to reserve three minutes for a bottle that's granted just to clarify what is it state here the street d s is not challenging the conviction on count two the drug distribution charge or the two hundred forty month sentence on count two so that whatever the outcome of this appeal mr diaz is going to be in prison for a long time so what mr d a s does challenge on appeal here or rulings added an additional two hundred forty months to a sentence could i  two questions that are intended to clarify feast for me where we may be going in this case and my first question is i'm sure you are well familiar with the opinions in the andersen case language of the andersen opinions and specifically i'm looking at some language from your so women's opinion which essentially characterize this either you were here as either that one each time a defendant uses or carries a firearm in relation to a rhyme he commits a separate crime or ok ok so second question then is this you have in your brief at some point were points characterized this as a double jeopardy issue and forgive me but there were times when i read that i thought you were almost being half hearted about your double jeopardy jeopardy attack here clearly the case suggest that there are two ways to go to support your position and one would be in the jeopardy term and the other would be really a statutory approach yes and in your discussion you begin i think with subway of your issue raising double jeopardy but then you can't just all of the cases which are clearly not all dubber to govern jeopardy determinations yes which route so should we be going the alternative rather than the double jeopardy i'd be happy for you to go to the statutory route yonder that's what nine other circuits have done but the majority of  that's and that also of them have solemnity yeah that's right and that's also happens to be in a way i'm a little bit surprised that i'm even here arguing this because the standard policy of the department of justice is that you were asking about the double jeopardy claim you were asking about our argument about the multiplicity of the of the counts and maybe and i certainly  certainly believe that such to argument is is a very strong argument that the rule of lenity applies and that congress certainly could change the language here and i think in fact it argues in our favor the fact that many of these cases were decided in hundred ninety s i think the andersen case was one nine hundred ninety five and also the n c second circuit case had a very comprehensive analysis of the issue and both of the those decisions talk about how the language that was ambiguous and how congress might have written it in a way so that it wouldn't be empty big u s but since that time congress has to nothing to change it so apparently congress is satisfied with the with the word uses implies that each discrete act does not constitute a separate crime but there are other reasons to when it was brought out in particular in the dissent in  fourth circuit case and two thousand and six was the u s b concaved where the dissent said tonight i don't usually like to read but the language here is so good under the majority's reasoning no boundaries exist for such a night twenty four c prosecutions that is a drug trafficker could pick up a gun placed it on the table to scratch his nose pick it back up and receive two nine twenty four c sentences and if he knows the cost of man additional fifteen years applying this statute without boundaries of reason and ordinary meaning leads to absurd result can do that in an ordinary language sense every time the defendant would pick up the gun it is a use in the in the ordinary language sense but that doesn't and what all these cases have been saying is infinite number of more answers yet if you were to accept if you were to accept that that reasoning but that's i think a very powerful argument against accepting that reason that the thrust of the statute is in fact punished for the possession use or carrying of a weapon i mean that's seems to be the ultimate goal in the statute well is it the fourth circuit right that every time a gun is used then there should be a separate a separate penalty well that resolve the question mr kraus you know that and twice now you've not really come to grips with george wendt these questions about the camps decision you've not taken that head on you talked about other cases why is camps wrong why was judge what he in his opinion wrong to emphasize that section one hundred twenty four c one very clearly does not criminalize the underlyin time he commits the separate crime of carrying the gun so it was it was a concept the concept is that if you have the predicate crime the underlying truck trafficking if at any time during the course of that the defendant uses a gun the nine twenty four c violation is completed that's it he's done it and for there to be another nine twenty four c violation is going to that's a decision for congress to make congress didn't make that decision in this statute if they had wanted to do that they could have made that one which explicit but at best as is everyone seems to agree either that isn't what the language says or future for having the conviction vacated rather than the sentence vacate as it does it matter all following up on trees over this question whether or not this is characterized in the sentencing and han statute or whether or not we would simply vacate a sentence as opposed to vacate the underlying conviction the cases have discuss just two more questions and i you like this but number one why is this an appropriate case for application rule of law nitty which i believe are cases suggest is applicable only language that the intent of congress from the language of the statute it has to be applied in favor the defendant and the question one question for me is and this does not really relate to the basis of your appeal but i'm i be interested in hearing both from you and from your adversary is there any basis in the statute at all what the district court did here in terms of the length of the consecutive sentences imposed is there any way to find a basis with the number of years of the consecutive saying i'm sorry are you referring to the fact that there consecutive or or the actually the number of years in the number of years what is the second offense under the statute supposed to be four in terms of well the there is a mandatory minimum of five years for the second firearm that the subsequent well as the district court ruled here that he couldn't add on anything additional to the second offense and that's why he  way although that seems to be like common sense in fact the government may precisely that concession during oral argument in the anderson that's correct thank you your hon refusal to apply the twenty five year clause but nonetheless sentence separately for each of the firearm offenses when there was only one but i think that's what i was trying to ask  kraus i can speculate but i can't i don't really understand how we got here and respectfully what i would submit to the court the double jeopardy problem which is the basis of this continuing crime that is in appropriately divided by indictment or charge and consecutive punishment or additional punishment comes when a continuing crime has broken up into parts what we have in this case it's turned that whole problem on its head the problem is at least according to the argument that we just heard is that the government didn't divide its predicate offenses up enough you could have right well we could you have that was really  three we could have factually in this