that alex that theory the second sentence of the first paragraph of the jury instruction e r forty six states quote mr president search that he was tricked and you driving the truck across the border by julio the mechanic who had the drugs so you know i read read the proposed instruction and i read your brief and i read what the what the district court you said it seems to me your proposed instruction was a jury argument in other words none of those things were would be determined as a matter of law but the jury needed to know was what's with this legal structure consideration of the evidence that your client put in on the theory of the fence providing a legal defense and having some foundation in evidence even though that evidence reeks sufficient inconsistent speculative and i submit argumentative well the defense was i didn't do it that's all the jury had to know right from the just you know matter of law if he didn't do it he's not liable this case is different from the other cases in that there was a third party called ability advocates here there were three witnesses that testified about the theory that in the vehicle that's a fact in support of that theory right correct there are other facts in support of that theory but it is the district judge doesn't have to instruct specifically if you find this and if you find that if you find the other thing this follows states district court doesn't have to put in the exact words but they have to i submit that they have to put in the theory that submitted for third car third party comp ability somebody says i didn't know the drugs fuzzing had a life somewhere else for yes but without some foundation in evidence there's nothing more than the lack of knowledge instruction of the two sentences that i'd like to bring to the court's attention from the district court it's to just of course say that that was testimony that julio exists the ark to ninety nine maybe a perfect lawyer argument where has any court said that the district court has to say that in an instruction it doesn't the only thing that i am arguing is that th paragraph should have been included in the jury instructions the rest of it if it was included i would have an issue with the second sentence was mr prez asserts yes that he was but unlike the other cases before the court this this case offered third party culpability which is fundamental in a defense that someone else did it evidence that to read its theory of the case that is the indictment and not reading the defense theory in this case sent a message i believe to the jury that the theory was not worth discussing in deliberations not reading the defense theory of the that was the case in which the person was tried and convicted of conspiracy to i think traffic narcotics and the key there was that the defendant asked sort of through the defense counsel to give me a jury instruction which says that if i only was actually offered and what was given by the district court what was offered in that jury instruction is in fact i did not know i did not know therefore i do not put it there and i do not know then the suggestion goes on to talk about good and not just the theory of the fence but suppose it fast that was possibly proven the key there is the word possibly it was never proven at all who we all may exist who we all may be a mechanic who placing the drugs there perhaps you had an opportunity to perhaps you have possession over the car at a certain time but that does not rise to the level of a jury instruction as just a judge nelson indicated jury instructions are to determine or and advise the jury structure the legal structure for the jury to consider the evidence it's not to provide argument and this isn't another type of case were i think of mr gribben sense in  district court allowed third party culpability our units to be mentioned to be argued all throughout closing argument by the defense it wasn't precluded from doing so none of those cases that mr rubin cited in the twenty eight j letter bullets that sound bites you that sounds like argue that that sounds like something a defense attorney or an attorney is which is going to say that argument that is not something for the trial court t those words that is the argument and this is the worst case if there was a situation in which there was evidence that julio really existed else with drugs  somehow that he dealt with drugs in the past then it would be a whole different situation this is an instance however in trial for the defendant himself took the stand he was asked under cross examination ok you say  questions about sentencing and who is the author of sure and stress and i think quite frankly that is your concern this panel may have about this case the government never argued and i'll repeat this again i repeated it at sentencing level at the the government's position is not just because a defendant says she didn't do it that he had no knowledge of that pretrial trial and then even at sentencing we're not saying that a person in that situation should not get safety  because he was convicted that's too easy and judge nelson tells us that that is flat wrong we never had that position at district court and we don't have that position now what is different here about sherpa and str court means by the book or era if the court is saying that the records of void of any mention by the district court on whether it was enough to talk process that was so constrained by at that time in their mind potentially in this well not necessarily i mean certainly the court said the court has the ability and the power to determine the amount of trust in this an ability and found to do that if the guidelines are advisory question in the verdict form as well if you determine beyond a reasonable doubt that the person dealt with the defendant dealt with above five hundred grams how much nothing thought of me do you believe the defendant dealt with determination as to whether there is a possibility that the statutory max is going to be higher and in this instance when we designed it when the government indicted about five hundred grams it meant that the available was if the guidelines calculations would be you know five years or less the life would be something less than life and if that guidelines calculation believe that's correct however i should say the inquiry should end at the point where the statutory max is changed that is what is crucial to be proven beyond a reasonable doubt and from the jury and that is crucial as to what once i should say this at the very end the department has the new position that i released actions the new position but a very i think now uniform position that i'm sure the court is worth the position of the department and we under a mandatory guideline laws in that quantity i mean that that that's true simply because at the very end of the date the district court look at the amount of drugs look at the guidelines range either way this court goes publish drama it's going to affect how the jury instructions are done this further to give one sentence not a person didn't know it was drugs in the car for goes on nothing really for the judges down there to grab on and they're going to be watching