we're raising three issues this morning i'll address the trial issues first the first one being the admission of the n plex records which is a precursor accounting system used by pharmacies to assist law enforcement in tracking who purchases sudafed and other cold medicines that are used to make not unfounded need and how much they purchase these records were admitted by the government as business records and objected to by trial counsel prior to trial as a violation of crawford versus washington the progeny of crawford which includes melendez diaz and then well coming vs new mexico makes it clear that these were records that should have been presented by a witness who is subject  confrontation there is no business records exception of the confrontation clause which is what ball coming held even when the witness would be a mere scribner as the pharmacy technician in these cases usually i logs are intended to promote public welfare by shutting down meth labs and may have some value to that end to trial that doesn't necessarily make them familiar with that here and i think that is a violation that doesn't follow the letter of the law i think that they didn't look at the reason for these records is because they're testimonial to be admitted in court as to who was purchasing  specifically for you and i trowe are worth sending such that they would be testimonial settings it seems to me  i see very little efficacious for the records that are not in a court setting the purpose is to see if people are violating the laws we're going purchases of pseudoephedrine and we believe that that is exclusively for the use of law enforcement and in court the website that gathers his information specifically says that for the purpose of law enforcement well you know the networks have seem to be objection was made at all and then to this case one objection was made just not remade at trial i understand this court's his law however it's based on this concept of sandbagging the district court and the government to a certain were holding onto objections until appeal and that certainly wasn't the case in this case there was an objection there was a written objection that you know brought forward proffered in bowl coming in all these cases and it just it wasn't ruled on and then it wasn't renewed at trial and in some respects i agree with the government's statement that in the end it comes down to whether it's you know plain error or herman's there because it still can be harmless error so the issue can around the demonstrative evidence and our issue with that just shortly is the fact that this evidence the video of the shake and bake method was so completely different than what actually occurred in the case that it was prejudicial to mr len at trial  jury had already seen photographs from the basement and heard quite a bit of other testimony pointing to his home tab hey i'm not sure i understand how showing the video of that shaking back to make meth and for manufacturing math would make it more more more likely that he would that he would be convicted i think it makes it look more dangerous because of the setting in which the video is done and it's completely different than the way it was done in this case and one of the cases cited by the government is a roller coaster ride that was produced in some fashion that's unclear from the case at trial and but everybody kind of agreed that it was similar to what the issue was a trial this one wasn't similar and when we're talking about this kind of evidence it is prejudicial to hear testimony about how a basement shaken big plastic bottle tubing meth lab works versus a chemistry laboratory enough lab would work with a professional with all the safety equipment underscoring how dangerous this process higher because of the courage under based on two convictions both for aggravated battery while in a public place and we are you in our brief the two crimes of the career founder of course the residual clause prime the government says they're not asserting but we obviously would be successful if we get there based on hurlburt and that on that front but we are to arguing the first cry of her thunder that there's no element of physical force in a conviction under twelve does for and the issue that we think that this court and other courts who have looked at this type of offense stems from the fact that they start with a simple battery analysis under two twelve three  moving into twelve for mr lynn was not convicted of twelve three a simple battery he was convicted under the statute that says it aggravated battery of here the person battered it is on or about a public way there is no element of physical force in this crime reading into pulling into from the battery elements which has to of course the force element of the force prong and insulting touching prong for lack of a better word is not what mr lindh was convicted of not what he was convicted of the battery in a public way matheson was actually instructive in this case which came after i filed my original brief it came in time for the reply brief in that those are the elements the aggravated battery those are the elements the battery simple battery is whether it's insulting touching or physical force are means and the reason i can argue that is because it doesn't matter for the punishment under twelve for b eight whether mr lynn was convicted of a bodily harm battery or an insulting touching battery the punishment is the same so it doesn't have to be pled it doesn't have to be found by the jury beyond a reasonable doubt either way because he's not convicted of twelve three egg this is you ok did case where the charging documents were jury instructions did not specify whether the underlying battery cause bodily harm or was simply an insulting contact i've not seen that harm or insulting content battery has to be proved her conviction i think if you look at the way that twelve four is written that the legislature if subsection fifteen or b fifty eight regarding a merchant causes bodily harm so if they had wanted bodily harm to be an element of aggravated bought a battery they actually put it in the subsection bodily harm or disfigurement to strangling is not itself and divisible for purposes of determining whether conviction is a crime of violence under four b one point two ar pregnant women was indefensible and then they adopted that that and johnson the this court's johnson there are a lot of johnson cases involved in these cases not and and found that that pregnant woman analysis extended to the public way analysis and it was indivisible that it's quoted at length i believe in my reply brief that that subsection is individual because indivisible because that's in a separate offense from the other subsections and i were going to suffer offense from simple battery as well that simple battery just provides the means to prove the battery element an aggravated going to just put something right out there because i i would very much like the government to supplement the record on include any of that because i think there it's very important here i mean it's really important to this you know to the sentencing i will do that your honor of if you want me to get into the king it's problematic that none of that's in the record and when i get to the when i get to that that fortune of my argument i'll explain or i'll go into your why that is but  to briefly go through the go through the trial and errors or at least to it to go through the the issues as counsel presented them earlier the government's evidence in this case was it's kind of a unique case we have a case where the defendant in this case calls the county sheriff at three o'clock in the morning at home and tells them i just left a place or i've been cooking meth the yeah and i'm wondering why he's the only defendant charged in federal court the other defendants were convicted in state court pled guilty convicted in state court and all of them ultimately agreed to cooperate although we only call two of them the  c offered to come operant shouldn and green men or can you not answer and actually that was part of that we put on the record judge judge gilbert's procedure to to have us when we go to trial to put on the record were ther any