on march seventh we are urging the court to remain with the broad authority to reexamine the case in the light of these cases mr such as bit of west that went to trial on a charge of violation of eighty eight u s g section thirteen twenty six and basically for being found in the united states after deportation indictment charges a felony did not say aggravated felony and the jury instructions found that h one thirty three of the expert of record simply charged the basic for a two year max of thirteen twenty six alien presence in the united states after the four taishan defendant did not testify he received a ninety four month sentence on appeal it's raised an issue related to fingerprint evidence upon which we rely on the free for the record does not include the pre sentence report nor the sentencing transcript after book or this case the court and emmeline adopted a general rule for two years the second and that's why we provided the supplementary material referring to galvez barrios and miller and that is that under the sixth amendment construction the first part of book with the mandatory provisions excised the court should be three to recess based on the expanded discretion and the discretion not previously exercised should be exercised in the ninth circuit we have a very strong tradition key element here is constitutional doubt in jeopardy the court was destroying the career criminal act and they were trying to decide how narrowly you look at the edition leave notes of all facts to decide whether a non generic burglary and booker that we don't want to go there here we have a statute that does not say how to plead it or how to prove or how what facts can be considered and so we're going to construe it in a manner that avoids the constitutional problems of the exact same extension to the amended rule thirteen twenty six should be construed to avoid the constitutional doubt we now know that there's a good six to construe construed to say that since thirteen twenty six does not say how you have to plead or prove that the two factors and it does not say whether you have to prove it beyond a reasonable doubt which jury that you should construe the amended thirteen twenty six to require those things so this argument that you're making what it would apply to everything i mean it's not searching twenty six percent so many fashion as i think it is i think why are very few statutes that include the  think because the structure of this particular case there are two things you're absolutely right that there's two tracks we're looking at one is the statutory track where this unquestionably should function opinion in booker that said constitutional as possible the under the mandatory scheme there's no question that they're identical that you'd apply the exact same constitutional doubt and if we're going under booker one i'm spartacus it's mandatory then we've got you've got a democrat argument if we're going to say that well we're going to allow you to give a much higher sentence under a book or two which i don't think is permissible under the echo's facto clause if that were to increase for the backmost from the maximum it shouldn't but i do need application of the enhancement with the statue correctly construed the second would be that the statute with providing for the discretion without would also be required the central question that was presented by the braves whether or not the district court abused its discretion when it decided to make fingerprint evidence in this case the answer of course is that it did not abuse of discretion in this court noted that a court's decision to case below so that's all that's with the necessary to reach in this case i would suggest also that dobber hearing although it seems to be requested or anticipated that if it's any kind of expert testimony is his property that a full blown contested hearing is necessary i don't think that's necessarily the case in fact the court the circuit increased recognize that there could be such matters that were so well established that they might even be considered scientific fact and i would suggest that if you were to look at the dark factors one of them being the widespread admissibility or in general acceptance of something that in in a case like this a judge needn't even conduct such a hearing in the interest of judicial economy were a superior court for instance to recognize very particular expert testimony or scientific field had evidence meet the daughter kind of factors but that doesn't necessarily suggest that it has to be as a result of a full blown hearing and my suggestion is that if the court wanted to the court could reach a decision that fingerprint  pacifically addresses the fact that it's moving from i would see at that point in time it was less a concern of just science but was it an issue of moving from what he termed an austere test under the as a fry test which required across the board general allowance of of expert testimony but then sets up some potential standards that judges might look to as considerations and right in the text repeatedly the court says this is not intended to be an  intended to be a checklist necessarily yet in cases following it it's used as exactly that a checklist imminent and a requirement my suggestion is fair even if divert is it was intended to give some guidelines for what a district court a it is asking for quite an expansion to apply it in a fingerprint case and in addition the judge in this case as i suggest in the brief out of an abundance of caution nonetheless conducted a hearing received evidence took testimony and inappropriate to remain in for examination because the judge already spoke to that issue i am not aware of anything in the record that suggests that kind of a statement in this case so as to this particular case the government is not objective reexamination of the sentence but i don't think that that requires an extension i just would suggest that if he wants counsel in this case he is asking for quite an extension considering we're talking about a case that was announced by the supreme court on monday which it declined to overrule element there particular case i think that's there's any other question judge needed to exercise discretion to hold the hearing so question well i believe that you do need to have such a hearing that the it contradicts the mitchell case from the third circuit upon which the government's rely on where the judge made a  within the last twelve months when my brother's at the bar was going to prison was incarcerated for a period of weeks based on one hundred percent certain fingerprints i think that anytime that the defendant chooses to challenge it based on looking at technical evidence which this is which fingerprint evidence i believe it is that and the party chooses to make the challenge on that basis that the district court has to make a decision in the first instance whether it goes to the jury guess i'm seeing the adversary system as being based in two parties in two cases depending on the facts of those cases and the arguments and made in a case of somebody coming in with a very similar case because when i make an entire a different showing and it's that showing said wait a second this is junk science this is not something which be permitted the judge has a duty to stop it at that point and not let the jury perhaps be bamboozled by testimony that the first instance to decide whether we can fight about that