this case presents but  quantity which in this case was less than fifty grams of heroin despite this finding from the jury that it was specifically asked to give this report i disagree with the jury's pollution and increase mr white citizens substantially based upon is belief that he should be responsible for more drugs than what the jury had found the government disagrees that women tell the controls this case for a couple reasons  first of all it says that in this case the district court didn't actually increase the sentence based upon the drug quote tied in quantity and it increased the sentence for other reasons but if you look carefully at the record that that's really not the case it is true that the district court was concerned about other things in the case such as mr weiss criminal history mr white's leadership role in this gang mr white's statements to the gang but those issues were all addressed by the district corps in visor guideline calculations for instance to the criminal history issue the district court increases criminal history category from four to six that's a two category crease that's pretty to the role issue it was concerned about it applied the four level aggravating wrong hands which is how you deal with a role issue and then with respect to the statements about protecting territory it applied to level increase for credible threats of violence and so what was left when those applications were were applied was drug type and drug quantity and that's what the district court use made i certainly grant you that many mentions of the defendant's conduct including encouraging use of violence to enforce the gang's territory ok and you're not arguing that  foul on the play to use that in a three five three analysis correct you ok so but i think what you're arguing my understanding of your argument is that at bottom the judge made traditional findings of fact that were contrary to question put to the jury and our precedent requires that if the government puts a question to the jury in the special verdict form they're bound by the answer exactly does it matter in this case it does differs a little bit from pivotal because the judge here didn't change the best offense level he didn't break in the case of the quantity and type there he put it i think factored into the three five five three analysis does that change anything i don't think so yes in this case the government asked th word to the court limit its application that he simply to abase offense level increase it talked about enhancing the sentence and and whether it's done with a base of his level increase or whether it's done with a thirty five fifty three a variance upward for the same reason so i don't think it makes a difference whether it's an actual formal guideline increase or the well whether it's done through a v brought the issue up and so i don't think it was even ever in play when it was remanded to the district court i talked about double jeopardy in my brief and i think i think that that would have limited the government's ability to retry count five but then try for a higher type in quantity i think that the government had a full and fair opportunity in fact without a serious instruction they had more than a full and fair opportunity to submit drug and tied to the jury the jury totally disagreed with the government's take on that and so that was  insufficiency of evidence finding by the jury and so if this case went back and the government decided to retry count five which they certainly could based upon the serious error i think it would have been limited in terms of what it could have asked for and received for type of quantity but conspiracy count kalil one was a rico conspiracy count the proof is that for the drives was exactly the same as to both but it is true that this special verdict was connected to count five which they elected not to retry exactly ok scholar and i'm representing the united states in this matter so a few things first come into lopez does not apply in this case because that if it was sentence under three five five three a factors and the drug quantity funny was never actually made by the judge instead it was like a number of factors that all work together to increase the defendant's sentence particularly if the judge relied on defendant's violent criminal history his recidivism his leadership of the gang and the t considered the fact that this gang sold a significant quantity of drugs that was a primary purpose of the gang this defendant was the leader of that gang and provided security for this gang and as a result he had to be varied upwards i wouldn't say that he found a specific quantity that was far higher than eighteen point nine he actually i think he just says those words he doesn't actually say it's an x amount of drugs and he didn't actually increase the guidelines as a result of that nobody said i would articulate that the eighteen point nine gra greatly understates the amount of kind sold substances the defendant is responsible for what is clear is at the meeting we saw over and over again referring to the camera he said mr ellipsis ellipsis mr white should be held yes and then he goes on i think i think i counted four places where he really stresses this point and it goes to quantity yes your honor so he says that mr white should be responsible for the criminal responsibility with the crime activities of the gang the primary criminal activity being drug sales and he says as you say as you mentioned that he should be responsible for a larger quantity of drugs than what the jury found him for eighteen point nine rounds but isn't making specific finding as to specifically when does he get that o s you get what you're our idea that those more he's responsible for more the judge actually sat through two trials into this gang in particular and mr white's trial and then there was a second trial where there was actually a po camera which was admitted into evidence which showed that there was ongoing drug sales on an almost daily basis in the middle of the street out in the middle of the day and so the judge is saying is that i saw the evidence of all these drug sales i was not and yes your honor so first i should say that he mentioned this at the first three sentencing hearing in two thousand and twelve and defendant did not object so the fence argument that he shouldn't consider this pool camera but he also mentions at one point that there's also a pool camera video invites the appellate court to watch the pool camera video because it shows a lot of drug sales he says that reflects that that there was so much drug activity it's hard to even begin to assess how you start counting the amount of contraband that mr white should be held responsible for and i took that to me that he was watching drug transactions on going on the pole camera methink it says as much pretty clear on the record but i just one hundred be really sure that's in this trial  that statement that is referring to the book camera which was not in evidence in this trial which is not enough in this trial correct or ok thank you for your candor and i also say that one of the limits on the judge's consideration of kilograms so can he lie and that your honor he has he has to have a minimum in the reliability to consider that sentencing and then after that a judge can rely on facts that are outside of the trial record that's presented to the jury well secondly this one is lots of stuff given to the court doesn't consider because nobody introduces it right so just being given in the sky over it doesn't doesn't help at all yes but i mean you mentioned but it's not you you've given it a discovery and then it was mentioned by the judge at sentencing when the judge was recounting the reasons for his upper departure isn't that too late to the point now your honor at this point our defense has the opportunity to stand up and object and say you know what you know your honor that was in the record in this trial and then the judge would either make a finding as to whether or not he's allowed to consider that here defense didn't do that he waived that this case actually went up to i thought he  one circuit made a number of findings as well about the drug quantity error of the amount of drug activity going on in this case they said it was it was pretty clear if and when they were considering  the sufficiency of the evidence the court said it was pretty clear that there is a significant amount of drug activity going on that there is sufficient evidence to prove that mr white is a leader of the gang and he has a violent criminal history additionally runners i would also like to say that the judge pacifically so defense counsel mentioned briefly that stuff like his gang violence was essentially used up when the court decided to change the guidelines in order to reflect the fact that defendant has a more violent criminal history than the p s r allowed for him but the court also specifically said at sentencing that when analyzing his three five five three eight factors his history and characteristics are i think the most serious so what the judge is saying there that he's considering it not only with the guidelines calculation he's also considering it as part of his reasons for varying upwards and so some of those factors some of the things that mr white had been convicted of and i actually see i'm out of time so unless your honor is happening for the questions one question before you even launch it just in route to the podium thanks and my understanding is the evidence on the pull camera wasn't of your client it's sort of other drug activity in that neighborhood is that right it's a shot of argued that there were lots higher qualities in the district courts that made adjustments because of that and i think that's crystal clear evidence that yes there were other things this record was concerned about with mr white but one of the primary reasons or a primary general knowledge about things about we don't do that mean there are certainly other cases i can think of where a judge says you know that stop that frisk you know it happened it was dark i know that area it's remote it's well known if there isn't an objection in that sort of a fact about a local area like that i'm not so sure i think it's sort of a slippery slope i grant you that but depending on how specific it is and i'm not sure that it is a problem your client wasn't pictured on the pole camera so to the extent we're talking about but i think you're making too activist and you're way over time but i think you're making both arguments both at the very specific one which is that the judge made a judicial finding of fact that contradicts the special verdict form and i think you're also arguing that to the extent in the three five three five five three analysis he he relied on that poll camera to say your client is responsible for being a leader in an operation that is responsible for distributing a whole lot of drugs that that was also improper because that evidence wasn't admitted here