advisory at this point and the district court did recognize that the guidelines were advisory on the set and second opportunity for respect and i think it's still important that the district court find the correct starting point under the guidelines under many weather and under and control in this case the guy who line the starting point was incorrectly a stamp which we think of for three reasons one the weight of the ecstasy the dose weight was incorrectly calculated the amount of pills the number of pills that were attributed to mr rice was incorrect and also the role in the offense was incorrect or on  the time and which mr rice was involved so there's no actually it's are are truly from a pill that the d n a found in that case mr rice argued to the district court the court should apply the guidelines table to the the equivalency which sets out how many grams of ecstasy is equal to how many grams of marijuana and where importantly what that weight of that each tablet will should new equivalently would wait instead of having the equipment's leeway wait at thirty five grams of marijuana it's now bumped up to two to five hundred grams of marijuana why couldn't that this quarter i mean with the district court consider that testimony as relevant to wait for the new guidelines you know because the argument that was made at the district court level was to apply the two thousand and one emergency amendments including that underlying assumption that somehow m d m a should have a higher dose weight than and yeah it would be an ex post facto application of the guidelines and by the way i was right because look they they applied the new two hundred and fifty grams to guidelines but if the courts and i'm applying the old guidelines in footnote fifty six this is in exhibit after the government's objections to the c s i calculation so it's early in the proceedings is one of the six exhibits and it's one footnote that the da presented testimony to the united states sentencing commission in support of the two thousand and one emergency a man no one was under the impression that we were arguing about the the fact of there may be a factor of two hundred fifty is a correct weight we all thought we were arguing about the ex post facto application of the emergency guidelines that you're saying that's what the council were but i thought the judge made clear that what he felt he was doing was looking at the testimony and applying it to the older gu he says i'm relying upon the the the testimony to congress that report to congress and sometimes you the court refers to it as the report to the sentence and commission is really talking about that may two thousand and one report to congress that the united states sentencing commission presents and it's true in that report there is a section that outlines what the typical weight for m d m a weight ran from seventy five milligrams to one hundred twenty five milligrams the total for the the carrier would be two hundred fifty milligrams to three hundred milligrams that was what we thought we were arguing a inconsistency i will agree with you there between mr nichols sentencing that occurred only a few about an hour before mr rice's sentencing in that one he specifically refers to the was an analogous argument if you look at m d m a m d m a and compare it to how and the egg is treated under the application notes to the guidelines and later how it's amended by the united states a the next one when the emergencies are put into final form in november they remain consistent and then and when the dose weight changes and then  making a business deal there your own so i if i could i would like to reserve the remain to please the court male member oh sister u s attorney from boise idaho in this case after the initial round of objections to the pre sentence investigation report that's when the ex post facto issue was raised the crease in its investigator agreed with the defense on the ex post facto issue concerning which guidelines to apply so that issue they knew they already had the person as investigator on their side and a revised p s r had been issued the issue then became how does the district court count the amount of drugs there was no further issue over which set of guidelines were to be applied the mr rice filed some more objections milligrams see attachment one d n a m d m a factsheet hunted march twenty three two thousand and three and that fact sheet was attached there was no issue before the district court over whether the court could legitimately consider information from the d n a both sides were arguing information from the d n a the f are measured being argued by mr rice came to years after the offense conduct in this case was in march of two thousand and three the information relied on by the district court came out in testimony given before the sentencing commission on march ninth two thousand and one while the offense conduct was still ongoing the question the issue was those weights or mixture of weight those weight or pill way both sides were arguing d e a s information the defense want the court to use the dose weight of the actual indy in may one hundred milligrams the government and the court ultimately went this way use the d n a information regarding total pill weight of m d m ecstasy which was two hundred fifty milligrams up to three hundred milligrams that was the issue there was no ex post facto issue regarding this both sides were arguing d n a information and the district court was absolutely correct in going with the weight or mixture of weight as opposed to just those ways the statute of conviction here under twenty one u s c eight section eight forty one charges a mixture taining  a under this court's precedent in the crowd of kids under the united states supreme court precedents as