that court decision in booker would clarify the question of whether acquitted convict could still be used to enhance the sentence does not appear that we've received any greater clarity after booker so we're back again with the same issue case violates the sixth and the fifth amendment and it is also an unreasonable sentence when you look at the factors under thirty five fifty three under the now advisory prior criminal history have a position as to whether one charged acts are able to be considered under the post makor scheme of things well it doesn't appear that booker changed much in terms of the guidelines and the guidelines say that on charge conduct can still be used as relevant conduct in theory what is different about acquitted conduct and charge contract because in the one case you have a jury simply finding that the government hasn't carried its burden of proof that the conduct is still out there why wouldn't that also be wrong conduct the charge conduct well why wouldn't why wouldn't a quid conduct be of the lynch case the nicer jason lynch which show the government is cited and it's free and lynch there was a hot sex conviction and during and during the trial there was a allegation  lynch murdered a general but a name of a very arrow in the verdict form submitted to the jury there was a special iraq that story submitted and the jury was asked of the term and whether whether mr lynch had in fact murdered mr pointing out that mr lynch was not found innocent of mr kerry's murder was merely a special in or of a tory in which not the jurors could not agree beyond a reasonable doubt that he had done it in our case mr mercado was think that maybe maybe except in this case we have a special verdict forms and special findings finding that your client was innocent but under the instructions given to a jury in this sort of situation the only job they have is to answer yes or no to the question whether the government has proved its case beyond a reasonable doubt and i think seems to me in booker the supreme court's that the real core point of who lives was that i think their champion any limitation placed on information concerning his background the finding not finding beyond a reasonable doubt and the answer if you're not in a in a rigid guidelines the system the other part of  that's not the point if you're in a rigid guidelines of we're talking about the health side i think there's something troubling about spending six and a half months in trial in front of a jury and that's a new jury to make findings which resulted in that feeling but the supreme court in life did say well that they did and it's our position that blakely the rationale behind blakely and booker requires that that argument that argument out of the brief salman's as i was saying the jury in this case basically said that he didn't do it judge carter said i find beyond a reasonable doubt that he did do it and i'm going to s which the court found a valid and thereby expanded their reach of the jury verdict by including in the object  to there was an acquittal as to count one which included the violence in the murders despite the fact of that acquittal apparently the trial judge will say that in the total complex of the object of what was found guilty to the defendant and responsible in counts two and three satisfied to open up the door suppose those have been in charge pardon me that the murders have been committed is a court referring to suppose that sentencing something occurred and i didn't quite get that yes yes i think this is this is my response your honor it is it is clear well it is clear to me that one b one point three relevance and one of the one point two subsection d relevance which is the an employment doctrine for lawyers and judges in courts of appeal because it gives finite analysis to the decisions that are made the relevance here  by the court expanded expanded to and acquitted count the jury had in its say as to count one and yet the object was nevertheless retrieved by the judge and he focused his sentencing of twenty years as opposed to the guidelines which would have been about three on the acquitted conduct the object of which was denied despite his promise denied by the jury in the least finding that doesn't really quite answer my  charged under the rico specifically yes but at sentencing it turns out that not only did he distribute five hundred grams of say powder cocaine but there's the evidence is part of the conspiracy five hundred grams of crack cocaine were distributed also it is your position that the crack could not be considered no sir your honor but your position is that they had mentioned the crack in if if if as i as i understand the court's premise that if my point is in a drug case if certain amounts of drugs were not included by the jury verdict i don't know if this directly answers the question or not but my view is that the case of jackson as i say as i set for it's an example of adding for example di lauded to the count of conviction of the lady who objected to the court in our district adding additional di my view is that that decision was correct and other decisions such as it are correct because because this relevant past has to play a part in our decisions immediately i would like to draw the court's attention to a primary decision the court below used and that is watts which has been mentioned before excuse the court used watch as its framework for escalating the sentence here to twenty  years in watts as an example of the irrelevance doctrine that i am supporting us watts was convicted of possession in possessing cocaine as we know with intent to distribute it but he was a kid acquitted of a firearm in relation to a drug it appears to me to be clearly relevant that any drug stash where drug dealers are trying to protect be yes and i'm just about done but my point might my singular point here is that relevance was disregarded it in this in this case and the result was a violation of both the double jeopardy clause in the jury trial thank you and the judge says well i should do something that should be an incremental sense of reasonable sentence incrementally was that verboten before the guideline was amended in your view into the guidelines so my argument is in the year two thousand that was not a factor for the court to rely on it was excluded so therefore it was an imprudent permissible fact which rely on and defendants lasted over a period of several days this is not something the judge carter took lightly at all this was a lengthy sentencing proceeding which judge carter went through the entire record again went through extensive briefing with the parties and he concluded that the objects of the conspiracy for which the defendants had been convicted included multiple murders conspiracy to commit murder extortion drug trafficking and an attempted murder now in their appeal defendant bravo complaining that the use of acquitted it was a mixture of the use of acquitted conduct conifer as the definitive been convicted of and on charge conduct constitute a violation of the six fifth and fifth amendment specifically wildly that the supreme court's holding in bo and that is not the case first of all as as far