thank you good morning i'm john rose from the federal defenders of montana i'm in the middle office i represent mr burkey the district court in calculating the nothing that i mean quantity which resulted in mr my calculations based its calculations right quantity on unreliable evidence we believe there was not sufficient industry of reliability on the evidence in the evidence to result in the drug calculations and therefore we're asking the court to reverse that calculation that this record relied on two principal basis for reaching its conclusion first it relied on a potential codefend government i don't know if he was even charged by the state of montana so he had all the reason the world to put the blame on this to birky in respect to considering a mr i coached testimony i direct this court to th decision chorale what it says it violates due process to consider unreliable double hearsay to calculate guideline sentence here the evidence was triple hearsay moreover page thirty two of the excerpts of great one point seven ounces of methamphetamine second and i believe more importantly the district court relied principally on officer me testimony and for qualities we just initially know that according to mr meehan his expertise is a den of fine chemicals period despite their stated expertise in the limitations inherited it mr me hand went ahead and heard different evidence different evidence says two different amounts and the court you know why doesn't this just sort of boil down to the court believes some things didn't believe other things and that why isn't  you know and the court was there we're not there i mean we're not going to rehear all of that here obviously this is a before this court on abuse of discretion right and the problem that attack hell the crime for you well it's not because the evidence relied believe your side of it i believe it's unreliable as a matter of law is that the court just resolves certain factual issues against you that makes that makes it hard for you doesn't it well not whereas in this situation where  relied on unreliable actually unbelievable testimony to rule against us that's the problem it's not that the court simply ruled against us it's that it did so based on unreliable evidence and i just use an example as officer theoretical yield that at best can be achieved in a pristine sterile laboratory condition by a trained chemist here mr burkey obviously was not a trained chemist that every time he appeared to attempt to manufacture and the court for its sentencing found that after hearing these estimates concluded that burkley was responsible for at least fifty grams and one point seven ounces am i correct a lawyer and the supreme court said in shelton that if you have a suspended sentence that you cannot later be revoked for that's have such a suspended sentence and put into prison if you don't have a lawyer when you receive the suspended sentence we believe that prevents the scoring this court in arriving at a conclusion that mr burkett was responsible for at least fifty grams of methamphetamine i would note a problem in this case and that is a factual difficulty is that two labs  nothing in this case there's no question that mr burkett was attempting to manufacture methamphetamine thouse labs he pled guilty to that it's virtually impossible or even commanded me and would not arrive at an estimate and then the other then it well not the codefendant but you know someone that was in the same area and could have been a codefendant he basically says he's an essential and unreliable because he would you know so they seem to be arguing that commander has no qualifications and therefore should not be believed at all mr i kurt has these problems as a what has to be sure he's potentially a criminal defendant is involved in criminal activity so he should be disbelieved as a witness i don't think that's what the law says it doesn't say you can't believe this person it doesn't say you can't believe commander me and you take their information for it's value matter me hand of threshold that someone would have to establish in terms of their expertise or their personal knowledge of the situation sure and that coming under me that or that's you know i understand what you're saying experts are they're not all the equal qualifications and that doesn't mean that they can't testify or it goes more to the the weight as to the admissibility but you still have to meet some sort of threshold and i'm understanding mr rhodes to say he doesn't even get there and we would certainly disagree with that and i would compare for sense of purposes waiting versus admissibility to believe ability versus reliability anatomy her and i certainly believe it will his method of determining how much is not as reliable if as if we had taken the entire job send it to the lab wait out the whole thing did the test but commander me hand testified that he couldn't do that because of the fact that it's waste material in the lab would not accept it so it's it's not as good as it might be but it certainly passes any threshold commander me has an experienced agent mr bookie admitted that the materials in the back of his pickup truck were the waste products from making methamphetamine and the same standard goes for mr i cared he is a competent witness he gave information to the officers that he had seen this mother on one occasion that it was capable of going out excuse me producing sixty eight no reliability and i think mr rose argument overlooks the combination of those factors certainly and i would offer this analogy if you had three mr actors or five  mr rose argument you could knock out each one of them to say this guy isn't reliable as and reliable back as and reliable and individually they're not as reliable as we'd like them to be but all put together it adds up to a liability because otherwise we're left in a case forward telling the district court you need to come up with an estimate of the amount of money or excuse me the amount of drugs and here we have a case where there are two fires and some waste which has not been measured by a laboratory and there's no way to do it and we're left scratching our heads saying gosh i wonder if mr burkey made any substantive amounts of and and almost i mean if you said mr rogers argument we're going to conclude that no it must not have been much even though everybody involved in the case says that it's a substantial amount and i would note that mr icac offers an amount on one occasion that is three to four times shelton goes out of its way to distinguish nichols and start and says flat out nichols remains good luck the difference between shelton nichols is that shelton is facing the possibility of imprisonment on the crime that he took up to the circuit or excuse me to the supreme court here mr burke he has counsel sitting right here table he's had counsel the whole way through he's facing conviction and jail time on this s or shelton was also facing jail time on his hands that's not the nickel situation with respect to criminal history and not the birkie situation with respect to criminal history burke is exactly like nichols he got one hundred  thirty dollars fine he did no jail time he potentially could have received jail time but i don't think shelton would not have absolutely some clearly could have lawyer would be appointed for on the on the lower misdemeanor i don't know the answer to that it's not important we find out i believe they've conceded that point mr rosen said that he did in fact waive counsel and i can't tell you right now your honour's again officer me and said he was experienced and dead if i chemicals he didn't say you had experience in calculating drug quantities also the government just referred to mr i could as a company witness he wasn't a witness he never came to court he just provided information to law enforcement who gave it to the probation officer who put it in the p s r moreover the government's admitting it's in isolation it underlying unreliable conclusions and that's what we have here finally i just encourage the court to read officer me hands testimony for instance he repeatedly references the lab reports and relies on them  chemistry can be transformed into methamphetamine you can transform an r get any saw that into methamphetamine yet officer me here and prose about loosely and wrongly the term precursor and that's just again shows how unreliable he so we believe because the just record based on its drug quantity determination unreliable evidence this court should reverse so that we can go back and correct present proper evidence to the just record and second with respect to the alabama