case in which somebody convicted under eighteen us or punished under eighteen u s c thirty five fifty nine has properly at the district court level objected to the life enhanced men siting in a lane situation preserves that issue and we did it in a more detailed way than in other cases the government cited two cases in which the eleventh circuit in the sixth circuit had taken a look at somebody who said hey eighteen u s c thirty five fifty nine violates elaine because the government didn't a ege my client's prior violent felonies in the case but not only was the issue not preserved or not even raised at the district court level they just threw out the word elaine in an appellate brief and that's not what we did here of course we're preserving the el we raise that issue but we understand that under existing circuit law we're going to lose that but this is a more sophisticated thing in this is where it has to be nuanced out and what the other cases didn't do the other case just said hey the prior convictions have to be and what i'm saying is it's not just that the park convictions have to be alleged is that there are a number of individual facts that also have to be determined by the court and that is what elaine talked about not just the following convictions but finding facts in this case the court has to make findings about the violence or nonviolence of the prior convictions as well as whether they occurred on different occasions now i'm going to anticipate that the government is going to say well the court doesn't have to that the court just has to find the existence of these of these prior felonies see that by their nature they may be violent felonies then the burden is on the defense to prove that they did not involve the use of a gun the problem with that is what  saying is the government has a responsibility beyond a reasonable doubt either by police or by a jury finding to prove this additional element that raises the punishment and what the government would say then is well by statute we're removing the government of their constitutional burden and we're instead imposing the burden on the defendant and i don't think you can do that and so we objected at the district court level and said hey look judge these these convictions were not alleged in the indictment we haven't admitted them a jury hasn't found them you're having to make inquiry as to the nature and circumstances of these prior convictions for example the bank robbery from kansas city that happened in one thousand nine hundred nine had to be multiple this whole inquiry about did the codefendant make a threat of a gun even though he didn't have a gun during the robbery and does that count as being in the course of the offense and the court is having to make conviction but whether there's a certain type of connection i'm unaware of any that's not to say that there's not but i'm unaware of any the the government attorney who brief this case although i disagree with some of the way he characterized some of the facts and stuff because he was not the attorney who actually did the case he his last admission to this court was only i believe two months ago and he had not seen any either so at this point i don't think there are any i and i wouldn't necessarily expect any because the lanes are recent enough case and although thirty particular bank robbery enhanced cases come along there are not so many of them that are up on appeal at any time that i would expect that i would have a reason to doubt my research then i would reserve the rest of my argument for after the game one of the specific facts that you say were found here impermissibly they go beyond what we've said the court can do in davis first there is the issue of the court is having to make findings on do does each individual prior count a separate than other prior what dates did they occur on and did they occur before or after the current offense that bump to life and that is what doesn't apply if a gun wasn't used or threatened or involved in the offense and that required judge lowery the district court judge to make findings looking at each offense going into them because it was not in the charging document of those offenses she actually had to dig into the cases and find out was a gun used was a gun threatened was a gun involved if so how does it count and that is your man put on evidence that there was no gun  a contested portion was there any evidence presented yes and no because the evidence had already been presented by the government the government anticipating the argument because i'd put it in my sentencing memo called the probation officer  who then put into the record the prior p s r and who then put into the record or brought to the court's attention the transcript and the appellate brief from the prior case because it had also been a western district  missouri case so the judge had before her the eighth circuit opinion on that case as well as the recent insane transcript and the sentencing transcript and so then she then read those documents and accepted those documents as evidence in th case and then look to those documents and then we had a fact discussion on the record in which she said well even though the gun was in the glove compartment and your client wasn't aware of it your client instructed not to have it and the eighth circuit ruled that that was relevant conduct in two thousand and one in this is a slightly different analysis but i do find that based on the p s are in these other records it appears that his codefendant without a gun said to a bank teller i have a gun give me the money and therefore i'm going to find that this prior offense involve the gun and i'm going to enhance your client so that their evidence was brought before the court by the government in an anticipatory fashion but we then engaged in actual fact inquiry using evidence and the judge made findings of fact as to how that involved a gun in the prior offense and i'm saying that whole inquiry was improper that that that violates the principles and what does that put the congress putting the burden on the defendant the congress putting the burden on the defen violates the sixth amendment so i'm saying that violates due process and i'm saying the judge doing a fact inquiry once that's happened violates the lane because that should have been found beyond a reasonable doubt by a jury or by a plea not by a judge on a preponderance standard at at sen was i thought the nature of kind of the situation was clear from my brief however i don't know what you mean by the nature of the situation was clear i'm wondering if you've raised a fifth amendment argument that the statute is shift on the defense and if i have in any way failed to do that i would certainly supplement my brief well if any where they failed to do it you might have waived it not putting it in your opening brief but i was going to give you a chance to point out where it is well if i can save my minute in thirty five seconds i will look at that while i'm sitting down of the government to talk to your o good law and is it an impermissible what the court has done here and finding that this defendant had the prior convictions and i would suggest that while t says that they're not