should attach for you or the title i think in that situation you should read them both thing together i mean congress used the word clarification for a reason eight and one hundred and fifty pages and handsfree views they made clear they were making changes  the except possibly you should try to read those together and so i know you're talking about the sentence imposed like which i'm assuming you can still read that consistent with the clarification language if you read that to say that the sentence this finally imposes which in this case  education a lot but if someone is literally sitting in prison serving a sentence i mean hasn't the sentence been imposed otherwise why are they i mean it's been a writ it's been stated but it hasn't finally be imposed until this court looks at a case that was said in private versus kentucky which is right state supreme court case it's a pretty bright line rule once sir is expired or service expire and your conviction is final and while that sometimes may seem unfair to pearson i think was the th circuit address that for a while but that one had a very different title it said it was restricting enhancing a sentence it wasn't clarifying the sentence and the northern district of illinois and united s at this point i don't think any circuit has specifically spoken on that i know it was before the united states supreme court and united states versus richardson which is number eighteen dash seven thousand and thirty six and the government made this hour and the supreme court remained it to the six circuits so they're looking at the same issue right now court recognised that him versus city of hillah which isn't a civil rights act was enacted and the defendant in that case had been convicted before it was an active in his case the still in the pipeline and the supreme court said he should get the benefit of that the way that acts written and that could be read to do that what do you mean could be i'm just help me understand maybe it doesn't matter that much here but you think there's an argument that if split in the circuits under this circuit's precedent yes he would i think some circuits disagree and think there there has to be proof of more than one not more than one occasion but i know but that's the that's the nd argument i'm told that just the st step maybe maybe we should have beat this horse enough but if you prevail only on the st step that is it five years or ten years i believe under the circuits president would be ten years can i ask you a question about your th amendment argument before you run out of and in particular it's seems like you have two different six of them in claims and i want to talk about the one where you're contesting admission of the officers testimony introducing the transcript of the phone call that he instructed  be excluded and as we argued we believe that that was assertive conduct if he was told call your drug dealer and i think he does pick up the phone and call mr jordan the implication that the only implication that can be you think is the equivalent of a horrible state correct he said i told him to call my drug dealer and then i'm going to have in from the only question is whether making the call counts as a sort of conduct correct all right in the st circuit says clearly it does not bailey right  ok is there any way for us to distinguish family or do you just want to say which we totally can that's what the st circuit things but we are not persuaded i mean i think bailey and i have i have to repressurize regulation of all of that i don't think it was as clear that it was exactly infer for was said mr jordan is my drug dealer you know that's different there are other cases where you literally infer that the verbal statement was neat that's what's going on in that nd circuit case i thought you were saying something to infer directly testifying that he picked up the phone to be the phone call and it's that act cries the equivalent of a verbal statement correct ok this sort of conduct is the equivalent of a verbal statement ok and then when you go on and look at the call without that statement the call doesn't mention drugs so without that statement the call then if you don't assume he said by his conduct i am calling my drug dealer the call doesn't ever mention the sale of drugs so then you are left but the call loses relevance then so is it your position that any time a police officer instructs a confidential informant to do something and the informant does controlled by and then witness the control by witnessing of the controlled by would come in but not the fact that he said this is who i have my trials from by his conduct wait explain that again so that when the officer is that i say i mean i think this skipping you don't worry it goes over likely with me goes and meets with martin and i and the police officer observes the hand to hand and then comes back and whatever happens at that point you agree the officer can wasn't there so i don't know what was said i saw them do some exchange and then the source came back all of that comes in right out of time i have a minute to answer yes but that's a little bit different than what we believe happened why is it different because here it wasn't here's one hundred dollars go the kia he said was here's a phone call your supplier but there was a cab the clear implication from the testimony is there was something set and that wasn't i mean how is that it's doesn't that's not what i got from the testimony i got and he said call your supplier and picked up the phone to me to call and that's the part that you think was the equivalent of the statement nothing had been said it was making the call but under the previous there's an area just given it was here's some money go  they didn't he