some sort of supplemental or foreign you who are i discovered so recently i haven't eaten at an opportunity where is that leave opposing counsel well he read it in the in the library this morning is all i can say and i do apologize for our it's just something that washington case which is been around for a way out mr washington was stopped in a traffic stop for driving his car without a license and tended to a lawful arrest they seized from his car to search this car and trial the defendant insisted on testifying and guess what he said when he was asked about the drugs he had a k that his friends had contributed money that he had all made the purchase and they said in he said he was going to share distribution and the question arises in this case is do you attribute the the quantity of drugs consumed by personal use is an accomplice as relevant conduct well in order to do that there's two arguments and there split of circuits on each side one group of circuits regarding personal use says no because that's possession and that's not the same as the offense of conviction therefore it doesn't count as r group a circuit says it's all part and parcel it was that the drugs were tainted and even though maybe some are aimed that that doesn't have been to do with the facts of this case which i understand undisputed are that the defendant  williamson was the sole a painter of the math that his girlfriend did not obtain any of this stock he obtained it from a some source and then gave it to her for her own personal use and for resale now the question is can all the stuff that he gave her be counted and the answer is he's the one that obtained it or redistribution to her that your argument is that she is the same person as he is because they were in conspiracy it but that is a far cry from the facts you're describing the normal fox you're describing is where a defendant obtains drugs for his personal use and for distribution and courts have excluded the personal use some have and some have no but this it's clear he distributed all the drugs that she got he got he purchased them from a source she did not purchase them judge and he gave them to his girlfriend and the assessment in this case was the amount that he  mark that's a great argument for the government when it's a facts of the case so steady that she said i did not have any contact with the source on cross examination she admitted that she was involved she was an one aspect of the complicity then that's we're not there complicity it's a fact that all the drugs she got were redistributed by him to her and it was a mutual operation she handle money she had the drugs she arrange that they purchased the drugs from some other source that did she didn't she denied that she had anything to do you know to do it all everything he purchased the redistributed to the extent that she had it  fact that they then smoked it together or resold it together is of no moment the fact is he we distributed the drugs that he purchased but i respect that judge but i think it banks the question that is whether they were question of weight of drugs that can fairly be attributed as relevant conduct to it to a question of whether something is personal use or use for distribution you're ending a whole different oh a layer of complexity to the sentencing determinations where we move from weight is the lodestar not just of charging decisions which you look at the amount that the defendant has around him and then you get testimony from other people about how much he's given them and i have no regular basis is given them and then you make  give your tribute everything out of the sun but while you're trying to do here with this is you sneak into the sentencing proceeding and have a whole different factor brought in which is is is is personal use and as i understand it beloved star well these things is why wait weight can be attributed to a  what is fairly attributable to this person in terms of why don't that's right in judge i'm more than happy to concede that it makes sentencing more complicated and it makes the government's bird more complicated but think of the rationale because remember rat is the guidelines authorize that out well because the guideline says in one b one dollar that you only take into account those drugs that are within the scope of the joint to be undertaken criminal activity and in this case the charge conduct the conviction in both count both cases both then it's pled guilty to the same count of the same indictment charging aiding abetting distribution that that the criminal activity is distribution met and if there is bona fide personal use the best way to understand it would be that this course united states versus bell decision that there's a distinction which i'll be glad to address that distinction here is that that was prescription drugs you had a defendant who had a legitimate valid medical problem for which he had a valid medical prescription and she used and i don't remember the exact proportion but a good bit of those drugs for her ballot i think recent in the course said we're not going to sentence her to the entire winter it would be simpler we could just look at all the prescriptions we go back to pharmacies and see how many pills she got it would be much simpler for us and it easier burden on the government however if you know those are two different crimes there's you know she had she used to the these prescription drugs for legitimate valid reasons there was that she did the one she had an intent to distribute it that's what we're going to tribute to her is relevant conduct now it's not quite a sympathetic one it's difficult time for the court sentencing and i really mean every every single case is going to be you know you're no longer does a district judge of this look at the weight attributable to his band of him including who weight of whatever stashed in his own home but there's always going to be an argument now oh well you know these these drugs were here but this room's only list one was only for personal use and prior to the