sentencing your visit is less the court has other issues that they want to discuss i'd like to focus on the fact finding issues here a little bit there's two instances in this case of judicial fact finding one issue centers around the arm career criminal statute and one of them are act and one of them centers around the underlying facts for the guidelines whether or not we should enhance the guy lives in this event the court had a big discussion a big analysis of whether or not the juvenile cases the cases that mr daniel was convicted of when he was fifteen years old whether or not they should be treated as one a crime spree or whether they should be treated as multiple events wedding occasion is the word occasions where the question is whether those are were committed on different occasions correct and that whether he gets a mandatory minimum terms on the outcome exact in your view and and i think right there when the court stepped into that in that's were crossed the line into the jury room it's kind of an unusual posture here because i mean this all happens right before a lien and so i mean what do you just curious what you think judge collier should have done i mean would he then because you're quiet already pleaded guilty would the judge collier then have to convene a jury to determine the separate cation issue i think that the i think that the government wants to it's opportunity ok they took a plea they entered into a pl remember the position of the violent felony in chattanooga that occasioned his ultimate arrest him brought and indictment here in federal court was not resolved where we had with the facts the allegations so there's no resolution of that case there's no finding of fact by anybody in that case we have with the charging documents but i think we're switching ground here and i and i don't know if that's what you want to do but for the guideline purposes the judge conducted a little trial and zone for the facts of the violent felony the judge the government was allowed to put on two witnesses t testified about the facts of what happened in china knew that which are fascinating facts a policeman comes around a corner and sees four guns pointing out of one when one side of a car a two people standing on a sidewalk who are being robbed i find it entertaining  it also a little bit i'm a little skeptical about those facts and then when they see the policeman they don't drive off in their car they abandon their vehicle and run these are the facts that are some sort of what is that determination you're talking about here ok i mean and did it change a mandatory minimum or maximum they got it changes the guideline range but that doesn't trigger mandatory doesn't i mean judges do that up there they're doing it right now as we said right right because we have one case the carbs it out right i mean it's when judges make fact finding for purposes of shifting the guideline range all the time it's only when you hit a mandatory minimum or statutory maximum and go beyond it right that a pretty cut that's that didn't happen with respect to the with the guns out the window you're right it did i'm arguing a little bit out on a limb here i'm are going out i will further because i think that it's improper i think that a pretty and then i think that elaine says that that's not what supposed to happen it says anything except the fact of a conviction problems for the jury that's what it says now then the question not and let's let's jump back to the a c c for a second in that one and there's a lot of discussion in that you've got a camp with a shop where you're supposed to say that you've got several other ones graves balla stuff brady that's all argued by the government in their brief and they say well it's a legal decision they're rather they're relying on the wrong law the legal decision is the elements of the effects the judge has permitted under all those cases to say ok is this an offense that fits into the embittered of a city but not to the underlying facts go to this and that is what  sends that's what graves gives us the model for the show it's an it's a decision a balance the elements of the crime it is perfectly within the province of court to go in and interpret legislation what are the occasions and a half or whatever would would have been the case in this particular situation and there's no dispute as to that that there were separate occasions different victims if there's no dispute that doesn't have to go to supreme court cases are very clear and i think the days cops is an excellent discussion of this because it's is very carefully in there and then elaine talks about some of this stuff too but it's very carefully in there that you know ending compton corrects the ninth circuit in this and says there's two different kinds of analysis going on here and when you step beyond the categorical or modify kerobokan ounces and you are making an analysis of the facts you are rubbing against the six men and you can't do right i mean i know it was just crossing over midnight of the offenses those are spelled out in the indictments in please don't fall for that little you know midnight thing i mean this is an hour and fifteen now into questions about yes i mean assume a hypothetical as judge said different victims different dates and times well and i mean how is that disputed in this case does it amount to a spree or are they separate facts not proven well i don't know maybe maybe but let's think about it for a second what we're going to do is we're going to say we got a multiple offenses over a period of time he's fifteen years old he's he's being run around by an adult and being told what to do and a series of robberies that happen in an hour and fifteen minutes that sounds like a spree to me not sound like it's really you know what that's a disputed fact if he let me ask you this question i mean there are two two two ways this could be undisputed one could be we would say when he pled guilty to the the indictment you bring in stuff that's in the indictment is that i'm not sure if that holds up under our precedent but did did your client contest specifically the did the fact that there were different victims for these underlying offenses or that they occurred at different points in time that in other words it wasn't just him pointing a gun it one group of people no i don't there he doesn't i don't think that just in this case i think what's contests in this case whether or not it amounts to a spree or not ok you know i think that if that's what whether i mean so every it sounds like in the in the district court everybody had the same sort of sense of what this conduct was that these young men are in a car you know and they're going from person to person and doing this and then it's a dispute about whether that conduct amounts to different occasions or not is that fair i think so yeah that sounds right and that sounds like what is alleged what we don't know is what was part of the plea missions at the police you know and in tennessee in most courts