marcus foreman with the court's indulgence i would like to begin by arguing the freddy issues for mr holland's mr foreman and mr ross and time permitting then segue to our fourth amendment in total three claims recorded in the jail house recordings and that should take a by manage our time correctly approximately eight minutes and then mr zogby will be arguing our bats and issues for approximately four minutes minutes and then time permitting with a to reserve some time for rebuttal of course said be pleased they are questions about other issues of there for any claims beginning with mr holland's his is a classic quintessential one and there are several reasons why this is so first mr hollande and mistake a plea unequivocal e invoke hit a knowing voluntary and intelligent acceptance of the understanding of invoking those rights second he was competent to do so and third and then most importantly for purposes of this appeal he accepted all every single one of the honorees conditions of the district court imposed on him as a condition for proceeding pro se perhaps the most important of those was that mr collins decided as of january twenty just eight days before the trial was to begin he decided he didn't need to continue and you know he had long told the district court that he was willing to abide by the district court a tell attorney eyes only order which prohibited him from getting any access to discovery indeed even the identity of core government witnesses before forty eight hours before the wouldn't says appearances at trial he agreed that he was going to be shackled at counsel's table and would not be permitted to move about during the proceedings he also agree that he would not be permitted to participate in attorney directed for deer during jury selection so notwithstanding mr holmes as have been unequivocal leaves up to all those conditions the district court nevertheless decided that mr holland's had done so for bad faith and for purposes of delay it was simply put that is a an inference that cannot kind of case in terms of the importance of trying to hold a trial date for example and free a sample sizes of the obligation on the court to make sure that there is an effective opportunity to proceed and the question that i guess that may have driven the trial court in this context is that go that date but does that prevent him from coming back later and saying you know i tried but there's just not enough time i need more time this trial they can't hold and for reus gives him something to work with and suggesting that there has to be a sufficient changed he had previously continued the date from a day in january but that was because of being nick circumstance regarding one of the health issues yeah i believe it may have been a personal issue regarding one of the attorneys  for a defendant who ultimately ended up pleading guilty mr pandy so this this district court the sister the judge has a practice of having very firm trial date so every single defendant was on notice that there was not going to be any opportunity whatsoever to deviate from that and so regarding mr holmes mr foreman mr holland's ultimately decided eight days before trial that he was willing to proceed under those honors conditions claim if there are no further questions regarding those to defend its i'd like to turn quickly to mr ross's for at a claim before i'd turn over the putting to my counsel chert my colleague mr segment  control and create a categorical rule of an untimely in his bar then the fret a claim would fail now we don't read those claims that broadly and therefore like the district court which was grappling balancing test that the third circuit developed in bank often the second circuit developed and that's the shida now we think that under the circumstances given that the trial was already sufficiently advanced and this or ross was willing to proceed p se mediately there would have been any meaningful change in the in the trial trajectory and mr us was was prepared to proceed immediately pro se so therefore under those balancing test were you have a minority juror who was struck and there's no dispute that the juror who was the peremptory challenge was issued to was a minority juror and usually the prosecutor gets up and says here are my race neutral reasons and the district court makes a call but in this case we have that twist we have the fact that after the prosecutor stated his put it of lee race neutral reasons prosecutor then says we offered to exchange one african american juror another and it was our position that that proves rather than ameliorate the issue of race that proves i mean at least from the outside world to the whole world it seems like well we'll take this other juror based on race and although i could not find any cases which applied the racial balancing tests of the school district case that i guess is not terribly surprising appl scenario i think that the logic should be clear that the supreme court's pronouncements that the way that you eliminate racial discrimination in the criminal justice world and in our justice system is by not using race well that wasn't a swap of the jurors and so i'm not sure how that gives you any traction with regard to the jury that was actually seated if it speaks to anything it may have been a misguided suggestion but it does suggest that the government's focus on the exercise of the peremptory challenges that it did use may have been driven by something other than the perspective jurors raise because they're willing to say will put somebody else in there and i understand that point your honor if i may it seems though that if you consider the nature of this case now the government's says that at the beginning of our dear jumps a bra says this is a very diverse panel which was already noting the racial aspect the defense had said wait a minute why aren't there more african american jurors which of course noted the racial aspect there were three african american jurors on the panel and the possible panel one was excluded because the person knew law enforcement witnesses in the case and that's an obvious one and then we have juror fourteen injure forty seven jerk forty seven appear to be in no danger of making it to the panel there wasn't going to be enough jurors struck but juror forty seven was the child of all of a police officer and you know it's i can see why the government would want a person of any race who was raised by a police officer to adjudicate this case and whether that was just clever pool or was an interesting suggestion it's unquestionably a suggestion as wanting to exclude somebody only a person wasn't put on the jury by reason of race i mean if the court had accepted that proposal would have a whole different set of issues to discuss but that's not what happened we think that so so i'm not sure how this really speaks to the prosecutor's motivation and exercising the challenge that was exercised we all agree that it says this is a factual question based on the totality of the circumstances so when the prosecutor got up and listed the several reasons the several possible race neutral reasons for excluding a juror and then the judge made the call we think the judge should  the fact that the prosecutor offered to swap out the other african american jerk that that put a racial tinge on the prosecution for your argumentation to say now i hear