the next case of the day united states versus anthony lomax number seventeen twenty four forty explicit findings with respect explicit insufficient findings with respect to the amount of drugs or the weight that was applied to mr lomax's sentencing guideline calculation and to whether that w second issue is whether indiana's attempted murder statute for which mr lomax had been previously convicted qualifies him as a career offender briefly this case is back up on appeal after he was originally convicted of conspiracy and a number of possession with intent to distribute counts apparently the case went up on appeal and it was reversed and remanded back to the district court finding that the district court had failed to offer a buyer seller instruction and that the evidence was an epic pose as to whether or not mr lomax was merely a buyer seller on one hand or was part of the conspiracy with regard to failure to give an instruction the buyer seller instruction correct right now does the district court had before it sufficient evidence to find conspiracy but there was also some evidence either way and in essence we and saying we believe that there were not explicit findings as to the amount of weight that should be a political to anthony his possession counts were only about sixty some graham's but because of the overarching conspiracy which he wasn't convicted of because the district because the u s attorney's office dismissed that count and proceeded with only resetting him on the possession with intent to distribute counts we think that the connection to that that large weight that substantial weight is far more tenuous and when you look at the district court's findings at re sentencing judge parker merely said well i remember this colloquially i'm going to incorporate by reference my prior findings into these findings here and find that the sixteen kilogram still applies we believe that's a rony s and that she should have made new explicit findings once the government had dismissed the conspiracy count and only proceeded with three sentencing on  to distribute counts moreover with respect to the foreseeability we believe that again the lens has changed and that judge parker should have looked at the evidence knowing now that the conspiracy count has been dismissed case we don't believe that that was done here that it was erroneous and for those reasons in the reasons obviously that would be support in our brief we think that the conviction i'm sorry the sentence should be reversed and in remanded from sensing on that issue add out when you do the math based on the evidence at trial of the graham quantities that anthony lomax was distributing regularly to one of his customers two or three times a week if you extrapolated the math there we thought it could be closer to one kil gram in fact we suggested that at every sentencing but that the district court found otherwise mysteriously had to change the guideline range here do you need to prevail on both of these issues five fifty three a when the judge was determining what the appropriateness of the sentence was but with respect to the career offender sure if if the career offender finding stans the will to change in the guideline to a thirty six or thirty seven but i think the weight was a thirty nine or or or forty two like i don't remember exactly government has told us that dr line range would have been three sixty to life under either scenario and i think that is potentially correct but i think if the court is looking at under thirty five fifty three way what sentence to give mr lomax if it finds he was part of and sixteen kilograms of weight which is a lot of heroin was should be applied to him and fashioning a reasonable sentence i think there's a different potential outcome and certainly different argument than if it's sixty grams or even up to a kilogram as we had suggest after mr lomax was convicted and after he filed his appeal in fact the court requested some additional authority on the matter and then we provided that you know we're here on an issue of first impression it is a denial of a review we believe that india has attempted murder does not require the use of force or physical violence for the reasons that we've set forth in our materials for how or what is what do we need in a pattern jury instructions say about attempted murder with regard to what must be intended well obviously the elements of the offense the knowing or intentional killing of another person i don't require that i don't recall the specific pattern jury instruction and whether there's any additional elements to intend to kill someone there's in the indian a murder statute there's not the element of use of force so you're arguing for the nonviolent poisoning option or whatever right so i think when we look at the definition of physical violence we look at how our pressure or violence that's directed at someone and i think implied that is the use of of force or the decision to take some act rather than the withholding so we believe that based on if you were to withhold something from someone which would bring about their death that you could intend to kill them but not have taken a violent act is is there in of a case that has come about yet in example if i could offer which could occur in theory if you had denied someone oxygen for example you had withheld oxygen from them knowing that they need oxygen to supreme court so for attempt in indiana to attempted murder it's pacific intent to kill and know the government is aware of and mr lomax decided no case where it's been anything like a failure to withhold the i think the best clearly erred and the drug calculation and last thing i would like the government to point out that yes when the core remand of the court only said that there was sufficient evidence for the jury instruction therefore it be a question of fact for the fact finder and here at sentencing the district court stood in the shoes of the fact finder and found that mr lomax is responsible for the relevant conduct of the conspiracy we think there's sufficient