they please the court and i think there is are one minute of my time for a bottle here for your honour's no one involved in the sentencing in this case not the defense not the prosecution not the district judge believe that the ten year sentence imposed on mr hernandez was the just and appropriate punishment here but the district court felt compelled to impose the sentence based on an erroneous belief that it was obliged to apply a portion of the advisory guidelines in a mandatory fashion despite united states versus booker in addition the conviction here cannot stand because of two serious constitutional errors occurring to the course of the trial straw to lucas that the government argues that this there was not an error here on the basis of three points first that a strike at lucas was wrongly decided second it in if in any event that mr hernandez was and i'd like you to comment specifically with reference to two things first of all they got out of him they will use with the silence they the judge drew the line between these two questions i think that's just what happens sometimes in the midst of trial it's accept your promise that that the line should have been drawn so the silence shouldn't have come in either but all they got was silence so there's not there's not like an affirmative admission of any kind and second he's caught with the stuff in his mission of the second statement as well that the court did go back and remedy that the silence in itself was prejudicial because of the fact that of other rulings that the district court made the defense was relegated to arguing lack of knowledge and this is precisely the sort of evidence that would devastate a lack of knowledge defense because it would indicate by his silence a sort of adoptive admission that the jury could look on this is that he did know that the drugs were in his pocket that's what the defense argued at trial was lack of knowledge but because both still could you please elaborate or explain how the argument that someone has a lack of knowledge of something in their pocket what counsel argued at trial with no other no other defense theory that was being allowed by the district court but counsel argued was that the drugs were slipped into mr hernandez's pocket by the driver who was really responsible for importing the drugs during the time that they proceeded from primary to secondary the drugs were in mr hernandez's left front trial the main attempt was to do was to prove that the there was no importation that there was no intent to distribute the instructions that the defense asked for that the district court denied those the only remaining  left was lack of knowledge about the drugs and i think that the silence is what is probably the most devastating kind of evidence for lack of knowledge there's a similar situation the united states versus foster where the same defense was guilt or as an indication that he knew what was in the package that had been retrieved from his pocket so the one defense which the district courts other rulings had remained left for mr hernandez to argue this is exactly the defense which  the silence would address i would point out one other thing is that the prosecution when the when this came out of the prosecution pointed out when he was asked what the contents of the bag was user possibly could stock up on the supply but you know what what's your best argument with any cases either within our circuit or outside of our circuit that forty eight dosage amount could be just for personal use your honor i'm sorry i can't cite any particular cases that have addressed the issue of whether what particular number can be served as a personal mount this is something that was based on the experts personal opinion and based on his his experience that on the basis of the fact that methamphetamine is normally sol quality but i would say your honor that that actually could be used if the court had allowed the instruction to support the defense that this was a bulk buy precisely because someone who wanted to avoid his exposure then the only time that someone could be caught in a situation like this would be during the purchase or during the transport when the drugs are home they're fairly safe unless there's been a search so one who wants to reduce his exposure may make a large purchase go across the border make one purchase for a long period of time the purity feeds into that because the expert testified that the purity diminish it that the quality of the drug diminishes over time with shelf life of bulk buyer may consequently buy a higher purity simply in order to compensate for the possible loss of potency over time so the fact that it was a high purity go to the expert the expert testified only that that could mean high purity means it was going to be cut for further sale but i think it's it northern california so again it was a long trip to make it it could have been argued a scenario that is instead of crossing the border multiple times each time he needed a supply he would go and get a large amount large  that would be cheaper in the wholesale market into juana and that that would supply as i said that you could figure with a weekend usage twice a week in drug use or who would just use it on the weekend that would be a full year's supply forty eight to ninety six would shed light on whether appellant could have two thousand dollar quantities for personal use and nothing that is specific in the record you are there was no actually no evidence about mr hernandez's past drug history of drug use this is just an argument that the defense could have made if it were supported by the lesser lesser included offense destruction far as the fencing goes the government argues that thirty five fifty three f is