versus pennsylvania where the united states supreme court coined the phrase sentencing factor and i believe it's mcmillan versus pennsylvania that basically put the state of the law and flux and i'm hoping now that the u s supreme court beginning with a pretty versus new jersey lately persist washington and the most recent case of booker versus united states going to straighten out and organize the uncertainties that no one had caused because quite the parade sentencing factor basically distinguishing an element of the jury beyond a reasonable doubt likely clarify to print the bitly basically indicated the statutory maximum is not life or whatever the maximum is the edges or take elated in the post section but rather it's the maximum punishment that can be imposed based upon lied mcmillan versus pennsylvania and holding that a pretty versus new jersey has no application to mandatory minimums but rather only to the maximum sentences i believe in i'm going to agree with justice thomas for want that actually not only should the fact finding required under pretty apply the statutory maximums is articulated in blakely but it also should apply to the floor that a court can put impose basically the physician of a mandatory minimum based upon facts not found by a jury or admitted is it took i thought long and hard i mean after reading us baby dare they can actually get up here and actually argue something but you know it's better than it looked because if we look at mcmillan we look at terrorists versus united subject who basically exhibit or use a firearm during the commission of a drug offense there which i'm more familiar with and dare the defendant was within and had a friend that was with an undercover informant wanted to buy drugs they go back to his house the drug but for purposes of imposing the mandatory minimum under eighteen u s c section one twenty four in this particular case and we're not dealing with imposition of a mandatory minimum under eighteen u s c now it's twenty four we're dealing with the the defendant  getting you said what is it about those three cases those three cases again when we're dealing with you indicate it's not for the ninth circuit i know it's not for the ninth circuit to reverse the u s supreme court decision the court doesn't have that ability nor is it for the court to  being over rolled i mean ever since of pride of people have indicated that they thought alimentarius torres versus united states is going to be overruled it has not yet happened unfortunately but one day maybe it will be it should be but in the meantime it's tough for this court over roll terrorists or something along those lines would be forced or coerced but in this particular case if a plea has to be all of the elements of the facts and if we're going to look at it as his admission that it was an incomplete admission because he did not admit to a quantity might be able to say he didn't object to this procedure  the district court level he allowed the defendant to file this written memorandum basically indicating that he drove a red vehicle in a red truck and pulled up and showed a large quantity of a white substance to the informant and based upon that he was  firearm possession is a sensing factor they are the ones that are making the i do of it not me i'm just simply coming here to tell you what i have interpreted from reading these cases and i believe if they're going to make something out of the fact that is the sentencing factor i mean if we look at what sense within the range well as we all know under blakely vs washington that's completely inappropriate and wrong because a court can't just impose this record it can just impose the maximum because it's based upon facts unless it's based upon facts that were less than the indictment or information proven to a jury beyond a reasonable doubt or admitted to by the defendant and that's politically and so i mean i think are obviously get up and agree with judge b and his decides in every one of these cases where he's indicating that  of that function however the fact of the matter is is the court can and does have the ability to narrowly interpret the decision as it is articulated every one of these decisions mcmillan parents and there are going to sentencing factors they emphasize term sentencing factor and it's not an element of the crime so based upon that we have all indicated ambling three and booker versus united states or u s versus booker and there's a recent u s decision from the us versus th letter with that citation but that's from the second circuit in new york so based upon that these cases of and i think the description is for some strange reason it's and oddity as the court indicated why is it that i don't know why it's there but that the station no is there gun offenses for some strange reason that destroys the firearm the exhibition of the firearm for some reason the courts are continuing to call that a sentencing factor under eighteen u s c nine twenty four whereas the course of clearly indicated under amalie in believe in the some way or another would have to come out of his mouth either in writing to his attorney or some type of written or oral confession that the quantity it was proven and was properly method to i believe that they're printing goes back to not objecting at the time of fencing i mean i would rather take care of the matter now that rather having him do it twenty to fifty five petition later too because maybe there's other arguments that may come to light in that regard with or rather not he received adequate representation and later counsel should have objected in the p s r and it raises those issues as well is there any authority with respect to government either as to the failure to admit to a quantity of drugs and i believe based upon that i think that's when it should essentially have occurred because now we're just basically imposing sentence based upon what the plea is about and if that is based upon the fact that were believe the failure to object to in fact this contained within a p s r whether it's accurate and accurate or not appropriate for a court consideration i don't believe undermines or waive the claim that there was error nor should it overcome a plain error analysis leaving mcmillan as well also raises the statutory maximum and in that case in those cases the defendant was therefore exposed to a higher statutory maximum as a result of that attack whereas in cases i'm saying i don't know that i agree with that you are and this is why if you had his positions at sentencing would have been very different if he had his position at the time of the plea would been very different in which you would have said as many defendants do i'm pleading guilty but i'm not agreeing p s r provided if you look at the amount was four point three kilograms of methamphetamine more than eight times the required amount and it also set forth the component parts of that four point three grams two of which specifically asks the court to impose that mandatory minimum sentence even though the sentencing guys i don't rate would have been over the sentencing guideline range because to d p s are found that my rule applied was much lower than that amount and yet defendant still all specifically cases involving plane air where they found that because there was no objection at sentencing because defendant essentially conceded that sentencing as to what the amounts were and because the evidence was overwhelming it uncontroverted that more not only all three of those cases but point blank state and patent all found that because there was no argument even by defense counsel that there was a way that you could get below the threshold amounts and because it was uncontroverted and because in some of those cases it was stipulated thomas it was a little different in that the defendant throughout the proceedings first said he was going to object to the amounts and then when it came time to move the mouse specifically identified and said i cannot give it to what do you agree with what the government says i cannot agree with that i do not admit to that amount he specifically asked the court to impose that mandatory minimum now again the words i have met to more than five hundred grams did not come out of his mouth but everything he is doing at every stage of proceedings until appeal has been to defend who's admitting to exactly along with it at every stage of the proceedings and nor could he have there is no reasonable factual argument that any amount that he possessed could have been less than that now could have been possible that at the time he didn't know exactly how much was in there yes it absolutely could have been but he's not believe when we look at firearms cases he indicated the maximum in a fire case is life whereas in the drug cases it's basically goes up based upon the quantity the maximum i believe that in light of the court as to why there is that material distinction be that i was making between the fire right to a jury trial and the question is whether or not if light admission during a program for failing to object to a probation incensing report would be adequate i don't have a case of trying to be like the u s supreme court and that i circuit typically discourages opinion of the plate and the plea basically containing the admissions which were based the basis for the sentence in the first place so based upon that i would believe that there was there there was a plain and it would warrant a reversal and remain for either a new plea for the appropriate