seriously contest the fact of the construct of the moment the terms of the indictment were in effect altered when a mandatory minimum was imposed based on a higher quantity than that which was charged and as this court has held repeatedly to preserve he objected to imposition of the mandatory minimum he argued that harris should be overruled he said drug quantity is an element what more is he supposed to do it's simply untenable to suggest as the government's argument would require that he was required to articulate every hypothetical consequence of an eventual eventual favorable supreme court ruling on the issue so your argument is but the constructive amendment claim is implicit in all of those other arguments that you've identified it's implicit it's a consequence of the follows naturally from a correlation claim it's a consequence of drug party becoming an element because it isn't in her calling which sort of deals with some of these issues extensively there's no reference to constructive amendment that and the lean era and a defendant who's facing an allegation that says five grams or more money difference between the indictments is that is that the invite made here indicates to the defendant that drug quantity government doesn't contest that there is not in the lean era everyone agrees that there is an era the question is the legal effect of that or you have a series of arguments about the legal effect of that of that era bottom line being whether or not it's it's harm us all right but there's no no no amendment the government government isn't coming in here and saying sentence him on a different invite them this is the same defend the environment that the grand jury necessarily would have done exactly the same thing i think is a misplaced assumption there are really three players that can determine what kind of sentencing exposure a crack cocaine defendant might have just before you get to that i don't want to leave judge sa quite yet one of those cases that that you refer to is i can boney and what i was thinking and i could boney or at least the way i read the case now is that it was a separate crime that was charged from the one that talking about here is that the is that the judges there are imposing the sentence or is it the grand jury's error in not setting forth in the indictment he a drug quantity that would support the there isn't here but it's the court's error because the court is faced with a charge if there's a charge there's an indictment there's a charge there's a particular quantity charge that's the crime of the start of the law at the time of the sentencing the are the defendants objection was that it's improper to impose a mandatory minimum based on that charge quantity  lamest the judge this is what's changed the judge is no longer needed to make that quantity determination is not correct is not only one certain threshold determination certainly there can be  decision maker had before that information it should have had it would have made the right decision or alternatively even if it had before information that should not have had even if you exclude of that information it still would have made the same decision crime was the same or would be the same in any of them what the grand jury indicts as a function of its role as a check on executive power what the executive assett to indict but here the government cut the grand jury out of the loop after congress re the penalties who have three players the congress that sets the penalties the grand jury that uses what's with the prosecutor the truth is what the prosecutor congress recalibrates the government takes it upon itself to undo the effect of that leaving the grand jury out of the picture that is a clear fifth amendment defendant forfeit this claim he never once mentioned the term constructive amendment or even invoked the idea construct an amendment on appeal he claims or it should deem him to have reserved a claim because in his view if that is that the time this guilty plea the defendant said the f s a has been enacted in tightening should target twenty eight or more grams it doesn't i am not faced with a ten year mandatory minimum and because he didn't make that argument at the time when it was important for him to make the argument that he could have made his claim should be forfeited and subject only to what i knew very few which would fail for other reasons discussed and the was charged under a forty one p one b three in all three counts of the indictment and that is precisely the section under which he was ultimately sentenced counts three if the court finds however that there was a construct men then it is our view that these claims are not structural and are subject to harm with their view if you get to that issue you will be faced with a number of cases in the circuit in which the amendment claim the pharmacy or analysis does not apply and in the court decision the united states and its friends which i would suggest this is the most comprehensive discussion of preserve and preserved construct of men and claims in the first circuit the court points out that although the court has frequently stated that constructive amendment claims that are preserved or per se refers to a poll in fact that statement day of the court pointed out that this issue really has been dicta in almost all cases except as such howard went out and by a combining which the court in britain day i'll try to wrestle with and i w that in addition to what the court has suggested this morning another way of looking at i pani is that the error cannot be found to be harmless and in fact in the last footnote in the case the court pointed out that the government  unhealthful to have outcomes dictated by labels such as constructive and because the court said there are many different kinds of construct amendments some are prejudicial and some are not and i would suggest that the if the  constructive amendment here and one that's to preserve it should find that it is not the kind that's prejudicial and the reason for that is or at least one of the reasons for that is any other result would create a complete completely dichotomous result with the courts and lean decision the policies behind a leaning are exactly the same as the policies behind the prohibition on constructive amendment that those issues are exactly the same into two situations it would make no sense to rule that a claim dugout alien claim is amenable to harmless error review but the almost identical made a decision that he's not entitled to make he no longer can make the drudge can no longer make that quite a determination in the way that judges understood th it's the sixth or fifth amendment error is whether a properly instructed jury grand jury urge every would have found the quantity if they have been presented to it so in this case if a pro if the case and gone to trial and a properly instructed jury had been instructed that the alleged money was twenty eight or more grams the a rational jury would have found twenty eight or more grams there would have been no other rational or self and you see that analysis in the first circuit cases that deal with guilty pleas moris this one case where the fan and went to trial that choice the test is whether a properly instructed jury or grand jury would have found the quantity and here that there can be no other conclusion that evidence was simply overwhelming the grand jury would have found by the standard probable cause that the second transaction involved twenty or more grams and had the jury presented with that question it would have reached the same result on a reasonable doubt it there's nothing particularly unusual as they were both the has to decide to materiality issue as a matter of law thinking that was the judge's issue but the supreme court then so has the to reality is with the jury but nevertheless that iraq can be harmless if it's reasonably clear that the jury would have come out the same way the judge did absolutely and that's right that's that's in the context of a jury trial itself what puzzles me here is that we're dealing with a guilty plea situation there's no jury at all so why do we in the guilty plea situation invoke what they truly hypothetical dream might have found to establish the proposition  there was harmless why is that relevant that a hypothetical jury if properly instructed and asked to consider all this evidence would have made the proper quantity determination what is the plea situation was harmless you know i standing here i honestly not sure if you go back through all the case law that developed but it's certainly the law in the first circuit if the first circuit has  with this evidence would have found something different minimum is part of the decision of the crime to charge whatever the drug quantity was and there is really no incentive for mr recovery ever to test or challenge it here because the quantity was not proud of the guidelines we have the career offender and the minutemen try minimums and play whatever the quantity was what crime to charge which is the core of the grand jury still a crime here hasn't changed the crime has been the same all along what's changed it is the supreme court has changed the modahl of the first one congress changed the law in the fia sentencing that and then the supreme court change the mood down would be for how you determine the amount but the climb hasn't changed it's been the same statute from day one that was charged by the grand jury and it's been the same applies and that's really an error of constitutional dimension that the appropriate harmless error analysis of why why should have been a different before a grand jury thought why why should you seem to be saying that the grand jury process  like the jury trial itself should not be subject to harm is there analysis of all why should that why should the grand jury defines an chooses the crime that is actually charged i mean i think a more extreme case which would maybe illustrate th is really at risk here would be the court commonly see is the friends charged with possession of a gun possession of drugs but no nine twenty four seek possession of the gun in further instruction if mr mccarver is not entitle to relief or preserved objection nothing would stop a prosecutor from asking for a judge from imposing a five year i don't after nine twenty four see penalty where the evidence is quote unquote overwhelming even where it's not sharp and that is essentially the supreme court ruling puts drug quantity as an element on the same footing as any other element of any other crime and so to deny relief here would really open the door to mischief by judges and prosecutors as to which defendants would have no remedy whatsoever and i would suggest the fifth and sixth