please the court counsel my name's daniel our federal public defender's office i represent mr louis got the arguing for him mr edwards and mr walker on the first point since that's common to all three individuals and that first paragraph twenty six in the p s r and in fact the judge's explanation after sentencing hearing pages eight and nine mr lewis's appendix says that the judge is giving the enhancement because of all and weapons intention to commit the felony or theft so it's completed or that we've got replication of fourteen b which simply seems to indicate that burglary counts as an other felony offense if what you've wind of taking whether you intended originally that other effects which is that he trafficking in possession things that's thirteen the problem we also have another problem for the judge to under the same facts for all three individuals to give a different explanation for why  of the case law from the different circuits and what happened in this car was there's a very narrow opening where the court writing to coltrane started a row dela cru says that when we are conduct that is accounted for in the other enhanced mince meat still has the possibility of double counting i'm not certain that the panel in that case meant to leave that door open for this argument but the case accounted for in the other enhanced meant to not give the four additional levels because when you broke into the car and committed the offense and took the contents of those weapons are also stolen which is course logically correct but by way of  additional harm and so forth it's a non feature why wouldn't we if we were to agree with you have to overrule both this car and crumble you get you don't have to overrule this car  now just applies to somebody who happens to be a felon in possession you don't have to have stolen them you don't have to know that they're still right the trafficking in handsome and would apply to somebody who let's say buys the stolen guns and intends to resell them for it so we've got both of those enhanced ones just without any burglary at all without any theft somebody who's just trafficking in stolen guns and then break in at the railroad those sound like three separate things to me you get into get the materials through the break in and then you gain possession immediately i think with the felony that you're committing through exercising control of the firearms that's the burglary you've got that part you got the stolen weapons and then they're if the defender i'm just i'm not so concerned with the statutory differences among their current charges because when the charges are all grouped we basically look as i understand it we look under the guidelines to see which of them features innocence are accounted for not accounted for and that's why i think it looks to me like this is an appropriate staking my point i guess would be are now what the original purpose of getting in the box car and taking the guns and selling them to someone else seems to me as though the harms are largely accounted for excuse me entirely incidental though i mean when as far as i can tell from this record these guys go down to the train yard and they're just going to steal stuff from from train cars there they could have stolen cigarettes they could have stolen t v s they could have stolen whatever happened to be in those cars unloaded nobody had any ammunition there's no particular harm is posed by now the possession of these guns which is almost as you say judged happenstance a criticism that actually help the government more than it helps you i mean i agree with what you just said actually thing and so that factors into the advisory sentence and i think the whole theory of this current by the way was to allocate properly what belongs to sentencing guidelines and what belong to thirty five fifty three yet you can certainly make a lot of the arguments you're making at the at the latter stage so as i understand the guidelines to be an effort to impose punishment based on harm i'm still not sure then what the additional harm is and that is the firearms that are under loaded boxed etc that may be on the that issue that it's not preserved and since we're on the topic of waiver that we can't win under the guidelines and we've made an argument under visit our the government loves to trumpet waiver when it benefits them we made an explicit argument under those cases the government said nothing about any of those cases did not discuss them did not cite them the nonchalant treatment of an issue according to this court case is the application of waiver we think that if there is a waiver problem here that can be validly raised we can raise now the government and  principle that benefit our clients much like it would apply the waiver principle if applicable to benefit the government under any circumstances strelsa couple quick questions with respect to mr lewis he got a bolo guideline prison dangerous case you know in order to argue about the length of a supervised release term or a judge might say you know if we send it back well if that's too much supervised release maybe i need to rethink the prison term i would think that's bal peper arguments things like that mr lewis has anything that he can offer the job actually show that the aggregate amount of imprisonment can be reduced for any reason through is post incarceration rehabilitation or present some of these arguments that we're trying to make here in a better fashion to the district court he's game for that hundred eighteen months is a long time it's a risk but right now stack he's doing one hundred eighty months he would like a chance to get that we dutchman and we're going to look for every procedural vehicle appearing to the length of imprisonment those are the factors that drove his explanation i don't think that when you gave the limited explanation that he did for supervision we can discern from that why should be one year versus three i think that presents potentially tween the henry case which to think it satisfies armor i don't judge i think even if it does i should say this there's still tension between henry and armor and we think that henry more fully