guidelines even calls for durst you'll still see if it knows it occasional circuit court opinions about this because in that case a couple purchased cocaine and there was no evidence of further distribution and the theory and indeed some courts are protected in this court though has on the on the two occasions which is the pardon have to reach a question it doesn't mean you think that the question is valid it just means you're not reaching a question if you look at the other circuit court opinions about personal use than individual defendant and the rationale they say clearly whether congress provided the sentencing laws they intended to punish much more severely distribution the criminal activity that  network of people is always adding customers and so on in this case when you have situations where two friends work but it's still way good determines whether there is a charge of possess founds and the distribution of offense and the reason that both the substantive criminal law and the not is facing sentencing guidelines have there's a reason that food for personal use all that every drug is in this case is distributed to somehow someone else must prove they are personally used it will come up every time i judge i've been doing this for thirty five years and and almost all the cases i have the drug weight that stipulated to in plea markets were presented at a contest sensing hearing is historical in nature the government has witnesses who come in very rarely does the personal use of each other because we have in many cases very cautious and not attributing to defendants a lot of lot of drug amounts that away out there or are highly speculative and the sentencing regime is working distributed a lot of it to his girlfriend and they used it and his girlfriend used it and distributed so the question is under two d is how much was involved in that conspiratorial conduct and the guidelines basically talk about the way involved in the whole transaction or that scheme and not how much was used to how much distributor ahmed was held on which was resold it's basically  certain and distributed and the way it was not what williams used person in this case what was used was only the weight of the drugs that he gave to his girlfriend well and she gave the dates and the judge said oh that's going to be about five hundred grams and he he bumped it down to one hundred and fifty grams that's right what's unusual about it is you have a case where two defense admitted accomplices in a drug sentencing and as dumb as he'll let me start by indicating that i found one state in my brief i stated that the standard review on the st issue was abuse of discretion after studying this morning monday in preparation for mr freeman i met the library it's not a guideline case it's a sufficiency of the evidence case and they did hold that drugs for personal use are sufficient to convict for distribution that's the extent guy he's not mine that person uses implied distribution and we've held that over the years absolutely and it's a factual question absolutely but there really is not a split in the sense of every case the defen drugs are redistributed so that somebody can use them and just name are your crap that in this case even though the female coconspirator helped she did not deal with  to his coat conspirator and consumes a truckload of drugs then the defendant's wrong conduct is zero and that makes no sense so that's really why i have my if there's questions about my free for anything else when you run out of cards pardon if you run out of cards i did i know but i also i just think this is there's no case there no case that says that drugs possessed by another person for personal use are not attributable to the person who distributed there's not one k s and rightly so  are the ones that she got from him absolutely suppose he had not distributed the drugs we have been aiding and abetting count i think your point that you know betting is a collaborative enterprise that young spirit but suppose he had a certain amount and he did not distribute it to her that he kept it in a robe or stash house on his own property if it was know who he was convicted of aiding and abetting distribution but there was no and clearly the drugs were connected you know and the way to the drugs were substantial and of sort of that there would be an implied distributional activity going on what difference would that make it should make a difference here because the female ex girlfriend testified that they were involved conspiracy her and her boyfriend and i said what i mean let's let's say  still part of the conspiracy even if you don't have her testimony or even if you are it's if you still have a certain amount of drugs and there are substantial value of drugs in the home and that amount of can contribute to weight and and testimony from the actual recipient of the distribution is one of those factors but it's also true that one of the factors that bears upon the factual finding a way to to do a live your carved out of a factual question for the district courts that's that's that's my problem and i have the same problem that's why i asked the court but what raises a red flag and draws some interest to this case is the goose gander you have you know two apparently equally situated defendants one has a base and slow sixteen and  makes it clear and that's just points out one of the many ways in which the government can kind of paper away from the core of the discretion they have in store the defendant can exercise the defendant's discretion to cooperate or not  understand i would say in the legislative branch now there's a veritable revolution sense in going on to this court perhaps it doesn't seem so but to the some of my side of the the you know these operations it appears that make it clear in cases like this where you have a person who uses we don't need to punish that we don't want to punish that in the same way that we punish actual distribution and i know that me doesn't answer will he say i hope drugs are commercial operation but that's