thank you your honor may it please the court my name is margot northrup i'm a c j a p annele attorney from pierce south dakota represented just the wall in this case before i start my argument i do want to make one correction to my brief i and it wasn't until closing argument that the government said that markel larry is the one that said that he purchased them from jesse and so we believe that there is insufficient evidence on that account there was an argument made on count  to be expert testimony it's traditionally expert testimony that meets that next issue that i that i want to talk about is in reference to the the guideline calculation range now in the pre sentence report which we believe accurately determine what the guidelines that should be the two are friends those were grouped pursuant to three d one point two two points and without them being grouped the acceptance of responsibility only applied to the first that it counts the burglary and larceny and so at the sentencing he didn't technically get credit for the acceptance of down to two convicted counts in order to get the advantage of pleading guilty to these of the acceptance for the counts and he didn't plead to it doesn't that if i  drugs and firearms and you plead to the drugs and you go if convicted of the firearms you know you don't get you don't get the advantage of the plea on the drugs in arguing for acceptance on the firearms d government means that it was because he went in and planned to count one into that there was no longer the same transaction that it shouldn't be grouped they argued that that's not the way i would argue and acceptance the question is did you did you go to did you what the government to its proof or not and that is correct but i mean the way that it was calculated is that he didn't get acceptance of responsibility i mean he did number wise but he didn't upon application because there's a risk when you proceed to trial when the reality of it is this is that the only way that we've ever or president allows you to proceed to trial and then to get the benefit of acceptance is if you proceed to trial and you don't confess to any of the facts that essentially walk in and say we agree with the facts as presented by the government we did neither that's a crime the facts as presented don't support intent and so we're to argue the specific intent and we're going to not contest any of the facts right that's generally where you get acceptance even though you went to trial in this case what you're really asking is us to use the grouping to therefore give you acceptance and then you're going to get credit for guidelines computations if he groups then it's one right then he says now was there it was there an acceptance of responsibility for the overall conviction and i daresay th hearsay actually you could you confused me because you made the brief confused because there was a the defendant kept the jury from hearing o'leary's hearsay to settle my arafat so you pronounce it until the government's tell them about a closing argument where the government had made that statement but that correct your position so the question i gather is whether you can parse together from the defendant's testimony and all the stuff about the shoulder belt and whatnot whether that's enough to link the savage the court counsel kevin connor from the u s attorney's office in south dakota arguing on behalf of the government i will address the last argument that was the last discussion first on the sufficiency regarding the savage  firearm there's a lot of facts here that are that were talked about in this trial meanwhile we have here is a group of daily mathematics engaging in burglaries around the rosebud reservation and then  engaging in all these actions in the weeks that followed to sell these firearms and then law enforcement trying to piece it together and then a trial piecing all these facts together here's what the jury heard  westover came home from a camping trip with his family over the veterans day weekend and reported that his house had been ransacked in a number of guns had been stolen including the savage firearm at issue in this appeal the jury th learned from danielle white eyes that on november eleventh two thousand and sixteen she and jesse wald went to an alley behind the house of bull westover and helped jesse wants brother to from the bow westover house to mark o'leary includes you know this long string of of somewhat convoluted facts here but what we have then is we have a number of admissions that jesse walang was involved in the things stolen including guns from the westover house one of the things that danielle white guys talked about was a trip to this marc o'leary's and she said they went with two guns and it's true she didn't know the make and model of the guns they went to get math jesse went in he came back without the guns and he came back with meth and then taking that information bob subtle meyer the investigating officer went found mark o'leary the testimony was he found a magazine o want to clock in the morning and said mark you know you may have bought some stolen guns and mark says i don't want anything to do with stolen guns  objections during during the trial testimony  guns from objection sustained the government did ask a question with the objection that wasn't there with no objection the question quoting did you talk with mark o'leary about guns he may have purchased from jess answer yes or no objection to that question as a result the question was asked of the the agent did you receive two guns from mark o'leary yeah and one of them is a savage firearm so number of inferences there but no question that the savage firearm was bo west overs firearm and no question that the trace report from the a t f agent show that that was originally sold to bo westover and that was in fact the gun that was retrieved by agent suttle meyer from mark o'leary going to the rule sixteen question this court has decided these file a