i'm aaron rust i'm here for the defendant in a moment mr just insane i would like to reserve three minutes for rebuttal if the district court had not made a factual finding that the gun was possessed in connection with drug distribution mr sane would not be serving a ten year sentence the mandatory minimum was applied in this case based entirely on judge found facts well the mandatory minimum kicked in because of the drug quantity f the focus is almost entirely on not almost entirely but substantially on the question of how the law regarding affirmative defenses applies here and when we look at a  is that the safety valve in effect the way it acts right now is that it removes a mandatory minimum but in apprentice the supreme court pointed directly to this affirmative defense question and the maloney patterson birding shifting case law but no sixteen i believe that case says when we're looking at a statute that shifts the burden of proof that requires the defendant to prove that he is not eligible for a mandatory minimum then we need to look at whether or not that would be constitutionally sound undermining and patterson and here the drug statute functions in essential of the same way that the main murder statute functioned in  dollars so it doesn't really same committee that has anything to do with shifting of a burden of proof is just another way you could get below the that were triggered by drug type in point to be alone in cases specifically in those instances in which the offenders who markedly different in seriousness nonetheless were receiving  level of culpability because congress set out those individuals as not warranting the same level of punishment as individuals with a higher level of culpability so i don't i guess the point is when you look at statutor i don't see the analogy between the and the situation where the jury has defied that bring the person in with the mandatory minimum well your honor i think that's when we're particularly helpful for us and it is a burden shifting statute on culpability the same way that the drug statute is in malaya this was a presumed  element the court noted that the main statute presumed a sufficient level of culpability they presumed malice aforethought based on the finding of two other specific facts and those were intent and a killing that a killing occurred once you proved intent in killing the same way under the drug statute once you prove drug wait we assume a sufficient level of culpability then we shift over to the defendant the burden of proving that level of culpability and in maine in my lane to the supreme court said that's not sufficient because the shifting is on the exact same presumed element of culpability and congress when it inactive the mandatory minimum it told us that the reason it was setting mandatory minimums was to punish those who are more culpable now they said they wanted assumption that the individuals that were the highest up in in the crimes in the criminal syndicates would be the ones that would have the highest drug weight when congress passed the safety valve they specifically said drug weight is not sufficient it doesn't tell us the whole story drug weight alone is not what captures the most culpable individuals it's capturing individuals who are less culpable so congress drew a line they drew a  individual guilty or not guilty or not relative culpability is no one really lying which i mean there's not anything else i mean we all knew what the elements of crimes of war until the supreme court how does the quantity analogy if i may just to step back a little bit i'm really failing to see where the sorry you know it was made to the district court i mean a due process argument based in particular  that cetera i mean what we're being told the district or was not told as far as i can see but you know the record better night and you know your honor that this specific constitutional argument was not raised before the district like you know just a court didn't get a chance to go your way on this which would seem that we would review it for playing there and your honor i think that this would survive trainer review the you or me you're not disputing that specifically on the question of whether or not a pretty and alaina applies to facts that remove or reduce a mandatory minimum not a single one of those cases talked about maloney or patterson they didn't even cite either one of those cases and the supreme court in a pretty specifically tells us when we're talking about a burden shifting that we need to look at  statute that what the problem with the safety valve is that it is a mandatory minimum it's a racing mandatory minimum is something good for criminal defendants if they happen to meet its provisions it's not something bad decision did not where the burden was and regardless of where the burden was the result could easily be the sign so i don't i don't i don't think that we can make that assumption your honor that if the burden was properly placed on the government to prove beyond a reasonable doubt we can assume that the court would come to the same conclusion and we certainly can assume that a jury would come to the same conclusion even if the court disagrees with me on the question of burden shifting whether or not the safety valve burden is an affirmative defense or not mr st never had the opportunity to present that affirmative defense government do you have a response yes i do your honor baron does not speak directly to this question this court has held multiple times that cases which implicate issues that merely lurk in the record but are not brought to the attention of the court or ruled nor ruled upon do not establish binding precedent on the examined point so because this question burden question is who needs to make the requisite finding and it would seem that you know the burden shifting is just sort of a proxy for determining whether we're talking about an element or something that's not an element and  and so the question here is whether somehow this sort of the gun was not possessed in relation