two robberies both with alleged guns being displayed but the real issue here the two main issues which i have briefed are the question of whether or not fall and that would eliminate the twenty five year consecutive sentence which mr brown received on that count there is no evidence  was in the room with the robber who identified what appeared to be a pistol who said it was a black gun that was all she could say about it yes it is seen on the video of the events in that room the object is seen but there is no proof that it is a real firearm surely the law is not that some poor store clerk has to be a firearms expert in order to testify that this person came in and pointed a firearm at me i don't believe that the law requires that as you say so what's the difference between that and what occurred here well because in order to be guilty of the robbery the defendant displays what appears to be a firearm is sufficient but for the nine hundred and twenty four see can a standing alone it has to be real firearm the statute makes no distinction that the statute and twenty one dollars difference when you take the evidence from the nd robbery from the shop right robbery does that not provide some evidence that the gun in the st robbery was a real one i mean there was stronger evidence in the here and then one being uptown i think it's a little bit further than that but i'm not sure something like that may be here to brooklyn but not downtown i do think though that that the tempora separation the five months is more significant than the geographical separation and the shoprite robbery occurs nd so while there is proof in the nd robbery that it was an actual firearm and that's the proof of mr  hamilton who says i know about guns i saw the bullets in the cylinder that's frankly from my position tough to argue with and i will concede that that is sufficient for a jury to find that it was a real firearm but there's no such proof in the right a bribery the right aid robbery involves one witness testifying that he pointed a gun at me it was stuck in my back and then i saw it it was  displayed apparently when he poked at the the d v r with it there's no proof that it's the same gun there's no proof that it's the same type of gun it's an object held in his hand that suggestive i respectfully disagree and if you look at the photographs which are included in the appendix the photograph of mr brown has what clearly appears to be a spotlight on his face and they literally spotlighted that  and that does not appear in any other photo and the witness who viewed the photo array he didn't testify at a hearing but in the detective's declaration he said that the witness immediately discarded four of the six photographs saying those don't look like anything anything like the guy the nose is totally different that leaves mr brown and one other photograph and then you have the spotlight on mr brown's face i think the photograph is clearly suggestive under any stretch of the imagination under any definition of that word and i think the judge room on should have rather than denying the motion without a hearing should have at least granted a hearing where that could have been explored i give you that at trial mr wynn although was able to cross examine with respect to that issue and the witness did testify at trial and identified mr brown at trial  but if the photograph itself was suggestive that would require a hearing in order to determine whether there was a sensually an independent source for that in court identification so how to be reviewed i think under just simply to determine it's a factual determination and it's a question of whether or not a judge ramana abused his discretion in determining that this was not suggestive and i think i think he just basically have to look at them and say well they are suggestive and therefore he should have gone the other way and grant that hearing about it and sources that for us to decide or not i think you have to have a hearing st judge walker judge newman i'm sorry  and as you said facial hair shaved head and orange jumpsuits but the fact of the spotlight on mr bram and neither did the text of nor the civilian witness mr adams claimed to have noticed that prior to mr and all the pointing it out on during cross examination in front of the jury during the trial so i think that even though they were similar in that respect if it weren't for that spotlight i don't think i'd be making this point but i think that that in and of itself is sufficient to create a suggest court allison nichols for the united states i represented the united states both on appeal and at trial in this case good morning honors the judgment of the district court here should be affirmed in all respects there is no basis here to disturb the jury's verdict that there was sufficient evidence at trial to convict this stuff and then beyond a reasonable doubt on all counts and the district court did not err in denying mr brown's motion to suppress eye witness testified that he had familiarity with firearms and because of the angle with which mr brown pointed the gun at the eyewitness he was able to see the bullets in the cylinder of the gun aid robbery that she saw a gun and that it was black which is consistent although much less detailed than the testimony of the hamilton at the shoprite robbery we also have video surveillance of both the properties and you can see on the video that the gun appears to be the same weapon it is a similar size and the robber is holding it in a similar way and that is an yes your honor i think the law is clear that that eyewitness testimony is sufficient that there's no specific type of testimony or expertise that's one quired in order to find a real firearm but your honor i do think that the evidence from the  nd robbery is important to consider when we're when we're looking at the evidence from the st robbery his possession of a real firearm about five months later is extremely probative as both firearms and his ability to access them i'd just like to play out for a moment the string of inferences that the jury would have had to make to conclude otherwise they would have had to conclude that a november  brown had a real looking toy gun and he used that to rob the rite aid in november rd jean and then in the intervening five months he obtained a real gun that he used in the shop right robbery that looked very much the same the same color the same size and that he held in a similar way and handled in a similar fashion as the the twenty gun that he had used previously in a robbery that otherwise proceeded very similarly in the jury's choice of the competing inference here that instead that brown used in fact the seem real gun in both robberies is certainly not unreasonable judge instructed the jury properly on the definition of firearm and i want to be clear that this argument that the firearm was not real was presented to the jury and they rejected it by their verdict i like to address the photo array briefly as well counsel is referred to the lighting as a spotlight and i just want to be clear that what we're talking about is that there was a glare on the defendant's forehead in the picture probably from the flash the standard of review here  people look remarkably alike their dress the same they have similar the purity of similar ages similar hair similar facial hair similar skin tone and so this is just simply not a case where the difference in the lighting suggested to the witness that the defendant was more likely to be the culprit i think it's important to note that brown had multiple defense attorneys who apparently didn't notice this difference in lighting it was not raised in his initial motion to suppress judge didn't notice the lighting until it was pointed out by trial counsel and both the eyewitness and the police agree that it's different i do agree that there is a glare on the defendant's forehead in this picture and i have but i think it's