morning your honour's may please the courts jennifer mellon from the federal public defender's office on behalf of mr duff our appeal raises several issues several of them are related to mr dubbs conspiracy conviction and one  related to his sentencing specifically whether the district court correctly analyzed whether mr dove is a career offender i'll start with the issues related to the conspiracy conviction and less the court would prefer to start with  sentencing issue and the first issue all address is the issue of the amended indictment in this case the court amended the indictments after all of the evidence was completed the court amended the indictment at the charge conference and the issue in this case is whether the amendments violated the grand jury clause because it broadened the possible bases for m restructure is that initially the amendment had specified that there were six coconspirators that's a six person sized conspiracy once those names were removed and it simply stated that t and mr ingram and others the size of the conspiracy alleged was different m i think that's important because there's evidence right there was evidence of others but not of specifically one there involving and from another person yes and there was one other person but the number is not the six that was originally the no he was not he was involved only in the third so the way that i  looked at this question was i'm in terms of the elements of a conspiracy what the government had to prove is that there was a single enterprise and that mr the greed to participate in the enterprise and the question that this case raises well what constitutes a single enterprise if the government can simply change the alleged enterprise after the evidence has come in and change the enterprise does change the names delete the names of  would be enough if it was just to add additional people who would come in and come out of the conspiracy that you have a conspiracy between these between right well that was the evidence that came in was the of the conspiracy between him and doug but not of the conspiracy and the enterprise that had a regional even charge pretty clear that there was evidence of a conspiracy between and was there any evidence that was involved with heroin there while the difficult did find that there was that there was a conversation regarding heroin during the third by and most of that conversation happened not with mr dove but between mr ingram and the undercover police officer who were in the car so i mean that really was the focus of that of the evidence without any evidence of mr think it a minimum the government has to prove the existence of the enterprise that charged in the indictment the whole i mean the the fifth amendment really is one of the core concerns of the fifth amendment is that defendants have notice of of the criminal conduct with surcharged and that's really the government's argument this case is that mr dove what i've noticed says the court what's the difference between the conspiracy alleged in the indictment and what was charged to the jury explicitly discussed during the trial what is and the court expressed concern about this when the government moved to amend the indictment to remove the names what the court said is my concern is that at this point the government is changing the allegations in this case the court specifically pointed to the fact that the who are of the defense was that mr duff had not participated in the enterprise alleged in the indictment that have as mr dobbs defense from the beginning and  to the court at the districts that this is really a close call and the district court in the end decided to let the case go to the jury with this amended conspiracy charge but there was an extended colloquy regarding this exact issue at the trial court level and in a case like this where the defendant's defense from the beginning of the trial is that the enterprise that the government has alleged wasn't that he didn't know clear that this wasn't i mean you make the argument later on of a buyer seller situation but you know this was being purchased for redistribution it seems to me and so there's that aspect of why if if if if the full scope of the conspiracy had been proved with all the other defendants i don't know how that would help you you know at the core of the conspiracy was presented to the jury well that mr dobbs are going to trial was that in fact that focus bears he could not have been proven because he would never he was not aware of it and did not agree to participate in it i mean his argument was that that single into prize as alleged court my name is ryan harris and i represent the government in this appeal therefore issues before the court all start first with the constructive amendment issue there was no constructive amendment here because the defendant was unclear notice of the core of crimin that dog was involved a food or the last day of the conspiracy there was no evidence presented at trial however as this court has how we're talking about right to have a test that was presented at trial yes your honor however the question or any evidence presented that he knew any of the other repeatedly held a single act is sufficient to show evidence of a conclude you agree that you have to show that mr duff willfully joined the broader conspiracy the conspiracy that involved the other individuals and took place over a five month span no we did not your honor at best the go on have to prove that he will who joined conspiracy that was charged in the indictment your honor the government properly narrow the scope of its presentation of evidence to the sole defend o schemes at trial and the supreme court held that a constructive moment does not occur when quote a defendant is tried under an indictment that alleges a certain fraudulent scheme but is convicted based on trial proof that supports only a significantly narrower and more limited though included fraudulent scheme that's precisely the circumstances at issue here stephen dove was charged in a conspiracy when the five other members pled guilty the government properly narrow the scope of its how is this different from i mean on the march i certainly agree there was ample evidence of a conspiracy between an ingrown and fact in crime so you know i'm introducing you to this guy the two of you deal with each other in the future and i don't want to be you know it it could be that it was a smaller conspiracy just between a mom between the two of them so how is this different offs this case is eminently distinguishable from those thirty two defendants were charged in a conspiracy one thousand went to trial and the government instead of proving a single conspiracy it proved eight separate conspiracies the court held that this resulted in