it is your position that a percentage is just fundamentally different so it changes the proof on which the government can buy it is your honor and there's a simple reasons for that is you can charge whatever price you want for something you can call it whatever you want and if you do all of these things under the mcentire factors for instance that doesn't mean that the substance that test that eighty percent which leaves me at fifty percent purity is ice notwithstanding all those other  disha that we would take for mcentire and try to say that historically under the course courts case law that that would be enough to make it say cocaine or to do other things that would be consistent with identifying a substance of a particular type when we want to met sentence and something is met that's fine but we want to sentence based on ice we need to come in with the requisite proof of the eighty percent purity level and it's done through lab reports which you said that for each sample that you just can't do that that everything has to be tested to make sure that you're at that eighty percent purity level there is a problem that if we have some sample that's eighty percent pur and everything else isn't that we cannot regard the evidence as being dispositive right they are case looks a little different i mean i think you're making a very serious argument i'll say and not one that other courts have accepted so would require some you know the circuit doesn't seem to be there even the cost and you know decision doesn't seem to be there there were a couple of samples tested that came in it's a little absurd one hundred percent plus or minus four percent we'll just call that one hundred percent maybe minuses so we don't have the example of the tested samples in a lab capable of doing that test the d n a lab coming in and you know it's seventy five percent and one hundred percent so can you extrapolate or is it really every sample there's a problem if you were to extrapolate judge suppose you have one test that is based on one gram by and that is ice and then you have testimony about everything else  if we accept it and the it circuits approach and said that circumstantial evidence could be use one lab report in this case there's a lab report that provides circumstantial evidence but then there's also the testimony of the agents who describe this looking like shards there's also his referring it very into it as ice which is not dispositive i think can be a piece of evidence on the shards when i have a question because i don't know how meth and its transformation it isss works in terms of figuring out how significant it was that the appearance was like shards is there some point at which i k it doesn't look like shards until it crosses the eighty percent threshold or does seventy percent purity have an appearance of shards right i think the these are not things that reliably demonstrate that this is ice and of course you're entitled to be sentenced based on reliable evidence and so this all begs the question again about what evidence is sufficient under the guidelines and i would say that we also need to keep in mind  the guidelines say the more fundamental principles of due process that we're going to get to hear shortly i hope but also about the reliability of the evidence as a whole and i don't think that anyone can say based on everything that has been recounted in the district have looked to these other cases like mcintyre cases from the th circuit other places and they might have thought that this is a foregone conclusion that you can make these challenges and i think that was a misstep for anybody who would put stock in that is saying that it is now squelched an argument of this type and you know you could i mean i'm wondering if there's some intermediate position because as judge barrett was suggesting if if some chemist or to testify i know it didn't happen here so i assure you i know this isn't have a link back to the visual observations that would allow you to say well i mean it doesn't look like that until it's ninety percent pure we have testimony but we don't have even that here right that be very helpful evidence for the of course we have lots of deaths but it does so i can cite jordan for instance where it's a limited due process right in the revocation hearing which has fewer protections that attach their relative to criminal proceedings and yet we find that there is a due process right to confront an adverse witness in  that case there was a police officer who testified about something being marijuana so i think that there is definitely due process protections that support our position the liability is there one thing from a confrontation a place go ahead what's your any evidence to show that users can detect if ice is less than eighty percent pure and me maybe even maybe users don't notice it change impurity until it drops below seventy five percent how d testimony instead they relied on users who these users testify there's good ice there's bad guys i think that suggest that this is not always that in the case that when they are saying that they're using the term ice that they mean a substance that  and how it tastes and how it makes them feel but of course the threshold considerations of tolerance and other things too and subjective measurements different from each user these are things that are just two more fish for the district court to put stock in and say this is reliable evidence and yet it did and it wasn't very specific about ultimately what it realign i'm so i would like to say for the things that are here we know that five of the lab reports a b c d and e were tested in they only showed that in fact that they don't tell you one because those labs didn't have the capacity fair point so i so i did frankly i'd look at this sort of disregarded a b c d and e because they just didn't have the ability to answer the question on the table you're right but i think we mentioned in the brief then submit those the samples for additional testing to another lab it wasn't done so that suggests to me that perhaps they wouldn't test positive so for the lab reports of the remaining g one g to you and i i as a sample that's obtained from a purchased a sample i for somebody else mr higgins but that that's a different conspiracy and as i understand the law the circuit when you're buying drugs from a different person different conspiracy that is not evidence then of the substance that they issue in the other the other case and