there to be a full remission and unlike the previous case which this court had just been listening to had just heard in this case mr to a loop they did preserve his sixth amendment argument at his sentencing when when he was sentenced on the quit conduct and this was after a president and a year before blakely had been decided we did object on the acquitted conduct based upon a printed after that i mean well blakely eventually came out in this case was should be given an opportunity at minimum to have a full rematch the more interesting issue perhaps is on the acquitted condom and i realize of course that there has been a rich recent decision that in knight it's the adage in one circuit in united states versus mikado having to do with acquitted conda however as judge had pointed out in united states versus future it is difficult for me to see how the jury's effort is not bit i mean he's doing life in jail right now i mean basically he was he was about forty years old when he was sentenced to forty years in jail and he criminal history category one acquitted clearly i think that fletcher is correct i think that judge hug was correct when he when he raised the issue in the united states versus the futurist point as far as the nullification of of a jury verdict i think that clearly just says the sixth amendment argument that was made at the trial level when he was being sentenced it was made to the first panel that heard this case and now being made again as far as it being a reasonable then bank argument in this case is going to be kind of difficult second one as it is currently in the volga reasonable something things we have danced around in this case i think well i think that the first thing we're all waiting  one and i think that it would be reasonable for this panel to wait for that decision and the reason i suggest that your honor is because it may very well be that it will be a circumstance where there will be some discussion about acquitted night i'm not saying that there is but one never knows i mean and and in this circumstance you know when we look at you know clearly you know cunningham came out a couple of months ago and he came in actually on the same day that mcconnell came out on well i think speaking only for myself or tools are kind of limited these days because of in all of our cases where running into this problem and being the supreme court's got it of course they're the big dog so they can say they want raised  you know and i realize now we're like hyper you know trying to pretend of out what will happen in the future but you know one thing that he should have and minimum is a full remand regardless of how a reader enclave on come out and he should have that opportunity to present additional evidence to the court regarding the thirty five fifty three factors he should have an opportunity of allocution to the to the trial court and because of the fact that there was constitutional error and it was a quick trial court relying upon relying upon facts that have not been proven to a jury and as a result of that i mean if there's one person who i mean the forty years i mean he don't want to be out at this point if we can rely upon a quick on that i mean that's i mean you know forty years is a long time yeah i mean it's his entire life and it's all based upon acquitted conduct and when we and when we look to what judge fletcher said and in what in mercado clearly allowing you know judges to consider conduct rejected by the jury the court allows the jury's role the be circumvented by the prosecutor and you start by the judge two of the primary entities against whom the jury is supposed to protect the friend i mean and and i realize that the court may feel that its hands are somewhat tied i think that this case is somewhere in the middle is the reason why i think that there was not with all due respect i think both overt are in the same spot i mean we're all trying to figure out whether we have openings we wan we run a result the sassoon's we can and so we're trying to probe around as much as you are trying to do that so why do you think we can go further i think we can go further because banks that was are tells us that if there's harmless error this court can make a decision on to a l court can review and say that the government has met its burden the problem i have with that and is that it seems like we're making a decision for the district judge as to what he would have done  i think that is true but i think that there was enough indication by the district court judge jones who was a visiting judge from oregon that the court can be comfortable in that decision and i would like to address some of those  evidence that i'm i'm relying on when this case was originally sentenced when mr total will be receive the forty year sentence the judge jones imposed the sentence below the guideline range that was a total offense level forty four he was looking at life at that time and in fact judge jones ignored that range and sentenced him to forty years at the time of the original sentence the district court also imposed a consecutive twenty year term as to both counts two and sixteen and then run them random concurrent as to the other counts mr cole will be is no poster child if anything he's a poster child for people who are involving the the community in ice he was convicted of seven count of drug distribution one for conspiracy to achieve total punishment judge jones stacked two counts together to come up with that forty year term at the time of the original sentence the district court made specific fin and this was fully litigated by counsel myself as to role in the offense as to obstruction of justice look points for acceptance of responsibility and at the time of the original sentence