you fleischer here on behalf of arnold wesley flowers we believe that the over lapping issue in all matters that we have stated is the matter which the court asked us to brief in the in so far as likely versus washington we believe that the case applies to the federal guidelines we believe that the analysis that we stated in our letter brief which states that the washington law the kidnapping law that was under consideration and likely had a ten year  attempting to hire a hitman to kill united states district judge system using turning and two other persons he was acquitted on those charges those very serious charges sentencing situation provides for the judge independently from the jury to find major facts that go to an upward departure that does violate  of bodily harm we contended that that that was not what mr flowers acknowledged in the testimony the judge determined otherwise and he gave an eight level the total the total circumstances and in that case the judge specifically determined that as we cited in our in our brief that even though the jury believed mr flowers  beyond a reasonable doubt that the defendant did a particular act committed a particular crime nevertheless that's logically consistent with it being more likely than not that the defendant committed that crime and the burden of proof for the guidelines is more likely than not fondren so i put that together with watts and i've got i think the case was called  got it i guess you need a problem we had a case where we know that a subsequent supreme court decision undermined the prior supreme court decision then implicitly overruled the supreme court reversed us and said we will overrule our own decisions thank you very much if we have a case in point follow until we express we overrule it so my feeling is we're bound by watching you even if  the the fact of the matter is the majority opinion and lately said in terms of dealing with the washington lot of kidnapping law that if in fact the judge is making a determination and apart from that which was specifically determined by the jury that in fact enhances that sentence it is a violent end of the sixth amendment and we think that is an overriding circumstance as it relates to watts and his progeny and we think that it clearly relates and we feel that the analysis between the washington situation and the federal guidelines is clear similarly and this case there is a ten year maximum under fifteen twelve but under the federal guidelines there was a presumptive twenty one to twenty seven month matter under the under the statute not withstanding that the judge ultimately gave mr flowers a one hundred month sentence all of that over and above twenty seven months was based upon what the judge determined as opposed to that of the jury and we therefore the ill it is squarely under blakely and the sixth amendment as a violation of the rights of mr flowers as it relates to on any and all of those case there was an admission there was an admission by mr flowers that he had received three thousand dollars from a witness in the bank fraud she had a specific agreement with the bank in question that she had to pay that back to the bank without any reference to anyone else having a joint responsibility in that regard so we argued that  that should not have been the case as well we also had the issue in the bank fraud case of whether or not his pleas should have been accepted we suggested that the evidence document that had been introduced had been written by mr flowers prior to his attempt to change his plea specifically acknowledge the elements of the bank fraud charge that was present so we feel that on the basis of that even agreement the fact is the court determined that the agreement was valid and would be admitted and was admitted so that that was present prior to mr flowers making the attempt to change his  plea and we think that that should have been taken into consideration by the district court for purposes terming whether he met the standard of admitting acknowledging the elements of this crime and therefore  giving him the opportunity for acceptance responsibility in the other rights that he would have had had that oh were you are dividing your time we are yes your honor thank you facts found by a preponderance of the evidence and facts found by the judge it seems to be extremely formalistic although it's technically certainly correct to support didn't even address the u s that it's not the fact of the sentencing guidelines or the provisions of the sentencing guidelines it's where the facts come from and i think politely does squarely address that and say you cannot sentence people on the basis of facts found only and certainly i mean there's no dispute that that's what was done in both of these cases particularly with respect to my client who you know most of the bad evidence was against mr flowers and the judge seems to have forgotten in some e man and she delivered the money when the judge was talking about whether she could be sentenced on the basis of the threats to the u s attorney and the judge and all that sort of wrote down or had in her possession was the name and office mailing address of the district and that happened long after the entrance of the government agent inform and ranged there is no allegation even by the government that there was talk of killing judges prior to the entrance of these other people and of the conspiracy so that all of the things i mean what what was positive happen that they could have been convicted for absentee entrapment was scaring the witnesses least you and her boyfriend it wasn't about the judge  that all came out after mr kimball got involved so the only thing i client according to the record was access to the judge entry also give a photograph of two photographs of proposed victims to the man and that description or license number of the car there is evidence of all of that your honor but none of that predates the entrapment behavior so if you accept that the jury acquitted her on the basis of entrapment which is what the record set is well under under watts we accept that she was not that the government did not persuade the jury beyond a reasonable doubt  honor but none of those facts preexisting entrapment behavior so if the jury is finding the facts on the entrapment then it includes all of the facts that your honour's have pointed out for or against my client at the trial those are all facts that happened after the existence of the behavior that led to the entrapment what the jury found to be entrapment or could have been entrapment as you say but the facts that don't exist are facts that showing my client did anything before mr campbell and ron got involved in the whole thing i mean they hit me and they hit me i was the government agency anything my client gave the hitman was clearly part of what was alleged to be entrap in of course before i'm completely out of time you know mentally connected with that problem is the conviction of my client on that charge completely because of the erroneous jury instruction that was given in response to th your question can we convict of a lesser included offense in the problem with that the judge answer being only yes which had it been qualified would not have been correct but unqualified it was clearly misleading to the jury given what the jury was finding and the evidence that the jury had in front of the judge should have clarified yes under what circumstances as it  blakely and apprentice explicitly stated that the federal guidelines were not before them and in fact in a pending