and trends the issues that can be presented to a court so the issues that are presented in our brief for the issues that the department of justice in the solicitor general see that we can advocate now any of that truly insufficient then i think that would preclude or perhaps preclude us from retrying the case because i think that would end and the discussion but i don't think the evidence is insufficient as we ar over four and a half years ago before this panel begin with exclusion judge gregory and in fact judge keenan you specifically addressed in your prior opinion that the evidence overwhelmingly established that franklin franklin knowingly  in august of two thousand and ten finished franklin met with defendant williams and frazier to discuss robbing people and defendant williams took the stand and testified against  franklin and said that part of the plan and he acknowledged that franklin was very much involved in the planning of part of the plan what's the use of the firearms so this is even before they left the residence the testimony that the jury heard  and was free to weigh the credibility of mr williams was that that was part of the plan was to using the firearms so sure enough the first carjacking the three men get into the car and that's the record yes that is ano yes yes mr williams acknowledged that he knew before they left the residence that mr frazier how to fire mr williams said that he was aware that mr frazier firearm and that's when mr franklin really kind of takes over in sort of the view the testimony from the victim was that mr franklin did all the talking i mean while this is a very large firearm it's pointed in the rib cage this mr franklin reached into the victim's pockets and removed the items from his pocket including his license and read license his license to the victim said we kind of you know we know your name we know real live in the victim so i'm trying to function with the keys you're seeing the keys goes back the judge would have to apply the brecht standard in its analysis the substantial injuries effect upon the jury and in light of that again again i think no matter what standard you why with a view this plane error or the prep standard i still think the government should prevail in this case in this case this court has to determine whether mr franklin had a legitimate expectation of finality asked to this american sentence at the time of filing is twenty two fifty five he had already end that means silver's means nothing and this court would have to basically in effect overrule chilvers because there is there has to be a dividing point where where the major exception is so first case there is no mandatory minimum sentences in franklin the case before the court as well as hilary smith ventura all of those cases that discuss the sentenc or package doctrine all involve some sort of consecutive minatory minimum sentences as i'm sure where this court has made it clear that when you're dealing with mandatory minimum sentences consecutive sentences if you that you look at the se ntence in the aggregate so to accept mr franklin's argument that somehow he had his expectation of three months that's contrary to what this court has ruled the government  hillary smith ventura they're all in line with each other so i do think the sowers case and the fact that the government are seated and acknowledge that there had to be a reset as you know i do think that plays in differently because if you read it was a four hundred fourteen month sentence i believe in the most recent sentence was a two hundred thirty six month sentence the sentence was presented in the judgment to middle form and judgment you can form such as in everett sense yes you can reset and seeing used to correct law in that he applied the sense impacts doctrine which we disagree and say that he he was wrong because you should have set aside count three so that his sentence the second time around was actually in correct he should've kept count three impact and sensually issued the same sentence as previous i think back in two twenty three twenty thirteen i think it's when th plays into how a defendant is sentenced a criminal record which is really what it is you know pre sentence reports are prepared ahead of sentencing which out want a criminal record which affect their offen levels and their criminal history a levels so it you can have two defendants who commit the same crime but look at very different senses based on their background and their criminal record so it doesn't i don't seem i don't come off  i think it's fair i think the court should know that of the one twenty four seas or disagree that it's a matter of law it's a statutory provision and defendant was aware that prior to going to trial we sat down with him his counsel sat down with him this is all on the record and he's still elected to go to trial knowing so it's not a trial penalty as much as he was aware of what he was facing when he was going into that court so and again this case is not about the sentence your honor it's not about the sentence very this is this is about what judge garbus in the district court did legally in terms of controlling the facts to the correct standard or incorrect standard on this case the sentence that played a role or a factor in why we're here today or