fifth case for argument this morning is united states against  summers your honor we are here because it is our belief that the district court uses discretion by using uncharged conduct in order to give an upward variance in the sentence to a it's important in looking at the analysis of the district court when an issue in a sense in this case that specifically this court looked at the issue of acquitted conduct sentencing this case went to court mr holton was convicted of count one conspiracy and then found not guilty on counts two three four and bought which related to h robberies and companion one twenty four sees prior to trial mr holton had pled guilty to a third robbery which was count sixty seven which was also a hobbs act one twenty four  the first count alleged conspiracy involving all the activity involved in these robert's in addition at trial there was testimony introduced through cooperating witnesses concerning a series of alleged robberies of drug dealers which the witnesses said that mr holton took part in as well but on y on the issues of sentencing the judge and i would say i would argue very correctly rejected any notions of a quick conduct sentencing in noting that this would be the equivalent of jury nullification that it would be saying that looking at this from a preponderance standard and rejecting what the jury decided and then saying ok i'm going to s basis of acquitted conduct that that would be improper but ultimately what the court did in coming to a greater sentence on count one they looked at on charge conduct and in looking at the on charge conduct there the argument of the district court wasn't that i find by preponderance of the evidence that this occurred there was basically an argument that because defendant was convicted of count one conspiracy that a jury had ruled beyond a reasonable doubt therefore evidence that the defendant took part in  charge activities the robbery of drug dealers could properly be considered by the court and that the jury agreed with that and therefore there was an upward departure from the guideline range the the defense guideline range in this case was one twenty that notion in particular is that in this in this case as far as that conspiracy count one is concerned it would seem to be inconsistent with the jury's verdict that they acquitted understand and i will say i've seen you question before asking or are those good law yes they are i cannot sit here and argue and say that watts is not in effect what i can say to you at this point is that i'm not just looking at this and going i'm against what's because i'm against what's the supreme court did look into reconsidering this decision the watch decision in particular and that was something that was noted  there was anough there was enough of an issue with watts that justices and i would say across the aisle justices were willing to say counsel certainly if you wish to ask the supreme court to over watts you have preserved your position but trying to argue to us that we should just regard wots there's no percentage in that since we're bound that's why the constitution calls us an inferior  court that's the certainly fair and i said that i think that would be my position in this is that i would like the supreme court to reexamine watts and i think that the issues about uncharged conduct are very similar to the same dangers that are potential with a quick conduct sentencing and i do think that those are issues that need to be more thoroughly addressed and i think that we do have some indication that there are some justices who good morning please court counsel ellie somers on behalf of the united states a fifteen year sentence imposed by the district judge was procedurally sound and subsequently reasonable and should obviously be affirmed we're here today because the defendant convince the trial judge not to consider what it conduct even though clearly under the stabbers supreme court jurisprudence as well as the the law and from the circuit she had the discretion to do so and now he complains acquitted or on charge conduct and the fact that she parsed the two or somehow viewed the two of them differently and and restrained her discretion does not undermine the reason one us of the sentence or the judge's rationale  thank you very much mr humphrey anything further not much to respond to thank you thank you mr humphrey and we appreciate your willingness to accept the appointment in this case and your assistance to the