rule sixteen motion does not necessarily make an agent's expert testimony in admissible the reversible error is when there has been prejudicial by the defendant and has been no showing of prejudice here the district court in this case when this issue was argued looked at the very issues that this very notions of this court has looked to in those cases asking the questions well was this sort of information given to the defense in advance it turns out this trace report was given to the defense over a year before the trial began this witness was on the government's witness list and fact the only involvement this a t f agent had in this case was doing the trace report in a certain respect of the presence of a motion in limine about this it cuts against the defense argument in the sense that they clearly knew that that was the purpose that this agent was going to be called to testify even before trial and again there has been no showing so that's the that's an issue that's been decided in the canyon and the sheppard case to the extent the argument is that this was  objection to an a t f trace report us to be carter's two seventy s third seven thirty one and that's a case in which this court held that it's not hearsay in the sense that an expert can rely upon you know this is one of these issues that should it have been put forward in a formal rule sixteen knows the district court thought so told the government counsel that and you know we're not disputing that no rule sixteen notice was made here it's not a customary practice in my office but it happened in this case and so then the question is well what's the standard of review of allowing that in and again it goes back to this prejudice point turning to the guidelines issue the question that the court has grappled with today with respect to you know what's the result of this grouping that was exactly what the district court  was talking about when it talked about how it was struck with kind of an oddity in calculating the guidelines here also exactly why the government made an objection to the p s r author's calculation and it was because by grouping these accounts these two counts together are sorry these four counts together in effect he would have gotten a benefit for acceptance of responsibility on two counts that he proceeded to trial would have gotten except instead applied to his his trial counts as well one point difference in the offense level it's even complicated further because there was an argument about whether a prior criminal history point should have counted if  months on the guideline range whereas the way the court came out i believe put it at a fifty seven to seventy one month range i believe the high end was seventy eight months i don't know what the low end was and that takes into account i missed the first i thought you gave the more favorable range for what were the two ranges the one level difference fifty seven to seventy one month appeal he he reduced it to a criminal history category two and combined fifty one to sixty three months i believe if it were combined on appeal he because he ultimately ran them separately and consecutive for the burglary counts the range was twenty for the for the burglary counts twenty four to thirty months for the firearms counts forty six to fifty seven months because he ran them consecutively calculated the ranges separately  he didn't and then what he did is he ran thirteen months consecutive to reach the seventy months range your honor here's where i'm going with this what you have here is a district court who made a very extensive thirty five fifty three analysis announcing even before he made that to me that the firearm ranges which is the court forty six to fifty seven months if that were on its own burglary range if on its own twenty four thirty m and then he made a consecutive he made a portion consecutive thirteen months consecutive in here here's why he did that and why he explained why he did that he said throughout the sentencing that he thought the total punishment here should be seventeen months we have this oddity in the guidelines with how things are calculated the district court stated on the record that that's where he was going and then did an extensive thirty five fifty three analysis talking all about the nature and circumstance going through all the factors in fact for several pages of the sentencing transcript talking about why seventy is an appropriate seventy months an appropriate sentence this is a case where the district court made an extensive record that even regardless of the guideline range he would reach the same sentence under the thirty five fifty three factors in other words guideline range is wrong do we have to remain and i think the answer is no because if there had been or it would be  harmless i have a minute and a half for a little bit over a minute left on the clock here if there are any questions i'd be happy to answer him if not i'll take my seat i hate to do this because i had they been group there would have been a fifty seven or seventy one guideline range is that what you're saying i think it would have i'm sorry or was it sixty three to seventy eight because i know you were talking about sixty three to seventy eight at one point that was what you were arguing for at the high end of that range and then there had and then there was like you said they were at seventy while the grid actually goes to seventy one so most been fifty seven to seventy one if group if group yeah ok and the government was asking in their absolutely and that's very clear from the sunshine record thank you your honors i just to make it clear what what i'm requesting is that i believe that they should have been grouped and that the without giving up my argument on that obstruction for justice are obstruct seven months and then he ran them consecutively to get to that seventy month timeframe so what i argue mean arguing is that it should have been a level twenty one thank you thank you counsel