breaker blakeley book or argument that the district court in making several preponderance of the evidence factual findings of sentencing ballooned this defendant sentence from a skyline sentencing range of twelve to eighteen months which would have been the range supported by the jury's verdict to a range of one hundred eighty eight to two hundred thirty five months and that the court imposed one hundred eighty eight month sentence clearly violating blakely and booker difference between this case this prostate dependent as a result of having great difficulty with his second string council round up filing i believe four separate sentencing memorandums where he specifically objected to the jury the drug quantity issue not being submitted to a appointed on this case your honor so it would go back to the panel and i'm hoping he would have another attorney and mr portman would see to that you don't want to do it i would do it but if the court would order me to go back into sentencing but we don't do that yet i mean i  was wondering if this business about the counsel that was rejected as it is moot if there is a remove i believe it is because the six men in violation on the denial of the right to counsel issue occurs post trial and it  standard this case clearly has to be remanded pre sentencing and my discussions with mr rosen she intends to raise that kind of scope of the remained argument so what i'd like to do is reserve the rest of my time for a bottle i haven't quite heard the argument good morning good morning thank you may it please the court i'm amber rose and represent the united states in this matter let me just start by saying it's true we are going to concede that really man and defendant's criminal history stretches back a quarter of a century beginning with the rest when he was ten years old and culminating in this conviction where he was seen by police officers putting a state into his car containing six and a half pounds of methamphetamine and was found with more drugs and one hundred thousand dollars cash in his apartment he received a fair trial and the conviction should be affirmed although his sentence of approximately fifteen years while facing a thirty year maximum we believe is reasonable we do concede that is necessary in light of booker in this court's decision amalie based on the court's mandatory application of the guidelines if this court finds no merit to the defendant's challenges to the district court calculation of that guideline range which we believe and will address if necessary that it should then upon re man the district court should be instructed to consider the already determined guideline range and the parties in the court should be prevented from having to relive again those issues which were already heavily litigated in the district court and are now being litigated before this court you're saying that when you want us to decide those the surest yest that we decide those issues rather than if we don't know what might have been done if the guidelines are advisory why should we sort of project that if the judge relies on these things then this is how we come out well i think with respect to a number of the claims of error being made specifically drug quantity and the final history calculation that we're not speculating we know what the arguments raised below were we know what the district court did the and it's that in light of booker we've because we conclude that the district court correctly determine the range prescribed by the guidelines on green and the court shall consider that range as well as the other relevant provisions under the guidelines and the factors one level whether there's a formal instruction to start with that range right but if it is sent back for the reasons that everybody understands presumably the same district court is going to not say well i'm going to forget let's say not so much to tie the district court's hands because i think you're right there's no reason to think the district court would do anything differently this time given that it's the record in the findings that it made in those findings not being clearly erroneous but it would prevent for example the defendant  trying to raise again the issues about drug quantity or to get that really litigator then should require the government to have to respond to that or to have another hearing about that when there was an entire trial that addressed those issues so it w so that they do not need to be and cannot be relied gated in the district court and in some sense it gives the defendant an advantage the government had urged the district court to find that there were twenty five pounds of methamphetamine vault in the conspiracy and the district court rejected that affects the substance of your arguments going to be argued march twenty fourth i think now it doesn't because this is a harmless error case at least with respect to six and a half pounds of drugs and that is really the driving force me guideline calculation and i don't think we can meet that initially did the fact finding on a certain factor is surely a different matter than what the judge would have done with that factor if the god lines were not mandatory and that's basically our point here and it may be very well what the district courts approach would be that i say those findings have already been made they're not clearly erroneous of course the court needs a chance now to go back and decide what to do with that given that the guideline range is a level thirty four criminal history category three but at least the court will know where to start in the analysis in the parties will know and it will give a clearer signal and it will resolve the claims of error of being made with respect to the drug quantity finding and the criminal history calculation and you in your optimal world court's finding with respect to drug quantity or with respect to its criminal history category thus the district court should be instructed to consider the already determined range as well as the other relevant factors in the guidelines and those factors under thirty five fifty three a before imposing sentence consistent with this opinion and the supreme court's instructions in brooklyn sounds like some like what you're asking us to write something that grows something like know i mean that the defendant now under booker is entitled to have the district court made if a factual finding by a preponderance of evidence of the drug quantity and use that to determine a guideline range which is now not mandatory but advisory so the district so the defendant has gotten the first part of that right the district court did make a factual finding by preponderance of evidence of drug quantity and determine the guy's line range one hundred or should be we think one hundred eighty eight to two hundred thirty five months and the district court can now decide in light of all of the evidence in light of all of the factors to be taken into account under the statute is that an appropriate reasonable sentence that's the part we don't know maybe the district court thinks that it is and it wasn't didn't feel constrained by the mandatory application of the guidelines but maybe it did feel constrained and it will do something different and that's what th should be to determine as an alternative that the court does not believe that approach is warranted we think at the very least this district court should resolve and take the time to resolve the factual claims of error with respect to the guideline calculations so at least the court will know what its starting point and b and the court and i am a line and this and its decision and marina hernandez it did resolve some of the claims of error with the test the guideline calculation well here's the problem i think because in asking this court to exempt the preponderance of the evidence factual findings rendered by the district court ms rosen is actually asking this court to determine post leading indicator it in a footnote that sometimes factual disputes in sentencings are resolved under beyond reasonable doubt standard of clear and convincing evidence standing standard or a preponderance standard and that they decline to to weigh in and and decide whether booker affected and whether bookers remedial pushing the opinion affected the standard of proof at sentencing and there are cases right now the united states versus where the rodriguez there united states versus west where district courts are holding that certain factual findings need to be made beyond reasonable doubt even under the gun guidelines post booker and i think if you were implicitly uphold the district court's that's your finding them from the partial remains order you would be saying that the preponderance of the evidence is the correct burden of proof and i would if if you if we were to say or a court were to say like walks where the jury acquitted on some counts and the district court nonetheless aggravated this and it's based on the acquitted conduct yes it would and i would just suggest that if the court is inclined to c are are are sentencing factors which might be subject to a preponderance standard or clear and convincing evidence and what facts at sentencing are part of the offense which would be subject to a beyond reasonable doubt standard i just think that this issue is so wide open it hasn't been briefed it's kind of a last minute argument for the government not to go home empty handed on remand after having to concede this case and i would suggest that it's not right for reviewing this case you've raised a number of other issues in your little grief that were sentencing challenges of these issues are going to be litigated not all of them were brought up the way that i would have brought them up in the district court they will all be litigated the court will take into account the guidelines calculation it makes thirty five all the thirty five fifty three a factors that are now required you can see that the  versus san francisco