good morning honors carl gunn representing mr rodriguez there's a couple of things that are troubling about this case st the government is back dooring another sense that was initially charged mr rodriguez contested and the government didn't dismiss nd there's significant doubt about the charge they dismissed because the only polls that were tested weren't with the charge said they were now that doesn't by itself mean the enhancement pass can't be applied but it does feed into the problems that brazed by the way if i can you're on i'm a try to save two minutes for a book the most basic problem the results of the testing the showed that they were not well it described the report that the defense it submitted it didn't say we agree with that versus this thing it said paragraph seven to go back to what your honor said though about the district courts well it did statement that i don't think constitutes a finding for two reasons st of all that sort of this tentative thinking in the middle of argument before the prosecutor made a counter argument saying well not all the pills were tested and we think they came from hydrocodone he said the defense objections were overruled and the very st defense written objection was that they were actually coded and hydrocodone so that's exactly why we require express findings in strict compliance with rule thirty two is this an example of where we don't know to go with the judge's thinking out loud during argument before he heard the rest of the argument or whether to go with this flat statement when he was quote m the judge had sad ok more explicitly even now i think there's an argument that well they did that that there is evidence that the judge knew that they were not those drugs but let's just say you're right on that and then you go back and the judge goes yeah i knew that all along and the reason that i sentenced you to this was not based on that i thought they were oxy kind of down it was because of the attempt and the attempt doesn't require that they were in fact cause back there everything and then you're still back in the same spot and by the way i'm going but all even i'm going to do it by the preponderance of the evidence even though you said it had to be beyond a reasonable doubt but now you're saying clear and convincing but i'm going to say by clearing contents in that that's what i think then you have no you're in the same spot right well then in a court of appeals like your honour's can focus on exactly what his theory was maybe he'll say it's the attempt and there's some issues to address about the attempt you have a problem with the attempt because you don't have a substantial step that strongly corroborates or unequivocally corroborates an intent to sell drugs has opposed to an into the tent to defraud  buyers he might say well i was relying on this point to one hundreds of one with thousands of grams of methamphetamines this trace amount that was in the pills well then your honour's the court of appeals can focus on the question of whether this trace amount of drugs that no one could conceivably know about the pills can really support a ten possession with intent to distribute having that finding it and the other thing about reminding it and telling the judge to make that express finding is it might make him sort of in a more disciplined way think through and articulate just what series he relies on whether it makes sense and it would give the attorneys a chance in the district court to explain to him why those theories might might not make sense it would give it would give a focus for both the attorneys and district court and for an appellate court trying to decide whether he's legally right i don't think what words they were disciplined and judge o'neil have ever been in now and i apologize if i put those in the center but but the point is and i don't think i said he was undecided clint i said it would make him more disciplined which maybe is a little i think a lot of people would wish he was less accept that that i've heard that argument but the point is that people are more disciplined in their analysis if they're pushed to be that way i mean that no matter how disciplined they are innately and  and because he didn't make that expressed finding he didn't really like what does he say he said the prosecution let me put it that you were not the attorney that was there at this rally so if you were there then what you have said well judged let me make it clear that i am under i make it clear on the record that you are saying you know this is not ox you know i i'm confused when you say i know that or that's true or whatever he said about the officer's report what do you actually think about the drugs tell me exactly what you think from might have if he had said that and he had said yeah i think the officers were wrong about that i think it we don't have any evidence before us that that  have all of that and but i think that based on the text and everything else that i have that there was an attempt to air and i am making that finding by the by clear and convincing evidence sit there said beyond a reasonable doubt and now you're arguing clear and convincing right except you know you are and i think the government took the consistent position it was pre planned rence right yes but the the district applied that would have alerted the district judge to the full let's say factors and whether that standard should have been applied before the enhancement would apply to the sentence but the attorney never uttered any of those words never said anything like that and so the district court was faced with the government arguing preponderance of the evidence which is what would typically apply in defense counsel arguing beyond a reasonable doubt so why it seems to me we need to be reviewing this because the objection was not made it certainly could have been made better your honor however i guess what i do is i'd point the court to the cases i cite in my brief about it claims that are preserved not arguments and the wahid case where on appeal the defen light the claim wasn't even made so well we're just suggest what you're suggesting i believe they said if there's any kind of an argument whether it actually see argument you're going to argue on appeal that the district judge was supposed to discern mouth where i object to the proper standard i would submit that's enough your honor and then his next words were it should be beyond a reasonable doubt so at what point was the district court supposed to go oh no he's really saying that i need to apply the six full n c a a factors an should be clear and convincing evidence there is nothing in that transcript that would have alerted the district judge that i certainly think if he said i object to preponderance of the evidence and never said anything about beyond a reasonable doubt that would be enough i don't think he has to cite fluency or the validity of factors and i don't think adding the beyond the reasonable doubt over reaching for that means he loses the objection but i see i'm running out of time all right i don't know if the court wants me to if they're not additional questions i'll give you two minutes for  may please the court john teddy for the united states i'll begin with the court's questions left off with respect to why the plane or a standard should apply to the defendants claim that the clear and convincing evidence standard applies to the four level enhancement in this case as a court's questions were indicating the claim that the defendant raised before the district court was that the reasonable doubt standard should apply to the fact finding at sentencing based on booker and the th amendments as this court has recognized in several cases specifically staten  process based claim