are us against anthony shockey will be moved to last today because of some scheduling problems we've run into here and with that we will hear our st case united states against or for robinson number arthur robinson's matter comes before the court on two issues the st has to do with the armed real armed career criminal act which i will refer to as the ac ca for the purposes of this argument and the appearance of double  counting that occurred at his sentencing pursuant to the p s i are prepared in his matter mr robinson started out with a base offense level of twenty eight dollars due to section nineteen due to eighteen u brief mr robinson contended in his sentencing pilings elocution and in his brief that he got hit with the mandatory minimum due to qualifying under the a c ca and was enhanced because of his criminal history in the guidelines score although double counting is presumed permissible unless the guidelines explicitly say that it is not permissible that is a presumption and it is  it is one that arthur robinson hopes that this court will see as deserving of being overcome based on the the his previous felonies and how that all factored together with the guidelines to allow for an adjustment to his offense level and the guideline moving on if the court will allow to the nd issue regarding acceptance of responsibility points mr robinson was given a three point reduction because of acceptance of responsibility and a plea agreement and that was taken away by a judge the honorable judge turned in after his allocution and so his offense level under the guidelines was increased by three points it is well settled that the trial court is in the best position to determine acceptance of responsibility and for good reason here however there was a certainty that acceptance was shown by mr robinson and that would warrant a reversal section thirty one dollars lays out some of what the trial court can consider regarding acceptance points namely timeliness of the acceptance assistance in the defendant's assistance in the investigation and truthfully admitting to relevant conduct the government in its brief says that the trial court has to look at the totality of the circumstances and that's true and part of the taliban of the circumstances is context the question of acceptance or lack of acceptance that is premised on context on what occurred in the sentencing hearing looking at some of the aspects of section three a one dollar this acceptance was timely the grand jury returned main issue seemed to be that during his allocution mr robins i'm sorry don't last the school perhaps judge he he preferred he engaged in what the court deemed a motion to reconsider its as to the sentencing parameters and there is the question of the presentation of that of that speech and whether or not he truthfully admitted to relevant conduct in his elocution because that's one of the ways that defendants can run afoul of earning these acceptance points if they don't admit to the relevant conduct  during his elocution mr robinson did not frivolously contest relevant conduct in that he didn't argue the facts he didn't say someone else did this whole thing i wasn't to blame he said please judge reconsider the sentencing parameters now how  it was impolite if it was not fitting of the dignity of a courtroom that is of course something that the trial court considered as to his motion to reconsider which the court found frivolous respectfully i would suggest that it was not frivolous to mr robinson it was that portion of it was one of the things that mr robinson addressed it to the court that the court found frivolous certainly another aspect that the court considered as part of that frivolous determination was whether or not he accepted responsibility because judgment and did refer that he didn't really say that and during his allocution mr robinson did talk about how another gentleman came and sat in his car and that gentleman may have had the gun and he was going to give it back to that gentleman but he never did and in page on page twenty four direct lines four through the six he talks a bit about that and in line six he says so your honor i took full charge i accept responsibility for this charge your honor so i decided to keep it referring to the time i would suggest very respectfully that the word so is crucial here because even though he was not educated like an attorney appearing and arguing before a court might be so is a word of chronology it's a word of cause and effect it's a word of explanation and it's a word of context he was explaining to the court the way i read it from the cold transcript having n thank you judge i would suggest that based on the things considered there was acceptance mr robinson was arguing that the sentencing parameters it's and not the facts distinguishing him from the other cases and that there was acceptance in here in that he was actually explain those convictions that the ones that are specified in the brief that would appear to make the atheist the account and he has questions that's the how all of it was calculated to get ok and so the argument on double counting used that it's unfair to counting as it applies to the facts of this case one minor correction i think posing council may have made a misstatement it's the government's belief and i think what the record supports is that the defendants based levels twenty six dollars not twenty eight  the extra points for a stolen gun and then he had additional points raised on gun correct your honor and that was based upon the having a magazine large capacity magazine and two felonies of violence or a controlled substance of france mr robinson's issue appeared to be based on the appellant's brief that his same priors were used both to enhance his base offense level to twenty six  also to apply towards his status as an armed career criminal and the guidelines have stated and they are specifically designed to be calculated cumulatively even when triggered by the same underlying facts there's a case out of this district which or excuse me the circuit which is referenced in the government's brief which is the this caro case which states that double counting is generally permissible unless the text of the guideline specifically for fear that it the text of these guidelines make clear it's not prohibited in fact there is an application no twelve to the two k two dollars guideline which states that a defendant who subjected  criminal enhancement supply does the base offense level still matter it doesn't your honor and that would have been the next point is it's not really even double counting because the guideline range at sentencing prior to the respons ibility acceptance of responsibility issue raised was one hundred and eighty months because of the defendant's classification as an armchair criminal prior to that his guidelines taking relations under chapter two with regards to the acceptance of responsibility as the court's aware and is posing counsel even stipulated decided to there's a broad picture of things that a court may look at a district court and deciding if acceptance of responsibility applies merely saying you're pleading guilty is not enough court looks at aspects including a defendant's actions and statements all the way through his time of arrest negotiation with the government and ultimately sentencing here we had a defendant who at sentencing and i will say that it appeared that at times he was yelling raise his voice to the district court were you  i was present your honor which while i would think is not a good idea did not appear to drive the court's removal the acceptance of responsibility rather it was the substance of the defendant's words specifically he said that he quote accepted responsibility for a gun that he claimed was not his but rather a friend's that he had wanted to bring this gun back to the front but had not done so and was accepting responsibility because he could not quote give the charge back to the public the community or the friend that's the reason why i pleaded guilty to that gun charge the district court specifically noted the defendant did not accept responsibility but rather to try to argue both guideline calculations in his criminal history and that quote his behavior was wholly inconsistent with that of one who had truly accepted responsibility for the conduct with the removal of the acceptance of responsibility points the new guideline range of the defendant was  hundred and eighty eight thousand two hundred and thirty five months the court sentenced him to the low end of that guideline range at one hundred and eighty eight months this is a reasonable sentence it's only eight months higher than he would have had minus his addressing specifically the acceptance of responsibility based on the points that the government brought up mainly that the acceptance mainly that he challenge the acceptance in that it was a friend's gun and that's why he pleaded guilty again i would respect suggest that the word so what's crucial as part of this allocution he wasn't blaming the friend he was explaining the evolution the flow of events that led him before that court he was explaining how the incident developed that wasn't shifting blame or shifting responsibility that was providing context that the courts should hear under section three thousand five hundred and fifty three as they make their determination regarding the court's perhaps the trial court's perhaps position and the government's position certainly that there was no acceptance because he was arguing the guidelines and his criminal history perhaps that argument was frivolous it may very well have been but it was not a frivolous contesting of relevant conduct it was a contesting of sentencing issues that an educated untrained man was trying to present to the court at the most important day in that criminal matter it's true that dadt the trial court sentenced mr robinson to the low end of the new guideline range to one hundred and eighty eight months only eight months higher than the mandatory minimum suggested of one hundred and eighty months very respectfully i would suggest that eight months in custody is eight months in custody one day in custody is one day in custody one hour in or out