and issue in this appeal are two different aspects of what happens when the case alleges a violation of a forty one the one c which requires that if death results from  drug use or distribution that a mandatory minimum of twenty years in prison results and we raised and how do we get around the waiver problem here because it seems clear from defense counsel's statements to the court and to the jury that mr walker was making a deliberate decision not to challenge the course nation the offense a trial so how do we get past your honor it would be my position at this point that there still is a plain air ability to review this that in this particular case if we were resting simply on the these to pilate in a trial and the words of counsel that that would be one thing however there was evidence elicited both from direct in the cross examination which indicated that the individual who died consumed a large quantities of alcohol had also other drugs in her system and so he jurors could have concluded from that that it simply wasn't a but for cause of her death they're not required to accept stipulations they can take them as any other evidence and evaluate it so even if i were in moving for judgment of a had a lot of typical trying to understand why you know you're not precluded from making you know the argument now judge it was it's our view that the attorneys assertions at the time of the rule twenty nine motion are not necessarily dispositive when you have a fundamental miscarriage of justice and when there is clean air and certainly in this particular case where there was evidence that contradicts what the position that he took at that time and was not clarified that the court could review that using the plain error standard and with respect to that that that whole this case turns around what happened in fact mr waldron and if you look at the application of this particular provision of the statute in his case is our position that it's an unconstitutional application because it's by a late fundamental due process and the eighth amendment's requirement that that punishment be proportional i don't i just don't see that with   and what we're talking about really is whether having done that you know he unfortunately sold the heroin to a very vulnerable person and somebody who hadn't been taking heroin for the last thirteen years was obviously much more susceptible to it then than a regular user death results etc but the vulnerability of the victim isn't something that makes what he did ok or whatever it's a amendment going on here well you're right if you look at it first of all from the context of what's going on with the application of this penalty it's done on a strict liability but well you say strict liability everything i'm trying to push back on that and saying no he's  found criminally responsible for selling heroin which is a controlled substance and what's happening is that the statute says if you sell it to somebody who's so particularly vulnerable that they actually die from it we're going to punish you more severely well that the problem with that approach judge your honor in this particular case or in any case basically is that it's not the same thing in hansing a person sends for you so minor or or doing something along those needs along that line which increases modestly the penalty that somebody faces what we're doing here is we're saying ok he's been  convicted of distributing a controlled substance and typically that's punished it according to the amounts no i know it's a big difference i don't disagree right and if you look and that's that's part of the reason it takes it out of the realm of these other enhanced ones because you're taking a drug offense and you're punishing is it as if it were an intentional where you're going from america twenty years right to from two years to twenty give or take or that's correct you're punishing this offense as if he had intentionally killed someone without requiring that he had either the intent or the knowledge or any other science or with respect to the impact that's what i can congress do that why can't congress say if you sell a controlled substance and it results in somebody's death and there are some ten thousand five hundred such deaths a year in our country it's not a small problem we're going to punish you i mean it's at least reckless it's oh it's a lot and we're going to punish you severely because in order to our common law tradition is that when you take something like murder or or an incident causing death there's a science or requirement there's a mens rea requirement and here you're obliterat all together only on the death card you know we just as he we don't require people know that you're a minor well that's the significance of it the death part because that's what but the minor part is a significant part two that causes an  that would make some sense but that's not the case here and you have two different categories of individuals that are you might want to that you could conceivably punish differently what you're talking about here well some subset of people are in fact at risk of death whether it's issue police officers that don't for heroin overdose because of that problem that's correct they do your honor and in fact this case one of the one reason or one of the great highlights of the disparities in this case is that the young man who actually was responsible for administering the heroin to this woman who left her to die who stole her property who went on selling her things and all that kind of thing a young white man i might add  was not punished under the statute in the same way that mr waldron who was merely a fellow you know he cooperated right wilson yes he did yeah but i mean so that happens a lot where we see this and one could have a long debate about whether that's appropriate or not but normally it's cooperate you get a smaller sentence it certainly highlights the arbitrariness of who gets offered the opportunity to cooperate who doesn't who actually does who doesn't and how that person is chosen because what we have in this case is the person is more morally culpable serving half the time of the person who is clearly less culpable in the chain of events and you also house the statutes of the album knowingly and intentionally distribute it's a drug that results in death on a disturbing really regular basis and you know in this case of similarly satoru dissimilar situation situated defendants because you have two categories of people you know other people who are the actual source of the heroin who know what goes into it what's cut into it whether it presents a higher risk because it has spent an all or some other poisonous additive additive and those people who are deliberately distributing a substance like that you very name it may very well want to hold to a strict liability but someone like mr wilder who is a user like any other user is not the source doesn't know how it's prepared and simply passes along with somebody else is given to him is punished more severely then any anybody else in the case and that a situation where you have not only disproportional punishment but equal protection concerns because you do have the case where the actual source is not punished at all where i think you need to wrap up and i'm sorry i don't see my time is up and  thank you very much all right thank you mr walters morning your honor some a police