i assume that the prosecutors will make a statement about the facts that are being admitted to we don't know what they were those were we have here the charging documents i don't know was is what was admitted to when he actually entered his pl now that's easily to easy to obtain but there's the government didn't do that they're usually recorded and it's usually some that can be transcribed and i think it's even spoken about in some of the case law that you can use that but that was never used here instead we're speculating on what might have said we have a logical argument about what's involved in the necessary admissions but we don't know what was necessary admissions are and we don't really know what he said we know the murder for example one from a murder down to the questions about that arm career that at the moment ok as far as the other one goes they enhancing the guidelines i'm asking the court to consider this from the somewhat different perspective because i do think that if you read a very closely read elaine where the supreme court has now come out and said this again they've used the same thing again anything beyond a conviction is a problems of a jury and all they've carved out is that conviction and now we have a situation where a judge puts on what would have been put on in front of a jury two witnesses come up i mean mr danas could have brought some witnesses to do to rebut he didn't he was acting on his own his own counsel at the time he could've taken the stand to testify about that we could have a whole full blown mini trial really which is what we're supposed to do and for the jurors and that's what happened here but it was a preponderance of the evidence standard and here's where he's robbed he's robbed because of that instead of those facts being found beyond a reasonable doubt they only had to be found at the ponderosa the evidence and that's where the harm thank may please the court but to try and bring some clarity to the six amendment arguments issue in this case i think it's important to distinguish between two separate arguments that are being made one concerns the on her criminal act and one concerns the guidelines now going to dress the second one first the guidelines the whole line of cases of printing the elaine all of these cases are very clear that the prohibition against judicial fact finding only applies when you're dealing with the statutory penalty range you know and so unless there are i mean so the guidelines issue i think is well settled turning to the ark or criminal act issue that's i think the trick here one and i would i would suggest that the court think about this not as judicial fact finding because there was no judicial fact finding medical here rather it was judicial fact recognition and what i'm talking about is what is that exactly is that that a fact finding is when you have a disputed issue that's resolved by a fact finder and the reason why there's an exception to this whole plan the line of cases for the fact of a prior conviction is because the facts that are part of that prior conviction have already been determined by a process that is consistent with the sixth amendment in the sense that that prior conviction either resulted from a guilty plea at which time the facts necessary for that conviction were stablished beyond a reasonable doubt where they resulted from actual fact finding but it simply looked at the defendant's prior convictions and relied on the facts that were inherent in those prior convictions themselves and said and that's what i mean by fact recognition the judge is not finding the facts he's recognizing that those facts were previous found as part of the defendant's guilty plea and i mean how do you square finding i mean there are two different things here one is to say well he admitted to it when he pled guilty another is to say this was undisputed in the district court in this case not tennessee case fifteen years ago or whatever was ok so how do you get around this and blue shark case for purposes of saying the fact that he pled guilty i mean doesn't say his guilty plea only is an admission to the elements not to some of the more extr conspiracy just there was it was charged as two separate conspiracies and they pleaded guilty to two separate conspiracies and then they later on tried to collaterally attack it and say no actually it was just one conspiracy and this is a double jeopardy problem and what the supreme court they looked at it says is what's you know when you plead guilty you're you're it's a guilty plea is more than just a confession which emits the accused the very very sex it's an emission that he committed the crime charges against him in part of the admission when you plead guilty especially when you plead guilty to multiple offenses that have been charged as separate offenses is a concession that they are in fact separate offenses in fact what the court says is that but what you still need to do is explain in this case though because here how how we know that these are separate offenses is you look at blake his guilty plea he pleaded guilty to six aggravated robbery and the teaching from gross is that in but by pleading guilty to six aggravator operas at the sept at the same time he was necessarily agreeing that they were six separate offenses and that they contain his put his guilty plea there for recognizing it was necessary to his guilty plea that he was a made those things separate then let's say i mean let's say a defendant has a god he corner six people in a row and pointing the gun at them generally says are right all of you throw your wallets on the table they do he takes the wallets he says ok get out here they leave separate occasion fence and he robbed them all right aggravated robbery has to every one of them could know it would actually enter tennessee law that would actually only count as one aggravated robbery because tennessee law is very clear that it is the theft own that is the incident not the not the victim so here that would be one theft six victims so under but so my point is that if you look at it in this particular case looking at these particular prior convictions by admitting that each of these aggravated robbery is a separate he pleaded guilty to seven separate thefts and how do we know that they're separate we look at the indictments by which he was charged and so he necessarily admitted the facts in the indictments that are necessary to understand these as being separate offenses victim identity and t police because otherwise he would have he would have he could have he could have plead guilty to six separate aggregate robberies why again i'm sorry otherwise it would violate double jeopardy he had to like what bro says is that when you plead guilty to  offenses at the same time you're necessarily admitting facts that are essential for distinguishing those for double jeopardy purposes and that's and that's exactly why the case law the supreme court about indictment says that the indictment has to be specific enough to plead