requirement of whether that ellen had reason to know knowledge or reason to know that the explosives were stolen and up until recently actually until nine hundred ninety three the guidelines u k two point one did have the requirement that the thousand have known or reason to believe a gun things like this and they they concede that these are much more dangerous to the public at large than guns are and should be punished accordingly upward i'm sorry  that was they believe that they should be punished at a higher level but if there is you're i think the united states is more concerned about explosives these days coming into the country than they are very beautifully back when they made the chain off people if they're war congress panel here are judges they interpret the law it's the law and law is a guideline a guideline is a form of law as much even if it is but the judges can still find them unconstitutional when they are unconstitutional as they are in this case but what what is it that makes it unconstitutional because you have similarly situated salans one being punished with no knowledge the other one only being punished with knowledge that change was made without any rational basis on the part of the sentencing commission or the legal if there was no rational basis because i provided the court the amendment that changed that and they just said they don't that's in their reason for the amendment  explosive grows under the firearms act it was separated out in one nine hundred seventy but up until then they were treated the same the guideline language is exactly the same  firearms and explosives explosives are very highly regulated i did a case i mean who stole a felon who stole explosives and so a little more understanding of this then most because we lost that one but here you have found both stealing highly regulated materials highly dangerous materials certainly explosives are much more volatile than guns and usually have to pull a trigger explosives can sometimes go off by themselves without any impetus fi the fallen explosives can harm a lot more people than explosion went off in this courtroom there would be more people injured and somebody shooting a gun and i want to believe th nut shell we don't just take a number and plug it in the can cases where you basically you look at people you look at their backgrounds me for any look at a different set of formulas because a felon is not a felon is a felon therefore we all get the same sen in this case this felon who has a similar background in this felon then yes they should be the same however this felon over here is in possession of a stolen firearm now there is this  correct correct but then there's the additional there's the additional fact that that would concern anyone there's a whole separate charge for people that we can show that person knew it was stolen or had reasonable belief that it was stolen that's a whole separate statute but at the sentencing hearing a court needs to be able to take into consideration what should i give this guy a little bit harsher sentence then this felon and the guidelines that spelled out by adding that it survived all of that scrutiny and i believe in one of the cases is that therefore stolen or obliterated firearms in the hands of people recognized as irresponsible pose great dangers and the guidelines here reflect this history no sir no sir and in your honor the as far as legislative history i didn't find anything directly on point to that spoke to exactly why we had to separate it out in that note no detailed discussion but however the courts have conviction was a crime of violence we don't have to show the defendant knew that his park conviction was a drug trafficking offense those sort of those sort of aspects or sentencing factors that there is no m radia they are in of itself aggravators that a court can and should consider at sentencing in this case it is a we have the stolen firearm in possession of a convicted felon and in fact the government did present second aspect the court here also did an upward departure and i think the question is whether or not this up or departure was what was proper was that reasonable in this case this is in regards to  individual who received life in prison he got out on parole roughly fifteen years after a first degree murder conviction with there were a year and a day later he was caught with a firearm when and the reason they were looking for him because the  not necessarily relying on these parking dictions in fact i think it's a very close call but but if anything i'm only going to move him up to a five and what the court said is that i'm not relying on his prior obviated convictions i am i am relying on the fact that what happened here is something that sends a chill down the spine of the individuals in this community this could have gotten very bad we have a convicted felon convicted murderer i don't parole within a year he has a gun in a casino and he goes for this could have been a lot worse situation there for the judge moving from a from the criminal history category three to a five and even understated if that prior criminal act doesn't reflect the seriousness of his present guideline calculation then this court can depart out don't you have to rely on the the the you're looking not not not in of a biased self hate that the court did state that he wanted to look at it because he felt like he had to take it into consideration but he was not solely relying upon it and he even well what it was i guess what i'm trying to emphasize is that the court was very careful in its consideration he wanted the court spelled it out so i want to know what he would be if if they were still valid he would be  honor and that's what that's what he was he wanted to emphasize the most in when he's making his record is that he wanted to make sure that it was clear that that's a he wasn't lying only only on his prior record but he wanted to get  outdated convictions he was putting them to six and he made it plain that clear and i believe and at the excerpts record at ninety seven i'm not necessarily saying i'm going by this point calculations but i ask you because it gives me some was that that he only relied on that and that's not what he did because if he had it would have been a criminal history category six what he what the judge was very clear about was he was he was taking this on the thirty five fifty three a and looking at the stolen firearms so that's not really a good reason for differentiating the two and also i'd like to point out that all of the government's cases have to do with due process argument and basically what we have is an equal protection argument which is quite different from the due process argument i e lack of notice cetera et cetera that go to due process this is an equal protection argument and the government did not provide a rational a statute which is also overbroad most of these priors don't even have statutes on them in the pre sentence report and the judge just called his criminal history aggravated egregious and island when in fact they were almost all misdemeanors he didn't have an aggravated every just prior history of course he had them i mean that's like saying well what else was wrong besides that he was dead i mean if your honor is going to consider that then i would ask that you know we'd be given more time or whatever because this was not what we contemplated when we were you know determining what his sentence was going to be as far as enhan months and then plus the two level criminal history and hansen and i just like to point out bad marriage which even though another decision came down on it so the man had over one hundred prior convictions and a one criminal history