court i'm jumpin nelly representing justin maxwell i intend to address in this argument the trial lawyers here that deprive my client of a fair trial in this case briefs as it relates to the outrageous government conduct we've also divided our arguments and i will join and my colleague miss curtis's arguments regarding sentence manipulation justin maxwell was charged and convicted in this case and it is the court will recall not getting into detail on the facts but if this was a drug stash house case where it was created a fictional situation created by the government at trial the quit drug quantity was a material issue two things violated his right to a fair trial on that issue and tainted the entire the jury's entire determination on this case the first one was a violation of his confrontation rights that happened in two or two ways with respect to the admission of his codefendant alexander's statements against him in the other defendants and it happened is that relates to the inability or the limitation on the cross examination of the agents regarding their decision to select eight or nine kilograms of cocaine as the quantity that was supposedly involved in this stash house and the determination was theirs defense counsel was precluded from impeaching their credibility on that determination as to why they selected that amount based upon their knowledge of  title twenty one and that that attaches to the judge in kind of a tricky spot given the rule about not allowing allowing argument about sentencing and in a criminal trial i mean absolutely not your honor and here's why because there's a difference we were not attempting to invite the jury to consider what the potential sentences were all we were trying to establish was how could this information come out without the jury being able to figure out the very thing ok fine you might out of argued about it but with him they have in front of that information simply by that question that aren't you aware agent as i as agent johnson aren't you aware that the quantity of eighty nine kilograms of cocaine carries a higher penalty than less than five kilograms of cocaine yeah but that's it right there the information's right in front of a jury that that benefit that was what were your clue did from asking no i understand that but i'm just saying even that simple basic question puts in front of the jury the sense in consequences of convictions it might put take the consequences of that th e sentence for five kilograms or more is higher but it does not put in front of the jury what i think the rules designed to protect against the actual potential penalties that that that i think is what the rule is designed to prohibit the jury from considering what the actual penalties potential sentences are not that one level of drug conny carries a higher penalty of that is true defense counsel wants that's and should be allowed in closing to say there's a really big difference in terms of what you choose to do here in terms of whether they're no more or less than five kilograms i think that would be going too far it would be it would it while that would be going by it's just more or less i'm sticking with the more or less point now i think i think it would be going too far to argue to directly to the jury that but that the purpose for which it's admitted could be argued that the agent knew and that's why the agent selected a quantity that that the penalty for this quantity is higher than less than five kilos that that's the point about that the second part of it is again alexander's statements those are the two components of the  confrontation argument the other thing about the proven point the bruton point so explain explain explain the problem the problem here is that this was a joint trial right but i mean what is that what's the language you didn't like and exactly how did it have to be substituted get in respect to what actually was substituted what happened here was there was testimony through that is tact that alexander stated in his post arrest custodial statement that the agreement among the others and they had changed and that they would be now would you have preferred to say i don't think that come down redaction alexander and then what's the what follows the end i don't think you can redact it and to say and agree his agreement with the others he could say i've changed my mind and it was going to be up to me as to whether i was going to take the entire ninety eight or nine kilos or whether we're going to allow substitution is of others or there are but not where the natural an i that it refers to the defendants who are sitting there on trial with the diff with the out of court declarant defend it i mean it's one inference but it could be other people couldn't it not in this context and particularly so in this context because detective had how does a just testified also so here's another statement that that sheen parents justin and cash were the under other individuals i was arrested with and these were my brothers in the plan was my brothers were going to go into a house and take all the narcotics so it's that when combined with the second and there's more instances i think your honor that if you if you look through the record that the statements problem one person statement is admit is being used against the others that even though it's a statement about doing something with other people you have to i guess pretend for the sake of the jury that it was only one person because that seems misleading in the other direction and i don't i'm not sure i follow the question there and but i mean it's misleading in the sense that it was an alexander by himself i mean that's not accurate well i would zander and others and so it's it's funny to actually go ahead i