two or six cases for arguments so we'll be moving right along i understand that we have a group of law students here from the university of missouri at columbia is that true a walk a marty first or second year students it please the court thank you for allowing me the opportunity to present my argument before you today and for the record you were moved my name is and i represent the appellant antonio ye hodgepodge that form this conspiracy particularly probably because antonio show did not have the best reputation in st louis and that may enlighten the court as to the progression of this case and to give some highlight as to our points on appeal of point two and three i'd like to start out with our first point on appeal which conceding really is our strongest argument and that is in regards to the man and mandatory minimum sentence of the nine twenty four c count where in the district court  it wasn't asked to do and whether it was brandished no it was not but the jury did make a finding that antonio show did possess a weapon which would induce the mandatory minimum of five years which is in brandish and therefore the mandatory minimum should have been a five year mandatory minimum which would warrant redress and that's exactly what we're asking for and recent and saying by the district court and the government's all but conceded that the government  with the sentencing our next point in revolves around the relevant conduct and prior conviction of antonio shah and we decided united states versus fatah al where the the relevant conduct should have been revolved around antonio shah's prior convictions and the not the undertaking of another coconspirator specifically about is in regards to the murder that was presented  was involved with these murders the only link that the government had with respect to this murder was stanley carter stanley carter's testimony should have been in question considering in light of his credibility and the fact that he had been lying throughout the progression of his entire case including lying through it and invest it and share hearing and in regards to those murders those murders revolved around a heroin  trade there is nothing in regards to antonio charges revolving around heroin there was no made no mention of heroin within the within the trial heroin was not an issue at all with in this case in fact heroin was an issue with stanley carter stanley carter was an admitted heroin dealer and did it make mention that he was involved with heroin and also there was no mention with antonio shah and heroin so with there was no connection action between why and tonio shah would murder donald mack and adolf allison and that's in line with us v alexander where they stated that the defense but the government should have shown that the defendant would have benefited from such acts that was not presented with in the sentencing at all there's no mention that antonio shell would have benefited from these murders or that he was connected to these murders the only evidence that they had was stanley carter saying that antonio shot was there but det detective hannah winkle which is credible stated that there is no forensic word of and stanley carter your honor and stanley carter i believe would have should have had major credibility issues considering his progression in lying throughout the entire progression is what is sometime sometimes and who discerns when they're telling the truth i understand that the district court does have that discretion and that's why the standard is of use of discretion but judge in this respect there was no evidence presented that there was any link to heroin  or antonio benefiting from these murders and that's what us v alexander unspotted elf does point out that there needs to be some sort of benefit and nothing of that nature was presented did any of this evidence that you're challenging affect the guideline calculation in fact it did the guideline the government question an upward variance in regards to the guidelines and the district court did use this murder those are two different things guideline calculations are the guideline calculations and  from where the guy was so it was a departure under what section of the guidelines under section one b one point three that's relevant conduct that's that's not a departure section i think it was a variance in which case it would have affected the guideline calculation i do know that or after the guidelines had been calculated would really be anything improper about considering the murder alleged murder for that in that respect it would not necessarily be proper i would say but the fact that to use the murder that antonio sho was not connected to or that there was made no connection to antonio shaw and these murders i think is improper there is no benefit being made there was no connection being made by the government to antonio shaw in these murders the only thing that they had was an incredible witness that said he was there and that had major credibility issues i think that was improper in itself and that it was that even considered where carter admitted to these murders and admitting that it was not antonio show that committed these murders at all there's nothing to say in within antonio shows prior conduct or priors and convictions that he was prone to th think that that's where it becomes improper judge that it's not foreseeable to just antonio shah it may have been foreseeable to stanley carter but that's not a foreseeable to antonia shah in that  respect and and more in line with that there were no charges issued against john regards to these murders and that i think that speaks volumes that stanley carter admitted to these there's nothing evidence most of the evidence that was presented was minimal amounts of marijuana and to go from a jump from minimal on to marijuana to seventy two pounds there is no logical connection but i think my time is up for  good morning may it please the court i have thomas ray i represent the united states of america in this case in dutch judge woman you brought up an interesting point there at the very end and one thing that i think i would agree with at the outset and i a better this was not the typical case because mr shaw and his conduct was not typical and the jury convicted mr shaw of conspiracy with the int tent scuse me conspiracy to possess with the intent to distribute marijuana and cocaine base and possession of a firearm in furtherance of that drug conspiracy the united states's case began with exhibit one that was mr shaw's own prior testimony under oath which in summary proved two important things he was a drug dealer over a long period of time and number two that he needed to possess firearms a firearm in connection with that drug dealing because there was a lot of hatred out there towards his drug dealing now that wasn't the only evidence we had the united states presented a substantial amount of evidence a significant number of instances that went on to prove that drug dealing as well as that firearm possession and that evidence was sufficient to support the jury's verdict as to count one count two those same admissions how about the crack distribution that's a little then point eight nine grams well the jury didn't see it that way your honor they had