doing that i think that they're asking that this court ignore the holy land and in fact a layman say states quite frankly are quite clearly that element just taught us still is good law and that these things aren't required and that the court can do that this case and it says that from way back since davis and i think that what the court what to defend is inviting this court to do is to in fact take a new st that the supreme court has thus far been unwilling to do as i hear the argument it's not that the fact of the can accidents on the doors tourist right whether or not there is a conviction is different than throughout this case both ed both at the district court level and here that if the court would examine the the filing of the sensing filing that the defendant made due process was not mentioned in that and neither was in fact the fact the way the hearing was conducted what was what was objected to in the in the sentencing hearing was that they thought that we wouldn't be able to meet the burden and that the defendant was unable to the not not that we were there to meet that burden but that it was an unqualified this one thousand nine hundred banks robbery was on qualifying for certain reasons so in fact they weren't objecting that the game be played that these findings be done they just thought that we wouldn't be able to score that being proving this convictions now these convictions are different than other ones they're not the same as t our career criminal and they're not the same as those things which we call it which we now call it the visible what the court has done and what the legislature has done as to did and its definition of serious violent offenses it says all bank robberies qualify they all qualify so all we have to do is show that their bank that a bank robbery occurred and if you look at the sentencing transcript in that we've laid that out not in our brief it shows the court actually found that qualifying offenses occurred it was only at that point that we went into what this was to fix were one of facts the nine hundred ninety nine bank robbery at that point what the what that legislature has taken has done is it says in certain instances the defense atomicity as if it was a matter of legislative grace in certain instances the defense can show that it may not qualify so at that point it's not our burden at all anymore at that point it's up to the defense and so if the defense can't meet that exception then it's then it's a qualifying back robert so it isn't something special that we have to find it's something that the court has to inquire if the defense wants to contest that because that's clear that all bank robbers qualify and i think that's set forth in page nine of our brief to actually go through what what the exceptions are and and what has to be shown so what the defendant can complain that that's it seems to be the same it really is it's it's not like the court i think believe earlier was and i know this isn't that it's not like bank like burglars like some burglars of a house are different than burglars of attack are different to burglaries of a car here all bank robberies by statute and by designation qualify as serious offenses it's on the defendant the burden to show that his was somehow special and that's basho would be no firearms use no plan was threat to be used at any time during the commission of the offense it doesn't exclude co defendants it and that's and that's what the court was truck was required to find but not until it had already found out that the qualifying offenses were there so it's almost as an exception to that now if i don't please i still don't believe that that's what was raised and i don't believe that was raised either there or in the brig but i think that that's really the issue here is to see your position is that sentencing the only issue that the defense this exception applies and the government can't show that didn't because my guy didn't have a gun and arguably said don't don't bring it so so as a matter of fact but didn't your position is the defense didn't raise the that it's non crime you think elaine allows that to be a matter for the court judge quite frankly i don't think elaine addresses that i think on elaine on and again i've never i haven't really thought about this talked to this morning i think  elaine only addresses the fact of the conviction and whether it's there certainly precedent in this court davis for instance to sixty suggest that the that you can look into other things whether it's the exact same defendant whether it's  divisible i mean but it seems to me that the issues that are really different the first it's that the government doesn't have to show the priors if there's if there's going to be some mitigation to that that's up to the defense and it's no longer within a lane at that point because now it's a burden that's not on the government it's are these are elements in the traditional sense like a felon in possession that felony obviously is an element these are part of something more than that there are other types of offenses there's groups of offenses there's three different types of  t qualifying offenses and non qualifying so it's the bank robbery and then something more i don't know if i'd say i've made myself clear on this i think but if the court has any questions i don't think i have anything else to say other than i believe that the court's precedents suggest that we have met our burden the court did and that everything exactly correct that i think the defendant has raised an issue now that was not raised then but even if it was raised i don't believe that it violates the land or any of the presence of this court and i would also suggest that even abraham sen in this court says that if the court was if the supreme court was in fact willing to say to set land instead it did so in this court did i think but it's required but it's required to do under its own precedent and that's to follow the law which it did do but if the supreme court wanted to do that the reverse it could have actually just taken abrahams and rather and decided that rather than send them out if there's nothing further i would  you your honor i did look up what i was talking about i may not have worded it is artfully as i would wish but on both the summary of the case and on page five of my brief i say mr roberts alleges and then number two thirty five fifty nine violates the sixth amendment and due process because it requires a court to make factual findings about uncharged misconduct from each alleged prior conviction and then on page five the defense counsel argued that any burden shifting process in which the district court makes findings of one charge aggravated indicated in the brief that we believe that if thirty five fifty nine is interpreted to require the court to make these to put this burden shifting process and where the court has to make these sort of findings then thirty five fifty nine would be  think in this case postal lane with my four seconds left that we can say when it so radically raises the mandatory minimum and the statutory maximum that it is a factually different circumstance postal lane and our understanding of the constitutional law thank you