in this case demonstrate that mr harris received the sentence for racketeering a fifteen year sentence that was essentially a sentence for actual murder under oregon's guidelines system that was an arbitrary deprivation of his liberty in violation of the fourteenth amendment's guarantee of you process in this case implicates three core due process concerns the first relates to notice and that is evident in the various indictments in this case the second chord due process concern involves the state's maneuvering in his case to evade its burden of proof under winship and that comes into play at the pretrial motion stage in this case and the third core due process concern is that the tail that was the sentence in this case flagged the it is important to note about the indictment that holds allegations relating to these two gangs in allege that mr harris had participated in the gangs through the exact same pattern of racketeering acts and that is five different drug and weapons and so it was the state's position and it's also important to note that enterprise v was essentially a conglomerate gang and that included enterprise a and finally it's also important to note and this is in the record at intimidation the second critical stage in locating due process concerns in this case is the pretrial motions aged the defense filed a pretrial motion in this case to force the states unless whether it intended to prove the or enterprise a and the state based that motion on and on and on the grounds that it needed notice of which enterprise it was to defend against and that the two enterprises were mutually exclusive the trial ground there's a a trial indictment a revised version of the indictments are two fifty two fifty three and that essentially proves circumscribes the notice that mr harris had of what he would be tried and on the hook for at sentencing third of the key stage in this case is the sentencing stage the trial judge issued an opinion called the opinion setting for life and the gridlock relates to oregon guidelines system and this is where we see the tail of the sentence wagging the dog of conviction  instead of requiring the state to live with its choice its choice to prove and surprise a the trial judge sentenced mr harris for the conduct that had been alleged as part of enterprise fee and at this stage the state w related to the racketeering organization the local out with that's essentially enterprise the next thing the judge says is that the conduct of that organization went as far as attempted murder and intimidation of witnesses again i refer the cour  was convicted of benefiting from this as in the conduct of his own criminal activities that's not accurate because the defendant was convicted of essentially benefiting from the but not of enterprise and then the court goes on to say that the effect of that conduct on society is at least as great as the commission of murder and sentenced as mr harris or actual murder the sentence that he received was a fifteen sentence it was a sentence that he could only receive for actual murder had he been sentenced for attempted murder mr harris would have received a sentence of five years or less that would have been a level nine on the organs and i'm saying guidelines  d if he had been sentenced for his predicate crimes or for the witness intimidation mentioned in the opinion setting bradlaugh mr harris would have received a sentence of fifteen to eighteen months not fifteen years and this i submit to you is the tail wagging the dog and under these circumstances these particular circumstances and with this procedural history the opinion setting gridlock is an unreasonable determination of the facts in light of the state court record and i would ask the court  review is not you know however this court per firms performs an independent review of the record and looks through the unreasoned appellate decisions to the state trial court decision which is the only reason decision on this issue and i submit that exhausted in the state for sure and the district court found that one portion of the due process claim was not exhausted and that was the portion relating to the enterprise itself as opposed to the indictments that describes enterprise but more importantly mr harris raised this very issue the issue i'm raising before you now when it raised when he raised the bates case and he raised that in his direct appeal brief at page forty two and that's an  record approximately page one twenty one two one thirty there's a broader argument regarding vicarious liability and also in the station for review of the oregon supreme court which is that e r one sixty five one sixty notice issue in that case the government had chosen to prosecute a gang in chicago called the el group and gang and there were thirty eight members initially indicted in a very large indictment in that case on racketeering one hundred seventy five different counts and the government decided in that case that they would segregate out certain defendants and they took six defendants and those of the defendants in the bates case who had only drug offenses non and they segregated them out and tried them on those nonviolent offenses and at trial there was some limited evidence of more violent acts of others in the broader gang and at sentencing the government to have these more violent acts considered with respect to these nonviolent defendants and what the bates court held is that that would offend you process on a notice to hold the defendant's that i'm raising here and for that reason if this is not a default issue this is an issue that was properly presented to both the oregon court of appeals and the oregon supreme court think that on the basis of the procedural history of its case that argument doesn't work as in bates there's a notice problem that it's simply elected not to approve  surprised the enterprise b was basically a conglomerate gang that included enterprise say when the state elected to only move up the smaller gang if it gave it to and it's my recollection and it could be wrong but my recollection was that the response did but but i can't cite to exactly where the indictment submitted to a jury and proved by the government beyond a reasonable doubt and later in that sense she also works late that it is remarkable that the court cannot identify a single instance in the over two hundred years since the so must the court has any of the question and and what the defense counsel argued was that they had to have notice of whether they were going to be tried for enterprise a or enterprise fee because they couldn't in a single trial defend effectively against both of those charges had this fake decided to charge mr harris with enterprise he could have done so in a separate rico trial likewise had the state wanted to sentence  enterprise a involved in and attempted murders and intimidation of witnesses mr harris would be on the hook for those attempted murders and intimidation of witness but the fact is that the state chose not to prove  figure conglomerate enterprise and not therefore to prove up the attempted murders and intimidation of witnesses and the state is stuck with that choice and to suggest that the state didn't vigorously defend against that would sentence that he could only receive heavy actually committed a murder otherwise and it to say that the notice and the winship problems in this case don't tie into that i concerns and why the procedural history of this case in particular made it an inquiry just to process violation that rendered his sentence arbitrary and those are excerpts of record to forty one to two forty nine that shows the conduct that were the conduct and predicates attempted murders and the witness intimidation that were part of the dismissed count and surprise b and then compare that with the trial indictment which is that you fifty to fifty three and you can see that the far raise the state has not raised that and concern about the state has not raised that issue and i have i was appointed after that stage of the case mr harris raised his appeal pro se so there may be a mailbox