do and that was to vacate count thirty seven there was another thing that the district court conditionally had to do and that was to vacate count one if counts one and forty four survive collateral challenge went at the remained hearing if you months later it's not clear what happened because we don't have a transcript but it appears that what happened is the district court decided to hold off on dealing with both of those issues until a clatter all challenge was complete because that's what it did and it came back to the recent singh issue in hundred ninety eight and one thousand nine hundred ninety four i notice that the district court ordered count thirty seven vacated but then determined that recency was not required is that accurate i believe that that happened in one thousand nine hundred eight with respect to count two the the minute order that the government produced in its supplemental excerpt of record indicates that the court said counsel determined recent sensing is not necessary pursuant to the mandate of the ninth circuit court of appeals in the court came back to the issue in february one nine hundred ninety eight and said you know i've seen the same thing orders count one vacated but states recen not required that's correct it states that he states the judge states that he believes are sensing is not required in light legal life so exactly now at that point in time mr whitmore was entitled to raise any new sentencing arguments that he deemed fit to waive it that he didn't deem fit to raise rule thirty five allowed that this court's opinion catarina makes that's clear he didn't have counsel at that time he also wasn't given notice that the district court was going to consider resentencing or any eighty let's keep on going may twenty ninth the district court enters in the mended judgment correcting the clerical error and then june fifth or six it's a little unclear from the record the district court corrected  nt one vacated count one in the judgment you think it around the thirty seven until actually a year later in july two thousand and fifteen is when the district court got rid of count thirty seven but the focus of my argument here is  ninety eight when the district court decided re sentencing was not necessary at that point mr whitmore did was not given notice or an opportunity to be heard any didn't have counsel and those are structural errors that require automatic reversal but even if the court were to say that some prejudice must be shown there is prejudice here glaring prejudice if you had counsel at that time an obvious thing counsel could have raised is look the government in achieving this life mandatory sentence aggregated drug quantity over several violations when instead it had show the fifteen hundred grams of crack cocaine was reached in one violation counsel as we go along here it was may twenty ninth june fifth and then the notice of appeal was filed on june nineteenth yes the fourteen eighth but entering the amended judgment implementing the july fifth june fifth order that might have been strictly ministerial but on august seventh the court granted in part the rule thirty five  was entering a judgment consistent with the order it entered on june fifth and the rule for before sees that it says look the time to file a notice of appeal runs from when the written judgment is filed but if you file it before then that's ok have the same question did the district court of jurisdiction enter these orders on august seventh july ninth and july fourteenth of twenty fifteen while this appeal that we now discussing was pending in this court and it may well not have but i don't think that affects this appeal because this appeal was based on the nose feels based on what the district court did on june fifth or six and there was a notice the order entered on june fifth or sixth there was no its appeal filed on that engine nineteenth and then the judgment related that order was filed in early july so i don't think there's any question here with respect to whether or not the district had jurisdiction there may well be in that other people but this is the central point here is that there are structural there in one nine hundred ninety eight and it's not just structurally really matters if he had an attorney at that time the attorney may well have raise it's not an aggregation issue an aggregation issue is a winner i mean there are two claims that arise out of one is the government proceeded on an invalid theory and the other is that there was insufficient evidence to impose the mandatory minimum life sentence the government has no answer to the invalid theory it i tacitly admits to proceed on invalid theory and doesn't say why that alone would lead to reversal it focuses on the sufficiency claim and it says well we could have relied on count one the conspiracy for the sufficiency claim but there are numerous problems at that point on the brief you know not least of which the count one the conspiracy doesn't allege one conspiracy and that was a central claim in the first appeal that look right if we don't agree with you on that argument what do we have to find for you to prevail if you know if the court doesn't agree on either the structural argument or on the aggregation while there is there's also the issue with respect to the attempts being violation of double jeopardy under the court's housley opinion ok position on the status of count thirty seven well the court in the discord didn't get around to vacating that in till july of two thousand and fifteen so what if we conclude that the district court did not have jurisdiction to do this because this well perhaps although considering that the district court didn't previously hold every sentence in hearing if the court chooses to take that approach i i think mr whitmore sure would appreciate if the court makes clear the district court should hold a recent unsing hearing and allow year period and then after the one nine hundred ninety eight order comes out there's no appeal from that order that i he seems to have that he you know that he might have had some double jeopardy claims that he could have made legitimately but doesn't but if he doesn't have counsel i mean we hardly understand double jeopardy when and certain instances how's he supposed to do that well the double jeopardy claim could have been raised during his first appeal i mean he he raised a double jeopardy claim almost identical to that one during his first appeal the one about count one the drug conspiracy count versus count forty four so again there's there's no motions asking for his sentence to be corrected and in none of those motions is there any mention of double jeopardy of aggregation or requests for recent and saying so what sure what what is your view of when this judgment was  final the with regards to the count one being vacated that well in terms of why do you know what's what's your best argument that he has that there's a lot of things that happened here did the district court even have jurisdiction to do some of those things but there's a lot of things that are going on that what why is he not eligible to i mean he's got a life sentence without possibility parole right right and if he had it would there have been anything that he could have done that ever could have made him eligible to get reset and seeing i think the first thing that he should have done is and it just says there was no agreement or consent on the record right there's there's nothing to indicate that defendant filed a response afterward saying no that's essential i'd like to know the government's  i mean i can't i don't know the answer to that without doing worse research your honor i understand that generally once you do file a notice of appeal the district court does something like one hundred percent of the time so if that's true then what would have to happen here is that require remount well i think those are the issues that can be dealt with at the next appeal  don't think that really comes up during this appeal the government actually asked that that appeal be stayed so that these these issues could be resolved first because well you still have the right question of rule thirty rather count thirty seven what's government's position on what is the status of count thirty seven in terms of its being amended but in terms of being of the judgment being amended that i mean that that judgment if it's not ministerial fen the end of the court didn't have jurisdiction then just that mean it has to be remanded it's curious the government is taking that position because our order was in one nine hundred ninety four and the district court apparently didn't get around to following that order until june fifth of tw i mean obviously he wants you know he wants to get out of life without possibility of parole and he wants some of the benefits of what has happened after right so if if he were to be eligible for that and he's been in what twenty five years now yes or ok is there so he wouldn't necessarily get out but he would be eligible at some the this court's decision said that if it withstands collateral attack then one of the counts should be vacated so it's possible that they just wanted to wait until there was a collateral attack codefendant we actually don't have the transcript of that your honor so other than this one sentence minute order we don't know what happened but it appears to have been fairly brief hearing position isn't necessarily that the recent shing should have happened in one thousand nine hundred four i think it was reasonable for the district court to say well i've got one not two sand and one loose and let's wait and see what happens with the twenty two fifty five and believe it your client a green well someone structural error of not having counsel only comes into play if you have a hearing really doesn't seem to make sense to me so you'd not only take we can see took away the opportunity heard you take away notice and that's somehow better know those are actually structural errors as well so that compounds that doesn't alleviate the concern and is far is nine hundred ninety eight the government counsel said well he could have raised the sentencing issues with non aggregation double jeopardy at that time he could raise those earlier well that's true but rule thirty five in cata reno from this court made clear that he's not barred from raising new issues at the recent saying on a remained and he clearly could raise these issues and if he had their strong issues so that's why you know these