think there was there was it was brought out again on cross of detective how it is that mr alexander was actually all over the place on this and kind of backed off and said well yeah it was actually it was going to be up to me to decide whether it was going to be taken or not so that's you know the jury hears it cannot be deleted appropriately then they just can't use it i agree with that your honor and i think that my time is brief i believe that the district court did air into specific ways the first is the court's refusal to consider important to consider a departure or variance based on sentencing manipulation on the mistaken belief that she did not have the authority to grant a departure variance on that ground and the second error i believe was that there was no meaningful application of all of the thirty five fifty three a factors so if you look at the sentencing hearing the district court opened the hearing with discussion of the objections that had been raised by defense counsel which were failure to grant acceptance of responsibility sentencing manipulation argument with regard to the quantity of the drugs and the leadership enhanced meant after the resolution of those objections all of which were based on the nature and the circumstances of the offense each side argued for its proposed sentence and  doing so you tourney's discussed many of the history in characteristics of the offend immediately after these statements by counsel court imposed judgement without any discussion of the things that had been said or how those factors impacted the sentence there was no acknowledgment of mr alexander as a person no reference to the pre sentence report or any of the things that it contained nor to defense counsel's argument regarding mr alexander's answered he objected to the court's failure to to address this sentencing manipulation issue and how about the lack of authority point well i think that that mean he objected to kilograms versus four and a half which which was you know one of the most hotly contested issues after trying to what ways how do you respond to this way of thinking about it i mean in any sting operation this happens it's like a bid i mean are you go high with the risk that no one accepts the better you bid low and you increase the odds of people being willing to do it i mean if the conspiracy had been to commit three murders versus one murder if you if the sting is to commit three murders of course the sentence is going to be a lot higher and so the whoever is doing the sting has to decide how they're going to do this i mean if you and if you say you want to be fifty murders the odds are pretty high you're not going to find any takers but it's sentencing manipulation all the same if someone takes the bit says yeah let's do that let's do it so i don't understand why the number of people that you're proposing to be knocked off in a sting that way is different from the amount of drugs you decide to get involved in a sting on the other side does that make sense it does it in your question really goes to the substance of the sentencing manipulation argument which i know that claire curtis is trying to address i was focusing more on the procedural issue but but this court has stated in prior opinions addressing sentencing manipulation that in many senses it's more applicable in a drug case with regard to the amount of kleiner the bennet is in say a terrorism case or something like that and i think that this case the penalties are tiered on the basis of quantity that's correct and i think this case fits pretty squarely within some things that were mentioned united states versus stric and where this court refused to apply sentencing manipulation or sentencing enhanced meant but said you know we don't need to apply it here because the agents didn't predetermine the quantity in the type of the drug they didn't suggest that weapons were necessary all of which did happen in this case they see that my  seven o'clock would have been job better so i thought when we sat with all the lawyers and we agreed as to what we would argue i wanted to argue sufficiency of the evidence as it relates to my client chair terence chappelle and i'm going to ask you when i make this argument to remember the words that you just said it takes the bit the facts in this case in my arguments can be sort of back driven by the a t f came to cleveland with the idea to conduct stash house slash invasion robberies a t f came met with local people developed to confidential informants that confidential informant knew about an individual named alexander they then began the the government in the informant we didn't go into work as it relates to alexander they ultimately have some meetings with alexander and then on august twenty fifth there's a meeting between the a t f the confidential reliable informant and alexander all recorded there is then on a twenty seven a meeting with a t f the informant alexander and nichols then on september second there's a meeting with the a t f the informant alexander and maxwell my client's name has never come up to that point officers i asked when he testified said he did no never heard of terence chappelle before the date of these the actual incident which was september the dirty four minute discussion in the can correct and interestingly zionists when crossed when he was cross examined admitted that he likes to have numerous meetings with the individuals that he is targeting so that they can have an opportunity to withdraw from the plan agreement so what the prosecutors here to prove under twenty one u s c eight forty six is an agreement that my client had knowledge intent and that he participated so we can all agree prior to september third there's no evidence of mr powell at all