but i'd like to reserve two of my minutes for a bottle if i may not as there are two issues which i'd like to bring to the court's attention today i'd like to focus first on the gang affiliation the admission of the gang affiliation evidence and then if i have time i'd like to discuss the most of the nine twenty four c counts in the double jeopardy problems that arise out of those cans turning first to the gang affiliation argument the evidence of gang affiliation in this case was completely irrelevant to prove the government's case in this matter and the reason that i say that is that the defense prior to trial informed both the quote in the government that there wasn't going to be any objection in in fact they were going to admit that all of these folks associated with one another as matter fact as we know that they sociate with that one another irrespective of any gang affiliation because of this fallen angels records that they all hung out at that they all recorded that and that they all had kind of a club going to be relevant even if it wasn't that serious it could still be relevant but for the stated purpose it was not relevant you know under the district court findings it wasn't relevant because if you look at the district court findings which are at the beginning of the trial i believe it starts on page twelve of the first day of trial the court finds that this is wrong and to show the connection between the parks and again the connection between the train the defendants in this case is not was never an issue with regards to this trial and certainly with regards to this particular defendant so now you have even even don't there's absolutely no relevancy to this evidence but even if there was some sort of a minimal relevancy to this evidence then you have to do your for a three way and decide whether or not the prejudicial nature of this evidence is substantially outweighs any kind of a relevance factor that would be involved and in is this court's aware in this case the evidence was it wasn't an isolated incident like we see in some cases this this evidence was pervasive throughout the trial and it was pervasive in ways that were completely irrelevant to what they were trying to prove for instance there was a discussion of tattoos there was a discussion of the meaning of those tattoos and what they meant to the lords there was discussion of the different ranks that vice lords have and why they have those ranks and all of these things if you take a look at what they were trying to prove which is that these robberies were occurring in that these people committed these robberies ranks for certain her i believe there was a limiting of four or four be a limiting instruction in this case he said and i believe it was at the time of the general instructions at the end of the case it wasn't contemporaneously given whenever this evidence came in but i do believe  was but i don't know that it was pacific to this gang evidence isn't can only be used for it wasn't that specific it was more of a general use of for for be evidence it is no good going back to your first point that they conceded being associated with each other when you have a conspiracy that sort of concession doesn't really take you very far down the road because it's important in the for the prosecution del more there are a late into the nature of the relationship isn't it i would agree with that but in this case you had the to more or less ringleaders of this case which are one of the ringleaders which is well know henry who is admittedly one of the masterminds behind this and then you also had kirby who was one of the enforcers that was involved in this conspiracy both say that the participation in gang membership had absolutely nothing to do with this conspiracy or these robberies they both said that in their in the reason part of the reason for that is that in this case we had different gangs involved that were part of this fallen angels record it wasn't just one gang there were the four corner hustler s that were that of which my client was a member of there was also this insane i can't remember the last part of it but it's the insane vice lords i believe is what it was and i think that p or we'll know henry was a was a member of that  so even if even if then you could try to prove that ok well there's this you know this there has to be this extra connection it was already proven not only through direct testimony of witness after witness talking about i knew this guy we agreed to rob  bank and by the way that the are not bank but rob this convenience store and by the way the it wasn't a matter of we're going to rob convenience stores on a regular basis it was hey this convenience store is available do you want to rob it today it was that kind of a it was that kind of a deal and that again cuts against the fact that somehow the gang membership would require them to be involved in this activity is mere fact everybody stated that it didn't in the games had nothing to do with it and that's that's what the problem with this case here is my client's defense was that yes he was a he was a he was involved with these folks in terms of being in fallen angels records but that it wasn't physically him he wasn't physically at those locations doing those were robberies and his affiliation with the gang one way or another or a different gang one where another would not do anything to prove any element of the offense to to tie him into recognition or id it which is what they really need to prove in this case the second issue that i'd like to address is with regards to the one twenty four c counts and i think that there's a real issue with both the indictment in the jury verdict form in this case that precludes more than one conviction under one twenty fo c and that is that each of the four nine twenty four c counts uses as an underlying basis the conspiracy count in this case is mere fact it's not only discussed but it's specific in that it is the under an underlying factor in all four counts the jury have to find for each count a particular event the conspiracy particular robbery they didn't need to know because