case will be taken under advisement he will call us versus marino yeah you should thank you thank you con miss christiansen welcome back thank you i was here on monday it's good to be ba p and has similar effects and similar usage by users what what the disregards decision does is essentially remove all schedule five substitute substances from possible compared or under the guidelines and up as we all know schedule five substances are the least punished under the guidelines so that would ban it take out the floor of some of these considerations in these designer drug case is that really surprising goal if if something is scheduled as a schedule one which supposedly has all these harms and no medical uses and so on that the commission might think well it's all right to disqualify all schedule five i think to assume that there would have to be more specific information in the application note about a disclosure of schedule five if they had determined that schedule five would never be considered they would have left it out completely the guidelines well they can't do that though because scheduled five is a list of controlled substances and so it's punished under title twenty one they've got to have a guideline for schedule five substances generally right ok except they do leave out quite a few substances i mean obviously there are i think over five hundred year scheduled substances and the guidelines don't account for all of them particularly these newer ones that there has not been the usage rate the danger rate analysis that the rest of the guidelines are based on and i won't make the point that marijuana is still a schedule substance and certainly that the thought on how marijuana affects users has changed over the years so i don't think it's necessarily such a schedule based consideration if it were the guidelines could say just pick the most closely guidelines it really didn't have to be in there at all then i think i'm unaware if there is a substance that is not schedule five and also not listed by name in the guidelines  but i think it would cover that situation if there so because not obviously not all on listed substances are scattered five so there must be some unlisted they don't fall in schedule  so and i also i think that this also goes to the district court cabin in it's just it's consideration to metcalf you know only and really rejecting the rest the other two factors the chemical structure is one factor and i think that's where it came in the first is that the judge said i'm not even consider it but then we also consider the effects which are primarily similar they're all stimulants they're all you know increased energy weight loss  that can be adjusted for in the guidelines and you can adjust the guidelines according to this christianson yes i understand the the textual debate here i think about you know what referenced in the difference this wound up making to judge peterson since he did consider hiring valuer own as a comparative or and rejected for him because of because it was schedule five and because defense arguments were relevant because prior bell round was not listed in the guidelines and i think that's a significant situation where it's not actually making that that weighing in consideration it's saying well yes defense has raised this but it's largely irrelevant because it's and because of the language of the guideline it's not as a word listed in the guidelines as as far as the the use and dosage effects and dosage the government relies on the users testimony quite of that and while i think that that can be helpful particularly when we have a drug that's being used by have used all these substances while using alpha p v p it's hard to talk about the effect of a drug when you're also using other drugs and you never use the drugs that we're really awful drug even more addictive than meth which is hard to imagine for many of us and that's not just even remotely comparable in terms of effects to a schedule five drug we're we've got  reels epilepsy drugs and cough syrup right i think it could be that you know almost any drug can be abused so it's a potency and amount of use issues then but the judge can take that into consideration perhaps more in the thirty five fifty three a factors is that i under the guidelines are and under those factors if it determines there either no comparative substances as some courts have determined or there's more than one comparative substance you can make a finding and then consider the other factors that the horrible nature of these these add drugs and the fact that they are changing constantly being imported can be taken into account in the thirty five fifty three effect or eight actors i also do want to touch on the truth in the guidelines as mandatory it's kind of part and parcel of the same argument because we're saying not only the dischord misapplied the guidelines but also then treated the commentary as mandatory  commentary in the application notes incorrectly right right i think though that is language as once he had made that decision is that he wasn't been allowed to adjust for the fact that metcalf now may not be the best compare i welcome to another regular thank you so much and i wasn't here last week i will be here next tuesday hopefully as time goes on this isn't my swan song set for thirty years but the clock is tick years as you were not to chamakh him that he was leaning towards the government's position could go either way the government may very well be right and that's are we and there was never any discussion then about whether this one reference to the schedule does just kind of list generally schedule three four and five without really any any detail at all but that issue clearly was not presented at all to judge peterson we simply went on  presumption the correct presumption i believe the pirate velodrome is not referenced in the guideline and we are going to limit ourselves to that the court should be limiting itself toward to those to those controlled substances  twenty three just with what you've alluded to