if the court please mr bailey will be twenty four years old in a week when he was sentenced in this matter the guidelines provided that he was at an offense level ten and was facing a guideline range of fifteen to twenty one months there was a fattah go hearing held before the district judge pursuant to five k two point two of the sentencing guidelines and the upshot of that was that the court imposed a sense of ninety six months on mr bailey this involved the discovery of a  victim named derrick harkins and the proof showed during the hearing that there was a meeting between my client and mr harkins at a he delivered the drugs no so that it doesn't make a difference what the camera shows he had mitts that's that's correct at a subsequent time mr harkins was found a disgrace that yes judge and the medical examiner determined that mr harkins had in his body an overdose amount of heroin and an overdose of an analog drug fentanyl either one of which the medical examiner opined would have killed him and during the course of the hearing it was determined that next to the body was a spoon and  attached to the spoon by some substance was also a cotton ball the lab took that spoon and cotton ball and through a process of washing and determined that there heroin in another container and there was a tiny piece of plastic found next to the needle they call in the works with my client's d n a on it but no presence of any drugs on that piece of plastic and now that was was what was the standard preponderance of the evidence because the lab refuses to examine needles they won't accept them for examination so all we have is what was in his body but i think there was a total absence of any finding as to how it got into his body or what the content or amount of her ruin there would have been necessary would have been necessary to kill him and also nowhere in the is up but how do we know and it seems to be and i don't know where the preponderance means that you can surmise or or guess or or use that as a way of fulfilling the standard a preponderance i think you need more than that and because as a defense attorney i always want more than a preponderance but not so i'm prepared to agree with you that bailey did know that he was delivering something that would kill the person to whom he delivered it but still the acting to live or in the tribes was not legal oh there's no question about that and  provision within the guidelines for punishment for such an act there's a number of provisions about somebody who acts recklessly the judge described the district judge described that he was less reckless than somebody who knew what he was delivering or told or less culpable than the dealer for example he talked about him having a minimal rol e and then of course the other thing that came along was this girl putting out text messages saying i killed him and the d a jawan out to it if you are and she says  i made that up but there was no investigation of the fellow's apartment to determine whether her d n a was there whether she actually had gone there so the total mystery is how did independently adequate to have to have killed him yes but again we don't know whether the heroin if it was heroin that was delivered my client admitted to it was a sufficient amount of heroin to kill him or whether heroin he already had in the apartment added to what he took perhaps killed them but again the mystery is and i don't know how to resolve it how do you get the phantom now there were pills loose pills which the medical examiner said well they could have been found to and all but we didn't touch them and we destroyed so we don't know how we got the phantom but the fat roll would have been enough to kill him so i think there were so many gaps in the evidentiary presentation in the fattah cohering as to not even support a preponderance of the evidence that what my client gave him led to his death or even that what my client gave him was ingested by him no evidence whatsoever some favorable and some not so favorable so you're saying that the techs missed messages that just trying to mention are not evidence of anything i don't think they're evidence that what my client delivered to him was taken by him or sufficient to kill him he said it was way better he said it was way better but we don't know what he was referring to what we have and we don't even i'm sorry and we don't even know whether there was some intervening delivery of something that was way better this may be an extra record but if you know the answer was the only identification revolve involving that was they did a cell phone search by location and they found out that the drug distributor who was on the other and was at a different part of the city than my client is the government why it's just this guy that winds up in the net and gets charged with leading to the death of this unfortunate drug abuser thank you counsel thank you we'll hear from the that they in fact of killed that is accurate your honor because in part as i understand it is mr cantwell correctly noted there was locational data from the cell phone used by the victim also the  individual that he was communicating with as the court may know the record reflects that law enforcement once they identify who the individual is in the video at the seven eleven they do so in part by one law enforcement officer realizing that there is an unintended death investigation ongoing traffic police officer conducted a traffic stop of the vehicle that the defendant hicks bailey was driving operating in the town of west seneca they identify that they had individual of a car stop in the subsequent impound of that vehicle is the same individual depicted in the seven eleven video where there is a hand to hand exchange a transaction the court correctly notes that there's extensive information that are set forth in paragraph thirteen through sixteen of the p s r that contains the text messaging between the victim and the supplier without a doubt the record reflects that  has any position on whether there's any maximum in terms of you know multiples of the often slept well that could be increased when this fellow was a courier this was a small amount this was a terrible terrible result and a tragedy for everyone concerned there's no basis in the record that i could see for him to have foretold that such a terrible result would occur and you know the district court and sentencing the first to some of the  second guess that but on the other hand i do wonder whether the government's view is that there may be some limit when you made the decision not to charge him under the sentence that yet because it's had a twenty year minimum so that reflect some sense of the mind lesser gravity of his rule here but continue speak to that concerned i'm concerned that it's really unbounded in this particular case i can speak directly to the record where the prosecutor asks really looks at the statutory maximum which would have been a twenty year and that factors into the request for a guidelines range that would get to that twenty years and that's where the it was factored in here the prosecutor though on the record reflects stand to account for is the correctly noted the minimal world we greed to it we argued it at that time of sentencing to reduce it by four levels from there and so we had asked for a range for one fifty one humanity of this particular situation this particular case it is a terrible tragedy and i understand the court's concern that there could be a situation where it's unbridled you know somebody could go really high and considering this court's highly deferential standard of review for an abuse of discretion even as i've seen it in my experience i know this court has much more experience than i you we don't often have fair cohering so there was a lot of information that the court things like that because we are often we really put to the court i think in a manner that the court is is is very charged with making these sorts of decisions because the also used and some of the factors outlined by my counsel so that there was some uncertainty at least it wasn't the picture was somewhat complicated each you're absolutely correct your honor each substance  arafat now it was very clear that was made very clear during the sentencing proceedings below judge our kara was made aware of that that was our position he still issued the sentence that he issued specifically excuse me counts for that and he also applies for level reduction off the base offense so yeah so he itself no no no no no but i'm talking about at sentencing is a situation where a drug dealer sells drugs knows that he he or she is selling drugs and that results in death and that would under five k two point one i think if there is differing evidence i think is this like what i i can't think of anything right now but obvious that's my problem well and the are we are we saying then that in every case where a drug dealer knowingly sells drugs and that and death results the person just does whatever and and does that that should result and has been under five feet two point one that's where i think it comes down to a real avail you ation of what the evidence is it's presented in every single case i know my office because i was in while i'm in the appellate section now i was in the drug in the violent crime bureau for eleven years and reviewed these cases i would get three for  question doesn't really matter i give you three basic facts drug dealer knows that he's selling drugs illegally and it results in that drug dealer or drug courier i mean the fact that somebody when somebody was a reckless or conscious disregard of the risk of you know distributing the drugs i agree i mean judge or care or specifically made that finding and i someone said to me this is long and i think this is one of those circumstances because the humanity of these situations is tragic it is a young man granted he's doing ninety six months telling me that it's you know it's all i mean something which is more troubling which is that it's really completely at the discretion of individual prosecutors you know and to apply five to two point one no it isn't as it applies across the board in every case where someone  illegal narcotics it's a charging decision i'm i'm not going to it's just like any charging that you could have charged him on the version i don't have the cite in front of me that has a twenty year  unfortunate in many of these situations it's what we refer to as a cocktail death he had so many different substances in there in his court aptly noted each according to the emmys testimony independently and certainly in conjunction would have killed him so we chose not to that was a charging decision and i i agree it's i mean