if you take a look at the jury verdict form and i think it's on i think it starts with they did but they didn't need to pay but does that matter well it doesn't it doesn't matter because if in other words if you start looking at six thirty six and you have this this date he was this this nine twenty four c count as count one count nine were both right those are the three options that they had in the jury verdict form and so if they would have picked count one obviously that's the conspiracy count right they did pick both but which means well which means that they specifically the found that the underlying unit of prosecution was count one and that's that's the   in the johnson case that i cited to to the court i think they say that the you don't look at the number of firearms you don't look at the differing kinds of drugs that's what johnson and johnson was was he had three kinds of drugs and one gun in they tried to get three hundred twenty four c prosecutions out of that and what do you know there are different robberies i truly don't understand the point so help me the different robbery they are there is a gun used in each of the robberies so why aren't there separate nine twenty four c violations we would have no problem if the nine twenty four c count was tied to count number nine and in count number twelve and count number one  not i don't know why it's not it's not the way that it was charged by the prosecution in this matter it's charged too tied to count one and where it where is a jury finds guilt on both counts one and it is not point where there were there wasn't there was an objection made wasn't there objection made on it wasn't the objection that i'm making the double jeopardy claim my point yes yes and they find the the problem here is it in i quoted it under double jeopardy so i'm looking at it at the blocker right as a blocker test they have to find that he committed the nine twenty four c in let's say count ten as it in the underlying unit of prosecution was count one that's what the jury's verdict necessarily concludes because they checked one in nine which means it's necessarily they found that that gun ties into count one which is the conspiracy and that's the same unit a prosecution is to every other count and that's the problem thank you please the court i'm gary cram i'm here on behalf of juggling ford mr ford mr producer we're trying to gather so i won't repeat the issues that were brought up earlier oh i'd like to reserve three minutes right to a jury trial on that element and that is the so there was no waiver of a jury trial on that element but this is the way this works every time you get agreement i mean this happens quite often that have not cited i tried to stick with six or to i think it's basically that you what they've done what the judge what the lawyers have attempted to do here was waive mr ford's right to jury trial without his consent mean these are the objects of the robberies were all by definition in interstate commerce but only by definition i think that there are limited definition but i think there are limits to what this is this is a i'm not arguing interstate commerce issue i think that that is what the limits on the federal government to prosecute is something i think is in a little more state of flux them than other kinds of issues but it was the but the point is that there the there should have been some of knowledge met by mr ford that he was giving up his right to a jury trial he said on that issue bad defendants in order to not appear to contest things that are truly not an issue and i'm not what i'm questioning is it was not between as you said between the lawyers in the defendants the defendant was simply never never acknowledged that this was being done on his behalf well i mean that based sorry i mean we you presume in the efforts of in the absence of a showing to the contrary that a lawyer has consulted with his client and acts with this client the cases that i found were the second circuit case u s versus wellington a ninth circuit case u s versus larsen both of which that there should be some kind of inquiry to make sure that the stipulation was voluntarily made and that the defendant understood yeah i i think that light why isn't it not clean air here if if we have to struggle to go to other circuits to find the law because i'm not arguing that the the standard or review on the waiver of a jury trial this is structured so that it's it has it is not it is something that is not you have to object to it the same way that you can come into this court and complain about a guilty plea if they don't explain the rights to you when it is structural error if it is if the person is getting a jury trial and everything else but just not on one that's what i'm saying  wondering is whether you're talking about structural error as a general matter if you're generally deprived of a jury trial or whether you're talking about a case that talks about a particular element and if you remember you can and do not believe i have a specific element i don't think there is any  statement and the government's response to it in part was that we didn't object i pointed out that we did object in the judge basically said you know we've we've addressed the bruton issue and we're going to go forward so there the the about the mr previews statement to the him said among other things he said basically everybody except somebody else not my client everybody else was doing it implying that my client was part of this group that was doing and i think that says you can if he has if we have that kind of a statement and record that's a that that's identifying my client as someone who's participating in the a man is identifying other people involved but not mentioning your client know what what he says is all of them including michael l of him at the at the record may please the court my name is my partition i am here on behalf of the one entire room nathan you are our issue that we present for this court they deal specifically with the manner in which mr nathan was sentenced and specifically about how the pseudo counts were used to essentially