well as the guidelines in the statute all require the drug amount to be factored or calculated on the basis of the entire weight of the mixture of the entire pill and not just the both ways those weight of the control substance the guidelines in effect at the time had a suggested those wait for in ecstasy but it was only again it was those weight it wasn't an issue of weight furthermore m d m a ecstasy and m d n a ecstasy even though they're both called ecstasy they're not equivalent substances the ecstasy contains and thought i mean m d m a ecstasy which was involved in this case contains methamphetamine they're not the same if you look at the marijuana equivalencies under the guidelines in effect at the time methamphetamine receives ten times the marijuana equivalency of amphetamine the district court was absolutely correct here to rely on d n a information that's where the drug  said that it's based on d n a information both the parties were arguing d e a information to the court where the defense last out was they could not convince the court to rely on simply dose weight as opposed to pill weight and the court was correct on that issue the only expos facto issue concerns of whether to apply a later edition of the guidelines or the may one two thousand and one amendments to the guidelines which greatly increased the marijuana equivalency of m d m they extant say the court agreed with mr rice on that point and as a result his guidelines were sensibly cut in half his guy's minds went from over twelve years down to just over six years so this point that's being raised now before this court was never presented to the district court that plain error standard should apply and the defen not shown any error let alone plain error moving to the second point concerning the amount of pills calculated the record here demonstrates that the district court was extremely conservative district court noted that there was evidence in the record showing that the defendant's participation in this conspiracy lasted for up to six months if not longer and that there were up to eight thousand ecstasy pills per month being used in the conspiracy one of the trial witnesses and the court summarized seven different trial witnesses in support of its findings one of them recounted on a single occasion helping count out twenty five thousand ecstasy pills that's almost twice as much as the entire amount the district court attributed to this defendant and that's just one occasion it easily supported over a thousand pills might the district court was wanting to be very very conservative cut the time period of offense conduct from six months all the way back to four months and then use a four thousand fill a month figure there was another witness in the case who was a coach a codefendant who pled guilty who testified a conservative estimate was four thousand pills a month now this defendant had every incentive to minimize the number of pills because he was going to be sentenced based on what he said and he in fact was so again the district court took a very conservative approach here it was well supported and record the court went to great lengths to summarize trial testimony in favor of this defendant received more than a reasonable senates this defendant received a lenient he sure as a district court pointed out that  enhanced moment was well deserved because mr rice he owned the establishment to defend at least he was leasing he was in control of the establishment he provided the place where these ra took place where the drug distribution took place and he was not an innocent with regard to the drug distribution he was involved in the planning meetings concerning how the drugs were going to be distributed who got to distribute drugs he controlled that back he was paid to give exclusive rights to certain drug dealers to deal during these rape parties other people were searched to make sure they were not bringing drugs and he received a cut of the amount of drugs that were i do not believe so your honor and by the way i'm the attorney on this of allah case as well i do not believe so because in this case there's not there's not as a volatile issue here and there's been no allegation here that the district court used the guidelines in some kind of a presumptive way course the initial sentencing was before booker booker was not raised initially it's been this case has been sent back so the district court has really looked at the case and said i would have given the same sentence even if i had known at the time that the guidelines were advisory there's not base of vala or a clarity issue i would agree with counsel that there is not as of all issue in this case so i don't think we need to wait for that on like decision in that army you know backwards on the scope of the conspiracy and the people counting out the pills and four thousand here and so many there this was not a single conspiracy these people mr pollock and mr nichols mr marry mr blair they were selling drugs throughout the treasure valley they were not just selling only with mr rice it's crude there's other activity throughout the treasure valley and i think that's important to keep in mind when you think of the number the number of pills  application note number eleven has no point because you use case in no eleven when you don't have the drugs we didn't have the drugs here it's it's the assumptions it's the typical weight that we're using based on the guide not it's not based upon any measured amount and if it were any do you think and we didn't have any of these pills the weight would be one hundred it would not be the two hundred fifty total weight mixture weight of the application note a lemon allows for that same situation here we don't have the drug or making the calculation based upon the guidelines