explicated statement of what the findings need to be thank you help me with the chronology in the district court did the judge have everybody's guilty pleas before he sentenced anybody i cannot speak to that judge because i am not the a firearm even if the offended did not engage in any other comic with that firearm during the course of the burglary so the court's point and the government's point was the guidelines tell us what to do in this situation the comment specifically says if in a burglary you find a firearm and you meant the fact that when they broke into this car they possessed those firearms that following this comment fourteen b just by that one and in the fact that they were stolen firearms just by that it has been so we don't think there's any double counting here each  earlier the district court made clear that regardless of how any of these inhabitants worked out he was going to impose the same sentence and in fact again he opposed the blow guideline centuries for every one of the defendants and of course of the year your point out yes the district judge did say that and to a degree we have said to district judges that if you say that we will take that into account but we surely need something more than every district judge just saying at the end of every sentence and this is my sentence and nothing because he went below them in each in each case and he put defendants where he thought their relative culpability was based on thirty five fifty three so even when he was giving these unhandsome and the government except a lot of the defendants argument that there might be maybe not double count but the same conduct is being used and so he adjusted accordingly but when he did impose these never say that's what he's doing though like to these guns keep coming up with every enhancement i'm looking at under the guidelines and they shouldn't count for that much he doesn't say that just but i mean some of these you know he he went below the guidelines by i think more than sixty months and some of the street in some of them was a big discount others not so much and i think a lot of it also depended on mr lewis had the prior first degree murder i mean i think he looked at the criminal history as well and it just didn't fit once he said mr lewis as the fifteen year high incidence i think that was the ceiling and then just to the court of the but it's a first or second degree murder second but anyway third conviction that was a new conviction within the time window so that gives him three points and the guidelines say you can add then then they got into clear then the p s r clear that because of that new conviction he violated probation on both of the prior but do we count how do we count the old ones in the p s r is clear twenty nine is in their mind it's just for twenty nine days correct and so the guidelines as you add the four year before year if we know that it's being imposed for that how clear is the record on that if you look at paragraph fifty one fifty two of the defendant's b s starts it's clear it says that for this violates in a sentence of four years was imposed to run concurrent in this case number in the prior case number and in the  misstated the applicable guideline range that you calculated in order alternative calculations and if you recall that you just now you mean it's in the brief mr walker's brief you know page eleven soft level thirty four year olds twenty eight that's hard to argue with you so he appeared to see he misspoke again i guess argument would be that there was no error here anyway so it wouldn't matter it seems though we do not have an individual that approached a supervised release that's consistent with gone the imposition sentence if everybody pretty much gets statutory paxman period of supervision on this type of offense that's a concern and i don't know that the northern district is unique central or the southern district based on my experience but that's different de wine black pain arm the c e o those are all cases that have talked about this sort of last minute interjection by the district judge and of course i did give them the same sen who despite the judge saying that and we should be very concerned that we are allowing that given what we know about the anchoring the fact an implicit bias in the fact that the guidelines carry great weight in judges for them after they are steeped in guideline case isn't so court to be able to nail down an appeal and say i wasn't affected clearly especially in a case where the judge may have misstated something about the guidelines perhaps that mr walker  makes a misstatement how do you credit the judge in except that if the judge is to make a mistake and say it's immaterial it didn't exactly the judge doesn't know he made the mistake i don't think you can credit that explanation and i think that i don't think you can credit that explanation is t that were considered you would you would require a district judge to say differences for the rationale for imprisonment versus supervision that i think would be a problem if we're just to accept you know but this is a case where we have less than maximum sentences right i mean so it does didn't consideration by district judges and that's all very true and before i forget the very last point that i wanted to make is in the briefing that was done by my colleague molly armor her brief note about the history of application note fourteen for the imposition of the burglary enhanced it is because of the special concern that by being able to pick up a gun and use it that you are increasing potential harm that is explicit not implicit the worry about picking up a loaded gun and doing something with it not about stealing unloaded uncrated weapons so that just doesn't really make it to the judge's analysis which then judge hamilton takes me back to why we would ever want to get back and have a chance to be sentencing we'd like judges that was the specific concern about a burglary find a weapon and now the cause of potential harm is greater and that's just missing when you've got created and loaded weapons thank you enormously thank you very much mr phillips thanks to all counsel for the