didn't have to say this is a person and the officer observed the drug deal this on the statement had to be this is my drug dealer for the conversation to make sense he didn't think it was that or a sale but the other one would be the same thing he wouldn't say go you know here's one hundred dollars go to the person without any contacts that they had some potential road to a drug transaction i mean it seems to me this is all for all fine but the difference between the scenarios th in but we're talking about for the state and i don't see any difference in those things before the actual age what the officer observes in a hand to hand is that the differences in this case you actually see is a little ambiguous what makes it work for the prosecution is the statement goes to a control and the fact that the person that confidential informant responded to that statement with this conduct which i think under your theory has to be  assertive but in the hand to hand they come back with the truck so you still have what we have here still is a call where we understand officer believes he was talking in code but for the jury to make that leap you needed that assertive conduct under that scenario if you don't mind can you start with this issue rather than the st step that you shouldn't and here's where i want to sort of get some help from you frankly or are you obviously believe that this is not assertive  it let me give you a slightly different hypothetical that i think would be problematic i want you to help me understand why there are different so a police officer with an informant  right the clear implication of that is that the informant said that is drugs that i was mark and that maybe it's not a confrontation cost problem but to tell me why that is different from the scenario we've got here well this ok something along those lines and that way not simply following a direction and saying what did you observe i actually think that if you said you know what did you do next i watched him go to our house was there some that i mean there are these cases saying there are circumstances under which you can infer an actual verbal statement was made and from judge richardson's you probably can infer the making of an actual verbal s nt there's no question of a sort of conduct you infer from what the witness testifies that a confidential informant said my guy is more of a yes ron i think those are circumstance i don't i do think that is a circumstance that m  he identified him in a you know why but but you know i did was there even the allusion to the idea that the informant grant said in response observed him dollar phone number yes and then i listen to a discussion and i know i hand you their voices and i want to answer just here's this question to this issue is not objected to what i understood the argument to be was the contents of the phone call and the counsel below strenuously objected to that filed a motion woman and then was very careful during the trial to preserve that objection when it was introducing the phone call i object your honor and just want to know for the record i know your ruling but i don't once a page one seventy three and two hundred and twenty three the joint appendix multiple times we asked defective bridges you know you told him to call his supplier correct yes no objection either time so i think that particular issue is on plain error but you did you say that in your brief and your honor honestly i didn't yeah and it was because i i understood the argument to be about patents on ok i didn't go further and say you know there's these other parts like the statement but it seems to suggest that one of the what one of the reasons and current that we can be sure that there was a compliance with the law was this is a bench trial and i think we don't have that in in this is that but no matter at all in determining whether you know con applies here i don't think so your honor and there's actually another footnote in con that i think answers your question very directly which is not dissent in congress specifically the issue that the defendant is raising today which is you need evidence of multiple uses for there to be multiple sentences on one hundred and twenty four dollars c and one of the majority said was no because khan was convicted for predicate crimes of violence not a single predicate offense we don't need to count uses it wasn't just a matter of i get i don't mean to cut you off but i get we don't need to furious following the wall and and they point out that come on it was a bench trial and we don't have that concern here in the situation where that's not the case is that the create a new problem for you know you honor and i think the reason and i don't i don't mean to be circular oh no no but i think the reason i point to count nine is because if there were not evidence of multiple use as the defendant or as the defense the dissent in com right tended then it wouldn't matter one way or another then the just for court got it wrong by imposing multiple sons on one hundred and twenty four c no matter how the district of articulated so i don't think it would change the outcome at the end of the day you don't need to count uses it's not literally count there don't need to be the multiple uses if there are multiple credit or credit i do want to note your honor that we charge this case the way we did only because there were multiple counts right i mean right you could well have done that right i mean we could in order because this defendant has not challenge con cons inconsistent with some other circuits yes unit of prosecution analysis and you could have included on twenty four c enough information for the jury did make the finding one in the car ones in the house we could have your honor and