when i get one i sort of back off on the amplitude but as i was saying this occurred on the reservation that's a whole no reservation on the road that goes from cells to custom grant my client's car prevented two agents who are in the same vehicle from chasing a lead vehicle once my client's vehicle impeded their progress they no longer attempted to find the lead vehicle but they focus their attention on him he was convicted of aggravated assault  he was sentenced to forty one months and the reason we're appealing is that i believe that permissible double counting occurred in the fact that he was convicted of an aggravated assault the normal guidelines for an assault or six and aggravated assault makes that a level fifteen it was bumped up from fifteen to four which i believe is the impermissible double counting because the assault guidelines under two a two point two already taken a fact the account already taken account the effect of an assault changing from a simple assault to an aggravated assault is the single use of the car to change it or to attempt to change it and i think the problem with double counting was that you can commit an aggravated assault without the use of a dangerous instrument so under a double counting you can commit that without one it's not the whole counting my reading is that because it was involving i weapon it did change it from an aggravated assault and the use of the car was counted twice in the application of the guidelines that's our position occur without weapons but i believe the way the guideline is written is salt but the use of the weapon does take into account the fact that a weapon was present in this case it was the car the car was double counted to take it from six to fifteen and bump it up another distinct in our case there was no harm and getting back to that issue of harm i think the permissible double counting applies not only in the argument that it's double counting to change the aggravated assault and get an additional four levels from the court but i also think that occurs in the in the grouping because there's two agents in the car it's one transaction to occur simultaneously as to both agents it's not a separation of two cars two agents and i think the analogy that i used in my brief was what if there was a bus with fifty agents at my car floated in front of my client's car floated in front of an impeded their progress and therefore constituted the assault it would be a grouping for fifty that would be a logical because it's a logical for fifty i think it's a logical the logical for fifty suppose you ran a but off the road and killed fifty people i would think that the victim's family to be really upset if it was treated just as things killing one person in the context of this particular incident i think that the grouping the bumps it up an additional two levels for two agents in the same car i understand the court's point that when it's fifty individuals it makes it a more serious car crime or more serious harm if there is a result and in this case there is no resultant harm what i what i'm getting at there is i think the idea of grouping was to protect defendants against prosecutors at needlessly separating and stacking charges just in order to manipulate the guidelines so i think that's correct your honor and i agree with that analysis but you don't have the same problem when you have multiple victims and the distinction is that there are in the same vehicle at the same time i think that's the distinction i think one of the cases i  not a separate harm as to the incident one to argue that because my point would be that because it's one transaction as to two individuals it's not a separate harm it's only separate because there's two individuals in the car you know the world trade towers one i think that's a more severe case when you have actual result in harm that would be the distinction was the folk on that actually was the subject of the april third letter the twenty eight day letter and one of the things the government did as filed a cross appeal and subsequent to the time that i filed my brief booker came out blake emmeline and booker came out and so and then a few other decisions from this court notably the g g that stated that in this case and all likelihood it's probably going back to the district court for a reset  our position would be that taken into account the things that have happened in this court come from the united states supreme court as to poker player emmeline issues thirty five fifty three factors are going to come into play i don't know if we get a better shot if the judge takes into consideration the advisory statute the advise of the advisory status of the guidelines and allow me to cite more thoroughly more comprehensively thirty five fifty three factors but before you even get to that the important analysis is are we starting with the correct guidelines and that's you know that's the reason i'm here still arguing or still best possible scenario for my client but i understand i don't get to pick and choose and it may be that this ends up being just like poker and it's it's a calculated risk my client may be looking at more time but i think i don't see how you can avoid  e having a go back worst and it looks to me is that the judge did not impose the official victim enhanced because he thought it couldn't under blakeley that's correct and then it became quite clear under booker that it couldn't i don't really understand what answer there can be to the government's cross appeal and that the factors under thirty five fifty three that make the guidelines advisory allow the court to take into consideration all the facts about my client's life and previously he didn't take into consideration and this would be the discretionary part of his sentence the fact that my client suffers from mental illness i think when all