good morning everyone welcome and as you can see judge welfare is appearing by video conference today and i hope you can all see and hear her please let us know if you can't with that i will call our first case this morning which is bear on behalf of petitioner jennifer krieger may please the court the premise of this case is simple jennifer krieger was sentenced for homicide that's a crime that she did not commit it's a crime she did not concede it's a crime that she was not convicted of that's because the prosecution could not prove that she committed that crime now opening brief explains the multitude of problems that the prosecution had with respect to its original case  includes the sloppy police work includes the flaws in the testing of the blood samples in includes the inexplicable failure not to test cocaine is one of the to potential causes of death notwithstanding the fact that injection essentially this was a strategic maneuver and it allowed the government to take the second prong of the original charge the most problematic part of its case take that away from the jury and give it to the district substantial it's essentially the entire statutory maximum of twenty years the pre sentence report recommended ten to sixteen months imprisonment for the distribution and then with the death resulting enhanced meant added then that shot up automatically the twenty have required his krieger to serve fourteen to seventeen and a half years in prison that's about two and a half years six year difference that's a lot of time especially for someone like miss krieger has been serving ten years at this point had they been required to present their case and prove it beyond beyond a reasonable doubt they would have not succeeded this sounds like an alien error and that's not within the scope of  with distribution knowing or intentional distribution of a drug and then death resulting from that distribution and so and this is analogous to the case that we have here so we're not relying on the procedural issue here  subtle but i think it's abundantly clear that judge gilbert would like the opportunity to conduct another sentencing hearing and essentially this hearing would require the government to approve the death resulting beyond the reasonable doubt there would be a higher standard and that's consistent with so your age so you don't you don't think that he could consider that as a sentencing factor on remain and he indicated he thought it appropriate sentence if i recall correctly was around sixteen or seventeen years for this case correct i believe it's fourteen the seventeen or eighteen and a half years yes my understanding he's already made that fighting by preponderance of evidence he's already made the finding by preponderance of the evidence that fenton all was the cause of death but i think he pretty clearly indicated that had the government been required had they been held to a stricter standard that are beyond a reasonable doubt standard that let me just run this by you it because it's what concerns me there seems to be a procedural side of the case based on the only decision that had that this element would need to be  charged in the indictment prove to a jury beyond a reasonable doubt or admitted it's true that procedural part as i understand what we've done with the lame is not retroactive but for causation issue rather let me sort of the death resulting in answering that subsumed with then the but for causation issue so if you look at the opinion justice scalia starts with death resulting requires needs to be submitted to the jury and found beyond a reasonable doubt the very very sentence you say some of the late based on knowing but then based on that then we get our new aggravated offense the new two element offense so we don't get there unless but that's resulting in a hansom and has to be submitted to the jury so it's difficult i understand the government wants to extract this portion of the ruling and the century say your age is only retroactive in this respect but i don't see how you do that here are nearly identical to be urch the only difference is the drug in question so again we're focusing on the substantive crime which requires that both elements be submitted to a jury and found beyond a reasonable doubt and if i may in terms of addressing the crayton opinion that analysis was based on this court's prior holding  and then i know that that the president would not change which facts of what legal significance and that's the key difference here because other periods and start i'm sorry you know there is a slight delay and forgive me if i'm stepping on anyone but it seems to me that we really can't have any confidence that anyone at all at the time of the sentencing was thinking about but for by or causation comes from our opinion from the court of the court opinion not from the district court and of course at that time we didn't know there would be a berridge and our use of the language was not particularly focused because there was no standard have focused upon us and until the supreme court declared the death required but no more consideration that any court had any reason to focus on that particular distinction i mean it it seems to me that you know the court that judge gilbert could not have now but one consolation below because he didn't say a single word about that and i think that's what we've got to focus in on today i agree with your honor on that point for sentencing or there it's not really clear there is some analysis of what appears to be approximate causation we're going it's not clear so are you asking us to back off of the original decision which seems to said pretty clearly the judge gilbert found but for causation and the alternative you and i saw last  facts in our opening brief because we think they're very much relevant and i think they they demonstrate the fundamental degree of unfairness here in the in the outcome and i think looking at the totality of those facts it's pretty clear that there was an  i understand that issue was addressed on the direct appeal but given the district court's comments regarding the evidence sherry and credibility  think it's certainly reasonable to expect that you know we're the court the district