sentence that judge fam pose after finding any finding additional facts but the maximum to me and close without any additional findings when the judge inflicts punishment that the jury's verdict alone does not allow the jury has not found all the facts differences make the guidelines more vulnerable to attack and specifically asked aspects of relevant conduct and specific offense characteristics apply hard constraints to a sentencing court's decision by requiring specific factual finding what i think will likely be likely now makes it clear that that in fact what happened in this context was indeed fundamentally problematic because substitute information alleging that he had possessed m d m a with the intent to distribute an april two thousand and two years in criminal history category one no quantities were alleged and they substitute information none were admitted with respect to this conditional maybe we can find our next argument so of course it's mr henry's position that the young lady said that the only because there were no other findings made by the court i'm going to leave the rest of my  i think that one has to look at all of facts and not strictly the time on the clock the court below found that it started it six and ended at eight but there was also an indication that it may have been a little after six and  that he was highly concerned about whether he might be depriving him of the needed medication and didn't want to be in that position  generation correct but if there is grounds for reasonable suspicion the officer is supposed to take what reasonable steps are necessary to confirm or dispel that suspicion facts pointing to suspicions that you were illegal drugs what what he did whether that was reasonable considering all the circumstances and under sharp the supreme court case i think it's for seven to us because it was considered morrison then why it would be a question whether the facts that were within the knowledge of the offer on this or at the time constituted probable cause to have probable cause for an arrest we felt that he had probable as soon as he got the inherently incredible explanation from henry that these were his medication that he had a prescription for he had to take ten of them every day and all you had to do was not only notice that he couldn't produce a prescription even given time to make telephone calls which he had the freedom to do but also noticing that the pills themselves the cap wouldn't be carrying my prescription with me the doctor just phones to to the pharmacy and i usually don't even get it physically true but there would be some marking on the container that would tend to show that it was a prescription at least it would show that it was some kind of a manufactured drug these were there were eight hundred of them to start with over around eight hundred they were separated into eight baggies approximately one hundred pieces the bags were tied off of the top little after yes he could not remember a name but he did call the testimony is that while he was in the patrol car he used his own cell phone to make a phone call or more home calls or can't remember whether th and the district court chose to analyze it entirely as a terry stop and made factual findings that are very supportive that there is a series of some suspicious circumstances that strongly  indicated that it was appropriate to find out what these pills were and to take whatever action was necessary to resolve that question starting with the spelling the defendant's contention that they were his medication so  one doesn't necessarily need to say that that was a not a reasonable approach but of course the rule is whether or not the district court chose the reason that this courtroom was if they reach the right result then the ruling with that information and going to the hospital with the pills and with that information the agent was still unable to obtain any identification of that at the hospital as being any kind of medication at all and then began to apply his test kit to it and it was the fact that his test kit was inadequate to identify the amphetamine was present that required calling the d n a and that took an additional forty five minutes for the day to arrive but there wasn't anything else he could do it certainly would have been unreasonable for him to release the individual who was traveling from out of town claimed not even to know the person whose room he was trying to enter and the room itself had been obtained fraudulent only he and his companions none of them knew who the person was whose room they were trying to and one of them had marijuana on him the room itself contained marijuana was a crime scene was considered to be a crime scene the defendant and his companions were all trespassers on a military reservation so it was a situation calling for detention until they could be removed from the post until the drugs in the bag turned up and then a call for detention until the allegation that it was his medication could be either confirmed or ruled out or that the items in the that the pills that had been well and we would also contend the probable cause heightened at that point also because when he goes to the hospital and the professionals can identify this is any kind of medicine not only is it doesn't rule out that it's medicine but it also rules out the credibility of the defendant and implies that what he told a lie for was to cover up the fact that it was illicit drugs and really strengthens the probable cause at that point it wouldn't have been necessary to find out what drug it was we have to do under sharp and under richards i believe it is a life circuit case which we cited and this is not much different from the tensions that have been upheld as not being too long  hour to an hour and a quarter by this court and one of the better cases explaining this whole situation is it is gallegos versus the city of los angeles which there's no