constitutional but that's not the question that's not what instrument pender's is arguing here he's arguing that after booker can the criminal history calculation criterion for safety valve be selectively elevated to mandatory status and the answer has to be no because it is clear justice pryor was very emphatic about this of booker that the entire solution to the six amendment problem with the mandatory guidelines was to treat the guidelines as a whole in fact he referred to this it's critically important that congress would prefer the total invalidation of the guidelines piecemeal approach treating different parts of the guidelines differently treating aggravating and mitigating circumstances differently treating certain portions requiring fact finding differently from those that could be supported by judicial findings so justice prior indicated that isn't important that the entire guidelines be treated as a whole and that's exactly the problem here that would mean that every reference every manifestation ever one criterion which makes reference to the safety to the sentencing factors and safety valve thirty five fifty three f one that that is advisory how the court will calculate the criminal history and if the court c unique about thirty five fifty three s and thirty five fifty three f one in senate expressly incorporates the now advisory guidelines into the criteria and one of the criteria for imposing for applying the safety valve congress has decided that in certain cases the mandatory minimum does not have to be imposed it just so happens that one of the criteria for allowing the safety valve makes a critical reference to the criminal history calculation according to the guidelines once the guidelines are recognized as being advisory that can only mean that the court does not have to apply the certain the particular procedure in the guidelines for calculating criminal history specifically what really just i don't get the logic of that congressman spoken in a statute and said here's our mandatory minimum and these are the reference points that you have to consider for the safety why don't matter if there buys or if congress specified well for instance there's two references to the guidelines and thirty five fifty three f the first one is in the list is in the body paragraph a thirty five fifty three where it says the the court shall impose a guideline sentence well it's obvious now after booker that that can't be taken literally that the court shall impose a guideline sentence so already we already have to interpret that portion of thirty five fifty three f it's being advisory the court does not have to impose a guideline sense even though that's what it says clearly in the statute otherwise it would be considered inconsistent with book or the next reference to the guidelines is in some parents after thirty five fifty three f one where the where it says that the criminal history categories shall be calculated according to the guidelines again not to view since it seems fairly obvious that the first reference to shall can no longer be read  shall that the interpretation of the guidelines is advisory in the body part of thirty five fifty three f if it was treated any different in some paragraph one would be a major violation of the usual can construction that all uses of a term within a statute are to be treated consistently and people read the same but that the word shall was used consistently the problem is that the court said in booker that the first shall violates the sixth amendment doesn't say that every shall violate the sixth amendment or that if you have to to reinterpret the first to make it viable that everything else goes with it and there's a reason for treating the c six and separately i agree just left and then if i went any further with that i would be back to arguing what was argued in the pereiro case of the second circuit that the thirty five fifty three s violates the sixth amendment i'm not making that argument i'm saying what the problem is is that booker made a decision that all of the guidelines have to be treated the same all the guidelines have to be treated advisory there's no difference from one chapter to another of the guidelines everything is advisory it just so happens that here is a statutory reference an incorporation of a portion of the guidelines that has to be consistently treated everywhere in federal sentencing law has to be treated as advisory you can't otherwise you would be going against what justice fryer said was critically important that the guidelines be treated uniformly that to maintain the greatest part of congressional intent it was necessary to treat the guidelines the same in every use and the fact that in that book or did not have thirty five fifty three s before it it's not surprising there is some consequences that weren't considered by the supreme court at the time the book was decided this court like in many of the other as we recently saw on the on bond decision involving party there are a number of questions of booker left unanswered that the courts of appeals have to resolve i believe this is just one more it was not intended but just like the supreme court its decision in brown versus board of education they may not have foreseen the necessity of addressing valve which you say he qualified in every regard under thirty five fifty three f except that the government objected that he had not be briefed as required but he did make that offer at the sentencing indicating that the judge were going to go forward he very he would conduct the debriefing as required and the fact that the judge did apply a minor role and acceptance of responsibility adjustment shows that it's very likely of course that mr hernandez would have