potential witness to a gas station robbery as well as snyder's consecutive life sentence that he received for brandishing a shotgun during that rock i'll turn first to the witness tampering conviction under the federal witness tampering statute the government had to prove that had paid mars the victim actually the getaway driver for the robbery had she lived and had she turned in snyder for the robbery that there is a reasonable likelihood that she would have spoken to a federal officer and not opinion saying that the court standard will serve only to confuse judges and juries and perhaps it turns out he was right but here we are so in a world where you don't have to prove  state of mind you the statute itself says that's not necessary why wouldn't one say given the nature of this office that there was at least a reasonable likelihood that a communication would have been made to the f b i agent who was working in the decatur police officer but one of the two there's the one who's the actual i agent you know together guys kind of working with them so please so it's a pretty low standard in the court thinks it's picking the middle standard of the three that it looks at but you don't have to know it's a federal agent case where truth be told does the public actually have the faintest idea you know where the federal and state government lines get drawn probably not probably not but and i think that's why fowler said that the line is to be drawn at reasonable likelihood and that you have to look really at as a practical matter that was a phrase used in fowler if use the state or local investigation or not fowler cited i think marijuana arrest right and as an example of something that would be traditional state local one because it said something like one percent of all something less than one percent of all marijuana arrests are are handled federally and we have basically the same statistic here in this district all of them mind you you know that less than one percent of these kinds of robberies and perhaps even much less than that are federally investigated but i also don't want to lose sight of the fact that you know that's that's just one piece of foul as cryptic is fouler may be and i know this court hasn't had a chance to apply it yet  but other circuits have it and i really do urge the panel to look at tyler in chief and on the other cases we cite you know pages twenty to twenty nine of our brief the feller stands for anything it's that the mere fact that there's an underlying federal offense isn't enough there has to be some additional evidence oh i could agree with that for sure but there are two things i'll comment one of them is i get the feeling that fowler is setting a pretty liberal standard when you look right toward the end of the opinion and you just have to show that the likelihood was more than remote outlandish or simply hypothetical that doesn't strike me as who much of a standard and here we have agent right there in the same office so and indeed they were thinking of getting that agent's help for the tattoos and we have a little more evidence so two things in response to that one i don't think we have that i think there's a difference between and remember what what the statute says and what fowler says it has to be actual communication from the witness to the office not just agent involved exactly not just agent ball not just technical help right i would imagine state officers you know get i help for all sorts of things maybe d n a databases fingerprints gun serial numbers maybe when they pull over people for driver's licenses they probably pings some database actually hundred databases so mere technical assistance can't be enough i would say you have to have something that shows a federal witness interfacing role or a witness interrogation role something like that and that's really what we have been in all the other out of circuit cases we have some evidence of that kind of role you know i really do appreciate that but look at this weird world we're creating this unfortunate potential witness got killed so quickly in the nature of things that we don't really have any idea you know whether it had she gone to the police to the police station just whether she would have sat down and talked to the federal officer as as well or or not i mean it sounds like you know if you're going to kill a witness do it really quickly and that way you can avoid federal prosecution and just be left with the state so i disagree with the premise there your honor respectfully the what we have remembered with valor says is consider if the witness isn't killed and then goes in turn and so in many ways this is a much easier case then the sort of purer dollar style hypothetical to do you think the federal felony is constitutionally required i do i mean i don't think it matters for the case but personally i don't believe it's constitutionally required i think the federal offense element is more than sufficient i think under current commerce clause juris prudence to dissatisfied i think it's an additional element that fowler rightly said was there to preserve the federal state balance in prosecutions and preserve the federal interest and in federal i ask you about the sentencing yeah alone here in particular  the district judge is statements to the effect that this is the appropriate sentence he made very clear he did not feel bound by the guidelines and i understand that whether ms mars was likely to talk to a federal or local officer is important for the fifteen twelve conviction but we have a jury if you're the district judge here you're looking at a young man whom a jury has just found guilty of conspiring to murder miss marr's she was murdered all it's beyond a reasonable doubt here it's hard for me to see why that is an unreasonable sentance it's in a reasonable sentence your honor for a few honor but i will i will say you know i will respectfully say that this court in polk and press we have said that for a and a lengthy sentence to be substantively reasonable you you have to consider the fact that young violent criminals tend to age out and then the judge did not consider that fact and so if if thirty five fifty three days directive to impose a sentence no more than necessary to achieve the aims of sentencing is to be taken seriously i think that they wouldn't have life sentences that's that's the problem because i think