what evidence do we have as it relates to mr chip power nine three vendeans along with an informant are in a car for a twenty minute car ride i believe that you actually have the video there when you review the video my client's i believe is in the backseat right hand side up against the window playing with his phone the entire time says nothing they go to then meet where they're going to rob to get the robbery car and that's when science comes in for the first time identifies my client and says to all of them in four minutes what the robbery is and he absolutely includes it it's eight or nine kilograms he says all about the next thing they do they drive the car to a prearranged place where they were all arrested my client absolutely was in possession of a gun there's no question about that but what i ask is what evidence specifically do they show that my client had actual knowledge of what was going to happen what evidence do they have an agreement and what did he do to participate other than mere presence as you said did he have an opportunity to take the bid i guess he could have said no i'm a tape that one minute why did he why does he  well certainly not for any good reason that's for sure but the question is because you have a gun doesn't mean that you're going to go conspire to sell drugs which is an important distinction as relates to my client do you want to say based upon the four minute conversation with science that he was going to rob somebody that's one inference that you could drop but you could also draw a lot of other inferences so but there certainly is no evidence that my absent is the comma in the conspiracy to commit drugs or to rob the place and then take the drugs and distribute the next two sentences to poke questions they ask about the vehicles which would be used in the robbery which is the one suspects were drove to the location where they were to appear in the robbery vehicle that might be a subliminal slip but how do they prove that my client knew that they were going to go rob place still the drugs  you got to clean up and good morning yes i do thank you may it please the court and council my name is claire curtis and on behalf of the federal public defender i represent kind of flowers in this matter i would like to start with issue three and then back around to issue one certainly i'm willing to answer any questions the court may have on mr flowers second issue mr flowers is distinct from all of his co defendants because he lacks any predisposition having no prior criminal record and therefore the arguments i'll be making today are distinct this court should join the majority of circuits in holding that sentencing manipulation is an available defense there's been some confusion in the case law both in this circuit and others as to the distinction between sentencing manipulation and sentencing entrapment but these are very different things mr flowers is specifically arguing that sentencing manipulation applies to him because in that situation as identified by this court united states versus greer this is improper governmental conduct that enhances the defendant's sentence what's your response to the question i asked of your coll as to drug quantity your honor yes there are actually several concerns that this court needs to look at in considering sensing manipulation in this case the testimony at trial which is very brief as to how the quantity was just learned was that this was based on an average amount of drugs  an average stash stash house in cleveland now when that statement by agency was challenged on cross he did have to admit that there was no report on which he relied there was no data on which he specifically relied or review to make that assertion and that this was in fact information that he'd been told by another agent who had been told by another agent now the problem with that when we think about due process and fairness is that this is information if it even exists or is ac wondering what the right answer is even if it's crystal clear that the reason they picked eight kilograms was to get you over five but you say that's just what the record shows you know if you commit to more two murders everyone knows you're going to get a much bigger sentence than one murder and if it's five the same thing so drugs is just the same so i guess i'm trying to figure out how that works i mean the risk from the officers perspective is the more outrageous the crying the more significant in the more laws it violates the greater the possibility people are going to accept the offer to join the conspiracy so i just i'm just not sure i'm understanding how that works separate and apart from why these officers pick that amount  i believe i can answer your great there's there are two components to that answer first is that other circuits have been very critical and mr flowers opinion rightly so that practice because of the way the sentencing guidelines operate as a drug quantity it gives the government an incredible amount of power to i believe the circuits term is artificially inflates the sense of any defendant and that should be a concern to this court and court in addition to that it apple i am rather stiffer i mean why are murders different i mean isn't a murder lead to a higher sense than drug distribution your own seems like the stakes are even higher and then would tell me this if if you had a sting type situation and the conspiracy was to knock three people off would you say sensing manipulation i mean it's always fictional it's a staying right so everything is fictional here they pick three as opposed to one that's sensing manipulation your honor the issue here is not the fact the drugs are involved the issue is how the guidelines operate with the fictional information