participated and given fully all the information necessary to qualify the one stopping point where the guidelines calculation as a core pointed out he had to criminal history points even though the judge placed him departed downward placed  cabin one and i would say that's another argument why he should've i'll qualify for safety valve because under thirty five fifty three eighty six all defendants who have the same criminal history must be treated the with the guidelines and more importantly with the the minimum mandatory is once you're faced with a minimum mandatory which is what the jury found there's only two ways out from under that and one is a safety valve which didn't come into play in this case and the other is five case by cooperation and the safety valve he had four points and he didn't he didn't meet with the government and meeting with the government perhaps he could have resolved but the four points or just nothing that could be done about it and defense counsel on object that there are four points defense counsel acknowledge that the district court acknowledged that we gave the government agreed to extra time for the defense to see what they could do due to dissolve those four points but there was nothing that c done and so we're faced with that with the sentencing paradigm that tells us that when you're faced and then the mandatory i say there's only two ways out from under that and we gave him every opportunity and he just couldn't qualify it so and if the our response to that was the same thing as a was in trial and it was the same thing that confronted judge gonzales there was no evidence of that the defense didn't put on an expert they didn't put on someone who knew the dependent they didn't put on someone to enlighten the jury about the fact present that would indicate that such a thing was who was going on what we had was a defendant with a quantity of meth and then i mean the size of a man's hand which when we look at these marijuana cases it might not sound like so much but this is a very concentrated chemical the chemical is designed when it's in this high potency condition to be diluted broken down and then sold as the experts said twenty to fifty percent purity sold in amounts of close to a gram so we have what may not fill the court room but we have quite a bit of drugs worth quite a bit of money but that's all we ha saying it's not i think it's probably one of the other terms of the jury's function why why wouldn't it be within the jury's province to  if you know if this person could have had that quantity that you're describing just for personal use because your honor i understand if it was a truck if it was a truck with ten million dollars worth of marijuana or methamphetamine you know question it couldn't be for personal use would have to be for distribution what is that suggests that  forty eight doses are two thousand dollars or it can be for personal use your are would suggest that is the the evidence at trial that we put on our evidence of the quantity the purity the potency the weight the dollar value how strongly consumed and the defendant put on nothing they offer nothing so as defense counsel said i know this is only argument shawn or that was that was what she said and asked and to answer your honest question and not interrupt the dance josh question why shouldn't it be present to the jury because you're just offering something up that isn't necessarily isn't at all supported by the evidence with the hope that maybe a juror well will accept it but no evidence or has to be possible that it could have been possessed for personal use i don't know if anyone asked him that question but he certainly is the testimony i recall in that which is i've read the transcript in the clothing that his final line on direct was this was definitely for distribution the category of quantity translating into a number of those is the range given by defendant was forty eight to ninety six i believe was that something that the expert testified to was on a subs calculation no sir that's what flip the expert testified to he talked about how meth then that i mean this potency is broken down for for street consumption he told us that it goes in this case from a seventy percent purity down to a twenty to fifty percent and then asked well how is it normally sold what quantity is it normally sold on the streets and he talked about what they call an eight ball which is three point five grams of course twenty eight grams of the ounce and  three point five grams or a teen or is one point seven eight grams so you hear about very small amounts of this meth and then being deluded is that the type you expect the end consumer to possess not some great block of potent methamphetamine worth thousands of dollars where there's no indication that he can rub two nickels together but what concerns me here is that i go to costco and i see people wheeling out toilet paper that seems like a year's supply and what are we going to do with it well if you're to buy things in quantity sometimes you save a lot of money and i don't know that it's beyond the realm of possibility or that any more evidence has to be submitted then you've got a quantity that may translate into this calculated forty eight to ninety six doses this would be off if you're scotch drinker this is coming home with a hogshead of cask strength scotch it's it's a huge amount it's it's too potent really to use in this present condition and the the dilution and the process issue would go through and again there was we're just we're speculating that's what the fence council wants to we'll just let the jury guess i respect lee smith there has to be some sort of evidence former here is the evidence is the quantity and if in fact the quantity