increase his guideline range from three or four hundred guideline range of one fifty one to one eighty eight months to the calculated guideline range of two hundred thirty five to two hundred forty months as we indicated the brief the increase in this guideline range was caused specifically by the court using the pseudo counts specifically the substantive robbery counts in which mr nathan was named that were dismissed pursuant to the plea agreement as a means of basically adding five levels to his offense level  have two positions on this one is that the court committed procedural error in calculating the guideline range based really on the plain language of the sentencing guidelines specifically section one b one point two d and we made specific reference to application notes three and four our second point was that the manner in which the court calculated the guideline range was a essentially a sixth amendment violation  specifically the court can conduct its own fact finding determination in a manner that raised mr and mr ray's mr nathan's guideline range to a higher level without the benefit of a jury trial i think what i'll do is address the age of the race by about seven years it was from it was once it was a guideline range calculated guy learned before the five k was apply from one fifty one to one eighty eight to two thirty five to forty eight basically pushed him almost right up against the statutory maximum sentence but it was still under the statutory  didn't change the statutory max it did not it's a night in that would be if i understand the what we rely on that cases cases such as go and read or where they talk about in connoisseur to some extent a six circuit case where they indicate that there are situations where when the court engages in digital fact finding and raises that the the advisory guideline range to a point the sixth amendment issue could be triggered because what it does is it makes a it changes a guideline or a change is a sentence that is presumptively reasonable without the benefit of of a of a jury finding those facts so the best case is that you can fight for your position and the ones that you just mentioned well true judicial fact funny does not increase the mandatory the maximum the statutory not some sentence it or the minimum sentence in light of a lead in this case that's what happened i guess what we're getting at here is this is that mr nathan pled to conspiracy the conspiracy count was a very general conspiracy count it wasn't a conspiracy count that list all these overt acts it was simply he had a youngster into a conspiracy to commit armed robberies of various  that's part of the issue is where he talks about when we talk about the application note and i guess this goes to the procedural reasonable aspect the language talks all about how the how the court the count charging a conspiracy to commit more than one offense how we how it big it talks about how or we're talking about these counts we're talking about the the additional offenses that are listed within that count there is an additional offenses listed in count one one is simply conspiracy to commit armed robberies from a period of time it doesn't say in the overt acts that like it doesn't list any overt acts it doesn't list these are the robberies that he committed now an argument can be made well we're put on notice that these are he engaged in a conspiracy to commit various armed robberies and that he committed an overt act and further in so it didn't say what there's no indication the police locally or in the plea agreement about what overt acts were committed there's no stipulation in the plea agreement as to what overt acts were committed it's just that he committed some but then we got to sentencing in this case the court goes through its own judicial fact finding that well mr nathan committed these  you know essentially eight armed robberies that he finds beyond a reasonable doubt without really any sort of trial whatsoever he just finds it based on the testimony that listen to what the other at the trial the co defendants at which mr nathan was fact and he and what happens in the sentencing hearing is the judge does say i find beyond a reasonable doubt so it's not a situation i guess similar debates where it's you know the judge were there wasn't a specific determination the judge specifically said i find beyond a reasonable doubt but what he doesn't explain he doesn't give us any record about why he found beyond a reasonable doubt other than i listened to the trial but even more importantly  that is within the statutory you know that is within the the statutory range is alive and is a viable challenge and we would smit in this case is the only thing that drives mr nathan's guideline range up to this two thirty five to two forty range is the court's judicial fact finding of his guilt on those substantive counts of armed robbery if you doesn't actual sentence remind me his actual sentence your honor was he had a three i believe was one sixty eight so his guideline range was reduced pushing on the as applied sixth amendment the range but isn't that a forgive me a little misleading well i'm not trying mislead i think i mean i wasn't trying to even month it's only an eighteen month increase over the other guidelines range which was one twenty one fifty i understand that but the problem your honor is that the five k should have been the the first thing the judge has to do is correctly calculate the guidelines the five k that he received that three level five k reduction should have been based on a one fifty one to one eighty eight guideline range which is which brings them down i guess to a one twenty to one fifty that should have been found off of a two thirty five to forty guideline range i guess mark is for me is the five k that he received i mean is really irrelevant to the argument we're making here because the argument we're making here has nothing to do with the five k which is based purely on his cooperation the argument we're making is based on how the guideline range that basically drives everything here was calculated and in that case they would