that is the foundation for this court's accusing the application of the clear and convincing evidence standard is based on th amendment due process not based on booker and booker quote excuse me nothing in book or quote turns on due process concerns or the burden of proof and quote that stat net page seven hundred and eighteen as runner's questions were indicating the defendant's argument booker based argument deprive the district court of the ability to consider the valencia doctrine and the valencia factors and that is why the plain error standard applies to clear and convincing evidence with respect to the clear and convincing evidence standard writ large as the government argued in its brief the th circuit is the only court that in the wake of booker has continued to apply the clear and convincing evidence standard occasionally  the government's position is that that is incorrect i we understand the defendant's argument that staton and several other cases post book her indicated that the clear and convincing evidence standard may have survived booker however as we argue in our brief beccles which was due process case unlike booker provides this panel with the opportunity to reconsider the continued application of the clear and convincing evidence standard but even if this court decides not to reconsider that doctrine under the valencia factors there is no reason why the clear and convincing evidence standard should apply in this case there are numerous cases that we cite in our brief in particular hopper shadwell palombo and rutledge in which this court has said before level enhancement does not wire does not warrant the application of the clear and convincing evidence standard and that preponderance of the evidence is appropriate specifically in chadwell palombo and rutledge this court rejected the application of the two k enhancements for possession of an illegal firearm in connection with another felony offense and the government's position is that those cases are controlling with respect to the question of whether or the actual substances contained in the pills were oxy cotto and or hydroco this court the questions this court was was asking with respect to the record are correct on page eleven of the excerpts of record the government specifically conceded we don't dispute that the defendant had some of the drugs tested and that the te indicate that the drugs were what the officers believed them to be based on their visual inspection and then the government went on to argue an attempt theory and a possession with intent to distribute theory on the basis of a detectable amount of methamphetamine and then on page fourteen of the excerpt of record the defense counsel argued i would also object to the fact that the police officer stated that they were oxycodone and hydrocodone they were not this was pure speculation without fan foundation it turned out to be a very inaccurate statement the court in response said well it did and then moved on to ask about the argument with respect to an attempt this was an expressed finding that met the requirements of federal rule of criminal procedure i do are you saying that by what he said that is imply hadley contained and that yes your honor it is in this court's case law on this is very clear requires an expressed finding it doesn't require an explicit finding and there is an express finding in that statement there that it is accepting the government's concession based on the toxicology report that there was not actually oxycodone and hydrocodone and then moving on to ask about attempts and entertaining or just or any confusion that he was the set that he was sentenced on an attempt though there are in fact that if the government at the very end of the hearing page excuse me for a moment your honor on page thirty three clarified whether or not the enhanced it was based on attempt or based on possession with intent to distribute and the district court said that the finding was alternatively on both on both an attempt theory and on the possession theory but that followed the government's arguments with respect to the trace amount of that the toxicology reports was contained within the pills and as the th circuit panel jury instructions indicates all that is required is a detectable amount of a controlled substance the defendant does not need to have knowledge of the specific substance that is contained as long as the defendant has a demonstrated knowledge that there is some sort of controlled substance within these pills and the record indicates in the factual findings of the district court indicate that there was significant evidence entirely different one and still prevail i believe that case is steward your honor on page thirty three of the government's brief and in that case the this court affirmed the defendant's conviction for attempted sale of methamphetamine but could attempt right yes your honor i'm talking about a substantive offense a subset of offense i'm not familiar with a specific case that addresses that factual circumstance but our position is that the th circuit's jury instructions and the cases that we saw on page thirty three with respect to possession of a substance when the defendant winds up being wrong as to what his belief is is sufficient the th circuit jury instructions nine dollars specifically say quote it does not matter whether the defendant knew that the substance was a specific controlled substance it is sufficient that the defendant knew it was some kind of a federally controlled substance and the logic of that and so the savings here is that was yes  the the clearest path to affirm its in this case is the finding that the toxicology report reveals that there was a detectable amount of methamphetamine that supports possession with intent to distribute with respect to the two k four level was actual or attempt you can actually be guilty of both the actual crime and the attempt you're either guilty of one or the other so i think that in of itself as my dropping papers on the  apply the application or a note requires that the gun be in quote close proximity unquote to quote drugs unquote if there's an attempt because there were no drugs then there's not close proximity to drugs and you have to go on to the more deeper the more difficult question of whether there was facilitation so one problem here that may not be highlighted as much in the briefs as it could be is that close proximity rationale doesn't apply to an attempt and so that makes means it makes a big difference whether he lied relied on actual or attempts to go back to the government says everything was conceded by the prosecutor it just wasn't she did say yeah testing on two of the pills quote does not indicate unquote were her words that they had oxy code on and hydrocodone but then later and it after the judge's quote well i did unquote comment she said hey judge all of them weren't tested and judge some of them may have come from his mother's prescriptions suggesting there's two sources so maybe some of the more oxy codeine or hydrocodone and if the judge agreed that they want oxy coated and hydrocodone that the defense objection to that was correct if the judge agreed with that why did he say when he got to the point of actually making findings in opposing sentence the defense objections are over rules at at the very least we don't have the sort of express record here and compliance that the rule requires i say i didn't think there was a difference between express and explicit like my colleague suggested but whichever you want to go with it wasn't here ok thank you the court's just going to take a short recess before handling the last two argued cases on calendar so will well we will be back and within ten minutes so don't go far thank you