against double jeopardy should should you get later non down the road and so our position is that by pleading guilty in tennessee court to the  conceding the facts listed in the indictment which made those robberies separate offenses for double jeopardy purposes and those attacks and these indictments actually did not include the time by the record the indictments which are a couple that are different dates which implied there's different dates and different locations and different victims so i mean i think the different locations in different victims those are facts we submit those are facts of the fit necessarily emitted at the time he entered in the county after said just target county what part of this is i mean part of the complication of looking at the shepherd documents is the procedure by which this happened he was initially charged in juvenile court in the  juvenile court was transferred over those are both included in the sheppard documents and the tennessee courts treat that that charging document in juvenile court as the indictment when it gets transferred over to the adult court so that why they're in the shepherd documents if you look for example at what age id how do we know that tennessee courts treat it that way that how do i know that that was i mean that was the understanding of the parties at the sentencing hearing i mean i and so our position is that these are facts that he necessarily admitted as part of his prior guilty plea so it is federal sentencing the judge was not engaged in any judicial fact finding rather he was simply recognizing that these facts were in fact inherent in this power conviction that this case is unusual because typically when we're talking about facts that are necessary part of a conviction really talking about in terms of elements because our analysis is usually all about that violen definition or serious drug offense proport pronk of the cia and usually we're not talking about i mean this there are very few cases where this is come up in the context of the committed on occasions different from one another prong of the part of the definition and so this is a little bit unusual we suggest that the analysis is the same that federal court is allowed to rely on facts that are necessarily inherent in the prior conviction and what the supreme court's decision of gross tells us is that facts that are necessary to distinguish offenses to show for double jeopardy purposes are inherent in the prior conviction when a defense pleads guilty to multiple for asking us to expand basically on the rationale this sort of necessarily intrinsic argument they are making the dish on so i mean this does that ops is not as i don't get how this that has anything to do really with this case that's that's about you know whether we use the modified categorical or the categorical which is just a different issue altogether than whether occasion as presented here require judicial fact it has to do with this case because of the language of the court used in describing the six the minute problems with the ninth circuit's approach it's a part of the problem with the ninth circuit approaches it's looking at facts that are not inherent in the fact the park conviction itself it says and this is from the show it says only facts of the court can be sure the jury so found are those constituting the only defense as this thing for him providing but legally extraneous circumstances in our position is that the facts that are necessary to show that these are distinct offenses for purposes of the double jeopardy cross that's not are not i mean even by its own terms that's not elements of the offense elements of the offense is one thing facts that get you outside of double jeopardy prohibition are not the elements of the offense you know ten it's ok to the reason why it's ok to rely on the fact of a prior conviction is is long as you're only looking at the facts that are necessarily in here in the prior conviction the facts that are necessarily here are the elements of the offense ambros tells us that in the specific case where you have a person who pleads guilty to multiple offenses violations of the same statute on the same day that it's also it's also necessarily inherent in the plea of guilty the facts that are necessary to distinguish those crimes so that's our position is that your stand your argument and you've been quite clear and i would also say that you know alternatively if the court doesn't want to go down this road there is an easier way as i think you've identified and that is that it in this case i think that vince counsels admitted that these pacs are actually not in dispute i mean these were not disputed facts it was you know nobody is disputing that these that he committed these these prior aggravated burglaries at different locations and against different victims and under this circuit's you know precedent in brady in numerous cases there is says look if you have robberies against different rhythms at different locations those count as separate offenses are committed on occasions different from one another so i think if i mean if those are the facts that everybody agreed on the courts conclusion that he is an arc or criminal is should be is there other any of the questions about this i know the system in argument is a little bit it's a little bit unique because you normally don't see this kind of analysis on the occasions different from one other problem but if there are any other questions or concerns i'm certainly happy to address the so so it's interesting idea of different types of factual analysis recognition of facts as opposed to actual fact finding  and i'm not really clear on the difference but let me just start up of one slight rather that we have here in the government's exhibits that they provided to you p g ninety nine for example shows you an indictment from the criminal court in hamilton indictment is that you know examples were not not really my understand i mean because you look at it here you've got two totally different things you've got the original charging document which is one of the dogmas into here and then you've got the actual criminal court documents so they may have incorporated some of the information into it but it's going to be written by a different d a it's going to be presented to a grand jury in criminal court as opposed to a grand you know as opposed to i mean i don't know that there are indictments in juvenile court my understanding is that we  just charge people with driving records so i don't think there is such a thing as a juvenile court indictment in tennessee so anyway i want to maybe kind of point the court back a little bit to something else we haven't really talked about person inches may be related to each other therefore treaters one sentence for the purpose of criminal history if they resulted from offenses that occurred on a single occasion were part of a single common scheme which is what we're arguing here they're part of a thank you very much thank you in case of submitted and