thirty seven supreme court eleven seventy just for a possible remained on the non mandatory part of sentencing however i want to move into what i think is the more important issue for mr wells which is generally the entire crime of violence question certainly an area that's been evolving even since the resource emitted i want to focus on the elements cause and some of the related issues because i think the government has has conceded that the residual clauses not appropriate here  act robbery is a crime of violence and i want to delve into that because i think there are a couple of issues there one of which is that in that decision it seems to be based on self which is from one nine hundred ninety also ninth circuit ninet second some forty nine and in that case they take the word intimidation from eighteen u s c twenty one thirteen robbery statute which seems to me to actually replace threaten the th reatening language in hobbs or the attempt to threaten and in howard what they do is take intimidation and turn that into the equivalent of the fear of injury and that seems to be the basis for all that to be a crime of violence and i would submit two things one of which is that by its own terms did not attempt to set out on a per se rule and it seems that there are three distinct terms threaten intimidation and fear of injury they're all kind of being we i can tell you the issue is pending in several other cases yes i'm not urging that you don't argue it but we're going to we're we're the fourth or fifth panel in line on this issue so we it may be decided in  presidential case in the meantime by which we will be bound i don't know if that happens of course we'll you know we'll give you a chip we should probably give you cancer briefing i suppose but i guess the question we're likely if there are sixty lines it's very good now i certainly understand that and just to finish i just think that the use of different terms they must have different meanings and different significance and i want to briefly say something about the elements clause as it pertains to this case which is just that it seems on the statute with talking violence or threat or fear the jury instructions also use that construction with or  the indictment has them all linked with and that i think the significance there is just that you have a fear of injury i think should be considered distinct from the other elements that would fit into one twenty four i want to get to another aspect of this and and in the case of mr wells this is the most troubling it's troubling for two reasons one because it obviously created a horrific result for mr wells and two because  deal versus us which is five away us one twenty nine from one thousand nine hundred three it seems that the supreme court doesn't seem the supreme court said that the kind of stacking that has happened in mr wells this case is permissible and i do have an issue with that which i'll get to in a moment but i think it's important to and i realize you're bound by it but i think it's important to keep in mind that the dissent in that case made an interesting point which is that  from the time that the nine twenty four was passed which i believe was one thousand nine hundred sixty eight until about the late eighty's there had really been a situation where someone tried to interpret second or subsequent conviction as being convictions that are all in a in a group and there's two ways of looking at that one is sequential prosecutions but one of the things that was pointed out i think in deal would be the situation where rather than have one prosecution for five would be five separate prosecutions which i don't think is practical but also i don't think that's how people in a commonsense context would interpret second are subsequent i think it means that after you've been prosecuted the first time and given the daylight to make a distinction based on the idea that while stacking them the way it was done in deal is permissible it doesn't necessarily have to be mandatory because you know if you argue that below i'm sorry i was not argued below no i don't believe and then i wanted to up the sticking with the issues pertaining to the science and this was something that certainly came up at the sentencing and in the brief i do think there's an eighth amendment cruel and unusual punishment issue here and i realize that there is a case urged congress specifically to look at this because i was a case where perhaps even more than in wells's case there were sympathetic defendants not sympathetic because of what they did but sympathetic just in the sense that they were college students who obviously ran off the rails the point there is that the ninth circuit to its credit urged that congress perhaps take some kind of action the all humans happened since then is that the penalties have actually been increased so nothing happened i think at some point there has to be a line drawn in that case eleven hundred forty one months was not considered cruel and unusual in this case we had thirteen hundred fifty four there's got to be a number somewhere i think there's enough daylight between those two that you know perhaps this is the case but it would be nice just to reconcile the kind of the inherent conflict between the sentences that are being handed out in a case like wells and thirty three thirty five fifty three day and that leads me to another interesting issue which is just that there was a case decided three days ago hernandez i think i made reference to it in my supplement  it's sort of analogous at best but i think it's worth mentioning that in that case a child tax imposed by the same judge as of this this case wells the same judge below when it was done by his own volition is has been invalidated i think in some ways a case like this where you have co defendants who admittedly were only involved in one or two of the five robberies but still got forty eight months sentences and and mr wells got thirteen hundred fifty four i think you could argue that that operates as an implicit tax the only difference is the same judge but he was not acting on his own volition and i find that to be problematic and addition to that just going back to the sentencing hearing  there are some issues that i guess were problematic in the sense of as the judge