because they use these pseudo accounts it did increases gu way other cases from any other circuit we do not rely on r and d you will be frank and i think it's already been directed in those cases that are cut against this argument specifically obviously roles of the i think roles is  it's it's first of all it's a second circuit case and i think roles as the way that they care about that decision or roles is completely inconsistent essentially what they did and roles as one finder of fact substitute his opinion for the other finder of fact  night for that reason i'd say i don't think it's well reasoned and i think it's what other sort of persuasive authority has is cut against by when you take a logical look at what happened to rules the jury found the guy not guilty and the judge essentially said w the statutory maximum there was a change in the statutory minimum or max that's correct his remains his range remains the same with zero to twenty so the argument the basis of that organ that we're relying on to be candid is  otherwise not be reasonable based on the dial and range reasonable because it falls within this new elevated guy lamb range that is based on facts that were not found by a jury thank you thank you are procedural and that the district court failed to articulate and calculate the guideline range and the offense level prior to giving the sentence originally there was a level twenty nine  level with a guideline range of one fifty one to one eight hundred eighty eight months the defendant was then given a five k reduction the district court had said on the record that in his mind he wanted his nor the guideline range once he decided to do that he gave the original the original guideline range in the original offense level then he gave a five k but never recalculated what the what the guy that ran should be where's the law that even the district court does have to at least make a calculation and he didn't do that once he gave the five k so is the problem that the five k isn't based on a certain number of levels down is that with the problem cooperation is using the ruling from the valis which indicated that the court has to calculate or at least mention the corresponding range that's that was argued and that's that's based on work that's what the air would be based on and quite frankly that's the that is the only argument here that is made is that the court simply didn't reiterate are recalculate what the offense saying i see henry and nathan in comparable ways right mr and so nathan's one sixty eight is it just as simple as i'm starting with one sixty eight and i'm going down to account specific context well in a valis that was a drug case in the court kalki calculated the offense level but then didn't recalculate the guideline range after a five k was given you think it is th specific and correct are you familiar with this case not off the top of my head your own story you know one thing one way of thinking about this is in a weird sort of way it helps your client because if you if you do what the judge did the judge doesn't get the presumption of reasonable ess so in other words if the judge should set a can do in the five k which is a departure the now gives me a new range and hypothetically i'm now sentencing him within this range that sentence gets a presumption of reasonableness but when you do it the way jocker did it i mean the one thing i would say is i don't think he's entitled to a presumption of reasonableness because we don't know that's the sort argue we don't know what the new range is but that just means he doesn't get the presumption and still leaves you with a reasonable miss challenge in which in a way it's easier for you you don't have a presumption against you but it still is still a crime you have to show them reasonable correct  i'm kind of saying that is like is that the way to think about this that i mean the judge is hurting himself to the extent he wants to benefit from the presumption of reasonableness helping you all that you don't have to deal with that in challenging the length of the sentence but trying to right now as we know it without presumptions of reasonableness how was it how you heard i mean if it was a variance up or down we know those are presumptively wrong and so that is a neutral all the top and is a novalis on the prior case that was cited was that in that case the court in the katydid there was air because after the five k the guideline range was a calculated and that is what happened here guideline range wasn't technically it's not right that when you do departures you know departures come before the end of the range i mean you do departures before you decide what the range is so you have a five k departure and then you know it's seems innocent enough and it ultimately hurts the judge in a way but he doesn't tell us exactly what the new ranges i think i mean i think logically your honor that you're making a very good point in that is you know how how why would this court be willing to provide that presumption resembles to the district court when we're definitely not i mean you know that's one thing and i don't think you get that but i'm asking i'm saying from his perspective well we have a procedural reasonable in this doctrine why doesn't as is the problem with the balance was the court never announced what the starting guideline range was to begin with and only announced a guideline range after it said it was going to grant a downward departure so this court had no idea where the starting point was because the court never found what the starting guideline range was in that's not what we have here the court clearly specified what the the starting to get started guideline read and didn't specify what the ending guided by in range was did the court say i'm granting a five k one five levels or two levels or what but the court actually said that it believed a four level reduction would otherwise be appropriate here and and so and so what range would that offense level twenty six come on history category six which is one twenty to one fifty let me let me ask you something more just really fundamental about this