that's being provided there i'd lines are not happy with three murders i imagine not and certainly it's as sentencing manipulation argument could be made in the same it's the same in both and the concern is that it takes sentencing discretion away from the district court not only because of the guidelines but because there is a statutory mandatory minimum that the district court is required to impose under everyone in my case the district  acknowledged gosh mr flowers has no predisposition i'm really surprised the government isn't asking for a lower sentence here but my hands are tied the statute requires that i am pose a mandatory minimum sentence of ten years regardless of what other information you might be able to tell me about your client and taking away that discretion really no phys any ability that the sentencing project true with using guns in crimes there are mandatory minimums with guns in crime so i guess in the distinction here is the difference between the possession of an actual firearm we're certainly not challenging the consecutive sixty months mr flowers received percent for possessing a firearm but now we have a fictitious amount of drugs that again is just an attenuated amount that's not being supported sufficiently by evidence that is literally binding the district court for making any discretionary decision about the this there have to say this is an impropriety that cannot be allowed there has to be some basis for the amount that's in the basis that supported by the evidence for example in one case called united states versus hella by which is cited in the government's briefing in that case the agency said we knew based on our experience of prosecutor cases or excuse me investigating drug cases that we needed to include this amount to get the kind of interest from the people that we were targeting we knew that based on dealing with these people and dealing with the drug community so that the ninth circuit said you know that's sufficient you've created a basis for how that amount came to pass here we don't have that there's been nothing provided that supports that amount in any challengeable or meaningful way and even if this court isn't prepared to say that sensing manipulation manipulation should have been applied in mr flowers case certainly this court is poised and should join the majority of circuits and say sensing manipulation is an available defense and then remain to the district court and allow the district court to make a determination about whether it should have been applied to mr flowers case because all we have on the record here is that the jets that g at my hands she literally says my hands are tied i'm unable to make a determination about sensing manipulation so if the court is not prepared to make that kind of assessment certainly this court should join the majority of circuits and say this isn't available defense let's send it back to the district court and let judge gone make that determination additionally i ask that this court join the fifth and d c circuits  recognizing the doctrine of indirect entrapment as it relates to mr flowers this court has already acknowledged in united states versus mclaren and that indirect entrapment is out there to one of two possible exceptions apply specifically what i'm asking this court to do is apply the first exception which is for third party agency now what this court identified in mclernon is that when an individual acting as an agent of the government and deuce's someone to participate in this kind of conspiracy that indirect intravenously vailable now what this court has never ruled on and which remains an open question in this circuit is whether or not there is a knowledge requirement for that third party actor now the fifth circuit in united states versus jones said that there's no knowledge requirement because really the outcome is the same t erminology that the jones court uses as ignorant pawn so whether an individual is acting intentionally at the behest of the government or unwittingly as a government act or the result is the same which is that the person is induced in mr flowers case as i've previously noted he had no predisposition the trial court already made that factual determination and when he raised this issue in the motion to dismiss the trial court said well but he wasn't directly targeted so i can't grant your motion to dismiss but the indirect entrapment doctrine does apply to him and should have been applied to only clarification of this court need made is asked the degree of knowledge that's required by the third party actor and there's no no need for a knowledge requirement because again the practical reality is the inducement is the same regardless  if there are no further questions i see my time is nearly up and i'll reserve about all right thank you the government here did really exactly what's required to introduce these type of statements they were dak did any reference to the co defendants they used neutral they or approved is the way this works correct because under our law although the question is whether it clearly implicates these defendants so each case we're looking at on an individual basis so you've got head testimony in this case of who the others are they're named as the other defendants in the case and then the statement is made a that  and the others all of whom are sitting across the front row in the court room who else could it be why isn't that not a clear implication of these defendants it's not clear as to first who who which defenders five you know the four peoples other than alexander sitting there it's not clear which defendant they or others could be it's not necessarily all of them they could it's not as it could be one it could be more  it's also the to the