does translate into as little as forty eight doses i suggest that's something you're allowed to argue about it's not like he's saying there's a brinks truck filled with stuff but maybe there wasn't any good drugs in there so we shouldn't we've got the quantity specified in the format isn't that just argument it's forty eight forty eight doses perhaps at that strength if you if you would dilute it down to the strength of the experts said you're in a double here and triple and if it has to be is that something normal person can do a laboratory process that was not offered at trial and again that's a good example of where the defense did not explore and probe those issues they just they just let the the expert testified without those kinds of questions out like your honour's last question is it possible my client possessed this for for personal consumption is it could my client and i have ingested or consumed this methamphetamine at the poll seventy percent purity what can it not those those inquiries were made and so what we have is the record and the record is this is absolutely for ends the question but we know that based principally upon the volume i mean i look at the experts testimony it seems to me his conclusion that this is definitely for distribution comes squarely from the volume and if defendant can argue well this volume this quantity actually might produce a cosco buyer of math what else do we have that tells us it's not it's improbable but is not beyond reasonable doubt perhaps that it is somebody who is going to use itself you know it's in many ways it's  southern california district situation we have this in many of our cases many many we have what we call our border bust cases which this is one we have vehicles or persons coming through the ports of entry and we just have people passing through and many many of the people we catch with quantities of drugs are moving them to deliver them or distribute them somewhere else and the way we make the decision and the way the juries make the decision and the way this court sustains the convictions every single day has to do with quantity perhaps purity the way it's held in the surrounding circumstances judge our progress and mentions another case where they they could go into the home and the person was involved in synthesis yeah that's a that's it's better if you have that but now we are at the port we have these snapshots of people coming through oftentimes we don't know where they've been we're not certain where they're going we just know they have a large there is absolutely no harm done that the court the district court made the right decision because the district part was faced with no evidence indicating that if someone is trying to prove that or they're offering evidence or pointing to evidence where that's the case that's one thing fair decision for the jury to make but there was nothing nothing in the record that indicated that where they rejected a simple possession l i l o instruction involves some other evidence in addition to quantity invariably the case law involves some other element besides quantity well well let me just ask you about that because just to compare it to the actual cases that this court has decided in policy that involves eleven pounds of cocaine both at the lopez involved three large garbage bags full of individually wrapped bricks of marijuana we're talking about here a piece a single package that weighed six ounces as i indicated that that's about three candy bars worth stuffed in a person's pocket i think the quantity was pretty specific fact about bantering but i know that you have the amount can depend i mean in the only difference is that because of this the fact that methamphetamine is indeed a drug that is not like marijuana that is more valuable in smaller them your honor that this case that is all of the cases i mean it just falls into the same category with all the ninth circuit case law that there's always something else in addition to the sheer amount of value to indicate quantity there was all this other stuff in fact you are on page eleven of the my reply brief i quoted from pandering saying that our decision is based on the amount of methamphetamine recovered combined with a considerable amount of other factor one other thing i want to point out is as far as the raising the the results out of the fact that counsel made about that there was no positive evidence there was positive evidence in the records that could go to showing that this was a personal use but i would point out that in any case the whole point behind giving a lesser included offense or struction is to avoid the jury making a percipient a decision when it believes that there was not believe there is reasonable doubt as to the larger offense but then isn't forced to come to convict on that larger offense simply because it's only other alternative is a full acquittal the whole point of giving the lesser included offense is to give the jury a reasonable alternative third alternative and i think this is exactly the situation here it wasn't an all or nothing he was either a distributor or he was totally innocent it could be valuable you counsel you said there was other there was positive evidence in the record that would support personal use what was there other than the government expert  just distribution that would indicate distribution the unsophisticated way that the drug was handled it was just wrapped in cellophane stuffed in a pants pocket was not concealed in the vehicle anywhere it was not some  smaller amounts they could be distributed there were no customer lists there were no large amounts of cash as was found in powell there was nothing to associate this a drug with a distribution scenario simply the amount