and syncing is that here this discussed by my colleagues and counsel that you all are living in a different world from the one in which i lived in is the district judge of course admittedly i haven't been a district judge for eleven years so i'm conceding that my world might be a little out of date but in max perience it's often the fact a one reduction is tad to a particular gadfly and granger concept because that's become a more convenient way to discuss it but i'm not sure that it's even require that the court do it in that way i mean you're making a it's and then it's a judgment that's inherently different from any judgment in calculating a gatland sentence or in calculating other kinds of departures or variances anecdotally i guess in this is no record evidence of this but that other districts calculate their five case differently some districts from you know obviously this is a process initiated by the u s attorney's office by filing a motion for a five k rip departure than  ultimately it's the judge's discretion whether to give one at all or if to give one how much to give i mean if it's not in some choir did you express it or tie it to a guideline provision how could there be a requirement that you articulate the g i agree and well the point i was going to make is some some districts go in with saying let's take twenty percent of a sentence off and just do it down we thought there was a six case that said in doing five k one point one research that particular point of it and i didn't do it in this case so i'm not aware of that law either you or we just need to do more of the things that i saw maybe in a different world from judge givens but i guess i had this thought that the way it worked was  the procedural reason on this point is you're supposed to have a guideline range that's the procedural reason this point if i thought you didn't have a guideline range until after the five k i thought that's why we distinguish between departures and variances think about it is the five k is a departure and i mean section five k of the guideline says in downward departure departure six and so in this case i mean he didn't state what the final range was but he did state what his departure was he did say he was giving him a four level reduction of from where he otherwise thought he should be the one way of thinking about it is even though he doesn't tell us the new range the information is in the record it isn't a record he did correct your honor it is  mean so your position is that he went down four levels to a twenty six with a criminal history six and came up with a range of one twenty to one fifty and then sentences him to one fifty that's correct that is my position  there's a couple of reasons why i say that first number one he began his discussion of what the sentence should be by talking about two things the judge did and then proceeded to talk about eleven pages for why give the sense he gave but the two things were whether  upward variance was appropriate for mr henry and whether the downward departure was appropriate and at the end of the day he decided that an upward variance was appropriate because he thought that's when he said i think he's more along the lines what mr nathan is now he didn't state what that range was but he did mention one hundred sixty eight month sentence in the one hundred sixty eight month sentence and mister henry's position could only have come from three guideline ranges level twenty eight category six level twenty nine category six level thirty category six well he started at level twenty nine so we already knew that he so when when judge walker indicated that a variance was appropriate and which he did in the record the only level that he could have been starting with is at level thirty and then he actually did say i'm giving him a four level reduction of a twenty nine level twenty nine was the starting point for departure would take him to level thirty so he did a one level upward departure and then he did a four level downward departure in any and he said all those things he just never said my final guideline ranges level twenty six six you were just using departure both times which maybe i'm the only one that distinguishes these terms but i thought you wanted variance is after the five k  in this instance the variance was an upward variance so wide variance can be up or down and you thank god it happened after the final calculation of the guidelines range which includes any quote departures i e five yes no objection here the judge did ask the boss to question and in this is a kind of case where clearly the judge could have you know if given an objection had been articulated that's being articulated now the judge could say oh ok well here it is these issues i guess what i'd like to do is address the issues that that they talked about and if you have any other questions about the other issues i'd be happy to answer i'm going back to start with regard to mr concert producers the gang the gang thing why it's seems highly prejudicial to have all this gang testimony in there in your honor evidence typically is prejudicial against the defendant  in this case it wasn't unfairly prejudicial nor did that if it even if it was arguably unfairly prejudicial didn't substantially outweigh the probative value of the evidence mr producer and mr ford want to cast the cases they want this court to see it point the problem with that is that the evidence in the record doesn't support that and that's not what this case was about this case the gang evidence was relevant and it was probative highly probative on a couple of key points and that is to  and there was no objection to the content of that limiting instruction there was not your honor in the instruction was you have heard testimony that defendants committed crimes acts or wrongs other than the ones charged in the indictment and that the defendants participated in gang activity if you find that the defendants did these things you can consider the evidence only as it relates to the government's claim and the defendant's intent motive opportunity or plant to participate in the criminal activity