to the drug offense whether  absence of that fact is an element yes you are and that brings me the nd point i'd like to make which is a group that i mean it's not about do you think it's about burden shifting you know whether  that's really the question here and there's a difference between factors that aggravate a sentencing range and factors that mitigates against you know of i mean you you might put it more narrowly and say it's a fact necessary to the imposition of a higher sen right because the safety valve changes the range changes a sentence yes your honor so the quicker the question as you say it is whether the fact is whether of facts an aggravation of the punishment are elements of the offense that need to be proved which are facts that allow the sentencing judge to escape a mandatory minimum are don't implicate the same constitutional concerns and in the footnote sixteen of a cranky the court makes that distinction between and aggravation in facts mitigation and it offers an example quite similar to the case we have here it posits the example of a defined in that's found guilty of murder and is facing the statutory maximum the court says if the judge finds as a matter of judicial fact finding that that defendant is a war veteran and is entitle to leniency that does not implicate the th amendment because that finding doesn't expose the defendant to more punishment than the jury verdict alone and it doesn't impose any greater stigma than that accompanied by the verdict and that's quite similar to what we have here every element necessary to trigger the mandatory minimum is found by the jury or in this case to the guilty plea and all the judge can do is is possibly reduce the range of punishment by making the necessary findings we had a drug statute that said anybody convicted of selling methamphetamine shall be sentenced to no less than twenty years unless the judge says that the quantity at issue is less than fifty grams or whatever would without finding the fifty of the statute seems similar to here i mean this says if you find these particular facts shall reduce well it says that the judge shall sense the defendant without regard to the mandatory minimum it does not so you would disagree with what you initially said you nischelle you were thinking that a jury would have to find this fifty gram business to get out from the baseline of twenty years well your honor i said that in the context of the current drug statute already sets out sort of escalating mandatory minimum i just talk about my hypo if you take away that other context i agree that that looks more like  in terms of whether that burden was met here i think that is an issue that it gets reviewed for clear error and the judge was had ample facts to make finding that he did that the gun was possessed in connection with the with the drug trafficking here the gun was loaded it was in easy reach  so if the court reaches the question of whether the judge made the appropriate findings of fact given the record i would say that he did not clearly err by making those those finding rest i can just follow up on one point government just raised your client pled guilty as i understand your your complaint here your your argument it's that a jury needed to  find that the guy was related in order to impose the mandatory but i mean how would this happen since your that your honor and and his guilty plea triggers a mandatory minimum first your honor the plea agreed that any sentence that was legally valid would be an appropriate sentence so it does not foreclose the question of what is a legally appropriate sentence for a legally valid sentence but how would this jury finding have i think that malini and then the supreme court also in its dixon case suggested essentially a burden shifting that the defendant would have the burden of production to britain to raise the issue in the st place and then the government would be required to prove the actual aggravating factor what you would have need to court during the sentencing hearing is slow down your honor we actually need to have a trial on the question whether my client possess the forty four magnum in connection with this drug crime and your honor state courts do this regularly with respect to the death penalty statutes where they have a bifurcated trial on the initial guilt phase and then they also submit to the jury that means he waived the right to have a jury and all the elements of the advance beyond a reasonable doubt and if you're right that this is an element of the if he's already wa you're going to responses to that he admitted the three elements that are noted in the plea agreement he did not admit that he was not eligible for or did not meet the safety off factors also the supreme court a classic case i think addresses this question of a plea agreement but and what i mean just to stay on judge givens point for a moment she's her point as i understand it is you waived when he waived his right to jury trial and with that is any entitlement to a jury finding on this particular issue now somebody has got to make a determination and he hasn't admitted it but but he's waived his his putative right to have a jury decide this when he waives a jury trial your honor i think the class case says the opposite the supreme court's class case says that a plea agreement agreement does not waive constitutional arguments as to the that the underlying statute they waive his right to challenge the constitutionality of the statute that he has is pleading guilty to absent now the supreme court said if in the plea agreement he specifically waived his right to appeal finding but he does waive his right to a jury determination when he leaves a jury trial even if this court were to conclude that we still get to the question of who had the burden in st place and he did not waive his right to have the burden properly placed upon the government because the safety valve factors and drug both go to the same presumed element of culpability and culpability is the only factor that congress has pointed to