record i'm great walters i represent the united states if i could start with just addressing this alleged equal protection argument that she raised doesn't raise on appeal and then brings up again in the  oral argument as far as this disparity and hackneyed reference to the white man being treated differently i would note that may or may not be in the record but we were trying to work u the chain of distribution of the original person that that distributed the drug or inject the decision he was prosecuted under death results provision i would suggest that mr walter was offered the nothing to offer i didn't why i think he had something to offer because we had a good idea of where he was getting his drugs from i wasn't the wine a u s a on the case to know exactly what was offered cooperation wise but this whole  already dressed by the district court and then wasn't even raised on appeal so well the big debate here i mean it is a huge jump right for distributing zero point two grams of heroin all of a sudden you're looking at a twenty year mandatory minimum sentence and we've been concerned about excessive sentences in many contexts and no one thinks that these i agree in the sense these cases present difficult choices not only for the individuals that are involved in the criminality but they they they present difficult choices for for quote fair but i'll tell you what he really was buying daily from walter according to the testimony was your honor what i what i want to point out to you is a standard of review that we're on before this court which is plain air both of these constitutional issues that have been raised and there is yet to be a mention in the brief or in reply of what is the clear law from which the district court deviated that would show that capital case so and again that due process that this is so vague that in clase a person of normal intelligence on notice or the fact that there is no manager a element i'm not sure how that ties in with the process or at least that clearly erroneous application of the statute or playing it plainly erroneous unconstitutional after the statute when the supreme court has stated that it is not uncommon to punish people for the unintended consequences of their crime we even see it in the context of the sentencing guidelines and i think of an example that somebody has in that plant they don't they don't tend to blow up the house but there is a significant increase that can happen under the guidelines it's not a mandatory minimum penalty but there are increases that happen under our guidelines sentencing guidelines that courts apply that deal with unintended consequences and this case congress has chosen to impose a mandatory minimum based on what is an unintended consequence there's no suggestion that mr wilder been tended to kill this victim but congress has chosen to impose that particular part of the argument and the fact is it is waiver this is an intentional relinquishment of a no right he could have challenge that element at the rule twenty nine stage and he intentionally told the judge through through counsel that we are not challenging that element that is that is much different than forfeiture and i think there's also a tactical reason for doing that because it allows counsel as part of this strict strategic decision to focus on those elements that he or she believes need to be contested a trial or they have the best opportunity to contest and find a verdict third obtain a verdict of not guilty and i take it that they've focused on the theory that waltrip wasn't the one who sold these docents as it was and that some of the evidence that was admitted at trial concluded testimony in records that mr wilson actually attempted to contact a number of drug suppliers before he got ahold of mr walter and so i think the inference being that it was somebody else other than mr waldron that supply there was other evidence certainly contradicted that along with phone records  hold is that there is waiver and by doing so really address what i think is a confusing case in united states versus rae so on the one hand state that there is waiver but then to have analyzed the sufficiency argument under a plain or standard and as we suggest our brief the government very very well may have been the cause of that in the way that that issue was framed on appeal and r it's clear when someone stands up and says we're not challenging this it's very similar to saying judge we're not objecting to this jury instruction or judge here's a jury instruction we're offering that looks just like the government's and and then we turn around on appeal and argue that that is not waiver is just inconsistent with waiver principles and so first it's waived but then let's just come back to the issue that even if it's not waived we're here either on plane air or at best for it's hard to say that there isn't sufficient evidence from which a reasonable juror could find on that element and the other thing that's confusing it can be confusing is to be clear the fact that things were omitted from that stipulation about seattle morphine but it is the standard is eight but for cos they're not the but for cause so there can be i think is acknowledged in burrage and maybe even by this court and hatfield  there can be multiple but for causation that's the whole purpose behind that but for task is that even burrage came before the supreme court as a toxic combination of both heroin and then some other drug that was obtained from a different source and so that's what the but for standard addresses and along with that there's there is confusion i think in the defense brief on the two different standards and overlapping them but for cause or independently sufficient that's an either or and as this court noted in gaylord ny states can scale or that actually the independently sufficient causation nexus is very  rare that deals with the hypothetical of a shoot x b stabs x they're both fatal wounds towards x they can both be held independently liable for murder and so that's a very unique circumstance for independently sufficient that ninety nine times out of one hundred it will be the but for standard that applies and that's what applies in this case a stipulation sports an absent waiver under either the plain or standard or the d novo standard the government prevails on this people so we would ask that this court affirm the judgment of the district court all right thank you very much miss campion your time ran out that if you have one minute's worth of other things to say i'll give it to you i think it's pretty important to remember especially in the sense in context with regard to proportionality that in the cases where the court has upheld proportionality it's banned in the context or disproportionate grossly disproportionate sentences it's spent in the context of enhanced ones based on somebodies prior criminal history something over which they have control over which they have some knowledge or or scienter around and if you're going to punish the defendant as if he has committed murder then he should probably be charged that way and be found to have some kind of mental state that supports it and it's certainly an end around and run around the burden of proof to say that a person can be charged and convicted of a drug offense about a rather small road offense and held responsible as if he was a murderer so for those reasons we