procedure in the district of vermont and i think that comports with the training that we've been receiving from the sentencing commission in the united states probation office the probation officer provides a dra prosecution and to the defense we raise objections if there are any in the pre sentence report to the probation officer in writing if we can't resolve those objections at a settlement conference the probation officer notes our objection in the final p s r and if a sentencing hanson an issue is being raised then the court holds a hearing on whatever objection we had in this case it was the dangerous weapon possession and hand smith and we went through that procedure as you know the pre sen report referred to four pieces of evidence suggesting that my client should have known that someone in the conspiracy had possession of a dangerous weapon the probation officer refers to firearms found in two apartments text messages and oral communications intercepted a wiretap orders and a bullet was found in a vehicle that my client was driving here in new york city the prosecution both in its sensing memorandum and in the trial court referred to only two of those four pieces of evidence to prove its case as it's required to that my client should have known should have reasonably known that someone in the conspiracy possessed a dangerous weapon they specifically said that a firearm that gun the parties agreed and the court agreed that they were going to consider we were going to consider the oral communications because there was a substantial issue about whether or not those were all communications could have been used  hearing that we're left with the text message and a gun found in a safe in an apartment by sherry lo so cherry low so simply told the police that she had given keys to the safe to one person didn't know what was in the safe and thought that one of three people may have put something in the safe but she wasn't sure that was the gun that was found in the safe and that's what the government proceeded on that was the evidence at the sentencing hearing there was no mention of a knife as in the cargo case there was no mention  of houses in new york or what other people said and we made both specific and a general objection to any reference to firearms in the pre sentence report and what judge rice did was she went beyond what the prosecution was relying on and referred to a number of statements that had been made to police investigators over the course of their investigation related to far arms most of which was potential acquisitions so none actually went forward i think that it was a violation of my client's right to due process for judge rice to refer to information objected to facts that the prosecution had not relied on in it presentation and that's where we are think i've been doing this for a long time i've done dozens of hearings related to sentencing enhanced mintz whether it's money you know the amount of the loss the number of weapons number of alien smuggled gun enhancements weapons and handsome and but i've never run across a case where the court took it upon itself to look to evidence that the we are and that pre sentence report was made available to you and to the governments council wrecked yes and to defend yes yes i went over with them it was all there and all  that material in the prisons report is before the district court now what you're saying which i can sympathise with i mean the idea that our current sentencing regime has to give the district court unlimited access apparently to the information before it which you can find by preponderance of the evidence and it leads to extraordinary results and in some cases we know that  the supreme court seem not to been aware of the fact that the regime of sentencing included sentencing people for offenses of which they were acquitted by the presenters report to present information you could have pursued this or it could have been pursued right before a judge rice we were you prevented from from objecting or  asking for further hearings on on the matters i don't you know we we weren't again as i understood the procedure and i think it's in the circuits case law that when there when material is subjected to that support either enhancement or maybe even a c safety valve or a downward part whatever the party that the party proposing the enhancement or the departure has the burden to prove it in the neck in this case it's the government because it's dissenting and hansen and i made specific objections to the to the paragraphs that contain the information that the government and the pre sentence report that contain firearms linked to your client those are the the information in my brief that they've relied on but co counsel then told judge rice judge first as the court aware i think our objection to the firearm enhanced uncovered any any assertion that my client actively or constructively possessed so that was a specific objections to what the government was relying on and it was a general objection to all this other sort of static that was out there about trying to obtain weapons and you know what happened well then then the prosecution told the judge look we're not relying on this gun that was found in that new york house we're not relying on the oral communications we're not relying on the perry the the weapon to domany perry had we're relying on the text messages which talk about trying to acquire a gun and that the gun was found in the safe and then judge rice and in her findings went and referred to all of the other static that was out there that we had objected to but the government wasn't relying on before you know it you've got to give us some guidance about what what happens in the district court because now it's sort of general this is what happens we've been trained and what we're asking for is something to let us know what what we can expect and what we need to do and that's why i'm here today thank you of course at the end of the day judge rice  by the supreme court this is all by really are pretty moot right she can always exercise her discretion and in fact take all of this into account and then exercise discretion right yes and no i think the guy i think i think there are two things sentencing generally the judge has discretion to do to impose a sentence at that particular judge thinks is appropriate but with regard to these guideline enhanced minces supposed to be you're hearing burden of proof etc and what at least i'm looking for and i'm sure my colleagues who practice federal criminal are looking for something from this court district court indicated that it would accept so in this case at the outset of the sensing hearing before hearing any arguments about dangerous weapons or the like the dish or court had already suggested it would be accepting the plea agreements as drugs and guns together supports the dangerous weapon enhancement in addition to that there were an objected to aspects of the p s r indicating that both defendants had attempted to trade or attempted to it's text messages in which the defended himself in the case i'll take that referring to an a k forty seven so at the very least it was reasonably forseeable to that defendant that this offense could could potentially involve firearms similarly with defending cargo he attempted to trade drugs for a gun and when his intermediary in that transaction reported to him that the gun was not produced defending cargo said that he would handle it again evidenc that was reasonably forseeable to defending cargo that the conspiracy could involve firearms and it's also important for this court to understand that this was a lengthy conspiracy with substantial quantities of drugs over a kilogram of heroin case to substantial dealers in narcotics firearms are tools of the trade so it should have been reasonably forseeable to these leaders and organizers of a large scale drug trafficking conspiracy that  when they traveled to vermont to sell drugs so there were this was a closely managed conspiracy in which multiple coconspirators possessed dangerous weapons and finally just one other aspect is that defendant  cargo possessed a knife which should be concerted dangerous weapon under this guideline as well it's capable of causing substantial bodily injury or death a the word a knife part of iraq defending cargo possessed a knife that was unobjective to a statement in the p s r and this court could affirm the dangerous weapon enhanced made on that basis alone so for those reasons lest the court has any further questions i will rest on our roofs at this point  think everything that mr bush has said was accurate but the it's the same problem we do they decide what evidence to rely on and then we're left with the static that we did object to with our generally not specifically but we'd like to have some guidance from the court about how to handle this and that's what we would appreciate