proceed to hear argument in the next case united states versus  you can see we obviously run a little bit over the red light anyway but i'm going to ask the clerk please do start off with ten minutes you want to preserve any time yes the two minutes are on a thank you and may it please the court my name is richard lang going for scenario the the paradox in this in this case that begins with booker is that and an apprentice which have evaluated the role of the jury verdict by subscribe defendant sentenced to the relevant statutory authorized maximum so district courts are limited on their book or an apprentice me and its progeny to respect jury verdicts with respect to the maximum w recession allowed sentence allowed but yet ironically in conversely district courts are not obligated to respect jury verdicts of acquittal well and hasn't united states versus watts or didn't the supreme court  d states versus what's explain why that somewhat and it's very it's very significant you want to get you when you think of the presidential vitality of watch that we keep it keep in mind that the  docket they had to decide things on the merits but all they said was affirmed and there was a lively controversy at that time where some people were saying when they just say affirmed that has no presidential significan there is no case that you cite that refers to the process of grant grant doing search or are evading the decision below and remanding which is what happens here without full briefing where the court actually writes an opinion is there any case that you have that refers to that kind of procedure and says that kind of authored opinion for curiam opinion that is done is decided precisely because the court thinks this is such an easy issue that it doesn't need briefing lacks presidential impact the same presidential impact of any other decision that's decided by the supreme court well you're on to i believe  i think it was blakey blakeley the where maybe one that one of the justices in fact spoke about that the presidential value of watch this was and i don't wan regardless of what what was what arguments might have been made about was hasn't this court given it presidential authority and decided numerous cases saying this is what the law is right in primarily beginning for instance in the united states versus von and it's progeny yes but first of all the issue presented here is different than watts because watts dealt with acquitted conduct in the context of make it even more powerful that the jury had acquitted the defendant right there in that very trial of these these acts and then the court nevertheless takes account of that to increase the offense level for that particular offense of conviction it would seem to me that's a stronger case for giving weight to the jury verdict then this one where what the court is doing is simply taking other stuff other allegations of the defendant that it believes are established into account in assessing his general character i agree with ron and i think that that's the distinction i'm trying to make in what happened and you know i think but i'm presuming this that this you're arguing are you not and at least help me make sure i understand your argument that accord here took the conviction and then in assessing what sentence to impose went back and looked at a earlier case and look to conduct that was charged in that case which has nothing to do with this case and took into account conduct in that case on which your client was acquitted yes that is exactly my piece alright and judge and i'm asking you isn't that an easier case to allow the court to take it into account because it's just going to the general assessment of the defendant's character whereas in watts the court was actually increasing the offense level for the conduct of which he had been convicted based on conduct of which he was acquitted that seems a harder case  in terms of overturning the jury's verdict because if the jury never had said anything the judge just says in effect you were convicted of all this stuff and that's going to determine how serious this crime is here the court's just doing what courts have done  from time immemorial to say there are various allegations against you some of them have never been adjudicated at all but we're looking back at your entire content of your character as reflected in your entire life the fact there of being found by a preponderance of the evidence to decide that within the limits of the punishment for the crime of which you're convicted here you're the kind of guy who needs a higher within those limits  well i think what's going on first time it should be a functional analysis of the lore in the principles as they're operating in this context when you're talking about constitutional principles we waiting competing competing interests and balancing that that pronouncement is a profound moment in a person's life and it should have meaning and that meaning that means that it should be if a jury acquits somebody of a crime especially a crime that's unrelated to the instant offense rejected and say well i find by a preponderance of the evidence that that the jury's verdict is not the last word on it and i'm going to consider that not only for not only in imposing sentence but in up would lead to pawning and that was the from and i guess that justice scalia's position on that was that you know what you want to go above into the variance range with there's got to be significant reasons for departure and you've got to state these reasons it is a dicey proposition to start using acqui negligent driving tragically killing somebody but gets acquitted of that and then the state of the person sues that person and proves by a preponderance of the evidence that constitutional significance of state action where it where you're dealing with state action affecting acquitted conduct is really what the framers were intending to protect you have so you're so so you get you get arrested you you possibility what's the time difference here let's use this one fifty years fifty sixty nine was or the difference between the acquittal and the use of it in this case well that was three years that was three years but i district court finds that a defendant committed conduct by a preponderance of the evidence and that conduct is relevant to sentencing district court may take that can into consideration in imposing sentence for the count of conviction that applies whether or not the underlying acquitted conduct has to do with the quote same case or out of the same nucleus of operative facts or not the rule is because as what's explains an acquittal is not a finding  fact as to the underlying acquitted contacted merely means there was a jury found there was a reasonable doubt as to those charges and using that acquitted conduct in the count of in imposing sentence in the count of conviction backdrop of a substantive reasonable in this challenge that if the sentence is so much higher than the other thirty five fifty three factors in light of the guidelines allow that is always there but i don't believe that there is a limit in terms of code how much of conduct can be used in imposing sentence when congress sets a sentencing statutory scheme of zero to twenty years he said there might be some arsonists who deserve a sentence of zero there might be that deserve a sentence of twenty and so so long as the district court finds by preponderance of the evidence all of the relevant facts and pick somewhere in between there i submit that that is still comports with all the elements of the constitution and the backdrop of the substantive reasonableness challenge can always be used and challenge which i know is not the case here mr starr also does not challenge the factual finding by the district court as to its conclusions as to his recorded conduct it also does starr also does not challenge that this conduct is relevant under thirty five fifty three a judge ross said she could hardly think of things that were more relevant to assessing the defendant's history and characteristics than his lifetime  violent crime and his allegiance to a violent criminal organization so against that backdrop we submit that journal ross was entitle to consider the acquitted conduct and did so appropriately briefly as to the ineffective assistance of counsel claim there's no reason here resubmit for your honour's to do anything other than abide by the general rule that such claims should be raised on collateral attack mr sorrowed now acknowledges the record is not sufficient he's now claiming that he was not told that he could have conduct could be used by judge ross at sentencing obviously that's something that needs development to the extent he wishes to make those allegations but it would be a waste of resources to remand the case with respect to this idea of relevant conduct that in fact what's that's exactly what's was dealing with watts was dealing with with the acquitted conduct in the context of the that was a we challenge his ferocity as an accomplishment this person came in off the streets just walked in off the streets and said i don't want to be in the mafia anymore and i want you to pay me mobster anymore but he wanted to get paid to be an informant and that was what that was about with respect to the ineffective counsel and this ghost of the notice issues the due process issues that really stem and tall into the nelson versus colorado analysis but if somebody is going to plead guilty and his sentence can be enhanced dramatically for things that he's been acquitted of even in the distant past well then that to me  would seem to be a a says very serious collateral consequence that maybe then has to be the defendant needs to be made aware of before he enters into plea agreements and these kind of situations mr sorrow was completely blindsided and that he