charged in the document you must not consider it for any other purpose so the judge specifically told the jury what it could consider this evidence for and that was consistent with the government's theory of the case was and that is these defendants were motivated to participate in this criminal activity in part by their affiliation in association with these guys in relation to the vice lord street gang they were the ones that i was of the affiliation with the record label enough or because there were there were other people that were there performing rap music that weren't affiliated with a criminal activity and they were affiliated with the gang either so there was a legitimate side of this business but there was an illegitimate side to it and these guys that bond is is a significant distinction because as this court has noted in criminal conspiracies they're secretive you don't put that stuff out in the open and so the government is allowed some latitude to be able to prove those the secret ties in the secret ties here amongst these defendants in the way they were situated was this gaining relationship it was that what they wanted to do and what they wanted to be and it was the image they presented themselves as these these young guys and that's a distinction that maybe is not it was not finally made by mr ford mr two in their briefs mr henry mr kirby who on the stand during cross examination said yeah the gangs didn't really have anything to do with it they're the older guys are they all that they're past all of that but mr payne mr payne another co conspirator that testified at trial said the gangs did have something to do with it there was evidence in the record that he said the  gang status in the status in the gang was enhanced by committing these robberies and your credibility to perform this threat music was enhanced by committing these robberies you had the credibility to rap about this stuff because you were actually living that life and doing those acts and that was the light that the government cast this evidence in at trial both as it was presented and in and then  closing argument it wasn't it wasn't they were part of a gang so they were committing crimes it was there are two guys here that you see in these surveillance photos these mass to salem's who multiple people have come in here and said they were these two defendants what would be a motive for them to be a part of that and it was the motive that they were they were presenting themselves and then you know you see their their pictures on the internet that they posted wearing bandanas flashing the gang signs it was all inextricably intertwined with one another it wasn't something you could separate i mean they were wearing bandanas over their faces in these photos while they were flashing these gang signs but there's the there are disguising their appearance the same way they were escaping their appearance during the robberies so you need to have to in evidence that the tattoos you're on are not your opponent objected to that specifically well for one mr producer that the tattoo you could not have not seen it was on this side of his face prominently displayed in fact the way he was sitting facing the jury they would have seen it the entire trial because it was on the left side of his face and his face was to the jury and that particular courtroom is to the left so the the tattoos were significant from the point that they explained the bond the tie to the game and the i mean they were the ones that went out the centuries an affirmative statement by them saying i'm a part of this gang i've i've put their precepts on my body that's how tied into the gang i am and i didn't make that argument at trial but that's essentially i mean we didn't that that was all part of explaining their connection to the gang and it didn't go any further than that in the judge's limiting instruction inform the jury of that that's what they were use that evidence for and nothing more quickly with regard to the nine twenty four c counts the superseding indictment record number seventy seven each nine twenty fo count of which the defendants were convicted of in this case does specifically tie that nine twenty four c count to the conspiracy and an underlying robbery each count does this and then in the jury verdict form and we were very meticulous about this because i think it does make a difference if the jury found that that it's only supported if the jury found on each of these one twenty four cities that the only reason they were finding that it was in that that they would find it was in further of the conspiracy and nothing more then the one that's correct your honor ok so why did you tired to both the conspiracy and underlying robbery in each of these ones was there some affirmative reason why you did it that way yes your honor and the reason is and it really isn't particularly relevant for these two defendants because they they went to trial but you know when you draft an indictment you don't know who's going to plead guilty who's going to go to trial mr henry for example was charged in almost all of those counts as well although he didn't participate in any of those robberies it was the government's theory that he would be liable for those nine twenty four season or a pinkerton theory of liability hence it was necessary to  specify directly in that manner that they were linked to count one and that and that's that that's the reason your honor there's there's really no other explanation for it and we spent a great deal of time carefully crafting the jury instructions with regard to these counts in the in the special iraq the tories so that we would know and this court could be assured of what the finding actually was with regard because not a conviction on any of the substantive camps in that situation mr share and the net twenty four c had been pal that couldn't be done so mr stands argument would have that were the scenario correct your honor but that's not the scenario correct and that's why we i mean maybe the jury verdict form was overly detail and then didn't have to be as detailed as was and that's why