after trial on one count of one count indictment that count charged two series of violation of section eight forty one a principal federal drug statute distribution of heroin and possession of heroin with intent to distribute both of life to be involving a thousand grams or more of heroin so as that quantity allegation would trigger the court accepted the pre sentence report and the government assertion that there were more than kilograms involved ten times the minimum for the to trigger the subsection a sensing category with the guidelines offense level of thirty four and the judge did then impose on that basis a sentence of one hundred fifty one months the defense argued that the relevant quantity for sentencing was between one and three kilograms  which would trigger an offense level of thirty and a sentence that might people low ten years which is why that's the interaction of the mandatory and the and the guidelines in the case so our appeal raised three  issues and we're probably going to give them a time rest on the brief with respect to the second issue the prosecutor's closing argument i'm i'm certainly prepared for questions on that and i think i have only a little to say about the third issue which is involve a thousand grams within the meaning of that prevented a very general sense recurring i would agree what strikes me and what's been interesting about these cases are i don't think i've ever seen the issues raised europe the way you have raised and i was going to say he it's surprising this statute has been on the books for almost fifty years the mandatory minimums have made this a compelling and important issue in my mind for twenty years i have seen indictments of this kind of for the last twenty years out of the middle district i have objected to them but only in a twenty to fifty five contacts where that issue not and wasn't  properly this may be the first case where trial counsel raised the issue and post all motions but raised the issue up properly was addressed by the trial court before sentencing and we have an opportunity and i'm asking you to please possession of the good with the distribution there'd be a continuing offense no use admission now i think that the government agrees with you the distribution is a momentary offense not a continue offense that occurs when the judge when the drugs change hands and if the amount of drugs that change hands at that moment from seller to buyer does not equal or exceed thousand grams just to use the example for heroin under way you don't have a level violations year greeted possession with intent to deliver is a continuing offense yes and now we have a controversy about what the unit of prosecution is for that continuing offense and i think that's the hardest question in the case so our position and this is a little different from this it's such a hard problem with an eight level possession with intent to distribute i am suggesting now should be defined as possession of a thousand grams or more in the case of heroin one thousand grams or more of heroin as soon as the amount possessed reaches a thousand grams and on tell the amount no longer equals one thousand grams so if it's held in a in a stash and so on is sold if there is less than a thousand left that's the end of case i know that he doesn't care and he doesn't but that makes that's the way that makes the possession the anticipatory and lesser included offense of the distribution of a thousand grams or more which is the structure of the statute so i think when you look at the statutory well let's start by saying the statutory language a case involving a violent start a case of violation involving this amount is completely ambiguous on the question presented there is absolutely no clear meaning to the word involving in that it could be any of the meaning people have talked about here so how do you resolve that ambiguity statutory structure statutory purpose the canon of construction that when there is ambiguity in defining the unit of prosecution if you to whatever the other case from the fifty's was that articulated it as a special rule about unit of prosecution i think it's it does seem like it's a special application of limited all of those work to say how do you put the the biggest cases with the cut off being what congressman meant a thousand grounds into a category as a and you don't hit people with a mandatory ten sentence that congress thought didn't clearly think deserved it and i'm concerned about eight years in a better concerned about pinkerton liability so you can't just say that you know well if they  big deal or because look at the facts of the markstein assayas case from eighty eight that we cited in in reply it's like the girlfriend of the drug dealer in whose house he hid the thousand grams she's not the big deal a she doesn't have the intent to distribute five thousand grams and that it helps you distinguish a small dealer i think are also concerned that congress did not mean to hit this is this is owed in from the distribution point to congress did not mean to hit the small dealer who doesn't get caught for a long time to aggregate the quantities and that's sort of what happens when you deal with a thousand some of that at some point has a thousand grams in this case why is it reasonable that it jury could find based on all of the evidence in their direct circumstantial including expert testimony that there was a time  do know though that the jury agreed with respect to the one hundred gram of conviction that's true but we have to separate her obituary there checked off yes but but you maintain we shouldn't even refer well i said we would be striking the finding as to the thousand grams there would still be a conviction is two hundred grams and there would still be a sentence in sentencing and then we would still have our sentencing shitheads here hearing yes and all of this whatever it was could be thrown into the role of would conduct question if the government had proof of it and if the government approved oh if all of it could become yes relevant the government failed to advance evidence and continue on this for some permanent fail to present any evidence in the face of a valid objection to there being more than one kilo so let me just make sure we're all on the thirty or the thirty four level of the guidelines the defense argued for level thirty saying that the evidence showed a little more than a kilo not more than three the government certain were ten kilos meaning more than three and got that from the judge  didn't it the government got a thirty four corrected by arguing that there was more than ten kilos in the case but do you have or pointed to any evidence or information doesn't happiness or evidence to justify the more than three and since that was over a valid objection they had every opportunity to present the information at the time of sentencing we argued this court's declare case as more recently enforced incest paid us they do not get on rea chance to prove more than three you don't give them an open ended remain and to fix the error that they made making it fruitless for a defendant to appeal right that they're being there are no understand why a reviewing who are not necessarily reviewing good certainly a district court might look askance at this kind of charging conduct it is troublesome i don't mean necessarily in this case but i mean as a practice we all know that for lack of a better term the games that can be played for