previous opinion which this court is very familiar weston's i believe all three of you sat on the prior case was for the sentencing to address both the drug calculations and relevant conduct by relevant conduct the court necessarily concert concluded or i'm sorry included drug types and mr hatters case that means the difference between methamphetamine and ice methamphetamine the district court thought the purity issue was at issue in the sentencing he allowed mr harper to raise a pro se objection despite that fact that his attorney said that he wasn't going to raise it the court considered the objection and ruled on it saying the law is what it is and at that time perhaps the law was what it was it is no longer however in august of two thousand and twenty shortly before mr hopper's brief as do this court held in karnow that the purity issue is not like crack versus powder cocaine that it is a mathematical calculation rather than a circumstantial evidence issue of course in mr harper's case he went to trial so there's a significant amount of evidence about what the users and sellers and law enforcement officers thought that this product was however that's not enough after kerno to hold mr hopper accountable for ice methamphetamine mis think you would it creepy that in order for cornell to have any a political billet here given the law that the issue of the type of drug would have had to be within the scope of the limited re accountable on a finding the jury didn't make now we know that are dealing with has not regained that's not necessarily the right framing of you issue but it is the issue the purity issue he was concerned that he was being held accountable for a purity which you would have a different argument if that language had been used but it was recalculation of mr hopper's relevant conduct right and relevant conduct in drug cases is always going to involve the amount and the type of drug because the guidelines make these differentiations between types of drugs but a calculation of the language calculation suggest amount shirt type shirt and purity then becomes an that was presented at trial the government's asserted in its brief that it could also prove an additional seventy five grams was nice of methamphetamine that of course did not come up and perhaps because mr hopper's objection was not enough to hear the court or the parties in on this specific issue but it wasn't certainly to talk about the purity issue which will ultimately be a drug calculation issue because the converted drug weight changes depending on how much ice and how much mixture is involved in the case it is christians and i know from being on the district court and getting remains for sentencing that the st questioned the parties and the court to determine this what's the scope of the remained do you have suggestions for for what the court should do to to make that clear in future cases i think i think i would have a much more difficult argument maybe no argument at all is if this court had not said relevant conduct if it had said just recalculation based on the error between the double counting errors sensually of double counting two witnesses  issue of course is that there are courts of appeals that see remains differently and the th circuit in burke which is the criminal history issue is basically says they can't or in the th circuit wipes the slate clean now that's one way to deal with it then there's no question everything's up for grabs perhaps except for what's already been litigated in the court of appeals but that brings us to criminal history if the government makes the argument that i am making a general  not i making a limited remained argument but my view is the got is calculation of quantity and relevant but does not include criminal history i understand you to be saying you at least ought to win one of these  of course i think i should win both your honor i always think i should but even if i do win one it should go back for reasons and because either way mr mr harper is guideline level changes and the district court can give him the same sentence but if i win both on these issues it could go down to as low as one hundred and twenty one months which is a significant difference in his son's so i don't at the one point i was not objected to the criminal history additional point was an object or two so we look at it for playing there yes so that one is plainer i have not and that was not objected to and it does come down to plain error because of the potential  the potential lowering of the guideline range and if i am successful with both arguments and without the government's additional seventy five grams it's a offense level of thirty two dollars pro history category of one and that's twelve thousand one hundred and fifty one months mr mr hopper is serving a two hundred and thirty five month sentence so that certainly affects a substantial rights as many guideline miscalculations are going to under molina martinez in the supreme court is his residential burglary sentence still stayed yes i checked last night and according to the docket i can see on line it is still state nothing has changed since i put the legs and my in my opening brief so you're not running the risk right now that it would be higher if it sent back oh i you know i know defense counsel made that argument that it could possibly be higher if it goes back i think it think it really does come down to your rally and the prior sentence interpretation at that point if this court agrees with me about the criminal history obviously and then we don't you know it doesn't matter in the district court if it's on his back for full re i can hear you mr norwood i don't know if you're on mute doesn't look like it but i can't hear you we're not hearing you they're working on it here calculations to the district court to consider in the st instance i mean the drug quantity calculations this is a this is sort of an unusual case because this court and its you know this  opinion calculated the relevant conduct down to one half of the grant on the amount was one thousand one hundred and seventy five five grams that was in the government's opinion and i believe the impliedly decided by the court of appeal and i wasn't sure where that was coming from here and i believe it's from the opinion because the opinion referred to it as methamphetamine ice throughout the opinion there was no there was no dispute at that time there was no objection at that