crime it was extremely broad crime and since the high court held in united states versus mathis that misty cracks they crime elements that are border than a federal offense cannot serve as a predicate on duty on career criminal act if you look at the statute that mr anderson pled guilty to the state statute it's extremely bored in addition to that when he allocution that he ha the prosecutor in the allocation in united states versus cohn's a district what burns actually beat levy years prior to that was held that when you read a police report into evidence it cannot be considered on to  he can he can this case in our case he confirms that it's basically ok i mean that was the allocution it wasn't specific there were no specific questions from the judge nor did the prosecutor a for any specific row questions in the allocution therefore when mr anderson just as i you know stated on the road that it was basically we don't know definitively your honor or what specific element he could be there any other questions they found beyond a reasonable doubt that mr bryant was involved in less than twenty eight grams of crack cocaine they further follow that mr bryant was not involved in more than twenty z watts where the court would be justified in doing an additional calculation here there is a specific upper limit finding less than twenty eight grams in u s versus found it was hundreds of kilos here we don't have a range if you have a range you know that the government proved at best the low end of the range here we know that the government crew he was not more than twenty presented at the sentencing hearing we objected to this evidence coming into trial both in the motion limon a and at the trial itself the court ruled that this evidence what are you conspiracy and in my brief we've also alleged that there were three multiple independent conspiracies involved that the government brought under one umbrella indictment that was inappropriate and i'm going to rest and briefly i think this is is an issue that really needs to be addressed but it was and it was it is possibly right but if you look at state versus archer and you're talking about this issue they believe that when you're using this type of evidence it has to be solid evidence and if you read the transcript  contradicts jury fin to give the theory of defense instruction in this case constituted first error and it was compound it case by the improper arguments of the government intent to distribute on all four of those they did not the question that and the defense that we raised was that everything that he did was market but that doesn't excuse the commission of crimes the preceding but but the the can i would i would concede in fact we did concede pretty much in the opening state here and there is i think in this record significant factual support the defendant is not here and submission ripped off mr wilson mr wilson conceded in his testimony he was an easy mark  say the jury should not convict him should not find him guilty beyond reasonable doubt because the government has failed to prove the things the judge tells jury are essential elements and i have a  it's it's one thing when the theory of the defense is something like entrapment where in order to understand the jury would need to be told some principles of law that are other than just one of the essential elements of the offense and the reasonable doubt but all you're arguing in this case is well i i'm telling you the government didn't prove its its its case beyond a reasonable doubt because his position they only prove that he did certain things but they haven't proved that he really was conspiring because he you know we argue that his intention was his reply it's no different from for example  defendant says you know the government's case rests on a witness who has bad eyesight is the judge compelled or or the government's case depends on witnesses who have a great interest to to name my would subscribe to the proposition that just because somebody can muster up arguments that they don't necessarily showed up but might show a different intention that means there's no evidence of intentional you know just a voluntary and shiny answer your question about the facts of what i suppose that they could decide as your honor pointed out that there was no meeting of the minds except that the only evidence as i view it reflected in the record was that mr santos and mr wilson jointly acquired and distributed never supposed t accept the proposition that they met at the earlier day they discussed proposition of dealing heroin that that santos priest pretended to agreed to  conspiratorially and but really was intending to rip off as soon as they gave him drugs and supposing the jury disbelieves that overwork or simply reaches no conclusion about your evidence of anything that happened from then until the the transaction that he didn't pay for so the jury just doesn't find except your evidence on that other stuff so that the next transaction the jury accept is the one that he then disappears and doesn't pay for why isn't that why isn't that some evidence supporting his tension for the first  i suppose my answer would be twofold if i may the first is that there's nothing revealing mr santos's state of mind other than what happened i suppose in december two thousand and eleven was true in every case every case  and never a feel of the person's that's right and except for a situation like in durham the durham case in which my adversary relies which makes clear that there was testimony of derms codefendant at trial made clear that it was their agreement determine the codefendant to dupe the agent into giving them an advance payment for the arson which they then took and they had no intention whatsoever of carrying forward with the arson that's materially different from our that there's some evidence but beyond i think there's a second argument here that i'd like to walk through the court which is that the the rip off the fence presupposes that someone cannot have two intentions at the same time that this pretending to agree would be mutually exclusive his intent to rip off would be mutually exclusive of intending to enter into a conspiracy that's not the case someone can have to motives for a transaction that's the principle the government was trying to draw out of the balloon fock to case where the court held that the instruction that had been proposed by the defendant was inappropriate because it might have suggested to the jury that an intent to rob in an intent to distribute heroin mutually exclusive all the evidence could have supported a finding the defendants intended to do so here even if the jury would have accepted your honour's argument that and i don't mean to phrase it as an argument but in your hypothetical that the jury rejected the government's theory behind intent driven from his actions that i guess what i'm saying is that for the period of time in which mr wilson and mr santos jointly acquired and distributed heroin they were in agreement to do just that it's a violation of twenty one u s c section eight forty six if at some later point mr on i think that that is a fair argument to be made it may not have been the basis on which the judge decided not to give the instruction but it was one the government presented to the judge as well as to the jury in rebuttal summation that we believe was entirely appropriate and i can to the purported rep so even in that sense this is just not to make the norm and i appreciate the point and appreciate it more standing here at the podium for than before but i will say that our view the government's view the time that the jury instruction was proposed was that there was not an  yes mr wilson to mr clarke had been partners mr clarke had done the first rip off he was because mr clarke it's both positively mr santos's ability to move heroin and mr wilson approached mr cent that's right but in preparing for argument i did go back and look to see if there was any evidence that mr wilson had informants are santos of that first rebuff there was not i looked at appendix paid one thousand and six and also at appendix pages thirteen sixty six to thirteen