think a quick synopsis of the facts in this case are just kind of reverse usual history of this kind of work just understand where we're where we're starting from and back in march third two thousand and ten mr goodrich was indicted for his role  conspiracy to distribute over fifty grams of crack crack cocaine following that this court i'm sure is where the fair sensing act was became effective on august third of two thousand and ten and subsequent to that mr goodridge was indicted on twelve fourteen of two thousand and eleven for maintaining the premises of a drug house which was essentially out of the same facts of the conspiracy the indictment did a thirty four instead of a thirty six to the specific offense characteristics that were also misapplied do that due to the court's incorrect usage of the incorrect guideline man and then third because the closely related nature of these of these two cases made is there is no need to precisely ascertain the full amount of drugs involved in this conspiracy the evidence establishes that the amount easily exceed fifty korean's and so by looking at the district court's words it's clear what the district court's findings are there is of the finding is that it is in excess of fifty grahams and that there is no need to make any finding in excess of that now the government and its brief wants to go back and argue that you should substitute it judgment based upon some of the factual findings that were made earlier on in the courts and the court and the court's order however that would be contrary to reading what the court is saying right here where it says it is i think we could be talking about that i guess i can't really answer that question right now i guess that's well and in hagen's we said no plane air it's because the finding of two hundred eighty plus gram conspiracy will be on the reasonable doubt results in the same statutory maximum and he had the same indefinite initial if that's all he can says at the bench trial and discord explicitly found beyond a reasonable doubt that the conspiracy involved in excess of five thousand grams of crack and i thought your argument was that it's at least debatable here whether the judge explicitly found more than two weighty thank you but and you say well he all he actually found was that it exceeded fifty writers in their argument that but what about the previous sentences that's where the government seems to hang its head at the judge you know he made the comments about every other day the eight ball every other day and the four hundred five grams  undercover transactions and then he said there's no need to precisely ascertain the full amount of drugs involved the evidence establishes the monic cedes fifty why shouldn't that be read as a finding that there was four o five in undercover transactions and there was an eight ball every other day and i don't need to go any further because that's at least fifty in which case it would also be at least two weighty we could say appeal you know what about that i think that's what it comes arguably that's what it comes down to so what do you say to that and i think that is arguably what it comes down to where i get a lot of that is based upon the language of the judge because i don't believe this is a situation where we're looking at where where the where the district court came up with a finding that is four hundred five grams or something like that where we're trying to justify from the record and other facts that he said that that the amount is at least that amount you want to read it to mean while there's testimony about four or five there is testing out a ball every other day and that's at least fifty so that's all i need do and that's how you rather it's the ground where where the where i'm making the decision where the government's asking me to make the decision as a fifty grit you know as we indicated the fair since we act you know i had been i had been instance at the lower guideline range based on the lower mandatory i mean the lower statutory maximum or do you want to judge a new trial what is exactly what i think i'm the only thing i asked for was that it be reverse certainty because this is probably the flip side of that as you know as i call it was a bench trial with the judge be able to go back and say i find beyond reasonable doubt that it was too weighty or more that way i would look at this and i guess the way i was looking at this is this is actually below guidelines and is in goodrich one and so but based upon the fair sentencing act there and then the to later guidelines or areas which was the career offender that because he because he had higher higher statutory maximum his career offender level was raised and then using the wrong guideline manual the judge when they were going through the correct procedure and sentencing started off with the sentencing range that i believe was at least four five six seven years and i have in my brief i'm sure exactly what do you want to do i want you to send it back and give the judge the opportunity to start at the right at the right guideline range and you want to order that he must start at the lower range or is he allowed to make new findings in light of the amendment to the statute that's what i'm trying to figure i would not ask for  would say that that was done of these things were done in error but you know the government i guess god because they argue that it wants to go back but if you're asking what i would like well i guess i'm asking why shouldn't the judge be allowed to make new if we send it back and i don't know that there's any reason that there's no reason right now that i'm going to say that i guess he could other then did it is a finding that is on the i mean i guess that's where the air comes from and so in order to correct the errors we would have to go back and look you could start that well i just want to give you a chance if there's some reason you thought that would not be permissible for the could be looking at more time if the judge based upon their findings to the decided but ultimately it could be that that his sentence was exactly the same are that the two of them are concurrent as the two of them are concurrent and so if the these are all these these are all quite there but you know as a defense attorney i obviously think that it does reflect on the fairness and integrity of what we do here when people are convicted for sentences that they go they go