furthermore you don't know the simples that is mine one versus the other are the same that presumably these things are of different qualities when they are made and sold and we don't have much to say that this is the same substance and so mean and how to test or not and if you have no right to confront the person who performs the test when we know from those least get an affidavit in the i think sentencing we've we've held this in it's just true sentencing is not quite so down to up with all of these things the rules of evidence i would think you'd be doing well to have lab reports period and there weren't too many of them here i think your biggest obstacle is that the courts  have up until this time taking the same approach a judge gilbert did like oh everybody talked about ice must be ice right but just because courts have done thing one things in one way historically does not mean that that is the question when they were can you think of it as if you know the answer to this other places in the guidelines where the difference between one drug and an enhanced drug is expressed by percentage of purity this is the only instance that i know which tells me that this is a special case in the evidence should not be typically relied upon in this percentage requirement type case as it is satisfactory in other cases that i don't like powder cocaine bait you know crack myself calling here that lab when this was contested actually put the government on notice bring your chemists bring the people in who can capably testify about what the evidence is to support your burger to establish this is ice for the enhancement the government elected not to call c called instead law enforcement officers use their testimony as i have no idea so that's not a good answer that's not good test that helps us as far as a b cd and egos that send those stamped samples out for additional testing and then we have all the problems about g in that cases again if you want them that sentence you don't need these lab reports but if you want in a sentence i think that it's incumbent on the government to meet its burden of proof to satisfy the do part process requirements and to come into court with but there's not there's not even here say that most of the drugs that form the basis of mr carnel sentence had an eighty percent purity and you can't deny that that's what it said in the commentary to the guideline where it defines ice and obviously the guideline itself has one level for methamphetamine and then another one for methamphetamine actual and another one and the same one i get really for ice a lot hangs on this and i'm actually quite bothered by the approach to the th circuit has taken that you know people are calling it ice it's obviously eighty percent purity i've never heard of anything like that quantity that was attributed and then right they were clearly part of the conspiracy you're right but they weren't part of this two point whatever the amount that was attributed to him writes it was circumstantial evidence it didn't show that the amount that he was  position because one little sample is one hundred percent pure the whole amount that his conspiracy was dealing was certainly in the area of heroin you wind up with widely varying levels of purity sometimes to tragic effects and sometimes not but this is a basically a do it yourself kind of drug right and so why should we just five hundred and one five as he came into sentencing he withdrew when i saw how so so k fine but that means just there's that much more you have to prove is eighty percent and you're what he indicated is he said and of whatever the substances found you know just say the drug dealers and users know if a product is pure or not and can detect the difference between seventy nine percent and eighty one percent pure price because it seems to me that that is what the district court and i'm struggling with that i must tell you the government has the burden to prove  by a preponderance of the evidence that this was ice and i use has a very specific requirement that it be at least eighty percent pure and respectfully what we have in this case is we have the sample that was seized from jessica hughes immediate shortly after the defendant and hughes had sold it to the co de eyes it's always good it looks like glass it looks like sharp that doesn't tell me whether it's seventy nine or eighty one percent can you ask answer my question about is there some point at which it starts to look at shards and that point is eighty percent so that the visual thing actually means something i cannot answer and it's certainly not on the record i mean maybe in the future the government needs explore that because it undercuts the value of that evidence right i mean that's part of the circumstantial evidence to which you point but if it can look like shards at fifty five percent well then that doesn't really tell us a whole lot and again based on this record what we know is the the ice that we have that we had analyze one hundred percent and as far as your honor saying well the guidelines are clear about is a method that mixture and substance contain methamphetamine is it actual is it's i and i says this magical eighty good guidelines are the ones that made it magical i mean the guidelines could have defined it some other way in which case we'd have you know one of the users call it or what does it look like or you know and they didn't oh your honor in this case the sentencing range would have been exactly the same whether it was calculated as ice or it's calculated as actual so it's harmless air if it's an air if you don't have any evidence about the actual ether what you do to determine actual is you take the percentage of the purity right and right so how much was it cut by anything or something i know so we don't have any evidence about that we have testimony that from the users the people who were selling the ice that it wasn't diluted that it wasn't cut we had the defendant indicate never he didn't cut it so if you took the two thirty seven kilograms which the defendant stipulated was the relevant conduct amount and you take that times the one and circumstances you know in which lap technicians were incompetent then are corrupt should car now have been denied the opportunity to question the author of a l report just because of the burden of proof that sentence thing and your honor i would indicate the issues now on appeal are far different than the was judge the government cannot tie the missouri ice to al