plea deals or were extended and rejected and that is part of the record we we did extend a plea deal two to the defendant which was rejected and we went to trial on on the on the employer's records the i i concur with with your honor's analysis of of those is that these are not soley use for testimonial purposes a criminal trials these fees are part of the illinois administrative scheme for tracking pseudoephedrine purchases and there are maintained for that purpose are maintained so that people can be blocked from purchasing more pseudoephedrine they're supposed to so they're not only for for testimonial purposes under under crawford the the more problematic thing i think for the defendant is that this is being reviewed in the plane or context the government gave notice that they were going to use these records the defendant reply to that notice and then a trial there was no objection now there's a reason i believe why there is no object a rejection one is this particular defendant went through six going aparna counsel the court appointed counsel who filed their notice that they they were objecting to the use of this information was not the same court appointed coun actually proceeded to trial and if you look at the record they the court appointed counsel who actually proceeded to trial intended all along to affirmatively use these records as part of his defense and he did use them as part of his defense he these implants records to not show that the defendant was purchasing pseudoephedrine pills it showed that other people the other people in the conspiracy were purchasing the pills and then the defense in this case as it actually went to trial was  yeah there were people who were producing methamphetamine but but the defendant my client wasn't part of it and you can tell he wasn't part of it if you look at the pseudoephedrine logs and you can this was not only  the defendant's defense after all the evidence came in and this was the defense he announced in his opening statement he said in his opening statement you're going to see these pseudoephedrine logs and they're going to show that my guy wasn't purchasing  so not only do you have the fact that these were not testimonial layered on top of that you have that it wasn't prejudicial to the defendant in fact they were affirmatively used by the defendant as part of his defense regarding the causes bodily harm prong of the illinois that are in statute i wonder if you would help us with that because in the preceding to suggest that lin bears  the burden of proof to demonstrate that he was charged under the causes possibly harm prone and although of course he has to demonstrate error and prejudice because we are reviewing for plain error it is the government's burden to show that the underlying state conviction was indeed for a qualifying crime independent you know of what the p s sorry is in the briefs because the p s r refers to to knowingly causing bodily harm you see suggest that we can know that lynn was convicted under the bodily harm prom of the portion of the statute that defines a simple battery but what evidence is which way the defendant commits battery is actually an element of aggravated battery which itself that requires only a battery on a public away and if you understand all that i'll be very pleased i'll do my best your honor i  think the the bottom line question is this is coming to this court on plane air review and on plane air review the the this court has said repeatedly that on these types of issues on on an issue on johnson issues and taylor issues for lack of a better word for these issues were trying to decide whether or not a prior conviction is a qualifying one for for enhanced my purposes on plane  review if a defendant is going if the court makes a finding that they are qualified it is the defendant's burden on plane or review to show that they they are not qualified and i i made that note and getting back to your earlier your earlier earlier request to have the government submit the materials i i know to in a footnote that i have those materials that's that's not a problem if this addiction would have been raised in sentencing i would have presented the evidence that would have shown that his prior convictions were qualified under well you know i have wondered and wondered in this case if it was common to see can career enhanced when you just meant under for even a one point two eight one without attaching the underlying record of conviction i mean you enhancement didn't you in go in the way that typically the way that burden is just charges of the p s i will make a finding the parties will either who will file objections to the p s i i or they will not file objections to the p s i i hue and if they don't file objections to a particular section of the pre sentence investigation reform report then what is represented in there is accepted as true by the district court in other words  qualify i had the convictions i could have shown the court you know this was a bodily harm prior conviction under illinois state law but they didn't object to that provision in the p s i i so so no one so that it wasn't proved up for lack of a better word it was accepted as having been proved i'd be very interested to hear how much this christianson has to say about this yeah the but that's the that's the way it played out in as i said i had the prior illinois state convictions for aggravated battery i i make reference to them in a footnote if this court would like to see them please feel free to and i'll supplement the record with him if i more laura linger and and and moving forward the the resolution of the sentencing issue is pretty much predisposed and and mathis does not change this court's analysis in hill vs whirling her and an aggravated battery conviction a public way when it's premised on the bodily harm prong of the illinois battery statute is a qualifying conviction for purposes of the curve under provision in the guidelines the defense does not they did not address hill in their in their opening brief they did not address hill in their in their reply brief after i mentioned it six or seven times so it is our position that hill versions were longer of binding precedent in this court n to two sixty two month range so although the hundred ninety two months that he that was imposed upon him was below the higher range without that and hansen lin's guideline range would have been amazingly significantly lower that is correct it's sort of a very troubling case on a number of levels you know here's a guy that falls in confesses and you know he'll be in prison for a million years yeah the and again that's that is that is not atypical of the operation of recidivism to type statutes your hon so i appreciate it now and if if there are no further questions your honor i will yield the remainder of my time thanks will see what i can do with one minute i would like to comment on why the other defendants were charged mr lynn was offered to cooperate and plead guilty after he was charged in federal court the other defendants were allowed to plead guilty in state court and i received and received very little time i believe that's because mr lindh was a career offender and the others were not so i will address the critics under issues what happened in this case with the guarding the records to prove that her back better battery is pretty common they are rarely attached and to the pre sentence report even though the procreation officer usually has them defense counsel usually has and government counsel usually has them i have them in this case the the problem is that the probation officer quotes directly from the indictment yet another trial going to be not from the judgment and the indictment is not one of the records that we're allowed to consider in the us of course it's d connor johnson and evans that it's not divisible so as far as explicit admission to the pre sentence report i would always prefer that there was an objection to what i choose to raise on appeal what bodily harm aggravated battery is not a crime in illinois offensive touching aggravated battery is not a crime in illinois aggravated battery on a public way is a crime and it can be convicted committed several different ways but either