those factors the judge would use the advisory guidelines impose the official victim and hansen but then he wouldn't be as limited in his ability to give a lower sentence because of the advisory status the lower sentence the lower sentence or the same sentence based upon discretion and the advisory status of the guidelines yes your honor that would be i hope ok i might could i save tha good morning me please the court i'm beverly anderson from the district of arizona here on behalf of the united states district court properly added four levels to the base offense based on the use of the dangerous instrument second of all the district court also properly combined to assault counts however this court should declined to review the district court discretionary refusal to depart downward for the mental illness that was raised at the time of the sentencing and finally this court should also remain on the case for a free sentencing before the district court full reasons and for all and everything that happened before start all over again i believe so you're on the four level enhancement was not in permissible double counting because it takes into consideration two different harms that occurred according to the sentencing guidelines section two a two point two aggravated assault is defined as if alone is to assault that involved a dangerous instrument with the intent to cause bodily injury in such a case the sentencing guidelines are very clear and also united states vs reese is very clear that in such a case the base offense level and the weapon enhanced meant and b to take into account different aspects of the offense even if the application of the base offense level and the weapon enhancement is based on the same conduct it's a little abstract for me could you put that concretely sure what you just show me as a practical concrete matter why it's not double counting because you've got the assault statute and the assault statute is raised to aggravated assault because a weapon was if he's using the pickup truck to try to run the agents car off the road and that's aggravated assault because you can kill somebody or seriously injure them by running off the road pickup truck correct there was no there was no injury  there be a way to show it's aggravated assault without that by even a fuse trying to run him off the road or even if he wasn't trying to run him off the road he just had a bicycle and he was weaving back and forth across the road so that they wouldn't catch the car ahead of  quarterback but this isn't the case he's using pickup to try to run a car off the road correct now what is the other harm it's distinct from that the other harm is that there was an intent to use or to inflict serious physical injury and so we've got the use of the weapon the motor vehicle which elevated it and what way is that different from using this pickup to try to run a car it's different because there was an intent to inflict the serious bodily injury based on the circumstances and the facts of the case and the sentencing guidelines clearly state that this is not in permissible double counting they used the situation in the sentencing guidelines directly on point not only that but in the united states versus three this court  rejected the arguments that were set forth in u s versus hudson which the defense counsel relies upon in support of their notion that it is double counting the second issue pertains to the assault counts and as as this as you all have properly pointed out to defense counsel we've got two separate victims in this case who just happened to be in the same car however it is t separate assault counts and they it should not be considered merely just one assault because there were two separate victims and because of this  act they are not grouped under three d one point two their combined pursuant to three d one point four additionally this court lacks jurisdiction to review the district court's refusal to grant a downward departure for the no toll illness that was raised at the time of sentencing by the defense attorney the court declined to within its discretion the court declined to depart downward based on no but i do believe that that has survived post booker how the survivors were supposed to review sentences for reasonable is how can we wall off part of the sentence and say we're not going to is reasonable i believe that there has been a recent case from this from this circuit that says that it does survive booker and i apologize i don't have that it hand but i believe that has been decided by this court  finally it's the government's position that the district court erroneous lee concluded that it lacked the authority to impose a guideline inhance met for the official victim without a jury finding and granted this was at a time when there was a change in the law and the court believed that given that the court did the appropriate things based on the state of the law at the time however now post booker and post mix which is a recent case which this court has reason recently decided the court the district court did not properly calculate the guideline base offense level and the district court could impose that official victim enhancement based on its own findings of fact it did not need a jury finding a fact in order to make that enhancement at the time of sentencing unless the less you all have any questions for me i'll submit the matter on my you i think the great thing about this case is that it proves that there was a living and dynamic and flexible organism because it's just so much that's going on in the background here but i think the court is correct in focusing on the fact that the weapon is the car it's double counted and our position would be that it should be in light of the recent decisions a limited emmeline review not a full hamel interview as to my client thank you thank you a