an opportunity to review the united states is case as it related to marijuana crack cocaine as well as ecstasy and mr shaw was acquitted as it related to ecstasy but when you talk about the crack cocaine there are a couple things there we had the one incident and i understand the are there any cases where we've said point eight nine grams would be sufficient amount well just for distribution quantities and not as i stand here today i can't say that it is but the court also doesn't look at only the quantity there were a number of other factors that the jury took into consideration that's one of the reasons why the jury heard from edward clay who was a drug distribution expert who talked about quantity is something you can take into consideration possession of firearms packaging tools of the trade firearms money those types of things all those things were evidence that was presented but here's the other thing that's important that's why we started with exhibit one all of the government's evidence at trial including evidence related to the crack cocaine user of drugs and one of the things that edward clay testified to was a side view that a drug user usually has one drug of choice that's what they're focused on when you have someone who's involved in multiple types of drugs here marijuana and crack cocaine that think takes us into the sentence in this case and i think that's something that frankly the district court was taking into consideration and i want to clarify a couple points here by clicking on the sentence and then address that issue of let's turn to that for a moment  the district court did in fact very upward from the advisory guideline range while i think it's fair to say there was some use of the term relevant conduct throughout the sentencing hearing it wasn't being used that word wasn't being used the way the guidelines utilized i think some of the prior marijuana convictions in the amounts maybe were used as relevant conduct to increase the guidelines you are correct judge brunner limit but got the murder situation that's correct the prior drug cases what they fell with under the guidelines definition of relevant conduct they were included to set the base  offense level for purposes of the conspiracy that the marijuana distribution in the law is clear on that even though it wasn't proven up at trial if it falls within the conspiracy period if it's related to that underlying conspiracy even if it's personal use amounts you can in fact included as relevant conduct which establishes our base offense level here's how we know the murder wasn't being used that way there's a cross reference for murder in the guidelines that was not applied by the district court the guideline range under count one was eighty four to one hundred five months that never changed had this been had the murder been presented as a relevant conduct for purposes of the guidelines i believe that would have set the base offense level at forty three which would have put the guideline range based upon mr shaw's interesting criminal history at three hundred sixty months to life and that wasn't what happened so judge when you talk about this being a variance i believe that's correct and the riyadh the was this the presentation i soon there was no reference made to any departure section of the guide or was not during the sentencing hearing now to be candid with the court when you look at the statement of reasons that was the written statement of reasons that was filed after the sentencing hearing there is a section in there that is checked as an up or departure based upon death but then the court also checked the reasons for a departure variance from the guideline range and lists a number of thirty five fifty three a factors that took into consideration so while i think it's fair to say that it's unclear based upon the statement of reasons two things are clear one when you look at the sentencing transcript it is clear that the judge did not change the base offense level based upon the presentation of the murder and number two the judge goes through the district court judge goes through a recitation of the thirty five fifty three factors i think there's a very eloquent discussion about mr shaw's interests versus the interests of the community in society and that goes directly to thirty five fifty three a here's the other thing that's clear the case law within th circuit indicates that when it's unclear in that regard whether do we have an up or departure an up or variance it's of no moment as long as the court makes a sufficient record during the sentencing hearing to show that it did in fact take into consideration the thirty five fifty three a factors and that's what that double homicide was being offered for for the court to take that into consideration when it takes i consideration the thirty five fifty three a factors the history and characteristics of the defendant to protect the public how do we determine adequate to turn its when making a fashioning an appropriate sentence and that is what the court was doing when it took into consideration the double homicide now the attack on that presentation of evidence to me isn't whether or not it was appropriate for consideration or thirty five fifty three a the attack as i understand it today is the credibility of one of the witnesses stanley carter mr carter was not the only witness that the united states presented on that double homicide there was a second individual named david unique who received admissions from both mr carter as well as mr shaw as to mr shaw's involvement in that double homicide and just because mr shaw wasn't the trigger pullers doesn't mean he was any less involved in that murder in fact judge woman is is you seem to touch upon he took great pleasure in that happening when it was over and as the driver he was the individual who identified the victims followed them and initiated mr bobbitt richard babbitt and mr carter to go out and actually murder them the district court heard that testimony was able to evaluate the credibility of that testimony both mr carter and mr ewing and believed i think one of the important things was the district court also had heard the evidence the trial the district court also had mr shaw's statements under oath about being involved in the drug trade in needing firearms i mean that as the judge noted judge autrey there's a turf war going on and there was a great benefit to mr shaw as a drug dealer whether it's heroin or crack or marijuana or anything else because of the danger that existed between those groups there's a great benefit to mr shaw and so number one that evidence was presented for purposes of thirty five fifty three a which the court took into consideration and i believe made a very clean and clear record as to the evaluation this jury heard a lot of evidence they obviously started with mr shaw's prior testimony and then they heard from a number of law enforcement officers they heard about multiple instances where mr shaw was in fact in the possession of either in this was sort of the theme throughout the trial drugs guns or money in combination or all three and again each incident that the united states presented was consistent with the testimony that mr shaw for previously provided as i stated in closing