least the jury didn't find that after his conviction however if he sends investigator and the judge determined that the amount of drugs involved w fifty four grams that he was assigned two points to make twenty six points by reason of the amount of drugs and two points by reason of his aggravating months if he had then given an assignment from the guidelines based soley on the jury verdict he would have had and given his criminal history he would have had a range not of ninety seven to one hundred twenty one but a fifteen months to twenty one m however he did in the jackson's time of trial based on the sixth amendment and still while his case on the merits appears to be identical it is identical of that test have been satisfied in fact an examination of the government's brief in this case will reveal that they have conceded the first two pro law i understand that would hold that well if it is the kind of error which would justify a presumption of prejudice because it inherently presents an exceptional difficulty for the defendant to show the to show the prejudiced that certainly is true in case it's true and emmeline's case as the courts questioning of the previous counsel demonstrated we can't know probably what the judge requires showing of some reasonable probability things would be different but what he says that this presumption where is that your urges i'm not sure i think that there's some language and these united states supreme court case of all are no i don't have the cite off the top of my head that that says that for salient to this case though is the fact that not only did counsel for the defendant operate under the presumption guidelines for mandatory the judge operat that presumption everybody operated under that presumption and so that whole system produced an unfair result  apparatus of his trial and of his sentencing was under a mandatory system the judge knew it was men the story the prosecutor knew it was mandatory the defense lawyer new is mandatory and they told mr well your honor we understand that he's going to go to jail for ninety seven to one hundred twenty one if he says in effect i'm not quoting he's going to go to jail for ninety seven to one hundred twenty one months we would like to be on the lower end of the range or owner we know mr figure is about to get up and explain to the court why would he thinks it should be in the high end of the range but but that's what everybody presumed and that was not the law and that was not and he should not be penalized for that reason i was interested to note that in one of the previous arguments counsel for the government suggested judge lives gave this previous appellant a lot of breaks the standards of the low end of the guidelines he found a few were amount of drugs so he could get to a lower place in the guidelines don't the guidelines really encourage the court to engage in kind of a an artist to play games with the i mean shouldn't they have the discretion obviously they should the united states supreme court has said so and so far as the fourth prong clause in the statute to the one that was declared unconstitutional by the supreme court and very little there's adequate evidence of those matters contained in the pre sent your honour's i drafted the issue of affleck ability of booker and more specifically the emmeline decision your honour's obviously and i have been in the courtroom i had the benefit of hearing the previous oral argument i certainly think the same position of my colleague mr stiles with regard to our position on awaiting that in any circumstances the petition for rehearing on bond with g in our case there was not not just no shift in burden but in fact many of the other many and much of the evidence as it pertains to sentencing parallels evidence that came out in trial and that's the first distinction that i'd make here on arcades in our case as opposed to the am one case and there was a trial the judge george sat and presided over that throughout and had the benefit of receiving evidence and had the benefit of the jury's downward departure of the guidelines even though and he reiterated and i'll quote judge george here momentarily even though i reiterated he believed he had the discretion to do so i think that creates a significant distinction from the beginning and perhaps i'll go to that which i think is my strongest point first the problem that creates the air the brings us here is the fact that the district judge just did not is a man who yes he committed some crimes but now he's taking care of his daughter he's done some good things he's trying to do some good things essentially the motion parallel things that now the courts invited to look at under thirty five fifty three ok and in this case judge george specifically said and i quote from page eighty one of the sentencing transcript i read that motion and i believe that the court has discretion to grant s motion it's not specifically denied by the guidelines but i don't think that the circumvent this circumstances invites the court to get in part again or mr griffiths history the history of this young woman i to review district courts failure to make but discretionary downward departure correct i think what's the status of that president booker in other words if the guidelines  thought about and i'm not going to do it i would have thought under the prior precedent we might not have jurisdiction even to review that but it seems to me under booker after in fact had some lengthy discussions you know as a social setting with several defense for our members and that i practice regularly with what will the impact be and we've specifically talked to that issue and and that's sort of an interesting twist because while i agree that the court probably didn't have the ability to review prior to the book or i think it opens the door now although in any respect the court will be reviewing essentially under a reasonable would love to avoid and i can't which  any point i make we just don't know for sure and i have to see if we just truly do not know for sure but i would make several other distinctions your honor the first additional distinction i would methamphetamine the defendant took some extensive earth spent some time during sentencing arguing that the judge should sentence the defendant as a guideline range based on eighty four grams and not more because all the other defendants were sense within that range here and your honor as i believe that that becomes applicable here with regard to whether or not we can speculate and again i understand it speculation on whether it's reasonable that the defendant would receive a lesser sentence on every man i think some weight goes to the fact court will consider that we have spent we have four other defendants who cases are not before this court who are who sentencing stand now and all of their sentences were commensurate with that same level or range it seems highly unlikely  who convicted mr griffin primarily on the testimony of those three witnesses that same testimony is where the judge determined the offense level based upon eighty four grams so gritty based upon the jury verdict of guilty so even if we were under a reasonable doubt standard which again under booker were not i think that i think that i could make an argument that the sentence was never the less reasonable again your honour's i concede that to some extent we have to speculate we have to speculate but it seems reasonable and i know do under a discretionary regime as opposed to a mandatory regime isn't it fair to say that there's a reasonable probability we don't know what it is but there's a reasonable probability that the result would be different under a advisory regime under a mandatory regime  i don't know that i can show that any differently than the host of other defendants who have book or issues like  i can't define what was in the mind of judge george and but i can say with some confidence i think that his mindset would have been different the standard would have been different and because of that my client substantial rights his constitutional rights have been clean air test be applied regardless of the number of defendants the constitution of the united states is a political to every defendant further their own trial by