mechanical checklist in that time alone isn't a factor but it's a fact specific game where he guided by reasonableness and that depends on what was the nature of this suspicion was and what was the officer did in order to try to dispel that suspicion we agreed that he had probable cause and that probable cause whether he acted upon that to arrest the person or not is sufficient to uphold  gunpoint and put into a patrol car and i took forty five minutes to an hour to get him back to where he belonged and the purpose was to identify him as to whether he was the  guidelines beyond what this court has already held clearly referring to the existence of a supreme court precedent which goes a long way towards establishing  in washington statute and blakeley is not the kind of analysis that would fit the federal guidelines federal guidelines are are distinct entirely from the kind of  statutory system that existed in washington and existed in new jersey which caused depress the decision those states had to statutory maximums they had one statutory maximum for the the crime of conviction they had a higher statutory maximum in the event the judge made findings of certain facts over and above what was it encompassed or resulted from the plea of the conviction now we don't have anything comparable to that we have fact going back as far as fifteen years ago the most tragic case and nine hundred eighty nine the supreme court entertain to challenge the constitutionality of the guidelines it was mostly i believe primarily and i apologize for incompleteness on this because this is so new but i believe that the focus was on a delegation of powers and separation of powers and there was a statement of our by the united states supreme court that the guidelines do not set minimum or maximum safe they only fetter the discretion of judges in doing what they have always done i think they said for generations quote unquote  applying various sensing factors within the statutory maximum and that that is it and that's and something which the courts have always done the guideline system that is something i don't recall his use of terminology like face offense level of course the what the washington statute called it was something like standard range but it was a statutory maximum for what the person is convicted of by a jury and other words the system itself so the max under the law which was on the statute books saying that this if you get  crime this is the maximum then a judge has the authority to go beyond that maximum to the higher maximum and throughout my reading of blakely they refer to statutory maximum but i don't think even though they may put some meaning on that and gloss upon the definition of statutory maximum i don't think that we can say that there is anything and likely at least i wasn't aware that there was anything there that had a tendency to change it to the point of taking it out of a congressional provision and equating it to something when the guidelines which is nothing more than a s five fifteen us wants five nineteen was done again five or seven years that all talk about the various forms of judicial findings in sentencings within the statutory maximum and they're all approved by the supreme court thank you i would like to respond to some matters concerning the record first of all mr henry did give the name of his doctor and identified him as being in washington state but it did not perhaps a phone number for him the person he attempting to contact was a friend who we thought would have the doctor's number and he also identified that he had a prescription or a note regarding the doctor at a friend's house in fairbanks was not offered the opportunity to go and yet that  developed at that evidentiary hearing established that the policy of the building room facility was that the people who could rent those rooms were members of the military and  inferentially it was clear that he would suggest you do not make a state what he what happened was that the gentleman collectively the four men were being interviewed together initially and collectively they indicate if they had stayed in the room because it was a cheap place to stay there were two men who actually had bags containing clothing in the room one was mr henry and the other was and another one of the gentlemen who was permitted to leave well away from his bag  that he was free to go they drop him off with the inference to the base so he could leave he said well let me go into the room first and get my bag well i think he was he was told along with the other gentleman that that they would be escorted off big that may be the end of this stop well i will answer the question about the time frame first and then respond to your point ok which is that in terms of what's established in the record here's all i've got which is that at three fifty is when they confronted the man the federal of the two officers one is wearing a federal special agent jacket on tell the men to get up against the wall and they submit them to bodily frisking they then have to wait in that position for five to seven minutes at which point two to four m p s arrive subject the men to a second bodily frist and they're putting him there all put in handcuffs some time after that one of them and i is taken away by the fairbanks police officer but in terms of a time frame the next time frame that we have established in the record according to my review is the discovery  around five o'clock and that's a tad best test at three and he remains in handcuffs and isn't the handcuffs are never removed the next relevant timeframe is that between six and six thirty t suspect both in terms of packaging and appearance that there were drugs because of course we have increase and interrogation of the defendant as to what the items actually are what they what what what drug there is and because of course that's one of our complaints that he was not mirandized prior to that question