the next matter on our calendar is united states versus  you may proceed the morning your honor as my name is called off comes young and i represent philip new york the two points that i just like to get across to the court and the first is that believe that sentencing based on acquitted conduct undermines the role of the jury trial and that sentencing based on a quick the law is fairly well settled that we have to overrule many cases in our circuit that that say the contrary yes if that's true you would have to overrule the the law is well settled you would have to overrule in many cases your honor but your honors but i believe that it's a concept that's worth looking at that if it's worth the court time to look at but the before underlying justification however for relying on acquitted conduct is the different standard of proof applied in a criminal case and in the sentencing and that gives some intellectual haft to the argument that a district court is allowed to look at acquitted conduct and sensi and i think that what that does is it takes if an individual like and in this case is convicted of selling is charged initially with a drug conspiracy and then acquitted of that conspiracy but then convicted of all the charges in that indictment he's at want that he's acquitted of a crime and then that crime transforms it morphs into a sentencing factor at a later point during the criminal proceeding and that issue that was already litigated that was already decided by a jury is now decided again by a judge and also deal with a different standard of proof that that's the that's the reason that the sentencing judge can look at this because he doesn't have to find proof beyond a reasonable doubt just preponderance of the evidence that that's crucial in this area of law is and that is crucial and i believe that that's when we look at that that starts part of the wrong here that i believe i don't believe that that i don't believe that an additional standard should be used to look at an issue that was already adjudicated it was believes but i think we are bound by our president in this circuit however let me back up a second i think one of the things that i did just and sort of researching the issue preparing the brief and getting ready to to come here means what it means and says what it says or it doesn't either an individual charged with a crime has a right to be judged by an impartial jury or an individual doesn't the idea the concept that one can be acquitted of a crime and then have that entire crime looked at with using a different standard a much lower standard by a judge is i know if it seems it seems counter intuitive and yet that's where we are with the decisions of this circuit and the supreme court you're asking us than us for some very heavy lifting council one thing to ask us and we've talked about that earlier to the to ask us to rethink it and go to the entire court and say gee this is wrong it's exit to our entire  board but unfortunately we can't do that with respect to the supreme court i suppose you're going to if you if you lose you can appeal to the supreme court asking the change the rule but we can change this understood understood and it is just a just one final point but i'm sorry just go on one final point that when we look at one particular court is the finding if a defendant is exposed to a great is a defendant exposed to a greater punishment then what was authorized by a jury's guilty verdict and i think that if we're analyzing acquitted conduct from that point of view i think that the decisions allowing acquit conduct to be used at sentencing based on  preponderance of the evidence i believe that to be wrong and i will leave it at that and i can i legally pivoted for you the facts of this case let's assume that we're applying the preponderance standard given the testimony moore in particular wouldn't that alone have given judge berman a basis to find based on a preponderance the requisite two hundred eighty plus grams of crack  government good morning and may please the court my name is robert allen i represent the united states on appeal and tried the case below the government's primary sorry the defendant's primary argument is that it's unconstitutional to consider a quote of conduct at sentencing  arguments for close by cases in the circuit supreme court precedent and as far as we know has been adopted by no other circuit in this country although it does seem at first blush it does seem crazy i  was insufficient under the reasonable doubt standard but that conduct might be easily provable by a preponderance standard here for example for whatever reason the jury did not equate on the b one a charge the two hundred eighty grams  charge but there was a tremendous amount of evidence that judge berman properly found supported a higher weight there are all kinds of reasons why the jury may not have convicted on the b one day much of the defense case in the defense arguments to have the right of trial by jury have a jury say what wasn't was wasn't proved beyond a reasonable doubt and then have a judge say the same issue and find disagree that it's counterintuitive juries determination as guilt as the offense obviously but there are all kinds of considerations it's very difficult for for you to decide what's counter to my intuition but in the that that i certainly will agree with your is so so much the court as any further questions the government rests on its missions thank you thank you counsel you have three minutes i'll be much briefer than three minutes your honor thank you just wanted to note that  government mentioned that there was a tremendous amount of evidence at trial however much of the tremendous evidence the jury specifically rejected when it rendered its verdict and counterintuitive to mean that the judgment of the of the jury hearing the evidence that was presented at trial can then be essentially overturned i make the district court judge respect that here the argument you're making effectively mean that a district judge at sentencing has to fly out of a apply a find any background fact even if it wasn't before the jury beyond a reasonable doubt other on your theory here facts that were submitted to the jury are subject to a beyond a reasonable doubt standard at sentencing and any other state fact is subject to a preponderance standard how does that make sense that makes sense because what we're talking about is submitting an issue that was passed upon by the jury and decided in one direction now being presented to the district court judge at sentencing and passed upon by the district court judge in another direction to look at sentencing all day long i'm asked to make a judgment about a role in the offense i'm asked to determine abuse of position of trust i'm asked to make finding sometimes about criminal history and a whole host of other things all of that is by a preponderance and constitutionally so the fact that a jury applied a different standard to one of those questions and found it wanting it provides a funny basis for the argument that that standard now gets elevated and district court can apply the usual preponderance standard to the same factual question what's that what's the base what's the normative basis for that i fully understand the optical appearance that my colleagues have identified but as a matter of system coherence how do you justify applying a different standard to different species of sentencing facts and i thought about that and when a district court judge is making a decision with respect to roll or essentially just let me put it in a general ba how a crime was committed we're talking about the crime that the individual was was convicted of the individuals convicted of a particular crime and the district court judge is looking at how that individual committed that particular crime with respect to criminal history we're looking at crimes that have already been adjudicated in individual has been rendered guilty of a misdemeanor in this state court or a felony in this federal court and we're using those convictions to determine based on the preponderance of the evidence how to sentence that individual  this particular situation all by your system construct the government should in some circumstances refrain from charging the statutory enhancing fact to preserve its ability at sentencing to subject that fact to a lower standard of proof right the government could conceivably do that your honor government gets a second bite of the apple this is the same counsel who tried the case and didn't get a conviction but is allowed to bring the same evidence before the sentencing judge there's something about it that seems not fair i would agree and that's the thrust of my argument your honor although that's that's really not our job to decide a new this issue we are bound as you know by precedent understood understood and i will rest on this thank you thank you thank you both