supreme court so we don't know what the fate of hamelin or blakeley in general going to be perhaps by the end of the fall of this year but to the degree that the supreme court does in fact perhaps surprise us by supporting the ninth circuit's decision and i am elaine what i would like to do in my ten order that is correct and let me be more specific with the term acquitted conduct but here in this case it goes beyond that encounter one that was just the main racketeering not charge of conspiracy there was a very detailed special verdict where the not proven those facts so it goes beyond the traditional concept of just using a good conduct if you can even one step further judge carter even considered someone charged conduct which elevates the blakeley anomaly analysis to get a third level so now we one of them is a conspiracy to distribute our products judge carter made no factual findings on that issue for sentencing the sentencing was driven entirely by the court's factual finding regarding mr bravos alleged participation in the murders which brought the office level all the but that would be the full extent i submit your honor there would be no consideration of any of the matters as to which not proven was the finding of the special verdict or as to which the jury acquitted now if the sixth amendment analysis enamelling is to be applied logically then anything that case did not involve the use of acquitted conic we have unique facts here but when we look at hamilton closely the entire thrust as the four corners of the indictment look was the off chance of conviction and to what extent did the court within that framework take it have been resolved favorably to the family should be matters as to which the sentencing court is not authorized to make any findings now what is important here is just to to also be specific that family doesn't allow these matters to go back to a the answer is yes because that goes outside the context of the indictment it is not part of the office of conviction and finally before i turn the matter over to my colleague mr anger as we look closely at what portions of the sentencing guidelines may have to be found unconstitutional although the the entire structure is an authorization the invalid but certain provisions may raise constitutional questions and here one being one point two was the pivotal guideline section that drove the sentence for my client and that provision states that in a conspiracy involving multiple objects which is a classic example of iraq appearing face one b one point two specifically says that the defendant will be sentenced as if convicted were each of the sentencing of a defendant based on the object of the conspiracy without in any way allowing for a jury to make those decisions for as we in this case allowing a judge to override the jury's findings whether it's the findings in the watts involved the general verdict there was no special verdict in that particular case and the supreme court did in fact permits the use of a quick conduct because the jury simply had not spoken i submit to this panel that you please the court the sentencing issues on both used the source actually the same in both cases the probation report came back with a guideline sentence recommendation thirty's thirty seven months which would have been a time s sentence because he's defendant in jail for more time than that when they came up for sentencing the court determined to use a code of conduct to increase the sentence from a time served sentence to a maximum sentence  don't think the court has to look to am a link to the side that you use acquitted conduct no longer is appropriate the court only has to look at the language and blakeley likely indicated that a good man pose fully on the basis of a sentence only on the basis of facts reflected in the jury verdicts were committed by the defendant and this case the judge chose to increase the sentence based on findings if the jury had rejected the jury specifically rejected that these defendants both of these defendants were guilty of the charges that the judge used to increase the sentence they found both during the when they thought  but the clear rationale unwatched was that the court can use a quick conduct to increase the sentence because they can it is can be considered under a lower standard of proof after boy that clearly can't be the law anymore so i would suggest that watch and probably paris first that the united states are no longer a good law and if that's true then clearly the the courts these issues are up in the air and the most appropriate thing for the court to do would be to hold the case pending the outcome in booker and fanfan which that is the court knows the supreme court has now taken served on in order sentences but he has asked the supreme court doesn't apply lately to the guidelines that does the sixth amendment problem in the government's admits that there would be no double jeopardy problem and to address another point i think that the defen conflates to prostitution all right and making its arguments about what the scope of reading and would be in that is the sixth amendment right to jury trial and double jeopardy but really doesn't address whether watts is still good law whately is focused only on the blakely certainly they did not address the double jet pretty line of cases and and in fact in am only in this court distinguished watts as a double jeopardy case then applying the defendant no double jeopardy violation as the defense argued in their opening free to move on to another point the defendant when they when they talk about the special verdict form they treated as though the jury made specific findings of fact and that's not right that the jews the special verdict form asked the jury whether the defendants were guilty of specific racketeering acts underlying the rico the substance of rico count and the jury was charged with charged racketeering offenses and so the same concerns that lots talked about about drawing factual inferences from an acquittal and that this court talked about in jackson i think would have seen in this case even under a traditional murder and i believe they were also instructed on eating and abetting liability so it's not like the jury was asked for example did the defendants have something to do with a lot of elem earners or was defendant at the scene a block away on the day of the murders i mean they weren't specific factual questions are asked about offenses committed a murder or what i think they were asked that but they did your honor but again there are elements to that  commit the murders i mean it's a different inquiry and that's and that's really why i'm more important point apart from whether there's overlap in the legal analysis as to whether the defendants were responsible for the monica long murders the broader point is that they're not parties at the same level of the burden of proof there could well be your honor i think and that would have to be the subject of of litigation below trying to decide what the scope of a retrial with a retrial would be although it is interesting that there is one point one one point two d in a rico conspiracy case to find the objects of a rico conspiracy i believe that circuit and maybe the first circuit have have held that you don't need to do that and the reason is that the object of the rico conspiracy is the racketeering activity itself and the specific crimes that were committed in furtherance of the racketeering activity are just relevant product so you would apply a pondering standard although