please the court my name is when i represent the appellant andrew card there are two issues of the four that i briefs that have been significantly impacted by subsequent decisions of this court the first one and one pointed out by counsel in the government's rule twenty eight j letter the issue is brandishing who should make the decision about whether or not the gun was brandished the judge are the jury washington is dispositive on the issue of who makes the decision it is clearly the judge however our position is that the court never made a finding in this case that the gun was brandished it wasn't the jury was an instructor to make that decision the verdict didn't have anything about it the court initially said nothing made no finding at sentencing counsel asked the court are you finding that a firearm is brandished and the court's response was yes a firearm was present at that one seventy eight so interpretation that we should apply it as to interpret ing the judge's finding in view of the evidence in the case for instance if there's six witnesses who testified at different times  i think what the court's getting at is if there's all this evidence is that is the court just making a verbal mistake but i think you have to have at least the specific finding and that's not it you think of the finding the gun yes the gun was present is inconsistent with a finding that the gun was brandished yes because you can be you can have a gun tonight twenty four seat it's in your pocket if it's visible or something to it a teller in this case the finding a mere presence i think you follow the amalie procedures which is the same thing as happened in abilene to chew ations that the court has the trial court has retired or are passed away and then it's sent to a new judge impose the proper sense if it does get remanded in open record in the the court would proceed how it chooses and make a finding one way or the other yes  intended it can either go on the plain language and say there is no finding of a brandishing has to remand it for the district court to make that finding we can interpret remains words in the context of the evidence  i suppose you could turning to the book or argument argument as a record does not establish that judge ray exercised its discretion in sentencing carte the range was four hundred seventy one to four hundred ninety two months he requested a below guidelines that is of the mandatory minimum he provided substantial reasons for that going to his childhood characteristics equity among defendants and the imposed a guideline minimum with very little exchange as to why the court made that decision and if so the issue here is this judge or a statement of reason satisfied three five five three and that is clearly step dick to the pending and apologetic decided that our position is that there is going to be an obligation on trial judges because of three five five three not to go through and wrote one by want to make a finding but to come to grips with the sentencing factors to come greatest remains the law in the circuit and it requires a showing that the court considered the three five five three factors and imposing sentence and i don't believe this the statements by judge raise here approach  genuine consideration of the factors there is just one reference well it's good enough for terrence not good enough but he said this satisfies the tyrant and satisfies punishment but all those claims that mr carter brought about his childhood substitution without any delay was fast again i don't believe there was an attorney ready and it was a thirty day trial but was before opening statements the first in my understanding i wasn't there was that the jury selection had taken place the jury had been selected why he thought there was a conflict allowed my client to say what he wanted but there was none of that probing questioning vets you see in the case but the real issue i think is the extent of the conflict and there was a significant conflict what carter wanted to do was all that mattered in this case in that sense was the second night twenty four c count because that's the one that was going to generate three hundred months twenty five years mandatory consecutive robbery he participated and that's what he wanted to do that's what his counsel told the court and that requires follow up by the court because that is just a fundamental right of a criminal defendant to put on a defense is how i want to approach it i want to i mean a lot of trouble him i'm looking at this incredibly severe sentence but almost all of a big chunk of it comes from a nine twenty four seat second fiction a three hundred month mandatory consecutive so to retain credibility  denial of that i want to concede that there was a robbery and i participated in that and that was brought to the court and i want to testify about that and the court made no inquiry so of the three factors i think the adequacy of the inquiry and the extent did your honor and my clients are nothing but the way it was presented by counsel was he wanted to plead guilty to two counts that aren't charge he wants to plead guilty to a conspiracy and an unarmed bank robbery a two two one one  could still be acquitted on a nine twenty four c it's a reach but that's what he wanted to do because even in the armed robbery he it may not have been foreseeable to him even though that gun w mr carter was late for the first meeting of the coconspirators because he was looking for going to bring to the t v there is but nevertheless that's the defense he wanted to present so it's really just trial well it gets closer i believe to the right to present a defense when you have an issue that's fundamental and and a crime that that's carries that kind of sentence you know the defendant has a right to present his defense but i  agree on a way to trial tactics and in the right to presented the facts begin is a difficult question but given the magnitude of