i can also tell you we would not have objected to the jury verdict form or instruction  west and they brought it up in a timely fashion we would have got to do that because that was our theory of the case he had one gun with him when he was found with cocaine he had another gun at the stash house where he admitted he was acting cocaine that day where we found heroin is a a statute that calls for a modicum of prosecutorial discretion and the department of justice has policies on this and they include limitations on that we ordinarily do not charge unless there's multiple predicates and we cured the murder issue is really it's a remedy for a jury instruction or a or h i think i think in the defense in the reply brief there's an a comment about a verdict form not being a jury instruction and there are some decisions treating them  says clarification it's not changing the law it's just clarifying neuron's it always was it has to apply and you sure you're on i think there's a couple things to answer i think it was just part of obama's question title those not trunk the text of the statute that we forty three b that would not really have any effect i also want to note that it's not particularly useful to say it doesn't really make a lot of sense but you're talking about in a straight of agency the next layer by amendment that's one thing where they basically change the law cheney you know you have a statute and you're changing what that statute that still exists and has changed is interpreted to me but we're talking about a stand should ordinarily the supreme court doesn't except the idea that and eighty congress amended that statute and what they did was they increased the penalty for a nd twenty two nd tonight twenty four c from twenty years to twenty five years and suggest that congress in between deal and t day did not think that it was too harsh and they didn't think the deal was incorrect and deal said it's an ambiguous so they bet you were really talking about is what the nine hundred and sixty eight congress did and the twenty thousand congress really cannot speak to fifty years ago we meant something different i also want to answer chairs this question about subsequent of the go ultimately i think the question comes down to the plain language of the text of the statute it's helpful that is consistent with what dorsey says the ordinary practice and  briefly your honors i asked for comment i do think the fact that that was a bench trial is significant in that case because you can presume that the judge knows the law much more than the generate and while there wasn't a special verdict for we've cited this decision in united states versus frying which is two of six dollars thirty four cents where it puts the burden on the government to ask for a special burning in this sort of situation otherwise that was where there could have been two possible tribes involved because the government didn't ask st special verdict then they had this in the lesser of the drugs the sound and that's and so the government didn't ask for a special verdict it had control of the indictment it presented the evidence and so based on how this was indicted the evidence at trial and  especially perfect all we can know is the jury found the use of one gun at one time but when i asked the question but one of the one of the things about that is is kind of seems to say you know there's t and we are relieved that the way the law has developed in this circuit and elsewhere if they were punishing choices of use and so if it's one use of one day and one time then we believe there can only be one thousand one hundred and twenty four dollars c conviction even before we got over we do have to combine just right i mean i don't have any any con that wasn't necessary for the findings because they said the judge found so you would have to overrule it would be limited to the facts of that case the safety film provision which is in the safety of almost identical sentence imposed language and this court did apply that to cases and that this court was six or did apply that to cases on direct review we think that that reasons are very similar to what's happening here and you respond to his argument in essence that whatever the motive of the you know st step back congress for claiming that they were or what happened that many years ago yes i would the supreme court has said both that the subsequent legislations to clear that clear ation of a tent the previous kind of congresses intent is entitled to great weight it also has said that the title while it's not dispositive everything is very clear so red lion broadcasting persis f c c is the case where this supreme court said the subsequent legislation the clarity intent of her earlier that congress is entitled to great weight in statutory construction and here it's you look at the congressional record from one thousand nine hundred and sixty eight and that just districts description of intent is entirely consistent with what more versus harris that was the black box that if it acts and then in that case they did apply the clarification even though congress tried to say it wasn't a clarification and in doing so they say the civically rejected the fact that congress has made other changes and not change that in the meantime they specifically rejected the argument that by not changing this court specifically rejected that by not making changes when they made other changes they were expecting and they were so in that case there was a miner and it was the question was whether or way and other parts they act have been changed that still didn't apply that meant that congress had accepted their interpretation thank you thank you counsel we will come down and agree counsel and then we will hear our next case