it went one step further and saying that all were saying about the guidelines is what we've said before and  supreme court explicitly overrule that precedent and that holds true even as judge kleinfeld said if there is some question about the president based on likely until the supreme court makes that statement that it's in light of really the difficulty and interpretating what likely means for the guidelines specially in terms of both what the majority is dead and the differences between the washington statute and the federal guidelines we don't well i think there are two that are of significance one is the washington system with its two to the stats of legislature legislatively determine maximum maxima are different from ours then and the one that is the true statutory maximum is really a very is a very general statute which just as a class a felony has this many years a class b says this many years and it doesn't say anything about the elements of the crime it's only the the other maximum that's out the elements of the crime and in that way i believe that our congressionally passed criminal code is more similar to that intermediate statute in the washington system in that it has  essential elements of the crime and gives notice to a defendant of course of what that is and what the statutory maximum is the other difference of course is that our guidelines are not legislatively passed they were determined by an independent sort of unique very unique commission but that impact is placed in the judiciary and all the writings about how bad the conditions are starting with mistr talk about how the guidelines were really managed to formalize what judges have always done and to rely on the factors that judges have always used in the sentencing one case i think that's very useful and thinking about have the statutory maximum which in that case being a nine twenty four c was light used and what a court could do without a jury finding below that in that case where the jury never found brandishing which harris i'm sorry harris can be directly translated to the guidelines they operate in a similar way except that they're discretionary even more like what judges did then a mandatory minimum which of course is by congress assumes that the jury verdict reflected any conspiracy involving only cocaine the judge was free to look at facts that weren't implicated in the jury verdict and it made that very important statement about if the guidelines extended the statutory maximum of course that would be a constitutional problem and that's what happened later on in a pretty similar in this court were to find that the guidelines were unconstitutional it's our position that the unconstitutional aspects can't be severed from the remaining of the guidelines just that it works a integrator hall that's how congress and the commission intended it and so what would happen if this court were to find a guy that blakely made the guidelines unconstitutional we believe would be a real man to the district court be wide open for the crimes of conviction under the statutory maximums where we would urge that the guidelines still be used as a guide and in fact there are when i don't have the specific section but i believe that it's eighteen and i can come up with a section at the sentencing statutes talk about what courts should do when there is no guideline provision in itself try to find the nearest guideline so there is congressional directives to use the statute that that again by analogy says that when there is no guideline and use something else as a guide i think the applied in this situation which is use them as a guide but they were a bit but the guidelines  in the face of a jury verdict it seems that was entrapment for that particular conduct certainly if like they were to apply to the guidelines that would be directly implicated once you find if you find that likely applies to the guidelines then the whole system really doesn't hang together but the unconstitutional part of it literally would be only the facts that increase the senten so you could be left alone we we would argue that this doesn't make sense at all with just a basic stance level and anything that reduces the sentence not having to go to the jury and that's why i'm making the severability argument that  just doesn't work it is not what congress intended and the commission intended when it came up with the system and that's the factor that one would look at to see whether it's separable or not and you can say that our position is you can save the guidelines if you find that important aspect of it unconstitutional just the one final point about blakely again if this court were to find that likely applied to the guidelines the defendants did not raise that challenge uncertainty of what blakely stands for given the existing supreme court precedents that says what the court did here was fine and this court's precedents that the guidelines are constitutional that the error would not be pla raised this court can consider it but it judges that under the plane air standard for example actually and think that's right but we are not to argue that that if i could just direct your your honor's attention to that's exactly what patton so there is not eight eight eight a maximum above which a judge is going by judge decided facts and i can give you those cites if you wish and they're not on the ninth circuit but it's not punishment then it's really not a and let me turn a little bit to the entrapment issue and this deficiency of the evidence and the jury instruction that first of all there was evidence of predisposition before the government ever got involved in this case as to ken's found so she wrote down the  disposition to be involved in this plot to tamper with the witness it's also not the case as a legal matter that one can't rely on how that that takes place after the government is involved to judge predisposition before the government is involved so that although it's true for entrapment that we have to establish that there was a predisposition before the government was involved you not limited to looking at that limited time frame you can look after that and in this case made this claim you have evidence to show that camp down food is a predisposition first of all she had literally or virtually no testimony is she did these various things that she did because the plan was to ask her to so that's certainly not inducement by the government and as to the piece of paper with the judge's name and a phone number that was found of course after she was arrested in a search we really don't know when she wrote that down but certainly one could infer that she got that information into flowers early on because he used that to  give to campbell who gave it to the undercover so there was apparently evidence that she was aware of that aspect of the plot as well she was also involved so i from her meeting with the undercover where she very much was upfront and giving the information and providing the picture and coming up with a plot of making them seem like they took a vacation and she also facilitated the phone call she listened to many of the phone calls she was aware that they no the government argued yes and the judge decided that it should be yes because they could have been entrapped into telling a group trying to kill the witnesses and the judge and the assistant but they could have easily not been entrapped of that lester flatt to tamper with the witness but the defendant did not ask the judge charge that entrapment specifically applied to the lesser included