counsel this court yesterday dressed this case on direct appeal in that decision the court reversed the substantive offense convictions for the substantive offenses and  reminded the case it left the conspiracy charge to stand stating that majority conduct although constituted most of all of the substantive offenses there was evidence that stand around for months following the age of majority that showed ratification by the defendant and therefore the course would be to ask the court not to consider all of it but if the court does consider reject that argument then the mitigation would be the natural second step congress specifically tried to address this issue in regards to the use of pretty majority conduct there was no certification by the attorney general that this case presents a national interest  months period as pointed out in the decision of this court and in the direct appeal which gave rise to the which gave support for the conviction of the  charge so you have a defendant being punished for entirely your majority conduct very short period of post majority activity for months that to me sounds like we assume there was no problem until sentencing well as opposed to what you seem to be focused on which isn't a threshold objection as to whether they could have held him liable for any criminal conduct at all doubt the sentencing issue arises because even though he was in a conspiracy in which there was a small amount of post majority conduct at  objection to the cream majority conduct being counted you have to show that in fact the law prohibits the prematurity conduct from being counted so so is there such an argument  her opinion and rodriguez where the court said the court has not reached that issue and squarely however the court did say can consider the majority of honour's in order to demonstrate ineffective assistance of counsel in must be shown that defense counsels performance fell below a reasonably and objectively reasonable standard under privileged professional norms and that actual prejudice resulted i think that you cannot reach any of those prongs as defense counsel are of appeals counsel has has stated this was a this is a very novel approach i don't see how you can argue that therefore that defense counsel counsel performance fell below reasonably objective standard under prevailing threshold norms there was no case law to indicate that she should raise the argument that these drug quantities did not count in addition in various one the circuit held that he had ratified conspiracy and that in addition the decision states that there was testimony that vargas attended a meeting between rival drug gangs after he turned eighteen where he said that he was the leader of that drug point and he said that he was  owner of the cocaine for his group so this was an ongoing criminal conspiracy that continued after his eighteenth birthday i realized that there  you yes your honor what i understand that was a jurisdictional issue and there was not there was not the certification however there is evidence in the record that he continued the conspiracy after he was eighteen and although no that prevailing professional norms the second thing i would say is that if you look at the sensing hearing why is that all you're representing somebody who's just reached the age of majority the only refly a key issue is whether the conspiracy they're charged with is a conspiracy first certain quantity right all the evidence that would bear on the court of the comes from when they were not age of majority and that would be clear voice to figure out that you might want to contest whether the well it is a new a novel legal issue and what what i was going to both said is that i'm sorry but not settled correct what i was going to go to is that if you look into the sentencing hearing transcript you'll see that the prosecutor in question was talking about additional evidence that there was in the record that he continued to sell the drugs and indeed in burgas one there was evidence that he had boasted of being the cocaine owner now i don't know what what the day to day volume is of a large drug trafficking organization such as this but i would i would say that it's it has to be substantially more than fifty grams of cocaine in order for it to be a viable economic organization and this individual he stated that he was he own these quantities and four months is a significant period of time there were one thousand individuals involved in this drug trafficking organization that you know that were indicted this is not a small scale organization where he was just some like a bag of marijuana on the street corner he was an owner of a drug point so i don't think that it would have been effective for her to argue with that and if she did bring it up there was indications sense in her transcript in the prosecutor that there was additional evidence and testimony from officers that he would have brought in and i and i believe it has she brought it up he would have then asked to present these are witnesses at the sentencing hearing and it may have even result that that there was there was a greater amount on his record that they would have taken into account so i think it's hard to get you to the actual prejudice and it's hard to get to the argument that she was not effective counsel it's a very stringent standard to get to that the assumption is that she she was  made reasonable for her professional judgments and all significant decisions well and as i said in the sense in her transcript if you look at the prosecutors talking about additional evidence that they didn't put in that they could have put in and i think that you get it's difficult to reach actual prejudice because of that  know had had the issue you know been accepted by the judge and the judge will judge was willing to hear additional testimony on that i think that you know the our office was going to have and submitted that evidence and put officers on the stand certainly there was evidence as i stated that this he bragged to this other informant that he owned the drugs and this is after he turned eighteen is of high volume organization i think really the result would have been that they would have found more than fifty gra correct it was not raised it was not raised but you but you think we shouldn't just dispose of it on the merits anyway yes i think well presumably you could send it back down i think it was ratified four months is a significant period of time there has to be cut off somewhere in the law you know age of consent riggs for certain things varies in different states where culpability start varies in different states right now the law says eighteen and  he continued to ratify his behavior so i think if you sent it back down i think it frankly the result might be that the finding of drug quantities is greater  to continue to see him dealing on the streets or joining with his people that dealt for him on the streets these these type of organizations operate on a continuing basis  permissible for the district judge to base the sentence on drug transactions that occurred before eating or not i would argue that it is because he continued to engage in the behavior passage of eighteen is where he