those three other defendants that in a fact because of the fact that there's a difference if we do remain and why shouldn't we just return to the status quo and unity as alice would suggest and simply let mr patterson vacated mr patterson was ordered to trial and went to trial and hindsight perhaps it would have been cleaner to do as was done analysis and file a petition for writ of manda actually work out a deal with the government where he pled to a lesser offense murder in the second degree as opposed to murder in the first hear your client pled guilty to manufacturing marijuana and at the time of the plea the only question was what would the sentence be and that had to be determined by a determination of quantity so isn't this different from alice in that respect it's different in that alex it does make a difference does it make a difference right because gov jeopardy protects you from being twice punished for the same offense twice punished or put in fact pretty front and that's the difference of what makes the difference here is that  quantity but that was only after found guilty mr patterson was already guilty i think tom it's instructive again on that it went back to the guilty plea and the court was not allowed to conven really what about the provision and it's forty one i think it's be one that talks about a prior conviction for a drug offense doesn't that take the punishment for an unspecified quantity from five years as patterson in varying degrees first of all i'd like to point out in thomas this court is well aware he filed a motion stating he wished to plead guilty to the sole charge in the indictment but he was not prepared to admit to possessing any particular decided whether you call it an element or equivalent of an element that the defendant has to be made aware of the fact and has to understand that he has a right to have a jury determine the number of plants involved in this particular case as to the marijuana or he has to plead guilty to all the elements as charged in the indictment the similary between the two is that they didn't plead guilty to all the elements in the case but the difference is the procedures used in a trial that is not at all correct in the transcript that was filed in the original brief the court feels is appropriate to proceed to set aside the plea and leave counsel to either negotiate this no plea agreement where the defendant can be i found the court's ruling at that time was correct i believe that i understand the court's position that it was a valid plea but that did not what if in fact it was a valid way the judge nor the don't you think that you think your kids know your honor i do not because the defense argues that we are limited in some way by the fact that there was a five year cap that is not what is corrected by the nor as what was admonished by the court the court admonished the defendant that he was subject to up to a five year mandatory minimum up to twenty years what the court didn't  defendant the opportunity to have the number of points determined by the jury which is in fact what happened and the court gave the defendant the three points acceptance or responsibility so he got the benefit of the plea even though the case went to trial he did not want to be negotiate therefore there was no determination of the plants it was not up to the jury as required  submitted to the jury and it was beyond a reasonable doubt anything else