well in case numbers one four dash six zero eight one one four dash i'm sorry that the united states of america versus chris young one four six four five one the united states of america versus alto parnell one five dash five zero four five the united states of america versus brian vance and case one five dash five seven three eight united states of america versus demetrius duncan thirty minutes are to be shared by defendants and thirty minutes for the plaintiffs  you're ours and then ross i represent mr bryan vance's your corpus to and so that the courts approval i will be taking five minutes of the collective time due to the fact that we are fairly constrained on time i will move quickly  client's main argument has to do with the cocaine powder cocaine to crack cocaine ratio just to put very briefly had the court accepted mr vance's argument at the trial level his potential punishment percent of the guideline range would have dropped from two hundred sixty two to three hundred twenty seven months down to one hundred twenty to one hundred thirty five months so clearly mr vance has a lot riding on this i will point the court to judge sharp's ruling after the argument had been made regarding accepting a ratio of one to one for power to crack cocaine and on page seventy two of the sentencing hearing transcript towards the bottom he states there are people fighting for one to one ratios as mr commissar who was mr vance is trial counsel stated there are people wanting one to one ratios but that's not where we are and i'm not going to substitute my leanings one way or another on those policies or the judgments of those who've worked hard on those policies and they are what they are and weigh and where they are and there's no reason for me to substitute my judgment for their judgment in this instance similar to the argument that was just made i would submit to this court that that qualifies as an abuse of discretion on the part of mr judge sharp because that sounds an awful lot like he didn't understand that he had the discretion in fact that's exactly what he should have done substitute his judgment if he felt that was necessary he said he had leanings one way or the other he says twice that he's not going to substitute his judgment for what the fair sentencing outcomes of the within the eight hundred to one ratio if the judge had a different opinion that's exactly what the judge should have done if the judge felt that the eighteen to one ratio was appropriate in this circumstance that's exactly what he should have said he should have said i agree with what the fair syncing act is come up with i think that's appropriate in this case authority to substitute his judgment for that if he feels appropriate the kimber case states that these ratios are up to the discretion of the trial court judge and his wording doesn't state that he fully understands that despite he says that he does so i would say that that's an abuse of discretion i support i'd say that that permits this court to review his sentence in full i won't belabor the point regarding many of the arguments that were made at the trial court level i think the court well aware of the reasons why the cocaine to crack ratio was a in two thousand and ten i still think that there is good evidence that cited in the sentencing hearing that would show that eighteen to one is a ratio has still not gone far enough to amend what has been done over the past twenty five to thirty years regarding that ratio the government argued in their brief and i'll address just briefly that mr vance ultimately did receive a downward variance to two hundred months but considering that judge sharp specifically rejected the argument that the crack to cope cracked a cocaine variant should be eighteen to one i don't think that can be used as a basis to say that everything is sort of put into one big pot and he came out with less than what the guidelines say and therefore he's accepted that argument i would argue that that's for the different reasons that are cited that mr vance had no prior criminal record before this arrest that he had a family that he was being taken away from so i think that the judge arrived at that period for separate reasons but i would say that the court has the authority to address this sentence i think that there is no scientific basis for saying that the crack cocaine is more addictive than powder cocaine which was that originally the reason for making the punishment so much greater than it had been and if there are none of the questions i have ten seconds left so i appreciate  good morning your owners may please the court my name is ben perry and i represent defendant appellant demetrius duncan i raised centrally six issues in my brief in this matter today i want to focus primarily on the fifth and then an eighth and then the issues that were raised certainly don't waive any of the other issues that rely on the pleadings that also explicitly the forthcoming arguments by counsel for mr parnell and mr young as we've kind of tried to divide this up a little bit so we're not all standing up here s same thing on common issues at the time of the charge conduct in this case mr duncan was a twenty nine year old intellectually disabled individual this effort for numerous serious health problems stemming from a brain haemorrhage suffered it is premature birth while it's certainly true that mr duncan had prior felony convictions for a cocaine offenses under tennessee law the grand total quantity for all of the offenses that he had been convicted of could equal as little as one point one grams which is essentially a packet of sugar a single packet of sugar and prior to trial the government had offered mr duncan two hundred sixty two months if he would forego trial that's a key point because it unequivocally demonstrates that the government felt that that's an it's would satisfy the requisite societal interest in prosecuting and convicting and sentencing mr duncan it was only when it became clear that mr duncan was going to trial that the government filed the a fifty one enhanced fence thus