problem in the past as well as ingrid they they would use like they would say deleted or they would put like an asterisk wrong with just not saying you were talking it isn't anyone else style xander says x it's not really well that's not really what the statements that's not what the statement said statement was not just that it was so the question is whether you have to in that circumstance let mr alexander's testimony be what you choose or you violate the confrontation clause if you if you make that clear implication that the others are all those other defendants that are involved in this very kids that's not really the clear implication that all of them are involved in that decision well when under your analysis would if there were less in these other cases if there were only two people that it's factually because as you said it depends on the facts of each case and if we have two defendants having their alexander says we did it and there's a only one other person then then that's clear there's a confrontation problem but anytime you get more than one other defendant it's too bad because it could be somebody could not be others that would be an odd line to draw on a constitutional basis that it depends on whether your two defendants or three or more well not necessarily because really what you're looking at i implicated here and we don't know who is implicated because of the redactions you see it doesn't there are others can mean other things it doesn't necessarily mean those four people other than alexander even in and gray the supreme court for an example said you know the gray said me and deleted deleted and a few other guys participated in the in the beating which ended up in the persons of the supreme court so why couldn't they just say me and a few other guys as that was ok to say it as part of the redaction that's really it's actually what we did here what the government did here it didn't courts where the court said you can only use a statement against alexander we don't have it here it was discussed in pretrial motions it was discus in the government's omnibus response to the defendant's pretrial motions for this issue it was i think even anticipated that request the instruction wasn't asked for by either of any other defendants claim that the that the government argument remarks were improper probably the most significant one is the where the government said that if you consider this four to four and a half kilograms of cocaine you being asked to violate your o the government was commenting on the fact and if this can be shown by later on an argument where the government read the jury instruction about that the amount of the cocaine doesn't matter as to their guilt for the conspiracy it only matters as to the possible sentence so they're there the guilt is unaffected by the amount whether it's eight to nine or four to four and a half the mandatory minimum sentence the government was really just trying to remind the jury that they were going to be instructed and that was the law and that was that was the evidence and just reminding the jury that that was their obligation to listen to that and that's why they the government that or the government then read that jury instruction into the record on page five six ninety nine page eighty five six ninety nine where they said this so the last thing the jury hears before they go repeated how many times three times along with other statements about you're not allowed to consider this  tell me why but it's not flying because they were traveling with the government trying to point out was that that was an improper argument as to their guilt for the conspiracy and that and that  considering the amount of the drugs was not under the under eight forty six the amount of the drugs didn't matter and so we're asking that you know that the amount of drugs matter a lot in the trial obviously because it  affected the sentencing and the defense counsel all knew that defense counsel fought that issue for good reason i mean if the special verdict form to the second count dealt with the amount of the drugs and if and if they could have found it was less than five it would it drax drastically affect their sentence that's why it was you know obviously this court was that's why it was why it was contested and but argue that somehow that they that the defendants were not guilty because it was four four and a half that's that was improper argument that's really what the government was trying to trying to get to with this now could it have been said better absolutely it was an artful yes but it wasn't it wasn't misconduct i've looked for cases on this the whole argument was irrelevant it's not just that it was irrelevant to the question of whether you're guilty for the underlying conspiracy it was actually  relevant to the drug amount they were going to put on the special verdict form because in a conspiracy doesn't matter who gets what it's that the whole conspiracy was designed to get eight plus kilograms another  honour's that all the defendants are liable for the whole amount yeah there's no there is no such thing as dividing it up and whitney and i i'm responsible for two you are responsible for two you're stuck with the name of the conspiracy which is what strengthens their sentencing manipulation point but but  you have to if that's true the premise of that is true then they really were making an improper argument the defense were in saying you could only be held responsible for four because they were going to get four back that doesn't make any sense under conspiracy law own that's somewhat what the government is trying to get to with with what they're saying there's two other statements one where the government says that she's there to correct the record