it's structured if it was your honor exactly why it was structured as it was with regard to that i just a final note i did file a twenty eight j letter on monday that noted and i know judge certain said on the panel that dismissed and i just wanted the court to be aware that it existed in and it did this exact issue on the one thousand for c s was raised in mr man's as moore's case and i mean that the the the posture of it is the same even if the counts are a little bit different because as immoral was charged in the same indictment as these two in fact one of the counts is the same as an account account that mr ford was also convicted of with regard to mr ford and going to the stipulation it and i think mr criminal i have a fundamental disagreement about how how this argument is structured in my mind mr ford did have a jury  trial it lasted two weeks nine days in there was why should we say that if somebody is going to stipulate to a particular element that that defendant should at least  be advised by the court that that means he is not going to get a jury trial as to that element well your honor well couple things first of all i'm not saying that it's necessarily a bad idea to require that i mean never remove record evidence in fact i'll tell you from my personal practice in the military when we stipulated even the facts there was an inquiry made with with the accused in those cases and that was one of the that was the rule that was in the manual for courts martial but there is no law here that requires that to take place so and it wasn't raised obviously wrecked trials so that we would then say it's reviewed for plain error there isn't plain error because the law reviews cases for constitutionally are defined structural errors being a pervasive error that occurs throughout the trial and i'm the government doesn't concede that this is a structural er this this case if anything it's a problem with the instruction if anything i'm not conceding that there is a problem with the instruction but if it's anything that's what it is in the instructions were reviewed at trial ford's counsel had the opportunity to object to the obstructions the instructions and he did not do so and then the judge instructed the jury and i think you know the jones case lays a little bit of the framework here for this court's review in how you know whether this is a stick you know did did the did the court directed verdict or did they not direct a verdict and i think the instruction here is significantly different than the instructed instruction in jones in which the majority of the panel in jones presumed there in the concurrence actually found error with the instruction there but the instruction the know gave the element there was a felon in possession case in the stipulated element was was the the prior convictions which is not all that unusual in those types of cases film of possession he had prior felonies you stipulate to that in the court told the jury in relation to its instruction on the element itself that that that elements been proven here in and i'll concede that this instruction as it was formulated was formulated by the court this isn't the draft instruction the parties provided and i'm in there was never any discussion about it with the court but i can only presume and it's a presumption that judge ocker was aware of jones and how to deal with the stipulation because the instruction here is tailor significantly in that the elements are given the jury is told that they have to find these elements beyond a reasonable doubt then in the definitional section of the instruction is where judge yonkers points out that this this fact of interstate commerce has been stipulated to many tell that he does tell the jury that the fact is established but then after those definitions he reminds the jury that they have to find the elements beyond a reasonable doubt so the facts that the instruction distinguishes between facts and elements and i don't think that's a distinction without some significance again there was no objection here so there was no discussion in the lower court about how this was drafted and i don't think there were was any or here at most if there was there it certainly didn't result in a situation where this court should exercise its rule fifty two discretion to overturn the conviction on this point significantly there actually was testimony from the agent right after the stipulation was read that he had in fact investigated the victims had done the interstate commerce investigation to determine that the they they did deal in commodities that traveled interstate commerce we didn't have to put anything more on that and i think it's  i mean that's not what the trial was focused on so that's why we stipulated to it not to distract you know the jury what the real issue was the real issue was was was mr ford the person under one of those masks it wasn't you know did the did the race krispies that convenience store sold travel in interstate commerce that wasn't the issue with regard to the bruton issue again this was an issue carefully addressed  and the government took pains to ensure that the agent was and we were aware that there could be a brute issue here with mr produce having given this prior courts this out of court statement prior to trial and areas of the statement that were problematic and change them in a such a way that they didn't either they didn't name forward as being involved and they didn't facially implicate him in i that statement if there were any other references in for in produce in the evidence we introduced of mr produce statement that mention mr ford in any manner i think then you could say well yes maybe that fac implicates mr ford in that statement but that's how you have to look at it that's what the case is sais that you can't link it to other evidence that may or may not have been introduced at trial you can't say well there was this other witness that testified that mr ford was at the house all the time so he must be one of those other people that that mr produce the produce talking about and that the agent said mr produced talking about that's