upward departure required both the factual and legal notice which were not given and i will just admit that you should this court without further argument now the second part of this case deals with the blakely issues i must submit to this court that this case is infected with blakeley problems first of our even though the pr based level of things we have problems the second problem and this is of course i'm a little  and we did that why did we do that for the same ground that is alleged in the pelham's opening brief in this case prior to me taken over this case insult on that issue i'm just going to submit it to the court the same issues being raised the second court of the the court name too deeply into a series of judgments which were rendered against mister booth totaling approximately seven hundred seventy thousand dollars background ninety three as early as ninety two and the court the sentencing report and the court considered that seven hundred fifty thousand dollars in there is to when are you arguing and his whole criminal history should have been before the jury before well your honor if i'm afraid i do with all due respect had the amount of victims the harm to the victims and other factors or important that they should have included in the indictment and somehow proving to the jury beyond a reasonable doubt what we have here is we have a sentencing judge making the terminations on a preponderance of evidence standard which is the first problem not younger reasonable doubt and the second problem is two pronged and that is that even t the government can better explain this but i believe in booth one the court made of four level increase for that purpose and i don't believe from my reading of the briefs to date that  that was done in boost to you don't believe it or i don't think so although the government would be better positioned to say yes or no i read the brief and i wasn't clear there may be a place for you to use their correct i if that was made then there would be a blakely issue there as well and just traversing back a little bit your honor the problem is the amount of loss correlates directly into how many levels of guidelines have to ok may have please the court of my name is tom rice an assistant united states attorney from the eastern district of washington this case comes on the on the brief with the with the issue of the extent of the court's sentencing unsing the only issue with respect to that despite counsel's representation is not the notice if you notice was conceded it's not new evidence was presented it's not double correct though now as i understand lately except only the fact that a criminal conviction from you know it's coming and that everything else has to go to the jury and these are criminal conviction so should we should  stage of the proceedings thank you thank you what i do not want is a is a booth three i would like the court disposed of the most important issues in a way where the district court can do it right this time and i have a few suggestions first of all i'm fortunately this case is not in considered for sentencing now i may be accused of stretching too far but that's my job and at this point what i see only is that we cannot bring the jury back jeopardy as the court is aware and it's in the grief double jeopardy has tach not only has it attached to the conviction but it's also attached to whatever other factors are need to be proven beyond a reasonable doubt yuri how can we bring in a second jury to determine by the hated facts in any event turn the four points for leadership also your honor