because there were misstatements if you look at what follows that again that the government is just talking about this this theme that somehow a t f or done something wrong in this case that the a t f was on trial and that the fact that this was a fictitious stash house fictitious drugs was somehow somehow improper and that and that the defendants were as culpable because it wasn't real drugs  think it all of us would would recognize the serious concern about the way these stings have been used across the nation well i will confess that i have some concerns about this and it's a struggle to understand why in a country in which there is plenty of crime to investigate we are instead creating criminal situations and  litigation that suggests that the stash houses across the nation are employed in a racially discriminatory manner i think the one in chicago filed said that ninety one percent of all of the stash it's been involved in a lot of these cases when one thing if we see it when you do research on these drug stash house cases is has been involved in a lot of a lot of as the agent and do you keep discovering and keep statistics on how many of the nationwide stash houses that are created drafts african american or hispanic defendants my office does not i don't know about that about washington d c my office he testified did he provide any background information for that because i thought the response to that was that there are almost no there is very little statistical evidence of stash house robberies and you and i know why because the guy who has the stash house is not going to go to the police in complying that somebody robbed mustache house so in fact that is an invisible crime isn't it certain extent yes that's why it's that's why it's an inviting target for for people because they realize they think they can go in there and that there will be consequences with law enforcement and that they'll everyone tries to just take care of it themselves and sting was started in response to their information that these robberies were becoming a problem and that they were such violence by their very nature so violent that th community was put in danger but if we get in that sense the manipulation argument case of bowling green kentucky where they were funding terrorism and then actually providing weapons and defended it up with a life sentence because of an agreement to provide surface to air missiles and the court found that i'm not even qualify under either once i didn't really come to a conclusion as to whether the circuit should or should recognise sentencing manipulations or not and what is your response to your opposing counsel's argument that you have a situation where the government comes in without statistical or other information were guarding why they selected the amount of drugs that  selected they contacted used informants to bring people in from the community primarily i think in this case people who have been released from prison and are not back on their feet so they have a group that is attracted to this this kind of crime are created on they ensure that guns will be they are back telling them on the part of the government so we're really talking about both sensing manipulation and yes and outrageous conduct you can separate them from other not to write your responses because it seems to me there is such an inner relationship now they are interrelated i think perhaps easier to address ok well first we have testimony from the agent as to why the amount was chosen that local law enforcement told him that was that a typical i'm out would be a believable amount for anyone that they were proposing this to secondly the government didn't pick this group of people the government approached alexander because they knew that he had had a prior greater robbery conviction and that confidential informant had dealt with him about purchasing weapons and selling drugs and so they went with alexander who sold them heroin and then proposed this but that meeting first meeting proposed this is stash house robbery the government just proposed a robbery the government didn't say the government did say that there would be an armed guard absolutely and the government did say the amount of the drugs but testified that the armed guard was just to emphasize that this was not going to be without risk and that the defendant if he's going to be involved should know what the risk is and that's why he focused on that they were not with the found that that that the government setting that amount was somehow improper courts have expressed a concern that the government is concert setting them up and no one is the courts that have not found really that the that that's the amounts to improper sentencing manipulation that the government sets him out as long as there's some indication as to why they set the amount and here we do have that test and so the evidence that's necessary to justify it is the agent who goes all over the nation and chooses the a male and he chose it here without any statistical or  testing analysis or any documents in the record that support his testimony and don't have your position is that sufficient we don't have any documents in the record we just have his testimony that that's what he was to it was an amount that would be believable no authority to consider that can be manipulation and part of the decision making process of the sentence in the supreme court is that the three judges are free to disregard  or to disagree with the with the guidelines in imposing a sense that the judge can disregard or disagree with the net disregard but disagreed with an issue where it's raised mostly but here you're also have because it's a it's over five years it's the mandatory sentence a court can't just ignore