time as to what the type was the st appellate attorneys raised very good arguments on a number of issues but not the drug type and therefore the government's position is that is weighed this is a limited remand and that argument is now waived in this appeal i think you know reading this court's opinion it's hard it's hard for the government to say the district court was in error for literally following this court's direct instructions to determine relevant conduct and i believe the court's opinion even refer swiss methamphetamine on the one thousand one hundred and seventy five grams the criminal history issue the timing of it is very interesting after he was sentenced in federal court the st time the next day he went into state court in pled guilty to the resident burglary was sentenced the government there was no issue to raise that at the initial sentencing therefore the government believes it can raise it now the guidelines say prior sentences and i want to get the language correct sense and it was a sentence prior to the rent i understand the argument but if the remand was limited yes why was it appropriate to reopen the issue of criminal history because i think i still think the judge has a duty to determine an accurate d advisory guideline range and ok i suppose that that would suggest though then that any of the open including drug type write well i disagree judge not because those issues have been resolved the criminal history was an issue that could not have been before the district court at the original sentencing the the additional point here could not have been and  i think i mean that missy mr harper went to federal prison and between the st sentence in this case now and it's in his recent saying and he committed a murder in prison and it was convicted and sentenced to a lengthy time to say the district judge must ignore that those criminal history points i don't think is very very sound policy that once the defendant a sentence he can't commit any future crimes but tween is original sentence in any recent  seeing and they can't be included in this criminal history calculation  seems a bit of unfairness if you can for the limited remain and you can look at just the calculation of the guidelines are not just that but both things the kind of work against defendants arguments here i understand when i lost my law professors would not be as upside the head if we talked about fairness this is this is a situation where this was not available to be well judge can you hear me by i'm not sure what happened there i know that my screen everybody froze and then i my screen went blank  contact was the risk of in essence double counting in criminal history when we have this kind of sentence one sentence two and then a recent thing on  sentence one where in essence both and in both sentences each takes account of the other folly i understand judge i guess the government's position is the district courts the valuation of the defendants relevant factors as far as criminal history rehabilitation all it i don't think necessarily stops at the  talking about an intervening murder in prison or perhaps a heroic act of self sacrifice in saving another prisoner from being murdered those would both seem to me to be factors that the judge think it should be included i guess might my fall back argument if you disagree with that would be one of basically harmless error even if that criminal history pointed that counted his range would be one hundred and eighty eight to two hundred and thirty five months judge gilbert is twice sentences defendants two hundred and thirty five months once when it was the middle ones but it was i believe the middle of the guidelines and once when it was one of the low one of the guidelines and once what was the middle of the guidelines was sent to two hundred and thirty five months would still defendant is sentenced using the wrong guideline calculation the error itself can and most often will be sufficient to show a reasonable probability of a different outcome absent the error so it's it goes you if it is yeah is there anything here and other than the fact that it was the same sentence but is there anything in what the judge suggesting that even if considered by the court i believe even on a limb in agreement although we haven't touched exactly on that issue in our briefs this burglary case was pending at the time that mr hopper was sentenced the st time and actually had been pending for some time at that point so it was considered by the court it was in the pre sentence report under pending cases it also received a sentence that's completely concurrent once i'm stayed to the federal sentence and the federal sentences significantly more than that than the state s ok back to the argument or the statement that the district court found that this court had found the purity it was ice based on the language in the opinion and of course that's what everybody referring to it earlier people refer to it because that's not true this court can't make factual findings so whether it's ice or a mix is a factual finding the district courthouse as to make this court also cannot make factual findings as to amount the comment that there was one point one seven kilograms is simply adding up what was in the record at the time if the double counting of the to announce was taken out so i certainly don't take that as a finding by this court  it is ice the government has another seventy five grams still available for testing but you do you think any untested methamphetamine could qualify as ice under the guidelines the way they're set up now and what should we do if this were to go back in the seventy five grams test out of you know nine thousand eight hundred and ninety nine percent purity the way those two so much smaller sample that it wouldn't be reasonable at that point to infer that about it so if we have a seventy five grams in the foreground seventy nine grams that's still just seventy nine grams over well over a one thousand that the government give you clues of weight maybe i don't know about this somebody find grams but let's say conclusively say it i i don't think the evidence is there because of the testimony at trial that some of those was mixed with campbell where x wasn't good quality mr hopper never admitted to selling ice although he did admit to signing them from you to at least one police officer ok thank you thanks to both counsel the case will be taken under advisement