unilaterally ratcheting up the potential exposure to a mandatory life sentence without the possibility of any check or balance any longer anywhere along the way it essentially click the button on the computer sitting in his office went to mandatory life i think that's a quintessential illustration of indicative this is further bolstered by the fact that the government did not seek mandatory life sentences against the so called kingpins of this case and the murderers in this case who were dea eligible when charged instead they only saw life sentences against the three individuals that actually exercise their right to a trial went to trial and those the three defendants there remain before you here today even though the district court recognized that sentencing that the people that the three lists at least a couple people are receiving the harshest sentences the district court failed to see the clear vindictiveness of the government and failed to act and i would respectfully submit that that is a blatant due process violation and requires attention and remand from this court as we stand here today mr duncan is sentenced to die in prison as the supreme court recently held in miller v alabama it's a basic precept of justice that punishment for a crime be graduated in proportion to both the offender the offense the court further held that our cases require individual sentencing for those facing the most serious penalties to not less than a defendant's constitutional rights at sentencing and page id's thirteen six eighty three three six eighty four the district court specifically stated that two hundred forty months would be sufficient but not greater than necessary for mr duncan and if the sentence to die in prison is not individualized yet it still failed to act other than execution there is absolutely no penalty harsher than life without parole it is grossly disproportionate to the gravity of his offense it does not account for his mental disability it does not comport with sentences imposed in the same jurisdiction it doesn't comport with sentences imposed in the same case or in any other jurisdictions around the world that's under the narrow proportionality principles is violative of the eighth and then that's prohibition against cruel and unusual punishment as applied to mr duncan and this court should order re sentencing not limited by mandatory life please the court jim thomas on behalf of chris young and i can introduce my co counsel change of flint i'm going to try to address four issues in the time allotted what i've referred to as the wiretap interpretation issue  the case agent in this in this case was an officer which it and his testimony was the cornerstone of the government's case especially as to mr young there were nine days of tr testimony agent whitsitt officer who was it testified on five of those five of those now and trial dates now mr mr young was previously unknown to the government and surfaced only because of the for to a t of being on the mir and when i talk about his wiretap interpretation testimony i mean yes interpretations of opinions about the gist of what's on some of these wiretap records the government interpretation was framed very early on in the government's case that the defense counsel objected to officer which its interpretation of what a quarter meant and the government as the go nine of its brief that if a defendant fails to object to trial or does not state the specific grounds for his evidentiary objection and that ground is not apparent from the context then the appellate court reviews your plain yachters in context defense counsel was clearly objecting to this way to this interpretation testimony the government said there which it could give interpretations the defense objected and i don't really know in  context how he could it could have been any clearer now two points so if so it's our position that the objection was prepared properly preserved that we were we rely primarily upon this spoonfed his interpretations of the phone calls to the jury and that's a that's a quote from freeman and number two an agent testifying as a lay witness might not explain to the jury what inference they used to draw from recorded conversations involving ordinary language at that point his testimony is no longer evidence but becomes argument and that's what happened here now more recently this court decided united states big big kilpatrick you kill in the kilpatrick opinion makes a very clear statement and it did create a tracking date circuit's decision in united states the people's kilpatrick's said that lady opinion testimony interpretating interpret ing contents of intercepted communications is admissible only when the officer is a participant or has personal knowledge of the facts being related in the conversation over observe the conversations as they occur the problem here again and i'm going to repeat myself about this sixty six days of testimony between between these two officers but but it was the other end quoting from freeman here i guess it but but it was the jury and at the very least we would submit that the good the court should have given the pattern instruction seven point zero three eight which which clearly did mark demarcates fact testimony from a from opinion well there was a great deal of testimony about that about the meaning of numbers mr koshy the assistant u s attorney would ask would ask officer would sit and you know what day after definitional definition on the off agent was explaining what certain terms met and the jury knew that he was agent working with drug cases all that assuming he was interpretation testimony and the combined with the dual road testimony when officer mcclintock and officer in which they were were were testifying in both expert and non expert capacities without any mr young which mandated his mandatory licensees with no road for either the jury or the court to play constituted a fifth amendment due process and we and we also say the word for different reasons there is articulated in our brief that mr young's mandatory life sentences on the facts of this