that yet can you just remind me for alexander where the sentence was in the mandatory minimum was it above it was our will your last point is that this doesn't matter if the sentence reflects a statutory mandatory minimum right so i'm just i'm asking to be reminded with respect alexander was the sentence over the metro minimum was there some discretion here i'm trying to figure that out well let's see he got the hundred twenty for the conspiracy in sixty for the gone consecutive that's all required by congress right was it more than one hundred eighty yes it was two hundred was it two hundred eleven and i'm just like trying to figure out your response to these questions i mean because the questions of good question if there was three fifty five three just a discretion but you know it doesn't make a difference if there wasn't so i'm just trying to figure that out but i mean obviously it's not hard for me to go back and look but i just wondered if you were going to answer both points or you didn't have to answer both points i can't remember what exactly is the fixin's was started because i think it was over it was two three all right well let's assume that there was discretion here kind of a typical three fifty five three a discretion it's true district court judges are allowed to disagree with the guidelines and guideline recommendations  is this it the same kind or is it not of the same kind i don't think it is of the same kind because the court again was told it was bound by this court  precedent yeah but interest he's asking you the question is whether we should recognize sentencing manipulation so that she realizes she has this discretion and can do something about it so it's not really an answer because the court in response to judge grants you said the court is never our court has never said that's categorically prohibited we just haven't said which is silent on it and when we're silent on it that makes this case important makes your argument important ok so you're not helping here what was the sentence i thought it was two hundred or so it was over the mandatory minimums and so the promise of judge these questions does apply to alexander and so that means the question is it's highly relevant whether we recognize sen manipulation as an explanation for exercising sentencing discretion right but this court there's the case law doesn't it doesn't say that this is sentencing that relation even if this court recognizes th but just make sure i'm understanding something and this was a guest be eventually from the shorts but maybe you know the answer i thought the sensing an appeal ation argument was mainly about manipulating the mandatory minimums i didn't realize it related to  other discretion but maybe i'm wrong about that i guess the way the shorts argued it was she was saying judge gone but her hands were tied even when it came to dealing with what's over the mandatory minimum but she did say that other comments of house whether it's plane air harmless air how was how was it either if the reality is that you're stuck with the amount of the conspiracy well that's exactly what i wanted to get at your honor and it was your comment that that they have prompted this judge gone permitted the parties in this case to argue to the jury a lesser amount in fact it's a jury there jury had to decide it's an element  quantity determination it's an element of the fence that the jury does have to decide in the government has to prove beyond a reasonable doubt obviously the defense has the ability to argue that it is just to be clear well i i'm not disagreeing with that i'm saying i thought the theory was the way you get below five was to say well it was going to be here than the government was going to give back for keep four and so that was how you got below five and i'm just saying that's an incoherent theory conspiracy law well that's it i don't i disagree with that but i also disagree that that is a decision that the government can get on a directed verdict there is no directed verdict on it it's for the jury to determine what the conspiracy was who the participants are and what the scope of that conspiracy is in this case you have the government saying it's eight to nine kilos in the house but on every occasion the government agent bargains with these defendants they were going to split it half and half he's going to be there and the house at the time of the robbery or robbery is going to be down on the floor and he testified at trial it was then at that point once we're in once once we get in and get clear at that point we are going to steal the cocaine he actually testified i switch which case says that if use plan to split the amount that drops the amount of cocaine or drugs that are the object of the conspiracy as their case it says that no your honor and what i'm what i'm suggesting is a little bit different this is what was the conspiracy among these defendants and their conspiracy if anything was to that they were stood to obtain at most half of the eighty nine kilos but the big the core of your argument is that it is the jury who sets the a male that is in the conspiracy and they did that by special verdict here and you had a right to argue that to the jury and in the face of that in rebuttal argument the government consistently says if you consider four grams of cocaine you're invited to violate your that's exactly right and it's it's my position that we have the right to due process right to make those arguments to the jury and that the government cannot then come in and undercut those arguments simply by saying to the jury you were wrong it's the way they said it they obviously allowed to say that's a mistake and here's why well what the problem is this is how it was done in this case by both