government makes two arguments as to how bloodless bagley's could have been tried for mr smith's leading hands neither argument stands up to scrutiny first the government says there must have been a larger plastic bag that contained the smaller and that's why there was no blood on the baggies the blood was on the larger bag yawners if there had been a larger bag it would have been produced the police and the prosecution were meticulous in this case about producing every single piece of physical evidence that the security including evidence that was not necessary to conviction such as the bloody jersey and such as the individual fourteen baggies for the drug charge all they had to produce was drugs to show that it was in fact a controlled substance the police were present now the government has nothing to say to this argument as it didn't in the trial court and it doesn't here it simply taxes for julie to say that this smoking gun existed and yet was not produced review for sufficiency is of course deferential but we are limited to the evidence in two reasonable inferences does not reasonably or honors to assume that there was this smoking gun piece of evidence that simply was not proffered the second argument the government makes is that well forget about the bag perhaps consistent that mr smith's hands were bleeding at the scene in the car and at the precinct moreover even assuming the government's evidence lists speculation that the wounds suddenly closed at this precise moment the government big red circles around the glaring hole in the government's case we're having trouble understanding why there's no blow back it's the question is whether the jerk now they had this question and though they convicted him is what is made clear although the jury is the finder o morning may please the court my name is daniel tracer and i represented the united states a trial under subpoena the evidence at trial was more than sufficient for the jury to find the defendant's guilt beyond reasonable doubt and while we do concede that in light of this court's decision the united states v jones the defendant's robbery should not be considered a crime of violence for guidelines purposes judge villa give great consideration to the personalized sentence here and we believe that no remain would be the prudential for this court to not issue a decision in this case until the mandate does issue in jones and while i agree with mr martin's characterization of how the mandate works i think that the mandate is stayed pending buckles which we expect will be argued shortly and may be decided over the course of this next term which would affirmatively tell us how johnson applies or whether johnson applies to the guidelines and so if the j hearing i believe pending buckles ere to correct and in addition i would add that there's no prejudice or read there's a prejudice to the defendant this court holding decision here even under the amended guidelines the sort of post jones guidelines would be looking at a low end of eighty four months we don't think and i'll address this in a minute but your trailer would have done anything different anyway even if this court concludes that she might have i think that the eighty four month sentence if this court were to wait another six months or a year would not prejudiced the defendant which the defense principally relies on i would note that that case was characterized as extraordinary by the court in deciding that peace and where is the case was entirely circumstantial in this case we have the direct testimony of three officers i description not confuse the lack of corroboration with a finding of insufficiency if we had a larger bag that had blood on it and was identified to mr smith that would certainly corroborate the government but the fact that that bag is not in the record doesn't render the jury's verdict based on insufficient of us in terms of the sentencing issue i just want to clarify what i said before a little bit while we do probability that she would do anything different on re she doesn't quite say it in those words but i think the record on the whole makes clear that effectively that's what she would do and in this case in particular she said that the sentence she was giving and this is after she had considered the guidelines said that she was going to give  fully captures all that is mr smith the good and the bad if she specifically did say that she would do the same thing regardless of whether the career offender guidelines applied which she found they did not come to she said she would do the same thing regardless of whether they applied so we have already an indication of the guidelines here will she consider them as she was required to do and properly did they were not the primary driver behind her ultimate sutton's indeed i mean this is page seventy four after she finished calculating the guidelines she said to mr smith mr smith as i noted to you at the beginning of this proceeding i need to make some calculations i've done that now but i also now need to decide yourself it's after that she took a break after hearing arguments from counsel about the thirty five fifty three factors this is after all the guideline issues that we put to bed and then she explains in pages of the transcript that her ultimate sentence was based on the defendant's family circumstances his mental health is fine and history has  sentence she says and page seven zero seven of the appendix i've struggled with the sentence and i have for a long time in other words we know that she's given very careful attention to a proper sentence for that same page she says that's number does not fully capture all that is mr smith the good and the bad of him again indicating that she took a holistic in sentencing and that was the primary motivator here and then again page seven ten she says this is for me the appropriate sentence in light of all the factors and all the discussions that we've been having and i would add to that that even if the guidelines change the actual facts don't change in other words no one is disputing here that the prior drug convictions were for crack dealing no one disputes that the robbery was in fact an armed robbery and a mcdonald's and so while there are subtle legal questions that have a tremendous impact on the guidelines range here when it comes to actually sentencing the defendant judge  pegged to the top of the range for count one which was one hundred twenty months and that stays the same whether this court finds that the or after jones the guidelines are different or not  i think if you were to go back to the correct guidelines range would be eighty four to one o five and i think she would be very awkward in other words she would go outside of the guidelines under thirty five fifty three and one theory on the theory that  i would point out that this is actually a unique situation because if the defendant were to commit the crime today i would judge feel what's the basis for you today if who is really she's faced is different would think the reason is as follows because even though the amended guidelines would be eighty four to one zero five we think that the guidelines here wouldn't capture the true culpability as intended by the guidelines as  does is aware of the guidelines were amended in august of this year to explicitly add robbery so there's no question whether robbery is a problem of violence so if you were to commit the exact same crime today his guideline range would be the one forty to one seventy five now it's not because the guidelines at the time was the effect the job which should be well i think so i think jones acknowledged that it had a limited effect because once the guidelines were amended jones doesn't matter anymore because jones addressed robbery and now we know that the that guidelines think that robbery is a crime of violence but there's this period of time now where people have been sentenced before august of two thousand and sixteen but i think in light of the fact that if you were to commit the same cri noted as a special assistant what does that mean in this case it means that at the time of the trial of votes no longer true anymore i was employed by the department of justice is antitrust division and i had come in on a temporary basis to work in the u s attorney's office and you're now and  was and i'm i'm no longer special emotions or other kind of reasons emotions limited to jones or based on johnson generally there's certainly a lot of them i don't know so i guess a lot of pending you don't hear because we're busy certainly yes and if you and i would notice i d