reply brief in the case so we don't have the benefit of your response to what the government said but right out of the sort of their submissions it went out that  preserved this objection and raised in the main claim before that was even eligible to him at the time the law of the land was terrorists and so the wording in the indictment and they weren't even the charge to the jury he still didn't have it he had to stand by we're well this is my opinion on that there are some other cases where that objection rice made and the district court denied the objection because as i said harris was the controlling law for a less culpable behavior regardless of what harris says why why wouldn't you jack want to quote me ask you this way address court case why isn't that precisely analogous to the circumstances you're facing in that case they the defendant was facing a similar circumstance and didn't make an objection under plan b and the court did not say oh well you could have done it harmless error it applied plain your review right to conclude that were perhaps this record would have said hey that's a problem maybe we should have the tree actually maybe we should do something to conform the indictment so that the language of the elements is actually in the a person can always be convicted of something lesser included offense and certainly the first here is the caring and using so if that's what they were charged with and that's what they found him guilty of right is it applying the play harm to my client by doing mouth is that you're still depriving him of the substantial right his right to have an impartial jury trial that essential element that's going to change creases statens from five years to ten years consecutive to the case that this fact the discharge of firearms actually uncontroverted it is ok so we're not in the position of weighing facts are we we're looking at facts that are completely agreed on so it's not a matter of depriving your client of some jury determination it's it's in effect the right like a stipulation he says he destroys the firearm government says it is church of firearm completely u and then it's the jury charge was exactly with him damon said so how can he be tasked with number one presenting a defense for something that's not listed in the indictment were it charged to the jury or making a claim that doesn't would have been the point of him preserving it or making that objection when the law of the land was harris well i'm not asking you that i'm trying to get you to grapple with cotton itself assume just for the sake of discussion that we were not inclined to agree with different spot i think that that's completely incorrect in this case i think first of all to go back and have it charged to the jury indicted knowing differently first of all he may have approached out differently certainly determine a certain element ok then the only way of coming to the conclusion that he should receive that mandatory minimum that increases from five years to ten years is by us reviewing the preponderance of the evidence would be overwhelming evidence and i think that's just completely contradictory to the to the holding to the reasoning behind a lien and a cranky they're saying that that's something that cannot be done so just  about the discharging the mistake to the jury is still the mistake that was left out of the indictment i'm sure now the indictments probably include weren't just charged but they found him guilty of exactly the same wording that he was indicted on and then the air became a sentencing when the judge went up to the aggravated them of ten years so i would say leave the conviction alone they did what they were asked to do they did  mr played at the time he went to trial and i think he raised that at the most only just point he could have which is i found the twenty to fifty five so again you can't waive a claim that you saying we should overlook a failure to include something in a brief so that we can accept an argument that the defendant should be penalized for a procedural fault for failing to raise an argument in a brief argument by corporations saying that you know we're not abandoning a procedural defect in this case in fact we would really emphasize it i judge him was never did he dressed that particular point in the ultimate opinion that as on appeal here to allow i guess a you have to allow for the fact that the defendant can overcome it with showing of cause and prejudice right yeah so here you've  issue right well then you have to look at the fact and was itself that offended raised the very same objection that avery alternately resolved and also this is true enough but but are you going to deny that it took  supreme court precedent overruling controlling supreme court precedent to make this claim one that would have been rejected but it is established in the context of collateral challenges that timothy does not the question precisely is in all the things that the person might have done it's really as you framed it correctly you didn't raise it on direct appeal and therefore there's a problem then and read versus ross supreme court case a constitutional claim is so novel that its legal basis is not reasonably available to counsel a defendant has cause for his failure to raise the claim that's the u s supreme court speaking and i'm just asking y if we're not in that zone here because harris was the controlling waddling even assuming it causes stablished under reading he still has to show actual prejudice and if he has to he has to pretty much recent ten five extra years mandatory minimum that's not prejudiced no it's not prejudice it's not actually prejudice because you have to look at the evidence in that case so if the evidence were not if the evidence because in this