court to really assess this issue under the law for causation standard that perhaps there could be a different outcome  had the same procedural posture before this case before this court and the government least craig controls i did not anticipate having to come up here and argue a six year old decision by this court regarding the but for causation i think this court found think the district judge found in this court affirmed that there was but for causation and then you tell me where the district court in that district court record that judge  hans ation when he had no reason to know that whole war causation was on the table and other words can you tell me very specifically with the record sites where in the district court opinion or the record below you think the judge is expressing that he found but for translation and if you you know are not prepared i would very much appreciate menchov you know authority if you don't have specific citations to the record available yes your honor i would be glad to submit something in a supplemental pleading with this court i did not scour the entire sentencing looking for that particular aspect of the judge's ruling i do know that on page five of the government's bringing the district court's order indicated that having weighed all the evidence presented the court finds that the government has established that is more probable than not that miss krieger's distribution offend all to miss curry resulted in ms currie's death i realize the judge did not say the words but for but i think this imprecise in its use of more concentration and that that is the only place where it's mentioned your honor i don't know i will go back and scour the record and see if there's anywhere else i know that this court specifically talked about causation in its opinion if this court is going to go back and interpret its twenty ten opinion different than the government understands that i don't know if there's anything i can say that can can change the court's mind with respect to that you know could i ask you mr know it in in burrage i understood the supreme court to be trying to distinguish you're trying to choose between a but for causation rule see any indication from judge gilbert that he was applying a contributing factor sort of analysis i thought he had said you know in the twenty ten that was twenty ten so that was what the time of your opinion i'm not sure was at the time of the district court's decision but i know this court has had but for causation for a long time but it's just our opinion stated over and over only that i thought the fat no caused her death or that her death resulted from that no use but it never indicates in any way that it is considering but for causation not cause her death either taken alone or on combination but i don't think we can turn that one statement into for causation and we have no indication whatsoever prepared my brief with respect about four causation but i'll be more than happy to go back and again look at the record and provide supplemental briefing on this case i think it was clear judge judge what judge gilbert did in this case i think it's clear he found  unhappy with the sentence that the had to impose on her well yes your honor and the judge in creighton said the exact same thing but that was a lot the time that that was the appropriate sentence but let me let me it this way at judge gilbert spoken terms of the cause not a cause and in his findings on this issue said the fentanyl toxicity was the cause of ms currie's death don't i don't think there was any dispute what he was finding that banal was the but for cause of the death the death of ms currie he found it by a preponderance but not beyond a reasonable doubt and i guess anticipating that the supreme court might take up the issue it did later in a different case birch but i think when he says it was the cause of the death and her death resulted from the distribution of the phenol i think he was following what the law is and found a causation the but for causation  on all sorts of other drugs that there was a syringe in her purse that in the room in her room there were all sorts of drug paraphernalia how do we factor all that in  it's not just with all due respect i don't think it's this court's job to factor those matters the judge killer made findings factual findings this court has already found that there was no clear error in those factual findings  judge gilbert acknowledged dr hidings father had some issues this court did too but those are factual findings that are reviewed for clear where this court affirmed and even stated that in its opinion of the court says  the district court found that it's more likely than not that the fitting all patched provided by krieger cause curry's that the judge appropriately considered and weighed all of the evidence and we can find no clear air so that's all been the government's position is with all due so just a few just a couple of brief points as a preliminary mather if this case were to be remanded judge gilbert would be required to perform the but for analysis under heightened standard  retroactive effect willing would we would we be reminding for a new sentencing or for would be vacating a conviction you would be remanded for new sentencing in terms of which case you would be applying retroactively it would jury determined beyond the reasonable doubt and isn't that the crux of your argument that's the crux of the argument of respect to the distribution i'm just saying miscreant are at a method that right right right but the death norwood about whether the district court's findings expressed in terms of sentinel toxicity being to constitute a but for finding analyzing the district court opinion notwithstanding this court's subsequent ruling right i don't think it's clear at all and i'm i'm just being honest in my analysis but i don't think it's clear from the order itself ok we will give a council fourteen days to submit a supplemental brief or position statement by letter if you wish or a more formal filing on this question of whether this court should revisit that but for causation discussion in upright position and citations to the record to support whatever position each of you takes on that question