important to note that the lighting in the photos was not otherwise uniform and as judge romano pointed out into naing the defendant's renewed motion to suppress you could easily make the opposite argument about the photo that was the darkest in the back fam well as i look at it there's no light on any of the oh it's not it is absolutely the case that the defendant is the brightest but i think that the other five are not necessarily exactly the same i think that there is one in particular that is darker than the other fo length of the sons of the critical i believe that that argument was for him your honor i think that counsel made the argument that essentially thirty two years was sufficient but not greater than necessary and and asked for as he does here on appeal a sentence of one day on both of the robbery he made the argument but is there anything in the record indicate the judge understood he had discretion to consider that judge for monton particularly articulate that he had that understanding what he said is that requirement that he that he play if you agree he does have discretion to consider that yes your honor he does have that is our nd circuit opinion at the time that said he couldn't i'm sorry i wasn't there a nd circuit opinion at the time that said he could not my understanding is that he could consider that but that he doesn't have to your honor my question was was there a nd circuit opinion at the time that said he could not i'm not aware of well if that was the case isn't that some reason to think he is presumed to know the law and would have thought he didn't have discretion i think that the judge indicated that he had heard the arguments of parties and that he had considered the three thousand five hundred and fifty three factors and that he was imposing sentence based on the arguments that he had that he had heard and what the government argued at sentencing was that these crimes were very reckless and that they were very serious and that they warranted a guideline sentence fair to say the supreme court's decision that was not discussed at all that's right yes it wasn't brought to his attention by the government that's correct you think it should have been i think that judge considered the and fifty three factors and the guidelines in fashioning a sentence and i think it's important to know to consider that the seven year sentence for the robberies was what was the date of the sentencing that maybe the record of of the nature of what the court should and could consider the probation office in this case recommended a sentence of sixty months which was slightly below guideline sentence for the two robberies and judge imposed guidelines sentence of eighty four months through the pre sentence report referred to the deed i don't believe that it did your honor the district court understood that it could go down to a day on the on the two robbery counts absolutely your honor not to house not clear from the record that's clear from the arguments of the parties  in particular the defendant was asking for such a sentence i would government the government didn't respond that the court did not have the discretion to do that no we did not meet we simply argued that under th fifty three a that's not the decision that he should make within his discretion how does the argument of counsel and foremost what the government what the court was aware the court articulated on the record that he had considered the arguments of counsel in fashioning an appropriate sentence thirty two years for for these two robberies does seem like a really high sentence it's a very significant sentence here on earth that's absolutely the case but i think it is important to shockingly high you know gonorrhea in our view it is not shockingly high and is not a manifest injustice and i do think that it's because i do think that it's important to separate out the mandatory sentences from the gun charges from the seven year guideline sentence for the robbery charges well when the safest thing be to send it observe that the defendant is not asserting that the sentence was procedurally on reasonable so so any argument there is waived here and i think the question is really is it substantively unreasonable and here as i said these were very reckless crimes they had a very real and tangible effect on the community the defendant tied up his victims he held them at the some of them for hours and made the judge said i've read the beam decision i fully understand it i'm fully aware of my power nonetheless i choose to give seven plus twenty five dollars you would you would have had no argument from me on that at all that is on this record is no it's  code should we get that record so that we are at least satisfied that he fully understood what he could do i don't believe that there is any reason to question that the district court didn't understand what he could or couldn't do on the points here ms nichols argues that there is compelling evidence that there was a real firearm during the shop right robbery and air go there was a real firearm during the rite aid robbery because the robber was holding the gun in similar way and she argues that it's not realistic to think that he had a toy gun in november but a real gun in april and i respectfully disagree with ms nichols on that count it is  well within the realm of possibility that the robber had a replica gun a toy gun if you will in november and obtained a real gun in the next five months that certainly is something that can happen and does happen unfortunately these days and or the fact that a gun in november looks similar to a gun in  april doesn't make it the same weapon and there is no evidence that was was this point argue to the jury that is whether it was a toy gun i believe that mr and all the argued that there was no proof that it was a real gun rather than i don't know that the government argued that it was in fact real they and they made the same argument then that they're making now in fact i think it was nichols who made the argument i believe that mr and although made a similar argument that there was no proof that the two guns were the same and that's the argument here there's no proof that it was the same gun both times or some proof they look the same well yeah but that doesn't make them the same and unless it's a real firearm on the proof that you need i mean the jury hears the arguments that why did anybody argue that that wasn't a real gun that they got it wrong in the shoprite nd robbery that you can't even tell that that's a real gun just because somebody sees some bullets or the ends of bullets in the chamber i don't know that that argument was made your honor but i i do concede that this the shoprite robbery that the evidence that it was a real gun based on mr hamilton saying i know about guns i've seen guns and i saw the bullets and i hadn't sufficient time to observe it i think that that's sufficient for a jury to conclude that it was real but that's not what we have in the rite aid robbery where we have a woman who says look at that it's a black on are pictures of them right the jury did see the videos yes but you can't tell whether it's the same gun or it may be similar it may not be i i don't know it's not that the jury are just saying as a matter of law they're too dissimilar from the jury to have that evidence i think there's insufficient evidence in the right robbery for the jury to come to that conclusion with respect to the id and i see the red light has gone  on i just point out that it's a lot more than just a little extra lighting on his forehead the photograph when you have a color one clearly shows the center of his face lit up in bright yellow and that makes a decision a difference it's difficult to tell him  copy that you have judge newman because that's in black and white but in the the e c f file the appendix there is the color photograph you thank you thank you both will reserve decision in this case