aiding and abetting act occurred one time before there was a single bank robbery what authority are there cases like that that then apply the armed criminal act early on ground that has them plus your honor i have found no case that adopts the analysis that mr henri puts forward and i'd also add this your honor that mr porter these arguments might be of interest to this court if there was a shred of evidence to support it but there is no evidence that any of this happened it's not the united states burden to defeat every hypothetical every on reasonable hypothetical that is contradicted by the very fa the district court level to provide a preponderance of evidence as to when the offense is committed this is not this is not as much for his arguments briefing this is not simple evidence here you've heard at the district court level and the only evidence that was put on the only evidence that all that was put on as to when and where these offenses occurred was the evidence that the united states put before the court be referring to that aren't there the argument that was made in the briefing was that there were was not a lot of detail about mr judge's role in the events at the same time she seemed to adapt the the government's evidence necessary to establish that these bank robbers did actually occur on three different dates three different locations she seemed to have made that finding and then decided that because he was under the influence of drugs to it was all just one event that's clearly contrary to the law my time's up thank you counsel thank you both  expired will clearly courtroom for the last argument