that's where that logic takes you and maybe some of us from a policy point of view might think that was all right that this missive very brutal murder me yet that surely the judge is entitle to take into account the actual  facts of what happened perhaps your honor but i will remind you that the facts that were introduced both the trial and at sentencing showed that it was higgins boat who carried out the murder there was no evidence that snyder suggested it was you know i think the judge focused on the executions or something like that there's no evidence that snyder directed that in fact the evidence that he had before him was that they met on sunday night and then he gives both statement that snyder just wanted to scare her and it was he consults idea to  really go farther than that and so i appreciate all this i'm not trying to downplay the seriousness of this crime at all but again i will merely point out that in terms of the sentencing disparity both for even if one considers the killing and just looking at the crime on which the life sentence was given in one thousand and four see it really is our law enforcement system tends to react pretty badly to murderers were i appreciate that while you're o far far outside the guidelines and in this case as i said he didn't consider the rehabilitative potential he called it a flight of fancy and you know that that was a little bit troubling because to just wave off medication or therapy is rehabilitative was kind of at odds with what the record shows right the district judge thought he's a very impulsive leave violent guy he stabbed his friend he punched the girlfriend something like that all of that information came in at trial from snyder's post arrest interview and in that interview he revealed that yes he stabbed his friend and punched that woman as a result of unmedicated mental illness the schizo affective disorder the p s r you know paragraph hundred to one hundred five detail this it's got his medical history says he has he's there's over to these facts when i try to take this you know try to pretend this witness wasn't killed and come up with anything that suggests that a federal law enforcement interest would have been involved  that doesn't look like the the one of the rejected options that the supreme court laid out your honor i think first this isn't just that robbery of a convenience that it isn't me i mean the truth is it's one of the many many areas in which federal law and state law both address the same conduct in the hobbs act is a particular supplier of such facts that you know is right because you've got robberies that affect interstate commerce you've got other kinds of things so it's a seven hundred dollars robbery plus whatever the liquor was worth and it was being handled by the state officials plus a felon in possession plus a nine twenty four c but the witness was not doing anything about the felon in possession the witness wasn't doing anything about  the rest of of of the federal charges the the killing a person with intent to prevent that person from communicating the only thing that witness could have communicated was something about the robbery she was the the getaway driver she would have seen that they were armed with a firearm your honor she would have been a witness to what he pled guilty to which was three offenses the robbery yes and this is the theory that fowler rejected the fact that it could have been prosecuted and really there's not enough that when i let me throw out the just by comparison another u s attorney's office in this district announced a policy we're going to we're going t robberies of pharmacies federal crime because of people going in to get opiates and methamphetamine supplies and so on you know where you've got that kind of a policy and you then had the what might look like a state law or robbery of a bit of a pharmacy then it doesn't look so long so unlikely that the case would go federal here we just don't seem to have any of that i think we do your honor and that's why i keep coming back the fact that this is it was the firearms and mr snyder who he was that sparked federal interest and the feds that were going to a big but judge hamilton is referring to is this language on  page six seventy five in fowler where the court's just kind of logically thinking what could this mean they're looking at dictionary and they say the victim's communication with the federal law enforcement officer could be one of three things intended they reject that right away possible they reject that or likely and they then go on to say we're adopting likely and they explain what they mean by a reasonable likelihood but i think your theory is just that it's possible sure maybe she knew it was gonna maybe she was sophisticated enough to think that she might want to communicate with a federal law enforcement officer about their  gun that feller's a narrowing construction on this statute absolutely and i think the fourth circuit in this mist is instructive on that point of the definition of likelihood they say that's not what is ultimately adopted was not the dictionary definition of likelihood because the supreme court in the same opinion said this doesn't need to be proven as more likely than not it simply needs to be more than remote outlandish or simply hypothetical part of the difficulty my regulars hypothetic so mean outlandish i don't know what that means you know men from mars land on the lawn or something but that the hypothetical that this this potential witness had she not been killed you know caterer goes to the f b i and says will you help us identify the robbers we have this video it has the test to help us identify that's before they knew the two are connected so the f b i is involved right at the outset of the investigation let's suppose that she lives remember well i think is coming in to the police to talk regardless of if she's murdered or not he wants to get killed inside away from his wife and he knows that he was involved in this robbery he's going to come forward as they work up suspects i think page mars is going to be the absolute weakest link in this chain of going to identify i think it is reasonable to assume that the briefs certainly accord with my offhand sense of it there are vast numbers of robberies that are committed of convenience stores and other commercial establishment in illinois and in other states that