the prosecutorial misconduct in this case and the the bruton issue goes right back into the very hear of that defense as well because if you remember in the bruton issue it's alexander saying we have changed the agreement had changed we weren't now going to split the cocaine with was die as so it's not going to be us five to have four four and a  as was i think settled earlier mr alexander sentence was two hundred eleven months which was above the mandatory minimums and that was one of the reasons that his counsel wanted the judge to consider a sentencing manipulation argument now even just to be clear it was sensing manipulation in terms of discretion above the one hundred eighty or it was sensing manipulation as to a reason to go below the one eighty well i don't i don't think that was ever spelled out because the judge just refused she felt that she didn't have the discretion to even consider the argument at all so there was never any discussion of whether it was above or below i think the but they're very different arguments but they are they are different arguments but but they're ones that there was no opportunity to make because the judge to shut it down so quickly because she felt that she had no discretion and i think that she did you just heard judge the explain the argument your honor this is different to two different things here i realize it's asking a little more tap manipulation give a judge permission to go below the manage to a minimum that's to stink from how far above one eighty you go and i think you ought to consider what the government did here in deciding how much if any to go above one eighty and that  argument raised that argument was not specifically raised the government refused to consider sentencing manipulation in any form and if the i'm sorry the judge and when she was imposing sentence she really didn't even address any of the personal history or characteristics of the offender which is another issue that i raised i mean she focused solely on the offense itself you know go versus united states instructs that a sentencing judge is supposed to treat every convicted defendant as an individual and i think that the district court judge really failed to do that here everything she said very little in imposing sentence and what she did say spoke only to the offense which is one question just to make some even figuring out how this argument works how is it sentencing quote manipulation to do something that could affect how high above mandatory minimum someone goes it just doesn't compute in my head well and i think manipulation makes sense because it's tied to mandatory minimums that's what makes it a sensible and arguably powerful argument but understand how it applies to discretion well the way the way the guidelines work with the quantity  amount of facts the guideline range and so obviously it's i think it's it's most impactful with regard to the mandatory minimums but it does impact you know the ultimate sentencing in ways other than the mandatory manipulation the more severe conduct will not be punished more severely and that's simply not the case the points that mr flowers is making the very point the very reason why sentencing manipulation is so important here is because the district court should have the discretion to look at each individual defendant to look at their conduct and to determine if a more severe sentence or less of your sentence is appropriate and here the reason it's such a due process violation is because we have a judge who is recognising my client as someone with no predisposition some as distinct from everybody else involved in this case but is entirely unable to exercise her discretion because of a decision that law enforcement made a long before the cases indicted about what quantity they would include in this fakes and ario a majority of the circuits as we've talked about have already acknowledged that this is an available defense i believe that the eighth circuit specifically says that this has a terrifying capacity for government to decide how much time someone should be given the eleventh circuit is also incredibly critical of the dangers that this is brought i know judge noted the recent university of chicago report there is a two thousand and sixteen report by the investigator general that also criticizes these cases and i believe there are news articles about a recent decision by the department of justice not to litigate some of the stache cases in chicago because they happen so consistently criticize mr flowers also points out the wave of legal academia is criticism of these cases and that's not to say that mr flowers case is open and shut but there should be the be of bail and i see that my times may just briefly conclude there should be the availability of sense in man for civically in this case because the facts do support that if you care about it in terms of whether it's about mandatory minimums or discretion your honor i do believe this is a question of mandatory minimums that that's when this court reviews the majority of circuits they are criticizing talking about the mandatory talking about and which does relate of course the district courts discretion because they are bound by the statutory terms of discretion to go below the mandatory minimums as opposed to discretion to go above yes  right thanks to all of you thank you ms curtis mr rankin for your helpful arguments and i seem a short some spinelli but your core point and i know mr mcdonald was well we're really grateful for that i did a little vesper when i was in practice and i know how you're compensated which is not well so thank you it's a real service to your clients and to the system so appreciate it thank you to all the cases he submitted but may call the next case