argument that testimony alone was strong evidence for the jury to convict mr shy as to counts one count two but obviously united states provided much more and that included again possession of the marijuana possession of firearms possession of crack cocaine if if we were to decide that the point eight nine grams wasn't sufficient to be a distributable amount and therefore that part wasn't sufficiently proven would it have any effect on the outcome of this case i don't either on the conviction or on the s but he's arrested in two parts your honor the jury was specifically asked to determine which controlled substance it believed mr shaw was in the possession of but these were charged in one single count they were but there was a special verdict director that required the jury to check off which drug or drugs it believed mr shaw was in the possession of they checked both marijuana and cocaine base one other question to your concerned judge grounder is this mr shaw pleaded guilty to that incident in state court and so again it was another admission by mr shaw of his possession of drugs a firearm and i believe in that instance he had scuse me just a moment your honor but my my question is if the crack falls does the marijuana conspiracy still stand yes the marijuana conspiracy would still stand in because of the quantity when you go through the conversion process when you convert it all to marijuana i believe i believe i'm not certain of this but i certainly can follow up with the cord if you would like your honor i don't believe that quantity of crack cocaine loop would substantially have affected where the guideline range was for purposes of sensi i think that's right and i don't think it affects it either but here's the other issue if we take it a step further and you look at what judge autrey did in this case in the sentence that was imposed it reminds me a little bit of judge woman's dissent in that the layer of marie's case even if it did i don't think it would have changed or otherwise impacted the sentence that was imposed by the district court i know that wasn't your question but if we're looking at it took caliber of the circumstances which is what this district court was required to do and we're looking at the sufficiency of the evidence in the light most favorable to the verdicts that were returned by the jury whether the crack stays or goes i don't believe it would have any ultimate impact to summarise as i see my time is getting short on the sufficiency of the evidence that the reality was this regarding marijuana the united states proved about eight separate agreements or mr shaw was involved in a conspiracy on the marijuana there was one regarding the crack cocaine when you get to count two this is the possession of the firearm in furtherance of the drug trafficking crime the united states actually established six separate incidents of mr shop possession for possessing firearms in connection with his drug trafficking and again when you talk about sufficiency when you talk about credibility that begins and ends with the jury the jury had the opportunity to analyze shaw's legal counsel question the credibility of all witnesses whether they were cooperators non law enforcement or law enforcement the jury had all of it before it when it convicted mr sean counts one in two but the jury was also thoughtful enough to take that into consideration when it acquitted him under count three so we know the jury was paying attention and analyzing those issues during the trial i see my time's expired so with the limited roomies topic which we have conceded in the court has before we would ask the court to affirm uphold the jury's verdict and affirm the district court's sentence in this case  so if i can start with a question yes on the crack cocaine i think you heard the questions even if we were to agree with you that there was an insufficient amount to be a distributable quantity would it have any effect on the outcome of the case in regards to the guidelines possibly not but i would say that that was well what about the conviction through the conviction because the marijuana was all coupled into one count to be honest probably not however i would say that the cocaine count is the only instance where the government had anything that were shot were a weapon was seized from antonio shah that was the only instance where antonio shaw physically had a weapon on him so i think that could take into effect in regards to count two where the jury could have seen well he has guns here and drugs and therefore than this could have been in furtherance so i think it could affect the conviction in that respect with c two because there was a gun seized in that in that respect and so the jury could possibly think well if he had a gun there than that could relate to count two in some respects clear that count two relates to two count one to well to that particular incident where the gun incident where he was arrested with the crack cocaine and a gun or was it a broader count than that that he used the gun during marijuana conspiracy there was evidence of from other lay witnesses that antonio shot possibly had  effect on county to israel as a result of those convictions and so it could possibly have a result if the cocaine was not sufficient well i plot the indictment and it plead from march two thousand and four to may two thousand and eight he possessed so it wasn't limited to that want to know how many years contacted the the police department have with shaw have contact  it wasn't a an investigation of antonio shah it was separate instances and there were different detectives that in berne vald with each of these instances so i wouldn't say that it was a  investigation specifically was shot over a certain amount of years it was one instance and then another instance and then another instance and in this case the government put them all together under the guise of the conspiracy that all these instances are now a conspiracy  so it would be hard to say that it was the amount of years that they investigated investigated him i don't think that that's the case because in each case they charged him with possession not with the intent to distribute nothing was referred to narcotics unit or the da to have an investigation of just in tonio shah and with respect to david ewing and sentencing on his accounts vacillated throughout each of his statements david ewing was a cellmate of that and then in regards to exhibit one where the government does make its biggest argument that antonio shaw is a drug dealer keep in mind that exhibit one was a statement made when he was saying that he was thirteen or fourteen years old when he was selling dope however there is no connection made between those statements and the conspiracy here just because he said at one time does not mean that it was continuing from two thousand and four to two thousand and eight and i think that that's  difference and in relation to the got the the quantity amount of the drugs that the government did present there were minimal months seized and then one witness saying he had seventy two pounds which there is no logical connection in that respect but i see that my time is up and thank you very well reduces submitted and we will do a good under consideration