the use of the quick conduct is clear as a result of the supreme court's decision the night is watched that a district court can rely upon a quick conduct at sentencing provided that that acquit conduct is proven to the satisfaction of court by preponderance of the evidence standard or maybe a higher standard if there's a disproportionate result in this case the judge determined that this comic was proven beyond a reasonable doubt  stephen's cabin in the watch ski to only a double jeopardy so i said they didn't damn any briefing on the sixth amendment and it really wasn't before then well i think i think there's a couple things first of all clearly the supreme almost the same language and booker in the majority opinion as the watch court relied upon in its decision specifically what justice stevens recognizes that when the trial judge exercised its discretion to let to select a specific sense within a defined range the defender has problem with the guidelines as a result of their remedy of making them advisory so rejected this idea that a jury asked to determine beyond a reasonable doubt any factor that increases defendants sentence up to the statutory maximum so again this is cases consistent with the the way the judge judge carter handled it consistent with the way that the seven other circuits would decide this issue have determined that booker was did not overrule watson again it's the same underpinning and watches in booker the reliance upon eighteen united code thirty six sixty one and thirty five fifty three a as far as giving the judge extremely wide grass the discretion to terminate what conduct he can consider at the time sentencing and when information about the background of the defendant he should sit or at the time sentencing so impose an appropriate sentence and so the want to court numerous decisions by this court including post booker decisions have recognized that a judge may in fact should be compelled to consider quite a conduct at the time determines whether the government has proven its case beyond a reasonable doubt and judges determine sentencing and as a result it's it's impossible to reconcile the defense position with what's essentially and the other cases by the circuit in which th recognized that quick conduct is an appropriate thing for a court to consider at the time sentencing and again booker did not overrule watson had the chance to do so there have been the second circuit court decisions that have recognized the fact that poker is consistent with watching the not over it's the same statutory language that both cases relied upon as their underpinning to reach their decision and this court itself has recognized on two occasions subsequent to booker that watched is something that th was somehow been overturned by a decision a book or other that is something that was in the province of the supreme court to decide and so far they have not made such a decision and again you have to look at the underpinnings concerning the w decision to the rationale that the district court should be given a lot of discretion of time sentencing to consider all these things including what it conduct the different stance of proof that are involved at sentencing as opposed to the jury determination and the fact that there's no double jeopardy issue because the defendants are being punished not for their putting conduct but in the manner in which they can they committed the kind of the charge of the count for which they were convicted and let the court has any questions concerning to the district court in order to make that determination the district court clearly on the record that it recognized that have the discretion to run the sentences concurrently or consecutively and considered all the appropriate factors and making the decision that it should run those can consecutively and really at the end of the day when you think about the logistics of this this is really just a symbolic gesture if anything the court mr sanchez is going to serve the rest of his life in custody regardless of whether judge harder ran these decisions or ran sentences concurrently or consecutively it really as far as the practical effect it's going to have it's going to have zero practical effect but just part of good was recognize that had the discretion to run them concurrently and chose to run them consecutively explained in detail in another lengthy sentencing hearing again for multiple days of which this occurred while he was running the sentence consecutively and these were all appropriate reasons under oath thirty four eighteen u s c section thirty five  and the sentencing guidelines in section five g one point three just carter look at the long term relationship defendant sanchez has had with the mexican mafia he looked at his lengthy insubstantial criminal history which dates back to nine hundred seventy nine and features now ten criminal thirteen to reach the highest level the sentencing guidelines you look at the fact the defendant mr sanchez was willing to approve an offer to commit murders he looked at the fact that the fantasy interest in via involved his wife in criminal behavior he looked at the complete lack of evidence of any chance of rehabilitation by mr sanchez he looked at the goals of specific and general deterrence he looked at the effect that his stance would have in the state's sentence basically looked at everything that was proper in the sun in order to make determination the three things that the defense points to that he said was improper are either not factors that the court relied upon to make its determination or fact were proper factors first of all this idea that the court relied upon the cost of incarceration and who would concurrent sentence he will be allowed to serve that sentence in federal custody which wasn't correct to begin with so that's why we have this discussion concerning the cost of the court explicitly said that it was not considering cost at the time that it imposed the sentence that it didn't decide to run concurrent sentence that he would be able to serve his time in a in a federal facility run the state the syllabi and that's also why the discussion concerning the co defendants came up because then there was a discussion concerning where would you serve your time if you if you so in and that's time just part of common and on the other people who were told those are members of the mexican mafia and where they were and why they were cars or where they where they were but again it's not anything that the court relied upon to consider whether the sentence should be run concurrently or consecutively and then guidelines did not have this provision in it and it's certainly something that the court whether this was in the guidelines not in the guidelines of the court should have considered when the defendant essentially would be receiving a free ride as a result of this federal conviction under under the statutory factors it was required to consider such as under section thirty five fifty three the nature of the criminal activity the defendant engaged in his background so that there is no valid argument to say that the court considered anything improperly in considered every factor appropriately