sixty nine when mr wilson approached mr santos he didn't reveal record was the first rip off they they had no no they had moved drugs together before but that doesn't necessarily mean that mr santos was aware of that first r honor and then the other point that i would make then is that and it goes to my second argument with judge the vault is that the instruction was not a defense in this case it's it's our view that if you harbor both intents he harbored both of them  a jury to acquit mr santos because they still had to find a meeting of the minds and that meeting could have been reached even if mr santos harbored this or cheerier motive the whole time so i think that's right your honor and judge would be abusing her discretion to decide that that would have been confusing area and it may have been more straightforward to simply instruct that the government had to prove beyond a reasonable doubt that there was a meeting of minds perspective conspiratorial the judge did that for almost two months with more than five hundred grams of heroin that they jointly acquired and distributed receive money back to go get more from us and source a supply and if there are no further questions on this topic i'd like to turn to the sentencing issues that ha been raised by my colleague stringer yes your honor i'll go right there very good so as i understand it mr r enter since argument in the briefs has now transformed he's been given a gift by the supreme court in the sense of draws a means element distinction and says you don't get to apply a modified categorical of these alternatives or means of committing an offense versus elements such as judge of all pointed out during question and there is an so we're too broad this conviction does not count category so the next question is does math the supply side of the got its right because mathis is a case that arises in the context of the armed group criminal it's the government's position is that it does although the six and then concerns are different from the aca context and they are in the guidelines context the government's position that the math is framework that is the means versus elements test applies in the gut the next question this court would have to answer is whether then those verbs listed in the alternative in the connecticut statute that's his action with intent to sell possession with intent to dispense dispense offer distribute manufacture or those means or are those elements now the savage decision i looted to earlier takes them as elements refers to them as elements a few times but of course savage comes down free now this is not the same and this is on this means elements distinction so the government did some research into connecticut state law state v jackson thirteen conn to eighty eight in one nine hundred eighty eight it's almost thirty years ago where the connecticut intermediate court took a look at the definitions of sale and  and held the following an examination of statutory definitions of sale in dispense ordinarily require a conclusion that they are conceptually distinct from each other and that therefore a specific unanimity charge on each of them would be required so what the state is saying in this case with the state court a saying in this case is that when those different verbs those different actions in the connecticut drugs that you don't play if those actions are conceptually distinct from one another then the alternative actions are elements which means that the sentencing court would be able to apply the modified categorical approach to peek behind the conviction to determine whether under shepard's degree of certainty yes sure and so when i'm sorry is there more to that and so when looking at the state court plea transcript in this case the prosecutor's factual basis were cited for the poor irrespective of whether it had anything to do with the rush report and the prosecutor never references the rush report makes clear that the defendant possessed what he ran from the police he discarded three bags while he was running they possessed eleven point three grams of suspected crack cocaine which tested positive this was no mere offer to sell and offer to sell about possession this was someone who actually held eleven point three grams of crack that's roughly three that he intended to sell the modified categor approach is satisfied there's no error under the knife is for you should point out before i move on that mr enters in this case receive the sense of ninety six months the griffin arrangers two hundred sixty two to three hundred twenty seven the prosecutors presentation was correct to do so basically i think it puts far too much weight on the word basically than it can bear and this court in a recent summary order in the united states v edwards had the quantity attribution reached by the sentencing court am i respectfully disagree that the sensing transcript the fattah go hearing transcript is not clear that kevin wilson is clear that he said bryant emitted to him that he was moving one hundred grams a because of the customer who so problematic the market turns on yes your honor but i would be careful here that the government's discomfort was that originally mr wilson seemed to be able to specify a timeframe for the crack fees for mr bryan struggle at the time of the fat ago hearing he did not he said that he could not testify with certainty as to how long that went on he knew that it was more than one week and he stood by the one hundred grams per week admission brian had made and so the government faced with that testimony i think appropriately backed off of a higher priority to quantity that the district were comfortably fined based on that test the district court did express lee credit mr wilson's testimony and so this court would have to find an abuse of discretion in her factual crediting that witness in order to overturn the quantity attribution see them over my time if i could have just a moment to address the argument that the district judge should have been bound by the jury's finding but i think it is contrary to the case law of this circuit the von case in the case both of which are cited in the government's brief make clear that he sentencing judge can go higher than a jury's quantity attribution and that's for good reason the sentencing judge is working with a lesser standard right of a jury has the fine on any as charged and as a relates is that story penalties beyond a reasonable doubt it's clear that at sentencing a district judge can and should look to the defense conduct as well as relevant and so that there's two reasons why a district judge should not be bound by a jury's finding i know that my adversary in the twenty j letter these conflicts with the von case and the jockeys affirm the judgments thank you he i wanted to i hope directly respond to some earlier questions and first of all say i couldn't disagree more with the government's representation response to your honor's questions about what would that result in i think under the fact that the second one intends contrary to the commercial the ostensible commercial agreement instead of giving the money the proceeds of the distribution to rip it off and and not cooperating a the the government is saying you've still agreed to receive the drug site and i disagree with that and i think that the cases especially durham and boom do the cases the case that the government has relied on party the district court judge did give an instruction to keep toned down the instruction that was requested by the defense because the request an instruction said if you find that they intended to steal you must acquit and that's what led the poor to say well wait a minute here so so that case in fact supports our position and you know when you talk about well maybe the instruction should have said something else i think the problem here is you feel your to give any instruction on this lead or syslog to the government being able to stand up and say there's no defense here at all and to make that argument and judge  and and that really you know i don't see how you can find that that didn't prejudice is right to present that it's thank you very much thank you