with state that they did that because they could make the decision because they reversed by the importation related counts and therefore left it to the trial court to decide position very plainly that there was no jurisdiction to reinstate count two for the very simple fact a clarification motion that was filed and that clarification motion half of all of the defendants it was is my understanding and the the court in any event denied remained on count two but i believe that the clarification was filed by all the parties on behalf well part of the problem was that yes i believe that it was and it was yes he was sentenced what would happen at the original sentencing hearing count two was deemed to be a lesser included offense ok let's so he was not we run into a major sentencing with turns out to be a sentencing problem because the jury did not make a determination help one was reversed by the judge on remained thrown out that requires the jury to make a determination as to the your mouth and that has some pretty major impact in this case because is not allowed to go and create his own amount and goes over the amount to get to life which he can't do he's limited under the drug sentencing statute to either twenty or thirty  there's a price you know everybody assumed there was a prior i don't know that there was ever a prior eight fifty one filing in this case  it becomes it makes a major difference in this particular case if we can just say well we're going to just find the because the jury found it on count one i give the judge a lot of credit in reversing the continuing criminal enterprise determine an amount he still has to work off of the guidelines and what he did is he just took a jury finding and moved it from point one to point two and said this is what the jury well the statutory maximum without finding by the jury of the amount would be twenty years with out a prior and thirty with a prior  my guess is the government might have a response to you and then you're going to chance to respond to government because and i agree with the court since we have the three brothers that probably would be easier just to use the first names and the court of appeals has done that also so i represent james richard the other brothers represented by  of this drug conspiracy he's the ringleader james for example in this case there was the let me of this trial testimony even after september to december very little of it talked about james when it came time for the money laundering there was the testimony was one point one dollars worth of money laundering james as it is forty two forty three thousand and five percent of the money laundering when it comes to the amount of the  the guidelines the fuel ations were for three kilos the trial testimony for james indicated one hundred thirty four grams one hundred thirty four point six grams that's less than ten percent of the  conspiracy ran for six years from ninety one and ninety seven actually over six years the testimony was the james roll started in august of ninety four so less than three years so in the same although i don't know the specific facts as much richard but i do know they're somewhat similar these are two different defendants from roy they're much less culpable they're much more minor players roy he was always the centerpiece of the government's case he was their main target in this back to the orders both the on by order and the clarification order and what you have is richard and james both got life sentence face but they never really clarification order because it is very confusing it is not a clarification order for james and richard and it's very important to look at the language in your honor it also picked up on where the apostrophe is an a by clear common sense reading of it when you look at it does not talk about richard for example if the heading in this is on page one sixty eight of the volume one of the joint excerpts of records is the type of graphical larry but let's go down further you look at the actual order itself it's only five sentences long all the first four sentences directly talk about roy one thought i knew it from memory but i realized as i listened i don't have it totally ok and it is due to pull along with it because when you read this its only says the first four sentences refer exclusively to is used all the way through for example in sentence number two we see now motions for clarification count six there has to be roy the apostrophe is misplaced because james and richard did not have a so this clarification motion with all due respect clarifies it doesn't clarify anything in respect to james and richard it doesn't discuss them at all they're the forgotten man consistently in this case and they're both serving life you know what it grosses but when you i'm sorry fell into motion but when you look at is for example on the second sentence we now grant appellants motion for clarification that wasn't the appellant they're speaking order really is talking about roy it is not talking about genes or richard and then when you look down further when you look at judge kozinski you know scanlan in tolman's this sense they respectfully dissent cannot join in an order that further unravels the district court's judgment so even the dissent saw that this was an unraveling of the judgment and again on reveling on bundling it is argument that there is under coach a and is to that they become unbundled and that you re sentence unless there is clear evidence to the contrary so that's why it is our position when you read this clarification order there is not clear evidence to the contrary regarding james and richard and this is a very serious matter they're both doing life sentences plus plus for twenty years and the other question that you we say the district court when you lead when you read release alvarez and also when you read through other cases i say that i would direct your attention to a coach in washington and when you look at cote in washington too you see these are all cases where the defendant said no no no no no no we can't get in to reach sentencing and this court has held that when he says the remainder to the district court the district court has inherent power and jurisdiction to do the right  gorman's argument first when you file a motion for clarification the question is what are you clarifying when the dust settled richard and james were convicted of count two and count four count two they sentence concerning james and richard with count two clearly the court contemplated that the sentence on count two would stand and this was also understood by the which shows i think an understanding that count two concerning work of a kind was not before the court i think the court's in view of the court's opinion and the motion filed by the defense the clarification order is perfectly clear the only thing that the argument being that asteroid when their first appeal went up count two was an appeal because it had already been vacated given that it was the lesser included as to one precisely and the court clearly has  defendant has the burden of proof to show that in fact the c c aesop's handed count to that for some reason it should not be reinstated there if she was never incorporated by reference counts two and three and the other counts that were part of his organization the jury special verdict and i think that that is that i want to s violations referred to in count one that leaves three thousand grams of amphetamine methamphetamine our position is that the incorporation of the special verdict of count all of the violations charged in count one constitutes a finding by the jury that count two involve street thousand grams in other words this should not have been necessary for the government to replete in count two that involved three they had never been charged with the c c eat so there count to did not help that special allegation of three thousand grams therefore is too richard in james you had error and it was plain five to fifty grams it's a mandatory five years and above fifty grams is a mandatory ten years maximum of life without an allegation of quantity and count two you're looking at the lowest possible punishment which is up to ten years no mandatory minimum a particular quantity when i take it that we did have a case like that where the defense was is that i distributed it is that it wasn't more than fifty grams and we submitted a special bridge where we broke down zero to five five to fifty i'm looking at the jury verdict that's coming back and there's the sort of the second paragraph of count one which is reproduced you at the top of page thirty the jury finds that the violations referred to in count one involved at least three thousand grams of methamphetamine which is about fifty four at least three thirty thousand grams of a mixture or a substance containing a detectable amount of methamphetamine let's assume the jury found the second rather than the first there is to say they find a large quantity thirty thousand grams containing quote a detectable amount is that produced life sentence i'm sorry is that produce one or ability to life sentence no it doesn't change the sentence  grams of a mixture or substance containing a detectable amount yes so my question to you if all the jury found as to amount you knows at least thirty thousand grams of a mixture containing a detectable amount of thank you thank you all and if i may just one question you asked about the three thousand versus three thousand grams that my understanding of the trial and i was i was not the trial attorney on the case is that the drug quality and the opinion you know she might have thought that it was proved but that was an issue that was the stipulated to i think i think there's a clear answer this question is just i don't know it but my guess is that you do the government contends there are thirty thousand grams of a mixture containing qualifiers in terms of what would kick it up to eligibility for life sounds ok yeah if i didn't try this case the reason my understanding is the reason that that special allegation was in there this is all going back ten years is because  count to make a fall fall in with that and therefore there was no reason to remember that they might have been thinking a step ahead otherwise they could have just remember that if count one was switched off tell everything would have been fine and dandy the court of appeal might have been thinking well if we if we and nobody really got a chance i think to think it through because it kind of came out of the blue at that hearing i don't want to take any further time just on the on the apprentice the fact that  and his counsel pointed out without the amount being found by the jury that limited to ten years this is it is so it's a very serious issue it was i didn't brief it sort of this court because really it wasn't time to get to it yet because first of all we see whether or the evidence has to be clear it's clear and contrary and when you look at that clarification order