fifty six age which is the count of conviction where we don't believe that they required the same or different elements because three in the three seventy one count the the trial by jury he denied every allegation that was put forth by the government yet when the jury found him guilty he was sentenced well above that which  there was and isn't the case law pretty consistent throughout the circuits that you can't be the steal or and the receive or at the same time now i don't think that that is true particularly under this circuit's approach in fact the court in zuniga specifically declined to adopt that approach which it had and said in that opinion that although other courts have said you can in fact be the stealer of this property this court rejected that approach and instead adopted the totality of the circumstances approach and it noted in that case that you need oh well he had sold some property that he had not stolen he also was the dealer of some of the property at issue and under the totality of the circumstances approach the court suggested that there are four relevant for primarily relevant factors the first of which is the regularity and sophistication of the defendant conduct and i think there are sufficient facts in the record to support that prong of the test for example it's clear i think from the evidence that the defendant conduct in terms of being involved in the steel i can't in the sense that he what it was is he was developing he was directly involved in the scheme yes forty of the jury's very deeply involved in the scheme to take this property improperly yeah and and deeply involved in its disposal yes if we conclude and i'm not suggesting the panel of but if we were to conclude that it's improper to enhance for receiving stolen property when you are the so that i think that it would be appropriate to find it in this case as i was saying the regularity of his conduct should i continue i think the regularity of  conduct is really not much at issue he began it within a couple of months of being released from prison on a very similar scheme he then as his coconspirator put it their scheme was to get as much merchandise as we can from various companies and then shut this company down and then move on to another company and that's the june seventeenth volume of pages two fifteen to sixteen and so there was and it was his sole source of income the probation office report indicated that they could not verify any other employment for the defendant during this time he was also i think it's significant arrested although not charged ultimately while this case was pending circuit defendant continuing with the test then as to how it was not clearly erroneous for the court to find that the application applied in this case the second prong is whether the activities were sophisticated i think here there was ample evidence of that the defendant made up credit and trade references and used various locations for the operations the second prong of the test is the value is tied to the inventory of the stolen property and while a defendant himself do not maintain the inventory the evidence all told was that the defendant and his coconspirators obtained close to seven hundred thousand dollars worth of stolen computers in the scheme as a whole the third prong of the test is whether the findings activities encourag damien springs how to set up a bogus companies and what to do with respect to that and that they relied on his financial savvy especially with respect to the money laundering activities as a result of defendants activities nikolaus crawl it was brought into the crime into the event or he was the one telling the stolen computers and he was in fact indicted and tried on the charges although ultimately the judge found it wasn't sufficient evidence to support him being in there the defendant the testimony showed was the one who instructed crawlers to try and structure the financial transactions and use less than ten thousand dollars at a time and pine lane the fourth prong of the test is whether th defendant was involved in past activities involving stolen property and of course he did have a prior conviction as i said for a very similar scheme and in fact the court even noted that defendants in saying that the sentencing and quote prior conduct that you have which was this precise kind of offense shows that you weren't learning any lessons from the prior conduct so i think that me enhanced and was appropriately given by the court and the factual record as to port it i think maybe the course point was if there is a guideline calculation there perhaps three man would be necessary and i think all of the court that have considered that question have found that so i would agree that if there were a guideline calculation error the case most likely would need to be remanded regardless of the plane error analysis i just want to make one final point which is with respect to the demonstrates that even if it were to have the ability to apply the guidelines in a discretionary fashion rather than the mantra regime it did some stuff and under that it would do the same thing and to that extent the defendant cannot show a reasonable probability that the outcome would have been different that is particularly true in light of the court's giving the defendant the statute what it believed was the statutory maximum and making a point to say that he thought that the statutory maximum was appropriate so if anything the defendant i'm sorry the court felt constrained not by the guidelines and their lack of discretion but by what it believed was a statutory maximum constraining how high the court go thank you agreement to commit money laundering and those are different aspects of different elements and that the fact that the block murder case one must analyze what the elements of the offense are and that's without regard to the proof by trial or how those charges are alleged the fact that some of the money laundering conduct was an overt act of the mail fraud conspiracy just not relate what the elements of those crimes are and so isn't relevant for walker berger purposes i think more fundamentally what we need to remember is that block the double jeopardy provision protect the defendant from three things multiple trials for the same offense multiple convictions for the same  or multiple punishments for the same offense and there's no issue that any of those are current in this case there's no question of multiple trials there's no second he hasn't been subject to a second trial and one isn't contemplated he hasn't been that didn't happen and because he was only convicted of one offense even if they were multiplications there would be no double jeopardy problem now because he was convicted of only the one and therefore he was punished for only one offense so the double jeopardy clause was not implicated in this case thank you thank you for your argument counsel re what is most amazing is that all the facts that have been set forth by the government with respect to mr chambers involvement in the scheme were presented to the jury and they found him not guilty of the mail fraud and mail fraud if it is precisely the advice here that of of the mandatory guidelines that that that that doesn't get to choose i don't believe the guidelines or something else the trial judge gets to make a call based on everything whether he wishes to use the the guidelines and by way of a under the mandatory system and then impose the same sentence only three guys to do it now without the shackles of a jury trial or prove beyond a reasonable doubt