southern district of illinois there's no evidence mr karnow knew it was coming here this woman was going to be distributed so the primary issue was not we want to talk to this chemist we have a right to cross examine her regarding her her testing and the like it was ok well now they have a lab report but they can't tie the jessica hughes missouri i would also indicate in contrary to the defense argument on appeal there are no inconsistency is in the d n a lab report by saying we're doing the confirmation test at the bar and we test fourteen of the eighteen units  it does the government as a matter of course not test methamphetamine to see the percentage in illinois the penalty is the same it's just as long as it's methods so there is no incentive to do anything besides show you mean for the state lad i'm sorry i misunderstood your question and i'm i'm kind of shifting gears a little bit here and just thinking through what this rule means and thinking well it doesn't seem if you're sending it to a lab to see if it's methamphetamine i mean does the government typically try to get it would be easiest for you to prove for at eighty percent purity if you just get that test does the government typically do that or does it typically take this course it did here in milan circumstantial evidence typically meth ice cases are tried have been treated historically like every other drug case we get to use lots of different kinds of evidence you know you might have one lab report that says something's cocaine base and then everyone's like yes he's a crack dealer got fifty grams of crack from  the reason the state labs don't release illinois is because there's no difference in it under illinois law if something is methamphetamine if it's one percent pure or ninety nine percent and is detected croll testified at the one of the and again it's the government's burden was to prove more likely than not that it was eyes and the problem is in the absence of evidence that addresses this apparently unique drug definition how can you say it's more likely than not you just don't know i would say that's you know you lose went in the face of zero evidence you lose if you have the burden of proof lab report some of it's heroin and we know that we have ten witnesses who say they were getting that they got one hundred grams of heroin from the phone well that's just a rough cut right but not something that's a different thing you're not being asked to prove with precision a percentage right it either is cocaine or it's not but you're not trying to prove it's eighty percent pure it seems like a percentage is different i would think a percentage is different however again i will come back to we're not close in this instance because everybody uses it but mr karr knows uses the term ice which is what mr cornell said you were just calling it ice because it's charred look looks like shard maybe you know whatever extra pop from  it but i don't think he was testifying that they were drawing the line that that it doesn't have those ice characteristics until it's ninety percent pure some evidence like that that would allow you to draw an inference about purity from external observations and i do think you're out of the purity is a factor we're not used but i the government so much that doesn't mean that we throw out everything we do with drug cases everything we do is sentencing the burdens of the standard  not sure about that but perhaps your honor the judge gilbert heard the witnesses to and he believed that their testimony was overwhelming and was that this was a high testified that the ice i got from lewis higgins which is government exhibit i it was the same quality as the ice i got from scott carr nel which is governance it's so you have a user here who says i got ice from l higgins i got ice from scott hartnell carnel and they were the same quality and when we had we had lab reports we had the lab report when jordan got the ice from the sig and now we have it from cornell and it's the same it's one hundred percent we're not hovering i don't know that the ace morton pellet any of the defendants sophisticated enough to tell the difference from eighty percent one hundred percent pure anything and so this is a peculiar facet of drug cases that these are experts who speak you know don't their faculties etc increase their tolerances and then we're to rely on them to be able to say well i tasted a month ago seemed like the identical substances where i tasted now this isn't exactly reliable evidence in my book the government says about harmless error but it didn't make  your argument so it should be able to make one now and the judge may be very bothered about the difference between ice is a substance as a sentencing factor versus something that is simply nothing but i mean judge gilbert sure he heard the testimony but this court can read it and if you read it i think that you're left the same questions that we have now judge gilbert wasn't locked into it the case law maybe didn't alert him to it but i think that this court should be sensitive to it now a the ice that she asked for could range from anything from shake and bake to the most pure salt going to church clean you could tell good ice from bad based on taste i find it dubious in here like i'm to be somehow tested possible but then lastly i'm going to have to unfortunately ask the th circuit to get out it swear jar on this but it says one piece was good one piece was bad and says page one hundred and one dollars here's the quote for that swear jar the rest of it all was bullshit there was no good that's different from the government just said where there's uniform quality etc there's m s and one of the samples that is a large amount of this he said he stopped buying it because of poor quality his whole idea that it's all the same and we can have confidence it would seem as if the users were turned into expert witnesses yes and an expert's testimony well can be given must still be reliable and these users were not demonstrated to be reliable sources for the conclusions that they reached their honor and that factual you know aspects of their testimony undermined their various claims anyway if ice is to have a certain look and quality pricing etc these are vox's that were not checked through the testimony this was a burden of the government's to establish those things it just didn't do it and nothing for that thank you all right thank you very much thanks as well to the government will take the case one hundred