case and given his youth constitute cruel and unusual punishment and i see my time is up thank you thank you c and has erroneous which erroneous lee received two life sentences for without release for nonviolent drug offense at the age of thirty two of the many issues that were reversed in this case with my limited time today i would primarily like to focus on the erroneous life sentence imposed on the conspiracy charge which is count one and then with any time remaining i'd like to focus on the ironically imposed life sentence under the restricted zone offense which is sweeney stands for the proposition that pinkerton principles as articulated in us as one be one three applied to the stature statutory kind tax of a conviction under eight forty supporting the statement how would you defend putting a statement like that in the br yes on page forty three in that context i believe what we were trying to convey what was the evidence of those other acts had limited value in the scope of what was had to be proven at trial which was that there was an agreement there are acts there were act in furtherance of that agreement and that the defendants participate in that in so in terms of that i think  we're trying to put in context that those that sort of evidence seemed to not be all that relevant in more prejudicial in nature than then what it was worth and that's why we think that it was improper under the circumstances but now we're turning to the argument about their own life and under the conspiracy charge i think it is important to point out that increase the minimum penalty that individual faces so what that means is the jury has to determine the scope of the defendant's strong undertaking criminal activity and whether actions  recently forseeable to that the scope of his conspiratorial agreement i think it's important to mention the the position of all of the other circuits in this case with the exception of the eleventh hour so the d c circuit all the circuits hold that pinkerton are principles apply to terminations of drug quantity either at conviction for conviction purposes or for sentencing purposes not outside of that would be reason we forseeable to the individual and i think it's also important to mention that we do not  it's important to mention that if it's not clear that if you know if the jury was properly instructed on the elements it's not clear that the verdict would have been the same beyond a reasonable doubt because before mr parnell most of his evidence against him consisted of one thousand calls most of which showed a buyer and seller relationship so during the course of his calls he had calls span august to november in the once from august until about mid mid to late november all show that he was buying very small quantities of drugs from mr vance was inquiring to buy those quantities and our position is is that if he entered some sort of conspiratorial agreement it would only been later towards the end of it which is the late november period and that's why we think that now the jury could have found differently and there is the record does suggest that the scope of mr participation was limited because the jury never had a chance to make that determination we do believe that this what the jury found and i think it's helpful to point out that the under the age sixty offense itself by its plain language it can only mean you can only impose a mandatory license for a detectable amount if you have multiple offenses under the eighty eight sixty offense and age sixty is a separate offense as defined by this court in united states versus asking and so quantity we believe that argument is sort of stands separately from the arguments that we made in relation to account wanting count for for what the jury found and what the jury should have found in terms of drug quantity in so in terms of i mean there is tory's by its very own terms in light of recent supreme court present we do agree that it stands on and shifting grounds  and this court you know it if it is  i think the question is whether the mandatory minimum element that has to go to the jury that i see your point your honor in that regard a conspiracy based on their conspiratorial agreement and if that conspiratorial agreement the scope encompasses the whole of the conspiracy then they can be sentenced to hold the conspiracy however we believe these findings must be banned the it please the court has here on the half of the united states if i may i would like to address the defendant's arguments in the order in which they presented them first with respect to mr vance i believe that defense counsel i selectively quoting from the sentencing transcript at the beginning of the colloquy that defense counsel reference the judge states quote clearly i have authority to vary from that ratio and then at the end he says quote i think justice can be done in this case using and applying the eighteen to one ratio it's appropriate in this case in that case it's consistent with the thirty five fifty three goals so i'm going to apply that eighteen to one ratio so i think the record is clear that the judge appreciated his ability to apply something other than an eighteen to one ratio but believe the eighteen to one ratio was appropriate and defendant significantly below guideline sentence was substantively reasonable addressing mr duncan's arguments first with respect to the eighth amendment arguments this court has repeatedly held that life sentences for drug charges do not violate the eighth amendment i believe this court is bound by that prior precedent as to their due process arguments both the supreme court and this court in lucknow have noted that plea bargaining and volves a mutuality of advantage to defendants and to the government and is a necessary feature of the rob bargaining process it's not a due process violation if i'm sorry indeed john this court said that this court has consistently indicated that when the right asserted is to go to trial an additional charge cannot form the basis the substantive basis of a vindictive prosecution claim with respect to mr young's