our fifth case for this morning is united states against darryl morris of my entire argument around the fact that they vary from district to district is evidence that it's vague and if it's vague it's unconstitutional a person can qualify in the state of missouri that four days apart wouldn't be regarded as separate by just about anybody and i'm not sure within the court where mr morris was appearing in recent doubt that these a worth it we we're just on the four corners of the charging documents and because there was one document that there was in that the lower court that stated that both of the occurrences both of the transactions occurred on the same date that cost confusion and the court actually ordered the government to brief that happened and when yes but the court made a finding the court made that fine now mark my argument to that though your honor is the fact that now you're dealing with the relationship between the two convictions you're not dealing with the actual conviction and once you start dealing with the relationship then i believe you fall into an apprentice violation because now you're not talking about just the fact that a person was convicted you're talking about the relationship between those two and that should be either a method by the defendant are proven beyond a reasonable doubt by the fact finders are jury so you don't think that defendants prior to drug sales to two different individuals were part of a continuous course of conduct rather than separate and distinct criminal episode why don't i understand my thoughts on the same day and stand around a defendant has the opportunity to to cease his criminal behavior right then you're going to it's deemed to be separate conviction no you're exactly right that the rules have varied about that i guess what i was asking was whether any circuit has said that the determination of whether there is one offense or two prior offenses one prior to priors is the kind of thing that is evidence the basis and if if this the court were to look at that under that light then they would determine that it's a balance the constitution simply the fifth amendment i'm asking the court to read see the problem i have with that that principle you're articulating it you know if we really take it to its for this extent any time you ha well even if it's clear the problem is yours inventiveness in the sense of johnson you know that nobody knew what a belong to the residual clause into it and everybody was throwing darts at the wall for years until the supreme court finally said forget it we just can't do this and i of crack to somebody and then turns around in two minutes later sells another one you know maybe that's a tough case that why as light here to mr morris this case is a four day apart  it even if it's two seconds you have a chance to stop that criminal behavior argument that they give is when they get the guy comes into the poker room and kills and say will not the money pork thank you and walk up to it so what i'm saying your honor is that and i know that it's said the president but i think in this type we were dealing with people's lives and freedom especially when the the consequences such so great from a ten year maximum to a fifteen year minimum up to life then there should be some clarity because the common man the defendant when he hears something and been ran can character he takes it that everything is together and it's one sentence seventh circuit has dealt with cases with much smaller time frames than here including ten minutes thirty six hours thirty six minutes are thir two sales forty five minutes apart in this case their worst four days he certainly had the opportunity to withdraw from his criminal conduct over a four day period of time and look at the quantity of  drugs for each of these transactions they were it was over one gram and less than fifteen grams for each instance is about the opportunity to withdraw that's that's what you're saying eliot do you have an opportunity to withdraw and certainly if i came in here and robbed these people and didn't rob you that's an opportunity to withdraw if i came in here that you would use a you know walking into the bar and saying everybody put your wallet on the table you know that's one incident right i we would not dispute that fact  this is very clearly two instances you know and it's just not a situation where there's any confusion whatsoever because the point is if he was across the river in st that is the armed career criminal act he did not have to partake in that criminal activity he did it twice he burgled home misled by everybody it was a typo typos happen and that is why i plea agreements have the language that they kept because they're anticipating that not everything is clear yet the ultimate sentence that got the ultimate sentence guidelines range has not been determined yet and the promise to promise is to recommend a sentence at the low end of the guideline  the thing that comes closest to saving this to me because it does seem quite plausible to think that if you thought that he was looking in the lower end of one hundred eighteen that would motivate a guilty plea was free thought was a fifteen year one eighty  minimum he might not have wanted to police might have wanted to take his luck with with a trial and he does move mean sometimes people don't but he did move to withdraw the plea but that has happened in other cases barnes patterson white every single one of those instances there was a mistake as to what the ultimate guideline range would be the sentencing guideline range was much larger than what it was but this isn't quite the same as a mistake this is just a flat out mistake this would have been an illegal one hundred eighteen months it's a certain areas there are well that it would have been there was no way to get that and in most of the cases you're talking about somebody thought you know it was going to be offense level twenty eight it turns out it's a sensible thirty two  something like that and it's just a calculation of how to apply the guidelines where is this is actually a statutory error however the district court did ask the defendant if you'd gone over the sentencing guidelines with his counsel and multiple times that's the ultimate determination is by the court the court could impose a maximum penalty and that penalty would have been life and the defendant would not be entitled to withdraw his plea agreement and that we should await the twenty two fifty five agreement and he was specifically informed of the of the contingent nature of the sentence and he was the court told him over and over and over on your best day you get you know probation and nothing on your worst day you get life and a fine of two hundred fifty thousand dollars and i don't have to follow what the prosecutor tells me i can do anything within the law within the sentencing guidelines are you accepting this plea based on knowing that what they recommend that's right i was just curious because i know the government has to move for the enhanced for the career criminal unhandsome and i was just curious what his sentence would have been without that because that's an active motion by before he relies on his own counsel for he relies on the prosecutor for the judge to confirm one hundred eighteen then any of the finitary loudmouth yes just what the common man would do i would like to conclude what by saying that it's back to my original argument that the congress created the sensing commission to delve into these matters and to come up with a uniform in the sense the commission dealt with this very issue and they stated that a prior conviction considered as part of a single sentence for the purpose of criminal history points concepts of parade concepts predicate for their career offender and other guidelines if it independently would have received criminal history points but more importantly however if more than one per hour within a group of of consider that a single sentence is a crime of violence or controlled substance under forty one point two only one may count as a predicate office that's what congress intended thank you all right thank you very much you were a