the that's not the law the law says it has to  implicate the codefendant without linking it to any other evidence in the case and that's the distinction here with regard to mr nathan's appeal on the pseudo counts the judge did exactly what the guidelines instruct the judge to do in admittedly there isn't there wasn't a lot of case law out there to to to show you know how this is applied in the way that it is but but roe blisse from the second circuit did provide that roadmap and it seemed to be consistent and it discussed the application notes three and four which are the critical ones to section one b one point two d when you're dealing with a conspiracy conviction you have to determine what the objects of this conspiracy are in order to properly calculate the guidelines and in this case it was a robbery offense you know you're not going to have a problem like this in a drug case in despite the fact that a forty six doesn't require overt acts like nine hundred fifty one doesn't require over the difference here is that the guidelines under section three specifically exclude robbery from the grouping rules whereas the drug offenses would be included in the sea or not and that's probably one of the reasons why you don't see a lot of cases on this issue is because a lot of the offenses that you that we have conspiracy cases on are grouped and when their group this rule doesn't apply so you're not even in one b one point two if the offenses are grouped so  case the judge did it to answer judge sutton's question it was a four level increase from what the initial guideline was into the application of this pseudo count efficacious to get him to two  level thirty three which was two thirty five to two hundred forty but significantly and is no i mean i think mr nathan has every right to make a challenge under the sixth amendment here but i don't think the six it was violated and i think elaine shows that i mean here elaine reiterated the point that you don't change we're not changing the statutory maximum here and there was no statutory minimum it was a zero to twenty and it ended as a zero to twenty and the judge did exactly what the guidelines told him to do and that is find what those abject offenses are and find them find whether they occurred beyond a reasonable doubt and that's what he did and he put that in from any made that finding on the record so there is no way you're here in mr nathan did preserve the air but there just wasn't one and so even under a discretion standard there isn't any problem with what the court did with his sentence and we have addressed mr henry's argument in my we had addressed his argument first i in my  didn't think oral argument was necessary i know i have forty minutes and i have ten left but unless the court has any specific questions about any of the remaining issues i didn't intend to use all my time of it in here to thank you government asked that you not give credit to two of their own witnesses with regard to this gang affiliation testimony they say don't credit mr henry and mr kirby even when they said that the gangs have nothing to do with this offense even though mr even though they've provided five k s to mr henry and kirby because of their truthful testimony at the trial saw him but they say don't look at that instead look at mr mr paine's testimony because mr paine clears it all up for us as to how this ties in with the pineville is as identified as the universal elite the person that's running the show in terms of the gang if the gang is the one involved and it's the reason the question was asked why isn't he getting money from these robbers and the answer is because it wasn't a gang issue it was these folks that fallen angels that were getting together and doing this second it's not he didn't he would paint testified and it's on a level ninety eight of the same transcript that if you're a gangster rapper you need to walk the walk and then and you may not think that's a distinction but being a gang member and against a rapper makes all the difference in the world in this case because we're talking about the association with fallen angel records which was a gangster rapper record label and that was the group that was involved here and finally you have to remember that with regards to this particular issue the clerk on page twelve made the finding that this evidence was necessary they cited the gives the united states was gives case and it's where the interpersonal relationship with the central issue in the case that's the exact language that was used here they say it a personal relationship was already admitted by the defendants already conceded by the defendants not only wasn't it the central issue in the case and as the government just admitted that the central issue in the case was identification it's not interpersonal relationship it's was that the guy that's on the video your life thank you on on the issue of the judge the on the waiver of your ip i believe we cited the herford case which was in in on the terms of discussion structural and in that case it talked about the right to a jury trial as being that a violation of that is the structural here that would take it out of the plane or standard into a structural her it just briefly just for as far as the calculations guy would bring up one b one point one seven where you are required to calculate to the range under the guidelines and just bring your attention the language of novali after the the court found procedural error after the court below did not calculate the range after the court said to the offense levels twenty five in the categories for and then this court wrote but the court then failed to complete the calculation or the corresponding ranges and that was procedural error and i would just point out that's what happened here thank you you thank thank you all for your argument and i understand that  at least three of you are criminal justice act lawyers and we thank you for your representation of your client in the public interest and thank you all for your argument the case will be submitted over the cases will be submitted and with the clerk recess court