arguments about the opinion testimony as your honor judge clay noted it's not clear that the complaint of opinion testimony really prejudiced the defendants in any way with respect to mr young in particular i think he overlooks the fact that two witnesses identified him as having purchased cocaine from robert porter and he was in fact arrested in the middle of a large drug purchase with ten thousand dollars either his pocket or on the ground underneath him one hundred ninety grams of crack and one hundred sixty grams of cocaine cocaine i'm sorry i have those numbers backwards one hundred ninety grams of cocaine and one hundred sixty grams of crack in mr porter's car and a loaded gun in the console of mr young's car the only real objection he has to the opinion testimony here is to the interpretation of numbers as referring to thousands of dollars but of course another witness at trial also testified that those sorts of numbers were used to refer to thousands of dollars pending our brief to the supreme court in opposition as we noted to the supreme court in that brief there is some conflict in the circuit between the decisions of robinson and sweeney but it's because of that conflict that any error here was not plain i'd also note that deciding the deciding which case is not right won't have an impact on cases going forward because as we told the supreme court the government's current policy is to charge defendants with defendant specific quantities of drugs so this kind of issue shouldn't come up often again and finally with respect to the claims about the eight sixty charge i think defendants mr parnell is simply misreading the statute in section eight forty one b a one the congress clearly stated that if any person commits a violation of this up there a graph that is the paragraph that lists out the quantities of drugs or of section eight sixty after two or more prior convictions for a felony drug offense have become final such person so be sentenced to a mandatory term of life imprisonment and it's that language that the court was relying upon in sentencing mr parr now to the life sentence on the eight sixty charge if the court has no questions we happy to rest on our briefs on your last point with regard to the sixty so your point is that the prior convictions don't have to be  convictions involving a restricted area as long as the prior convictions are either eight forty one or age sixteen yes that is partially correct there are two provisions there are two separate sentencing provisions there's the sentencing provisions under age forty one and the sentencing provisions specifically under its sixty i will admit that the statute is not a model of clarity in the sense that it sets up two separate systems but if you look at the language of each section it is clear it sixty says that if you're being sentenced for a protected zone charge the mandatory minimums and statutory maximums key to the mandatory minimums and makem maximums for certain sections of eight forty one there double now also says if you have a prior conviction under age sixty you triple and if you have two prior convictions under age sixty you get are so this is your third age sixty conviction then you life eight forty one separately but you still have to go to eight forty one to determine what you're doubling or tripling now when you go to eight forty one except with regard to the mandatory life if you have three convictions of eight sixty under age sixty yes it's a term of life in prison but for other if you have one conviction under age sixty then you go to eight forty one what was his sixty sentence if he doesn't have to fire it sixty s but when you but when you get to eight forty one it then additionally says if you have two prior felony drug convictions of any kind and an eight sixty conviction then you get life as well so there are sixty conviction have to be prior to have to be a final conviction prior to the time of sentencing i apologize if i'm not being clear you don't have to have prior eight sixty convictions under the plain language of eight forty one if you have two prior felony drug convictions of any kind and then you get an eight sixty violation then you have a life sentence it's essentially saying that with sixty violation not conviction that's if that's correct it says if any person commits a violation of this sub graph or of age sixty after two or more prior convictions for a felony drug offense have become final so what that's what that is saying is if you violate sixty after you had two prior felony drug convictions then you have a life sentence for no situation was that he had two prior felony drug convictions prior to his eight sixty violation and that's why he has a life sentence it's confusing because there are two ways to get to that life sentence one is by three violations of age sixty and one is by two prior violation true prior felony drug convictions and then an eight sixty violation and then it's effectively the same sentence thank you for those reasons we request that the court affirm the convictions and sentences thank you very much drug quantities and that is a separate argument now and there is tory's argument that we made which has to do with prior convictions and then in response to the position taken by the government the confusion here  is is that sixty is a separate violation of forty one so what it says an eight forty b one a is for in fact offenses involving more than two hundred eighty grams of cocaine crack cocaine here for example if you've committed a violation of this subsector graph or of sixty in because this is the key part eight sixty you're not violating it forty one you when you violate sixty it's a quantity amount so what it seen is to get there under that provision you have to have more than the threshold amounts so for the sixty violation you need to have possess amounts in an excess of two hundred eighty grams of crack cocaine for example in order for this provision to apply and that that's what's confusing about this but it's important to remember it's the training both of for the eight sixty offense and