united states against our will is next on for orgon and you are still me i am still here henderson and i represent paris star vault in this case may please the court this case has two issues the first as to the whether object robbery is a crime of violence is merely issue preservation so i won't discuss that further the second one is more serious and affects a number of cases the supreme court i noticed after its long conference remanded a number of cases court for reconsideration in light of dean which is of course the issue that's raised in this case and the question going back to my remarks earlier are about which court has the discretion dean gives district courts discretion and it's our contention that following dean this court ought to allow district courts to tell the court whether it wants to exercise that newfound discretion rather than simply affirming if it if it can't find any any reason for error because in effect what this court would then be doing is saying we didn't give you a district council that you need to discuss what we all are said was that it was inconceivable that a judge impose a sense above the guidelines range for predicate crime did so because of this court's prior case on this so let me address wheeler  distinguish it first and then address it head on this case does not involve an above guidelines sentence this is a sentence that's well within the guidelines and what the district court had to do here under this court's prior law was not even consider the fact that there was this nine twenty foresee charge on the table what the district court had to do was assessed under section thirty five fifty three a all of the circumstances of the robbery all of the circumstances of the defendant did the need to punish its cetera et cetera and then after arriving at a fair sentence for that which was within the guidelines tack on the mandatory sentence now we know that the district judge imposed a sentence that was the minimum she could impose on the section one twenty four c charge and so that doesn't tell us that if for example she had said well i find this nine twenty four c offense particularly heinous instead of imposing the minimum seven years i'm going to give you ten that would be a clear indication that her discretion would not be exercised in a different way but here she imposed a minimum sentence to address wheeler head and i think there is somewhat of a logical fallacy in that decision  because what the court says is that it's inconceivable that a judge would impose a different sentence on every man but the entire process and this is what the supreme court said and dean is different the district judge has to decide on the sentence that is sufficient but not greater than necessary for one charge and then add the other charge if the district judge is doing their job under the circuits precedent which i think we can presume that she was doing she cannot independently sort out what the total sentence will be she can only sort out what sentence on count this count will be and what the sentence on this count will be and so with the benefit of hindsight we can't tell what she preferred her combined sentence to be because all we know is that she found two hundred sixteen months appropriate on the robbery counts and eighty four months the minimum appropriate on the one twenty four c counts so in fact the district judge might have thought on the robbery counsel it involved a firearm this was a crime i thought that it deserved a sense of two hundred sixteen months without considering anything about one twenty four c because that's what she had to do but you might say you know this this seven year add on i don't think that the dangerousness of the gun which i've already accounted for in the two hundred sixteen months i don't think that merits an extra seven years i think a total sentence here of maybe twenty twenty two years is the appropriate total sentence and what the supreme court says and dina's the judges intitled to make that global decision as to what the total sentence would be we don't know if the judge thought that the eighty four month sentence in this case was appropriate and then you foresee she might have thought for maybe sixteen months is better maybe a global resolution of this case to the tune of twenty years twenty two years is appropriate and what we would ask for is to allow the district court to have that discretion she couldn't exercise it before she didn't exercise it before and in light of dean she ought to be able to be given that choice now there are a number of cases that come up on appeal that are remained it back to the district court because either the district court didn't understand its discretion or thought it did not have discretion when in fact it did and i don't remember many times the results are the same that doesn't mean that the court should not give the ability to make that discretionary decision to the district court just because it thinks maybe the result is going to be the same this is not for example a harmless error situation where the judge just said you know i know this dean case is coming up the pipeline notes i want thirty years the judge applied this court's law faithfully determine to sentence on the robbery counts and then determine the minimum sentence on section one twenty fo on the thirty five fifty three a factors after underscoring the very serious and violent nature of this offense the district court imposed a sentence that was well above the low end of the guidelines in fact the sentence was much closer to the high end of the guidelines than the than in the low end so this isn't a case where the government's asking the court to simply affirm because there's no record of the court feeling constrained by precedent from giv defendant a lower sentence this is a case where the record affirmatively shows through that high end sentence that the sentence court sense and court felt no such constraints and in this a case is identical to wheeler  your honour's that the that the court has heard and rejected this very same dean argument in the wheeler case a case that involved nearly identical facts and the governor respectfully ask the court to the same here unless there are any more questions or any questions for me dear i think my friend is correct to suggest that there's nothing in the record to suggest that the judge intended to impose a lower sentence because she couldn't under this court binding precedent she could not she had to assassinate him for months and strong consecutively to what she determined to be the correct sentence for the robbery counts as if the gun count did not exist if we if we take the logic of wheeler the defendants who would receive relief presumably in this quarter those who got the low guideline sentence on the underlying offenses in other words those where the district court may not have quite followed this court's precedent and might have said well we've got eighty four months here i'm going to give you the low guidelines sentence on the other counts to account for that and they were seen they would be found to have heard instead of those who faithfully applied this court precedent and said i have to give you the sentence on the robbery counts two hundred sixteen months without regard to what the total sentence is going to be that packets of factors the folks who had within guidelines sentences on the robbery counts are the ones that are most likely to have been affected by the dean error because they're judges said i have to give you an appropriate sentence on these robbery counts without taking into of account the total sen e so i think that that is something the court should consider and think about in terms of how to resolve these cases globally thank you thank you very much the case is taken under advisement