case the evidence isn't controverted that mr a parade is charged his firearm during the course of a bank robbery you know this it doesn't make any difference that the judge charge the jury wrongly not just that the we have to do what this court has to do is if we're looking at this in terms of actual prejudice under as a collateral matter or is it for looking at this within the context of plainview player i'm sorry on the evidence still has to be considered about the whole point of a lean in of brenda used to tell the court in effect but out don't start weighing evidence that's not your job you're not supposed to be in that lane at all and yet you're saying well a need so it's it's a ilene alene is what it is says what it says but what you're saying is an plain error we don't really pay attention to what conviction of the conduct charged in the indictment so it looks like that's an acknowledgement that the jury will didn't find it or be no we don't know what the jury and the judges expressively saying and i didn't find it and yet without the judge or the jury finding it the assertion is he can be convicted elements which of course you have to include an account of an indictment for it to be an accurate charge correct that is correct however when we are assessing the validity of an indictment it has to be looked at in this to tallahassee in especially in  count does not charge discharge of firearms so their position is yeah we would like with that kind of the indictment said because it didn't charge him with this charging the firearm yes but also with respect to the jury may have understood incorporated a part of another count into that separate count and did so especially in the face of the district court specifically instructed the jury that they didn't have to find this charge  does not provide fair notice as to what has been charged so that mr prayed a t n you know plea double jeopardy is a bar has no idea what he's being charged with i think when you look at the indictment as a whole if that count three had been challenged in the district court would the government have been able to prevail i'm not saying they could have amended it could have got a superseding indictment but as it stood with that issued back when harris was the law of the land back in two thousand and ten and at that in at that point time that it would have been fine especially whenever we have willis which is is sick it would have been fine in order to convict him of use and carry and then presumably the court could have had a sentencing fact finding for an enhanced meant but that would have been a sentencing enhancement not a conviction for discharge because the indictment didn't charge discharge of my right or wrong about that they did not use the word discharge but it did cite to the correct section kurdish charge you you mentioned in a footnote in your brief that in  the provisions of what you can look at i don't think it did i actually think what you said in the indictment memorandum was that the essential elements of count six were one that the defendant committed the crime of violence charts in count two that are bank be in effect of a miscarriage of justice to let him off on what looks like a technicality now in this case rather than worrying about somebody getting a drastically reduced sentence technicality that the district court could give look parade the same sentence if that's just if that is just result right in other cotton does it where the court was saying we really can't let this go by the words and give you relief because there's this problem of people holding the justice system in disrepute because a person would get a drastically reduced sentence based on a legal technicality i'm paraphrasing mostly but here there's that risk doesn't exist because the court can give the very same sense that thin occur at sentencing in this case and i know that there was a question concerning whether or not defend it was a career offender and i believe that that did not come into play but the court did not sense on the basis of  not well you know pretty deals with with the ceiling i mean deals with the floor in terms of sentencing not yeah exactly and the and the problem that the court identified in cotton was if we don't deal with this and you get something substantially reduced that's a bad thing for public perception but that's just not a risk here is it well it is a risk here because any  escape the bank yeah it is that soon couldn't have gone above what the court in up in cotton the court could not have gone above the maximum penalty associated with the all right so you think it's in material difference one of the things i wanted to point out was that the indictment charging reading being exactly the same as the jury instruction i do think that makes a difference in this case and i don't think it matters that somewhere else a word is written that the government is suggesting we can read and incorporate into another charge i don't think that's right mr prate was required to do to be on notice and that's not how the jury would be expected to find someone guilty of a specific specific element of a crime you speak to the produce element of cause and prejudice if it is in fact the case that your client is facing a procedural  discussion we were concerned there was a procedural how would you show cause and prejudice the cause being that at the time of his trial harris was the law of the man there would have been nothing for him to object to the prejudice now at this point underlaying is that he was described having that element reviewed by that the jury before the judge could just look at the facts and say ok we have enough to increase is mandatory minimum to ten years and i what the sentence could have been less assume there wasn't