circumstance divided certain aspects of this case into additional predicate offenses you know in the march trying nine would have been one had to give the fans well that's the problem with the march twenty ninth two thousand and six incident there wasn't a drug deal that happened and then day it was months of disputes between rival drug traffickers and there wasn't a drug deal that happened on the twenty ninth that was just a culmination of the rivalry and furtherance of like a discrete deal where one sale happened and a gun was there it was in furtherance of the general enterprise of what was happening in the months preceding in addition another circumstance that happened and it's reported what by one of the witnesses mr asked have you seen alfred pierce and the defendant response i've not seen him and he shows in his gun but if you see him let him know i have this for him and that was not only foreshadowing what was going to be the demise of mr pierce but there wasn't a drug deal that happened in that circumstance but clearly that event of flashing a gun and communicating through an intermediary to mr pierce  time and if you haven't yeah that's right if you have a whole drug operation going on second and each you have a sale each time technically you could charge in new confessed when you came to the podium question as to why you are here and i have that question too but it was because i had the u s attorney's office for the middle district followed the justice department own policy we wouldn't be here would do well with respect to the circumstances of why we didn't charge more of this defendant when you're looking at the underlying problem which is the double jeopardy concern is whether you parse the continuing crime out into individual parts and impose excessive punishment that's what the argument i'm making of this is counterintuitive the we didn't true on the testimony of one of the witnesses though was that on a particular afternoon he bumped into the defendant while you had a firearm on his waist and sat next to him and watched him engage in a number of sales of heroin to individual customers you came up now potentially if the government had prosecuted every delivery that mr macpherson could recall he observed the defendant engage in those would be permissible prosecutions for distribution of heroin  to do that did to divide with each individual cell a prosecution i believe for policy purposes i'm not familiar with anything that would prohibit individual sales and individual transactions for prosecution other that is a potential and that's sort of the facts of what happens if a hypothetical well not necessarily fanciful i think it's what happened in lindsay as the second circuit case there was fourteen firearms  that i have is that it you don't necessarily have to confine it in terms of the predicate offense as the unit of prosecution that you encounter that same problem with almost every drug trafficking case that comes here you can be charged with each separate discretionary event each delivery or each seizure that happens or can be charged in the aggregate and this court and all the other circuits have appropriately fashioned units of prosecution to to keep a sense of fairness to th intent and statutory language here in this circumstance the fact the chronology her logical events of what happened in this case it mr diaz the first day he came out to that block with a gun on this particular defendant where the plain language of the statute seems to suggest and does not expressly prohibit multiple prosecutions under same predicate if we can't decide this  best way for us to go i respectfully submit to the court that the vast majority of circuits have found ambiguity in this circumstance however i would submit that perhaps the most thoughtful and detailed analysis of this really was a saw a sentencing package that was done by the court as the court notes in my brief and this and the appendix the defendant's reflecting the sentencing reflects the court did indicate that a thirty five fifty three this defendant under the total evidence and facts of this case deserved a four year sentence and the guidelines for one nine twenty four c violation was thirty years to life for this defend it so for one offense he was eligible to receive  forty year sentence for one conviction now as we discussed earlier the court decided to proceed in a fashion of structuring this sentence in terms of twenty years and ten plus ten or simply did what it was it appears the court was it was reviewing not basing it upon constitutional grounds but upon statutory interpretation of what a second consecutive conviction implied and one of the main reasons why they did it that way because that's all the defense asked for in their challenge to the sentencing guidelines they asked for the second conviction not to be considered a consecutive twenty five year sentence they only asked for it to be two five year sentences to run concurrently and if you know in the court's trial opinion they underline the section of the statute that talks about each conviction must be served consecutive to another conviction that's the reading between the lines it and i guess that the best answer i can give the d c circuit but i don't know that that was a direct answer i quite frankly don't think there is ambiguity i mean agreement with that with the minority in the andersen court that when you look at the elements of this crime that the crime is broken down into several parts whoever possesses a firearm under a certain c enter a certain purpose a purpose and further to drug trafficking a purpose in furtherance of  robbery or whatever crime of lying congress really intended to punish each and every possession of a gun in the fruits of drug trafficking so that the government can be charge ten fifteen separate nine twenty four charges if you look at the legislative history and reference to it that they do seem to focus at least some of the legislative history seems to focus upon each uses that to remind individuals that if they engage in this crime to leave the gun at home and in this particular circumstance if this had not been a drug trafficking offense but it had been a more discrete offense such as a bank robbery where each time thereafter the defendant used a firearm to intimidate co defendants to intimidate other individuals to not cooperate under the circumstances the additional conduct the michelle actions would be prohibited under the  in the bank robbery cases we don't have episodes of where one bank robbery conspirator is confronting another bank robbery conspiracy or some time after the robbery to intimidate them or for a showdown that ends up in a shootout where there is a discre usage of a gun in conjunction with and i was struck we submit of the plain language of the statute if that were the facts it would be appropriate to prosecute the bank robbery the usage of the gun the bank robbery as one hundred twenty four c conviction and then the intimidation  codefendant months later that would be fit into the plain language of the statute as as an appropriate punishment and anything of course you have to consider also the idea of the possibility of overcharging which you can do based on your with this is that a low we had and as our facts lay out four separate instances of usage or distribution with a firearm there really wasn't an overcharge this was in the first count of  the scene with a gun in furtherance of his drug trafficking in the months before march twenty ninth was worthy of thirty years to life then being involved in a shootout ambushing is certainly worthy of another prosecut