the potential sentence and what he wanted to do it he'd been through a trial ready  and he knew what the landscape looked like and he knew what he was looking at and his what his best hope was to try and defend on the nine twenty four c i want to testify this is the way i want to do it i think those are my best interests and if counsel refused to do it and i counsel to motion to withdraw as counsel first there is one error in the government's responding brief that page forty three which states that the defendant could not plead to two lesser included offenses because however the defendant was charged in count one with conspiracy with the object being conspiracy to commit an armed bank robbery if the defendant wished he could have pled to count one although he could not plead to an armed bank robbery because he was charge believe the record amply demonstrates that what the defendant wanted to do was he wanted his counsel to admit all the facts in opening statement therefore the dispute was over trial tactics only and that type of dispute does not warrant  the granting of a motion to withdraw particularly where as here as shows you could have pointed out the motion was made after the jury had been impaneled third day of trial with two co defendants were proceeding to trial this was your honour's the one and only time that the defendant made the motion and therefore it is distinguishable from the other cases including the one plea cited in the party's briefs new when which is a case in which the defendant made the motion after the jury had been impaneled but in that case the defendant had made at least three prior attempts to raise the issue of a conflict with the court before the impaneling there are all three factors ferment of the court's denial of the motion first the timing as i pointed out it was on the third day of trial after an annulment secondly the extent of the conflict your hon although there is one statement in the record referencing a break down it's clear when you read the record as a whole that is dispute was over trial tactics only and indeed the reference to a breakdown  occurs at the excerpt of record seventy three where the defense counsel states that there was a potential conflict and a breakdown because of this difference in terms of trial strategy in fact everything the defense counsel said indicated that he and his client were communicating they were discussing the relative merits of an opening statement counsel advised to defend it i believe it's in your best interest for me to reserve opening statement and see how the government's  comes out the counsel also stated that the two had just asked the relative merits of the defendant testify with counsel pointing out that the defendant had a prior conviction the defendant had participated in another robbery the commerce bank robbery just days before and that evidence did not come out of trial and strongly it would had had the defendant testified because the dispute was over trial tactics only and this court in corona provide the court with sufficient basis for reaching an informed decision in this case everything the defense counsel said and defendants agreement with those statements indicated that there was no breakdown in communication and that the extent of the conflict was not so great that a substitution was appropriate now as to this the issue of sleep foreseeability i wanted to point out that the evidence regarding the community bank robbery was not that carter had arrived late at the meeting but that carter was actually at the morning meeting in which one of the coconspirators held out a bag of guns therefore he could not with likely success to argue at least honor i'm not to break it up too much but ms yang is going to deal with the sentencing issues that i just point out that if in fact it was a defendant's wish to leave the foreseeability issue and admit the facts of the first two count namely that he engaged in a conspiracy and committed a bank robbery he could not have argued at least in the community bank robbery there was no evidence that he came late to the morning meeting to the contrary there was evidence he was present at the morning meeting with somehow that a bag factors of how this cording nine states versus next did state the district court is not required to articulate each factor separately so long as the record as a whole indicates that the court considers a tough case and here based on the record that judge rate did age to account but there's nothing on the record to indicate that the court gave the guidelines presumptive weight or any greater weight than any of the other factors in determining that in addition to the statutorily mandated sentence which work to find it was required this can point out something that i had misjudged which was at the conspiracy was charges of twenty one thirteen which is an armed bank robbery so he could have pled guilty to that i had said earlier that he couldn't plead to the two things he said he wanted to but he actually could have played to plead guilty to those two counts and i generally you could i was mistaken he is guilty to the to the conspiracy count so i think that alters whether it's a trial strategy issue the other point mr kim made was there really no evidence what mr carter wanted to do that basically i'm projecting what he wanted to do that's why you needed the inquiry hears and a defendant in a conflict with his lawyer trying to articulate what it is he wanted to do in the court made no inquiry but what he when you think it through what he wanted to do you made as much sense as anything you could choose in this case which is to admit that which they've already can clearly prove and to take a chance of defending the one twenty four of you by the way  but the obvious to me anyway having been there idea there was to not dispute those facts those counts and reserve everything for disputing the foreseeability on the one twenty four