sentencing purposes and it just it has a bad appearance to i don't have an answer to mike and i don't disagree i think that this is certainly not a best practice i guess my my position here would be that this is not a reversible practice when you couldn't say back to my friend the united states attorney for the middle district of pennsylvania at least speaking only for myself which was a term as i recall judge becker thought was not an the not from this circuit but the president from other circuits circuits talking about the unit of prosecution for distribution having to need single instances of individual distributions  concession as well the district court certainly found that we're not arguing that here i think the third kind of going to use mr goldberg language close to a concession would be on the first part of his new aids argument here today which is that for possession with intent to distribute their need there may need to be a single instance of an actual possession of the one thousand amount so again we're not looking at intent to take a particular action and while i understand his argument to the extent that he's saying well this is how you're going to make sure that you get the largest dealers out there i think the danger is that you're going to miss a lot of those dealer exclude start with the obvious though i didn't know that it's been a year where there's absolutely nothing within the language of the statute that would suggest that we have to look at it in the manner or  thousand grams and you intend to distribute it whether it's all at once or whether it's over the course of two hundred different transactions or five grams of pop or four thousand or forty thousand i think it would be at the typical harrowing dosage of one quarter of  so i think we're all kind of working with some some shifting ground now taking the government's position as to how you establish possession with intent of a thousand grams we do think that the evidence was sufficient in this case taking the mr pierce saw what he believed was a quantity of packaged drugs which looks what is the best case for the government that we can  infer from that evidence that was presented to her and it would involve an inference because admittedly there was no direct evidence by any witness saying i saw or that you had a thousand that m intended twenty eight grams which was that he was actually going twenty one up to around two hundred grand a multiple occasions you also have him saying that he saw mr o carrying with him a bag that contained other packages packaged the same way with the same writing on it that appeared to be in amounts from fifty to seventy five to one hundred grams six to eight of those packages marked as such right correct and and you know which we can  assume or infer from the the fact that he was explaining that maybe he was short of that seven grams on that first transaction because rowe confused it with another package that they all do contain hell so you have you have those and then you know you have three hundred grams there and if you take the top and that william pierce testified to getting around two hundred lens you are admittedly only at five hundred grams and that's why talk about influences and why you also have to look at special agent shuffle bottoms testimony as an expert on drug trafficking where he talks about in his experience when you have someone who is dealing in two hundred or he actually goes as well as one hundred in his testimony one hundred to two hundred gram amou that means they have access to killer multicolor gram amounts to sell and he does it in a shop by saying access to sell mr gold argues that there's a difference between access and but that pro what mr roe was prepared to engage in even if it's only those six achatz of fifty grams of peace at the same time that mr pierce is buying say another hundred you know that's that's still four hundred grams that is a significant amount that's double the amount that mr are especially the trouble bottom set is enough to allow one to conclude that this person is operating at a level where he is getting multiple amounts or has access to that now you could that's that's looking conservatively if this is if if there's any packets of one hundred grams in that plastic bag on a day that william pierce sees it while he's picking up two hundred grams will do the math and you've got your telegram right there at one time there was not specific testimony to that understood point the jury is drawing inferences from inference or inference from day i mean with respect to this occasion when pierce makes his own purchase and sees what he can only approximate as sixty packages of fifty seventy five it's direct evidence that he sees these things whatever they are but the jury of course has to draw the inference as to how many based upon the ranges just you know direct that's specific about the specific number of packages the jury has to draw the inference as to how many of those packages awaited in a particular way to get you to remember also to draw the inference that it is in fact their base right for sure there  in taking that particular trail and not just looking at you know pure says i bought two hundred grams from him and speculated as if you're dealing in two hundred grams you're getting more real you're back less to greater amounts to sell that would be a single  reasonable for a jury to infer how far they go right what's your response on the sentencing question how much you really you know are you limited to trying to prove that there are three kilograms circumstances to why it is it wasn't proven i am in a position having gone through to try and add up the amounts that were introduced at trial as part of the log book and the testimony and on how that ledger was interpreted  by special agent trouble bottom that north of three kilograms would certainly be possible based on the evidence that that is before the court and so argument would be that that evidence has been put before the court and while we may not have been a lab rated on in any greater detail at sentencing it is part of the record the judge could rely upon so i think that the the looking at whether just a court is going to look at any extenuating circumstances for why evidence of ten kilos wasn't put into but just for everyone's benefit the testimony of peers that we're talking about is on good one sixty nine of the appendix at the end and he does provided a range based on his recollection of what he observed of six to amounts as low as fifty or as much as ninety so if we apply i can't imagine that we wouldn't apply to this kind of record the same rule that we apply  when there's a range and with there's a lower burden of proof where there's a grange the court assumes the low end of each range for purposes of calculation i don't know why for sufficiency purposes  a jury could jury wouldn't have any rational basis to infer the high end of any range it would be speculating and while the jury is allowed to draw inferences we don't want to let that drift off into speculating context of  so possession of a thousand with intent to distribute a thousand on one occasion would be the construction most favorable but there are a range of alternate reasonable constructions which none of which is what was city that's all i'm saying and if i'm not mistaken i think i heard my friend certainly concede also on the final point that they don't get to present new evidence of quantity but