beyond what the statutory range would be in and in other situations that's just something by its nature you're treading close to the you know what would even be an illegal sentence and what was the error on the second one you say just influenced by the first one is that the idea in the air is that yes because of the crdit procedural the procedural errors in the first the first one that as the court came up with the identical sentence which was in fact a guideline sentence i mean i have to acknowledge that from the it was appropriate calculated guideline sentence and number two that guideline range in the however exercising his discretion under thirty five fifty three a day like you know i would believe that the please the court i'm full copy with the u s attorney's office here to argue on behalf of the government in if i can if i can skip to point three because i think the court has put its finger on something that  as far as the second case is concerned the two hundred ten month sentence yet not only is it a guideline sentence that was at the bottom of the guidelines sentence and under point three of our brief we don't like to do extensive quotations but at page thirty seven thirty eight of our brief the reason i did so is because i wanted the court to see how extensive judge fenner's findings were when he imposed the sands and the fact that he doesn't reference his only reference to the prior sentence is the very last sentence that he says and this is page thirty eight are very very bottom where he says i'm going to order the sentence run concurrently or at the same time with the sentence imposed in case number zero nine zero zero three whatever that's the only reference there is nothing in the court's findings and they are extensive that his sentence under this this particular count was influenced in any way and why is that rights and what they basically pointed out was that in oral argument counsel could not come up with any reason why this sentence somehow impacted his rights now the argument that they're making is that somehow someway subconsciously this must have affected judge feder to terminations that's his only argument and it is not supported by the record i don't i'm not going to read to you all of what he says but it's page thirty eight of the other reckon it points out his history the characteristics goes through every fact goes through every factor in the statute and never mentions other than saying at the very end i'm running the census concurrently so the argument that it's somehow tainted by the for the first  is not supported by the record all right so but now we're at the question of the higgins case the only difference in the hagans case in my view is the fact that i think  in that case the government did make reference to the fair sentencing act and i think asked for a specific finding that it was in excess and i don't think we did that here but if you look at the sentencing transcript if you look at the the not the sensing transcript but the findings of fact the written spine is a fact and there are at page twenty three of the and the is clearly beyond reason to battle doubt now the court starts out by grams were purchased in ever undercover transactions so you know when you do the math and i'm not going to do that here it creates twenty three of our brief you're talking about a finding and i believe this is a finding of fact beyond a reasonable doubt that there were at least seventeen hundred seventy grams of crack cocaine times the threshold now i think it's clear that that we will go to somebody labels that he's sitting is to try are a fact and he's finding these facts and clearly understands that he's finding these beyond a reasonable doubt to answer judge columns question i suppose if there is any question any doubt then the court could remain in it but i think that would be an exercise in futility but you could remain and certainly there's nothing to prevent the court i suppose if you are unclear about the issue from remanding to get a specific finding that yes i made these findings of fact beyond a reasonable doubt but i but i think it's clear from the record that he also said i find these witnesses to be credible and i'm sure that again judge smith understood what the burden of proof was at the burden of proof was beyond a reasonable doubt now you think if the cutoff were seven thousand five hundred forty grams then we could say that he definitely found that well beyond reason because if right i mean if the closer the well yeah i think that or is he saying i don't have to really decide whether all of this is true because it's at least fifty now i think he's saying this this is all true and i don't have to do the mathematics i don't have there is no need in you you read this earlier judge cotton there is no need to precisely ascertain the full amount of drugs involved in this conspiracy so clearly what he's saying here is we have at least this amount and he says every day or every other day so we did the math using the every other day and we got to seven just with this witness alone i mean you're talking about a massive conspiracy that it actually probably was bigger than the one in higgins but in any event mr show has said there's no reason to you know that you can't  send him back i don't see that there be any point to doing that for two reasons number one as i said i think he found clearly beyond a reasonable doubt these particular findings and the second thing is given the fact that there's no evidence no nothing in the record to suggest that the second sentence was in any way influenced by the prior sends when it's a guideline say and he said this is the very end of the guidelines and he doesn't say anything like well you've got two hundred ten months in that prior case and i think that's about right he makes  decision based entirely in exclusively on the evidence in the case so you don't really even need to get to the appeal of goodrich one but again that's argument unless there a questions thank you both i'm probably about the same point as mr kopp is of there's no further questions i think of argued about everything that i need to again i would just like to reiterate that as mr copy said it's as we came to these calculations it wasn't that the district court made that finding and perhaps perhaps there is not a great deal of cutting cutting this edge here but the finding is more than fifty grams it is not seventeen and my