prejudicial spillover and specifically distinguish the birth of a united states case because of quote the sheer difference in numbers and both of defendants and of conspiracy is proven this court has repeatedly confined to cases where there is a substantial number of defendants going to trial and substantial number of conspiracies proven a trial here was one defendant that went to trial and one conspiracy proven i think the more apt case is berger v united states which says and i quote it is settled by the great weight of authority that although an indictment charges a conspiracy involving several persons and the proof establishes the conspiracy against some of them only the variance is not material that's directly on point here in this court is also held that to be the case united states  those factors is present here there was no pinkerton instruction the statements of persons not in the conspiracy were not used against him there was no prejudicial spillover from a large number of defendants indeed he went to trial alone and no shocking or inflammatory evidence came in against him because  cannot establish that the variance that the court took or the government took in narrowing the scope of its presentation of evidence was prejudicial there's no reversible error here i would also just note that at trial steven dove entered a standing objection to the government in suppressing cation of evidence of any drug sales not directly involving stephen dove and so it's even up not have it both ways at trial objecting to the presentation of evidence that would perhaps establish the participation of other members in this conspiracy and then on appeal argue that the government conspiracy it is no it's not a single conspiracy it's fifteen conspiracies that's correct your honor and they're right here you don't have that problem because dab is selling  supplying ingram with drugs which it would be the equivalent of one of the fifteen conspiracies in cardiac us that's absolutely there for the fact that if a if a big conspiracy had been charge with multiple defendants you one of ended up with with at the jury was was asked to find a single conspiracy based upon multiple customers then you might have been closer to  there were multiple conspiracies proven a trial those a court and both of those cases both helped the variance is not fatal because the number of defendants at trial in the number of conspiracies proven did not rise to the levels they stream levels  in other words for example in berger i believe there are only two conspiracies proven in total five defendants who went to trial the court held that this was not a prejudicial variance here and here we see even more clear cut and in that situation one conspiracy was charged one conspiracy was charged with a court included to conspiracies were in fact proven however the court held this it's not a prejudicial variance so this is all within the control of the government it was the government's decision to charge rights was should we give you the benefit of the downed the government properly exercised its prosecutorial discretion your honor to confine the evidence to the sole defendant that went to trial the seventh circuit and this court has both held repeatedly that's a proper exercise across the world that discretion to consist cited in my brief indictment charges and six percent five month heroin slash cocaine conspiracy yes around and the government  to appeal if the government had introduced defense counsels trying the case on the on the basis that it is a six person and five month conspiracy he is going to argue that fact that this was  a conspiracy but not the one charged and then suddenly it's changed so that the money was going to argue was indeed the one that's put to the jury you don't think that that is a present at least a question honor i don't i think that there is a variance here here however again it was an appropriate one given the fact that only one of those defendants when the trial and i would just note that again this court has held that a defendant's interaction with a single other coconspirator and as well as a single act can be sufficient to show his participation in a broader conspiracy here and so the government did not put on evidence of months of months of drug sales in which stephen douglas not directly involved arguably the defendant to argue that there was prejudicial spillover in that circumstance because he would have argued that those that evidence spilled over into the question whether he himself participated here the government properly narrowed the scope of its presentation when those five other defendants pled out  question of the entitlements and the notice that is given by the indictment to the defendant of the charges against which he will be defending his on hearing the government could see that there was a variance but the government argues that it was  completely appropriate on case law so how do you respond to that is you know we would disagree because that variance went to the heart of mr dove's defense in this case when mr dunn was deciding whether to go to trial what he was assessing was whether he was a part of the conspiracy alleged in that indictment his defense from the beginning was that he was not i understand that the government's position is well he should have been on notice that he was involved in the core criminality and i guess my issue with that is what exactly is the core criminality in this case the way mr dove and his counsel understood that was that the core criminality alleged was a six person conspiracy spanning multiple months focused on heroin sales and involving thirty undercover transactions when this circuit and the supreme court have looked at what it means to engage in a conspiracy they've looked at multiple factors is there some understanding as to a mutual benefit from this and to prize you know overt acts the frequency to ration of that person's in gage minutes with the conspiracy and what mr dove and his counsel presented to the jury was what you know what mr dove and his counsel were strategizing when they were considering how to defend this was that those did not exist thirty transactions ho either heroin or pills were involved in the remainder couper for criminality in this case is the distribution of drugs and that he was certainly aware he was aware the decision  of conspiracy he has to conspire with more than one person himself if there's a conspiracy then one knowing member of the conspiracy need not have trends that have transactions with all the majority or even more than to be a member of the conspiracy if you know there's a conspiracy for it well that's the question was did he know that there was a conspiracy afoot and did he specifically know that the conspiracy as alleged in the