of whole lucianne oath and martina's to the issue of whether crawford applies at sentencing the answer is in a word those cases are not applicable but they do have court rushed the issue by saying because the right of confrontation does not bar the consideration of here's the testimony at sentencing proceedings and so forth but that begs the question because the right of confrontation even after crawford doesn't bar the filing united states versus hall that was an appeal of a revocation the court this court ruled that hearsay evidence was insignificant to the ultimate finding of the court in that case that was the voicemail of the probation a criminal prosecution under the sixth amendment abilene the answer is that it is that even if that isn't in this case the testimony of your main little son fails leader test a bright line test under crawford or a balancing test under the due process clause utilized by this circuit we back up to the first part of your proposition for just a moment i think you are you've said that these three cases we asked you about don't change anything they do not you are if they don't change anything why is that where you purchase new york at the end of the constitutional argument the aster is because the united states supreme court is no longer excepting and this is the crux of my argument balancing test about whether hearsay is acceptable or not in the i don't i don't think i don't think that is balancing i think williams v of the confrontation clause the use of open ended balancing test result ultimately in a variation of the of the right and in the courts as testimonial hearsay which we define as grand jury testimony pulmonary hearing makes sentencing in trial virtually indistinguishable and in this case where the ultimate fact that was found by the judge at the quantity of drugs is really what the criminal proceeding is all about revocation proceedings and recognized that those balancing test that confrontation is part of the due process degree but my rhetorical question is this if one has a due process right to confront after the sentence has already been imposed and revocation why don't we have a due process rights to confront testimonial hearsay on a critical fact aren't you confusing the fifth amendment  just like they were in ohio versus roberts the balloting approach and what the supreme court did in crawford so that at least to the right of confrontation and at least on critical facts that balancing just is no longer relevant i have a question about the case i know they pleaded to mixture and if i recall right i says a different statute i don't i don't understand why you need more than an animal line remained to deal with this problem and it's my thinking on it is that they didn't get the statutory mandatory minimum for church knows they're not it's not unconstitutional but the judge to consider the purity in his determination of washington and they're going to have plenty of does it matter if all it affected was the judges as we know now discretionary determination of quantity as opposed to in fifteen of the statutory mandatory minimum beca kilograms of marijuana if you did the convergence that would put him at an our fence level of thirty even conceding the point i will openly here i don't want to talk about the public housing points of the argument on that level thirty one with his three point adjustment down he's in a range where he can get a sense of about twenty months was less so the critical point for this defendant here mr marino is does the double jeopardy issue substance to advance the penalty that's a clear violation now one would say probably well the guidelines are advisory now but that doesn't alter the fact that the double jeopardy stance is freestanding substance or its purity and not to reconfigure the amount a majority of the court for that proposition that's a conditional proposition and then justice breyer grow the other true he said but fortunately they're not mandatory but i'm just i guess i'm saying here if you look at that your client was convicted of he was indicted for a mixture he pled to a mixture and deal with women which subsection was the convicted of any detectable amount or the ten year i'm remembering something that used to come up all the time when i was writing jury instructions that the government can in guy can't remember the formula basically they can indict in the alternative the clearly erroneous standard because it's a finding of fact i know so why is it clearly wrong if i think it's clearly around me a speak because he didn't understand what was going for going not going to trial but he have left and that's really that's rejected and he chose to go to trial because he isn't having faith in the government at that point understand some of the words that you said when you were explaining why the plea of guilty to the indictment charging the mixture does not bar the government fifty year five hundred i think it was would not get him the mandatory five year minimum and it pleaded to a mixture that would get him the mandatory five year minimum and he's saying well yeah that's what i plead that's all i pleaded to i didn't plead that would give me a mandatory five year minimum or mandatory ten year minimum because we don't ok thank you very much thank you can one can for a moment and see who has to speak if anyone and pick one a few minutes clarified again on the next based around line seven is twelve was there approximately one hundred eighty grams of methamphetamine in the car yes to approximately one eighty ye