judge shayne look at it doesn't matter if he could have used this as a comparative or he's not wasn't going to pick a schedule five for all the reasons that we talked about in their brief wasn't the government's position that a schedule five controlled substance can never qualify as a compared or for a listed substance since getchell four or higher the that is actually that's that's a very fair question and one that we certainly didn't address and haven't given tons of thought to i would say the answer would be yes we would we would state that in for two reasons first i just don't think the guidelines when they use the words referenced would have meant to say the district court judges in vermont and maine that this just is a nonstarter i mean we're talking about weight loss drugs and and stimulants of some level and i've done a fair number of these cases and i presented testimony case this case that this court just decided a month or so ago the same sort of thing what people are describing is is nothing like those drugs and or with is case in the schroeder they when they were two users who had not they weren't really cocktail users all the drugs ms jacqueline of whom pleaded guilty but i also presented she did have a lot of things going on there's no doubt about it but as judge peterson noted when it all came to the end for her and she was hooked up with mr marino mr hybrid or it was all awful p v p but the other two users ms case and the schroeder they had focused in and they they were buying it directly from him from mr marino and one in which one was actually his girlfriend for a while and they were using together and the does the description and that third prong on the potency part not in chemical structure put into this matrix of the judges are to look at all these i'm there is absolutely no way to judge peterson made it very clear that he would have selected as the government proposed other controlled substances is the most closely related to the court really has to rely on the adversarial process that is under either of these readings of the the language referenced in the guidelines you know we're looking at eighty other drugs you have to to look at or nearly five hundred other drugs that have to be looked at and the notion that the probation office war the court has an independent duty to explore all of those is just ludicrous under  scenario if you are so we've got to rely on either the government or the defense to bring forward a plausible comparison right that's exactly correct as hamilton the judge peterson said i can't believe i'm required to look at all the controlled substance that are growing every day but what he really was saying is how i think how would he do that and we suggested mathcad on the defense as is being done in most of these cases suggested tyrrel around and that's what's teed up for the judge his only real option was to do i think what he did which is to listen to all the evidence that was presented he certainly discounted these submissions by mr or mr moore's as ones that were somewhat irrelevant but he he tied that up in his written order by saying look it even if i hadn't given that if i could use that as complete the comparative it's a nonstarter in terms of the i would just briefly touch on the the mandatory and i i must some other non reference controlled substance that was really bad for mr marino you know we'd probably be down here confessing erin you can't make it up in the calculation face you can put all the guidelines aside  i tried for the book or so this has been misspoke when i was sitting there judgeships as it all seems so simple so but then you can put it all away i understand that but but but when you're calculating the guidelines we're down here all the time as just because she's not talking about whether the judge did this right or did it absolutely carefully there and i think they tried very hard to do so but it is it is kind of ironic serous best word but to be there to be saying he tried too hard to follow the guidelines is odd to me so i do think he did what was right he followed him very very carefully he read them the way he read them and then he clearly knew his discretion and he talked about mr marino's cancer and mr enos family but he just thought mr marino with all these chances to stop had brought him a big problem to northwestern wisconsin him because if i'm his contact with law enforcement spanned the time during which alpha p v p became a control is actually schedule and so he was first confronted with it in january of two thousand and fourteen he admitted he said he was getting from china things went along the next can the control delivery was right after it became scheduled i got the case and chose to charge it i will start with the preservation of the air well i think defense counsel said you know listen the government they may be right about this because there is frankly not very much law defense counsel still did continue to push a schedule five substance throughout the whole so i don't know i was not privy to those i don't know why that decision was made perhaps there's been a switch but you know i think that this question of whether you consider eighty drys you consider five hundred drugs is exactly what the defense experts did for the district courts i mean that's why we have experts is to assist the court making this decision and the chemist did that they said listen we've considered all these substances and we've gotten we think this one is the most closely related so the fear that the district court judge and the probation officer would have to go through these chemical structures which i got to tell you is not fun for those of us who did not have chemistry since they were summers and college they don't have to do that and then i will just say about as i close mr miranda was given several chances he was also an addict and himself so this was not a purely profit situation he was in and he was addicted to this stuff and continued to work for it well all right thanks to both counsel will take the case under advisement