are handled by the state authorities they don't all turn into hobbs act prosecutions and i think there's two things with regard to the statistics this is a sufficiency of the evidence challenge statistics were never presented to the jury and as they admit in their briefs things that are submitted to the jury are relevant to a sufficiency of the evidence argument and i think the statistics also overlook the frequency with which one twenty four c and one twenty two g offenses are brought in federal court i also think the standard of review here is very important this is a sufficiency of the evidence challenge and generally that is a high bar where all evidence is viewed in the light most favorable to the government but we don't need but they certainly don't we need to have the right legal understanding of what this statute covers that's a question of law for us and i think once we figure out you know what's what is a reasonable life and i think the four circuit standard is the one i would urge this court to adopt which is you circuit i think there's communications there's clear testimony that there's a collaborative effort between decatur police and the f b i especially when it comes to violent crimes robberies there was communications again very early every case that the decatur police department handles something that could fall under this statute because of this close collaboration with hill and still it's absolutely not the regular robbery of something that doesn't affect interstate feds that's just not true because me he testified that he communicated thoroughly with both agent starlet's and myself every factual witness on the stand i'm sorry when did he have those communications he communicated a mars was murdered absolutely ok at that point here everyone can at that point you guys have taken the case federal that's really that's really hindsight at this point the question has to do i take your point in terms  uttal of the fence but could you address what you think of the chief and tyler opinions dealing with this after feller i think there was a problem with the jury instructions i believe that was in tyler i don't believe there's any suggestion that there's a problem with the jurors neurons in this case but in terms of the standard you know you do in both cases you've got additional facts that just make it considerably more likely bribery and i don't believe that they were there and i think they said that evidence in that case showed that there would not have been it prove that there would not have been any communication between the state and the here i think the opposite was proven the officers both cody moore and detective daly talked about the communications they have with federal agents it's clear that that witnesses had communication with the federal agents  in this case could you discuss what you think we should do and why i think the sentencing was done in light of the fact that this area of the law is not well settled in that this court hasn't spoken out how to apply fowler so we urge the district court to life sentence of fifteen twelve we asked the district court what is the appropriate sentence given the circumstances of this case there's no question that her murder is relevant conduct to this three underlying federal offenses the district court was well within its discretion to determine hone in attacks the use of the cross reference to the murder that i'd line i think the murder if it's long as it's relevant conduct the cross reference is entirely appropriate for the guidelines and rather than conduct includes actions taken to avoid detection for the crimes and there's just simply no question about that in this case so we believe just her death  very briefly your honor it's not legally relevant but i do think it is interesting that he can devote has been charged with robbery and brandishing and being a felon in possession he has not been charged with killing a witness under fifteen twelve there's the indictment just does not list as a charge against him he's going to trial not facing a murder charge on like health insider who is convicted of conspiracy i just wanted to make three other very quick points first on the statistics that's right it wasn't presented to the jury we did present in the  twenty nine motion below but that's not about facts right the statistics about the frequency of you know the underlying crimes being federal prosecutor about setting the legal threshold for the sufficiency of the evidence to me you know if the underlying crime  exclusively federal if it were you know a passport fraud then one might think the legal standard to meet is quite low because they're all going to be federally prosecuted but for robbery i think you need to show a little bit more in the end came out of my bank robbery a bank robbery as we as we put in our submission is much more likely to be federally prosecuted but i will point out that fowler involved in a bank robbery that and never the last not only did supreme court you know vacate that conviction and send it back the court below then vacated the conviction twelve is gone yes the jury found a conspiracy to kill a witness plenty of would still be someone not to victims of murder and again the question is is he in the twenty percent of murderers in the federal system who  life sentences or only eighty percent who don't and i would submit that you know given some of the stuff in the record especially with mental illness especially his you that specially the ability for you know him maybe to be released back into society when he's sixty or something like that i think that's reason enough to vacate it but in any event if you agree with me on fifteen twelve i would argue is that sentencing package notwithstanding the district judges were i would still say you know please you know be a good idea re man for recency and then finally on the on the cross reference i think i understand the relevant conduct point but i also want to drive home the point that every stride in the guidelines book has its own cross records provision and you have to apply the text about provision and so the question is relevant conduct for the felon in possession charge and that requires that he either possess it or transfer it with intent that the gun be used later on and there was no evidence to suggest that he transferred the gun after he and paige mars broke up on saturday night