a criminal case in a state an opinion or inference as to whether the defendant did or did not have the mental state or condition past tuning an element of the crime charged or a defense they are to such ultimate issues are matters for the of fact alone there was no dispute at the trial that everyone the witnesses the victim and mr jackson one attacks a kid of the evening slash early morning in this incident larry jackson and sprog on the victim are friends they remain friends they're both large man and this fight occurred in a very confined space in the back seat of a chevy beretta there's no question mr goss injuries were horrific that if you're in a fight you know those types of injuries are not designed to overcome your opponent in essence the doctor then was opining that mr jackson had the mental state the intent to maim mr gaunt and that he could not have been acting in self you know those type of injuries are not designed to overcome your opponent and i think it was clear to the district court the importance of that testimony when he didn't when the judge denied the rule twenty nine and said i'm satisfied if for no other testimony than from the doctor's testimony that there's a case to go to the jury on the issue of intent we had one for the victim i would say offer conflicting testimony o states an object to it says that he blacked out so i think someone has blacked out doesn't have an intent and there's no escaping how horrible what he did was but i think he was in such a state of did they turn out to also show that the defendant at a b c had the that wasn't what happened here it was simply a statement that this man and these injuries were not the type of the doctor's opinion to overcome an opponent so i don't think it i don't think it was laid out the way it needs to be to get that type of expert opinion but assuming that that evidence was properly admitted then for purposes of the rule twenty nine motion it seems to me that taking and you know they're all together he did give a self defense instruction and they also gave intoxication and struction both of which of course we requested i think it is similar to the campus case in that campus the district court expressed some skepticism as to the strength of the government's case and that's at least how i took the judge's comment on the rule twenty nine that it from the water just money the doctor why all this evidence about his his past in the horror is horrible upbringing with the poverty the child abuse the alcoholism what it if it was the district or city took into consideration that maybe but it wasn't explained as to why they didn't carry that day i think at the very least a defendant who sentenced almost three years above the guideline is entitle to know in more detail the analysis of the district court makes and imposing such a sentence that goes above the guidelines and i got he had a pretty good record on the stalls in the home and all his criminal history is this very high but that's factor then you know and i i just think there should have been some i'm explanation as to interpretation of seventy four b was absolutely not ultimate inference type testimony mr brennan said well it has to be his understanding that has to be in the form of a hypothetical and that is hypotheticals are certainly  appropriate if you actually look at what the doctor said it is a hypothetical the doctor says when he says there's absolute absolutely lack of reason for it in that if you are in a fight you know those types of injuries are not designed to overcome your opponent he's not talking about the defendant in particular he's saying you know turns out is if you're thinking hypothetically about a fight and these types of questions are posed all the time in drug ma'am your experience somebody has two hundred thousand dollars worth of cocaine in the trunk of their car and a bunch of guns and digital scales in your experiences that's for personal use and they say no that's dealing drugs and that's fine as long as they don't say based on my review of the evidence he definitely was dealing drugs as long as they don't say that they haven't drawn the open inference and here it's very similar ok reynolds has been an indian health service on the apache reservation and fort belvoir preservation for twenty five years and we could've gone much further down the path of drawing out expert opinion we could have gone in your twenty five years have you ever had a self defense situation with injuries like this can you imagine a self defense situation things i mean we could have lorded it all over the jury and as long as there wasn't the ultimate inference it would have fallen squarely within this court's cases so that there's just no question that the ultimate inference was a crime they can see that it's playing air of you it clearly wasn't playing  there was really there was the evidence on intoxication the defendant did not testify for the defendant because of because right after later in the evening well medical care because police started to look for him later that day and there wound up being an armed struggle and he just shot and killed police detective in that case is pending on appeal so we don't have i think there's a blood alcohol reading late in the evening on him it's not in the record in this case the only testimony in this case was from the driver of the car and mr brand asked her  day and she says well they showed up at my house and he had like one of these quickie mart cups full of everclear and he did maybe didn't you know no doubt the defendant is a big drinker and then the rest  they were drinking beer and some whiskey and and whatnot but was he so drunk that he couldn't form specific intent while the jury was given that question the jury was instructed on that and judge progress and the instructions can be found it excerpts of record thirty one thirty two and they they've got a self defense instruction given the nature of the incident you have you dispute with in the car i want i want to go back to harlem they don't drive or doesn't want to so the defendant throws a can of beer out or and she gets a little scratch on her head and and then the fight is on even such something happens it's very unclear exactly what happens initially but just money in a light most favorable to government is jackson attacks the driver in some way shape or form the victim tries to like pulling off of the driver and in that process he's the victim might be poking him in the eyes it's unclear exactly when but when it's all said and done the victim has part of his nose bit off part of his ear bit off it's very severe biting his finger and a person who's standing outside away from the car watches as the driver and the driver side passenger come around and are trying to pull the defendant off the victim the defendant is prevailing and they finally the testimony was it takes five or six tries and then they leave the defendant standing there and they it to the hospital with the victim and there's blood everywhere and pieces of his nose so on in the car i think one piece was on the street so that's what the jury heard and the jury concluded to be a doctor to know that these types of injuries are so severe that you have to have some type of specific intent i mean this is not it's not really biting his nos been if you think that some tweaking reasonableness review is likely to make a difference in the case and you should tell the panel to hold it and if you think that reasonable this review is not at all likely to be tweaked in any way that we made a difference in your case then say you don't need to hold it my view of this case is this reason the p s are you the defense counsel says you know the judge never explained why it's easy to explain why when you review his record granted he has psychological problems and a very bad upbringing he is dangerous dangerous dangerous and we have a con on the p s are from a person in the tr justice system who says another system needs to handle this man we can't protect control and so my view is rita obviously involves the presumptive weather or god light sentence can be treated as productively reasonable this is not a guideline reading the transcripts of argument i honestly can't contemplate of developing the law that would find the sense of reasonable but i guess i don't have any real objection to just waiting in what would be a number of weeks we it would really have to be a an admonition from the supreme court that you know you kind of have to address everything and the reality here is the dangerousness just outweighs everything and and it might mitigate his culpability and he did not get the death penalty for the shooting of the police officer but it's going out way that sentencing the government argued that the high end of the guideline was reasonable and now that they got more in this court thirty three months additional one hundred twenty months total is a reasonable sentence i don't think that's i don't think it was a reasonable sentence i certainly think of it may be