all the district court's findings were made by at least the heightened standard of clear and convincing evidence contrary to count i found that argument very interesting in your brief judge jones the very articulate and careful judge and it seems like in this case you really want  extremes to just fritter out all the evidence assuming that the last days and place then you'd follow a judge goes really soon in the law doesn't stay in place and of course we'll be somewhere else but assuming it stays in place it seems as though judge jones went as low as he could very frankly under the circumstances assuming again we have all the stacks of law that we have to sort through is that your position it is judge and that would that would answer the harmless error i think so and tell me why well clearly judge jones was the smartest person in the room at the time of sentencing and i would suspect that he's the smartest person in any room that he walks into and he went out of this very minute here  to come up with the sense of forty years and i think he did so by bike to put tony through the law and one of the factors that he had to deal with was counsel's downward departure based on many factors use of a quick conduct lack of criminal history extraordinary family situation to tally the circumstances these are many of the factors that are outlined in eighteen u s c thirty five fifty three so the court had the discretion acknowledged that it had the discretion to to sentence him based on that motion for downward departure and chose not to elected not to and finally this is the most compelling judge is that the district courts of words during his limited emeline remand hearing in which he said although i am sorely tempted to take each count of conviction and have the maximum for each count to run consecutively until a life sentence would be achieved i have elected to hear to my original sentence clearly as he  was not concerned with going lower he's concerned an inclination was to go higher and he chose not to he exercised system discretion and i think again getting back to your argument as to whether or not you feel comfortable doing that i think when you look at all of those factors i think that the court can be comfortable and in saying that in this case the government has has established that it's more probable than not that the eric did not s i stated before it seems like we're sort of stepping into making a decision that the district court really should be making in the first instance under the standard that applies to a full he did state that he was taking a look at all the factors in three five five three and i think he did use the language that suggests that he was trying to achieve a reasonable sentence well i think that i'm sorry go ahead  when i was talking before i talked about the structure of the law it and how judge jones proceeded it seems to me what you're arguing if i got this right is that if we look at combs or some of  the cases where we've been probing there's got to be a place where we don't continually review over and over again the entire reset saying in other words we know that we've had am a line and and the sixth amendment issues and all these issues but there's got to be a point where you draw a line and say well i'm out of what we do if it's harmless we're not going to go through and send it back to district court and review it again and it sounds like you're going that's one of our cases and even though we have stacked up here a series of legal cases which could quite right as far as that goes he considered a whole lot of things your client could be in jail for life really is he isn't or more well edged jones really really seems as he i mean he did pretty fully sensing what you wanted him to do a little better  or not for the full remained there was harmless error and the reason that there was no harmless error here is for two reasons one there was no mandatory minimum involved in this case while you know obviously we're respectful for judge jones have that's certain stance where unlike and where if there was a twenty year mandatory minimum and he was sentenced to twenty years obviously that would be a harmless error but in this case there is no man that time and and the second reason why there can't be a high and harm free is for basically what is said in bangs as ours are they rely upon another case and they said we cannot say with any confidence what considerations for both sides may have been brought to the sentencing is judge's attention had they known that he doesn't have to do a guideline sentence i did the international sentencing on back then even though we argued that sentencing should not be should not be you know we file motions for them with departure and so forth and so on the fact is everyone had presumed that the guidelines were mandatory judge jones within a week of the trial filed submitted findings that no one even had had you know that we're unsure that no one had an opportunity to is that when you go to sentencing these days and what the supreme court has said is that what we have to look to is that the factors of thirty five fifty three and so when we argue these days to courts as far sentencing i mean the guidelines it's clear  one aspect of what the court has to consider its think is the characteristics and when we win and as a result of that we never had the opportunity to put on evidence about his childhood we never had the opportunity to put in evidence talking about the rare case where there is a mandatory minimum in place like a ten year or twenty year in place and therefore if you get sentenced to ten or twenty years you know we're not going to we mandate in naturism sense but in this case you have an individual who had submitted for decision