stated the separation of powers issue his sensing authority being usurped  instead it has no objection to unlimited remain and for recent record yes and the only issue with the woman is this fall in the category of quitting while you're ahead well the problem with every man interested in is where do you think we have any authority to deal with this i mean i take it what you're saying is maybe we should say this is cool and unusual even though in harris we said who haven't heard forty more in months wasn't we should write another letter to congress which they might ignore some trying to figure out where where it is i'm sympathetic to the argument you make and i think this court was sympathetic to it harris where do we have the ability to help you out well i think that there's two potential areas or one of which has to do with the them and as i said i think at some point there's a number a million months would obviously i think qualify eleven forty on didn't just thirteen fifty four i don't know i think twelve hundred a week but i guess i use the same and still in the area of pyrrhic victory so if your clients were reduced eleven hundred forty one months fair enough that's actually that's a good point and think about  i guess that would be yeah i understand your point as far as i think with deal unstacking i do think that it could be a situation where not making that kind of stacking most important one so the other issues  i think that in the case of the argument that i made with fred and also with interstate commerce i was really doing was just expressing that you know we believe that there could be a modification be made but that's sort of outside of your purview but i still felt that those issues were worth raising the issue that i had with the authentication of the video some people might say well why does it matter there were five robberies but that was the first one and i think that starts the ball rolling and it seemed improper  existed i was there the day before for example right we had a video with the court room couldn't i send a cake that this is it accurate depiction of the court i would think the day before yes but i think we're talking about eighteen months so there was a longer period of time any evidence that the physical layout of the store changed all the time period  i think that this case is does squarely come within fifteen or at least that the district court should be given the opportunity to decide whether or not to court you should know that because because there were mandatory sentences in this case those should be considered in the length of the non mandatory sentence yes and we don't have any objection to remount on that basis and i'm happy to address any questions that well i guess the question i have is one that maybe you can help us with and maybe we can help defense counsel with but you have three how many people involved in these robberies mr wells was involved in all of them and he had accomplices and someone and they get four year sentences and he gets life i understand they cooperated in things like that but isn't that sort of if you look at the case from thirty thousand feet that's what sort of troublesome about it what's the government's response to the government's response is that the mandatory portion of the sentences it operates it results of the operation of the statute and this court has been very clear that it doesn't have the ability to to disregard the look the language that congress put in requiring the mandatory minimum sentence at some point does not mean as the court addressed in her nando's that the defendant is being punished for going to trial and i mean i don't know i don't know where the dividing line is on this but sort of if you think about the issues in the distribution of justice issue we may be unable to deal with it it's troublesome when you have people with somewhat similar culpability they get such disparate sentences and the reason is that one decided to try the case and the other two did not but you know and i think that there's two differences between this case internet first of all hernandez did not  right to going to trial and the government offering to dismissed charges in exchange for a guilty plea the first is forbidden and the second is our stock in trade and that's what i think you understand but at the end at the end of the day they come to the same result did they not they do your honor but i think that there i think that there hernandez case does draw that important distinction which is if the court shades into i'm punishing you because you were wasting my time by going to trial when you were clearly guilty that's that's well out of bounds if the court says you could have made a deal and you failed to do so and you're now going to  important legal one i'm just and i'm i'm i'm not suggesting that the government did anything wrong or the district judge did i'm just saying when one looks at this case that's what jumps out at me that one person got a life sentence for crimes that at least some of the crimes that some would do other people got a four year sentence for maybe that's how our system works it's not it doesn't strike me as a good idea but i'm not sure i can do anything  i only have one brief comment by way of a bottle and in some ways it's not even a rebuttal which is just that i do think that a prosecutor and i'm i'm not being critical here but they do have an obligation to try to do justice and i think that in a case such as this it's something to be considered certainly not something that no one did anything and you know appropriate i don't mean it that way but in a case like this the prosecution even expressed sympathy at the sentencing hearing but i don't think it would be out of bounds for this is just food for thought i suppose for them to drop charges even after they when when we get a grotesque result such as the one that we had here i thought i would mention that like for example one twenty five year sentence probably would have been a just result maybe even a little harsh on the h side but i think that the district court would have wanted to give him fifteen to twenty somewhere in there and that's that's no joke especially you know europe twenty seven you get out when you're forty five other than not if there are no other questions i have nothing else