you and i don't understand how that strengthens the argument that the prosecutor's exercise of the challenge that was exercise was motivated by race i don't i don't see how that strengthens that argument well i mean i think we've all had looks that that the prosecutor was conscious of race yes but that's the world in which we live and it was prompted at that point by the batson challenge so he has to concentrate on race the beginning of the datsun challenge was the government saying look you haven't made a  but here are my six reasons why this is race neutral and if you the government's argument on appeal is if you consider these points in combination they're different than every other juror our point is this was the one african american drove was going to make it to the panel it got and the government challenge that sure we make a bason challenge the government is racial neutral reasons and then at the end which reasons only known to the government they decide to say well it's kind of like when you say look i'm not racist i have a black friend you know and it kind of proves the point that you are making an assessment about the person's race in your decision so i know my time is growing short i'd like to reserve a minute for a bottle thank thank your honour's may please the court mark rey he for the united states government would sit in this case that jobs abroad did not commit clear air in finding bad faith reasons for the fred emotions and fraud a challenge that this court made clear in one nine hundred eighty two inference for suspending and also in the ted kaczynski unabomber case was whether defendant could reasonably be expected to have made the motion of an earlier time here the defendants at least hollins and foreman waited until twenty months after the case was indicted and just a few weeks before trial to make a claim in particular would suspect the hollands that was after the motion is made before the juries and panel it's timely but this case isn't just in a vacuum on its unique circumstances the fact that it was made twenty months after indictment and maybe three weeks before trial still meant that it was on trial and the only representation that the defense made or at least that mr holmes made was that he just felt he could do a better job now it is his right even judge the broad acknowledge multiple times below you have a constitutional right to represent yourself when this first came up on january fourteenth judge the bra can read that here and do if we want through all the call cui there's never been any claim on appeal that he was sure or gave short shrift to  the end of that hearing both hones and forment withdraw their request so now they flip flop two weeks later a hole and comes back into court and says you know what i said i think i still want to go pro se now another important fact with both hollings inform and made their initial motions january fourteenth there's no question they're asking for a continuance and is this court's case laws pointed out whenever a motion to go pro se is coupled with a request for continuance that strong evidence of an intent to delay even at the second hearing january twenty eighth when holmes comes back into court his first preference is to have more time and i understand that you know as soon as the court said look we're not going to move the trial date incidentally i would also point out you know maybe like fair use that was a run of the mill thirteen twenty six case where the defendants arrested trials going to go for four months later not a lot of witnesses it's usually one day trial and united states versus w r grace this court said that a court district court has inherent power to control its docket this was an enormously complicated case i think there were seventeen or nineteen defendants indicted as you know as you go to trial even my opponent conceded earlier this this morning that it was no question of the appellant's that given the scope and the enormity of this case its course which took some time and and the other one was when i believe another one of the defense counsels lost her whole even in their reply brief the defense admits that even if they don't ask for a continuous the fact that a continuance would be quired is also evidence of bad faith for these purposes well it's because of a friend a motion is a real problem for a district judge particularly in a case like this because the right to real self representation is established quickly and i don't quarrel with what the district court was doing in trying to weigh the elements but after he's told defendants that we're not continuing this and they wind up withdrawing their request and a couple weeks later mr hollins comes back and says no i've really thought about this and i know this side it's my it's my not life literally but mind my forty years are on the line so so and the supreme court says you've got the right to do that there was the crossing of the fingers that i had referred to myself before but in the end he says ok i'll vote i'll take it so what's what's the downside what is it the court can point to to say i still think this is delay given that the record of that point it seems to me would make it very difficult for hollins to argue later that my conviction has to be tossed out because i wasn't given enough time to prepare i think all exactly part of that is you know i believe the judge soprano referred to as a hobson's choice i mean you know first of all just accepting that it's a credible or a credible request of face value that i'm going to go to trial without any of the discovery the lawyers have had access to for a long time now but he's got other lawyers in there next to him if he's doing it by himself maybe figures he can he can get by with them and he he knows better i mean one of the things about criminal defendants are they had good judgment the wouldn't be by the middle of bandits you know so so he may well a persuaded himself i can do a better job than when this guy has been representing me and i've got other guys here who are who are going to be doing that job too so as can be so confident that the request was in bad faith that hollins really had an ulterior motive that he was going to be able to realize i believe you can your own another point and to speak directly to that and there was no mention of this in my o presentation the district judge at x or to record seventy two seventy three found it wasn't just about delay in again it has to be good faith reasons the porch found that there was improper desire to circumvent the a t o protect  order and the corps pointed out didn't just pull that up out of the blue said on december twenty second twenty fifteen i made a fundamental change in the landscape of this trial up until that point the idea always was that i believe everybody would get all corwin's discovery six weeks before trial but what the government introduced were affidavits and one of them is an excerpt of record six forty five to forty nine intimidate witnesses and what the district court said was i'm inferring based on the fact that december twenty to twenty fifteen or three weeks before you suddenly make this rather request after twenty months  silence in a perfect relation to your counsel that you think you're going to be in the same shoes as the lawyers and you're going to get earlier access to the core discovery now we've made you know if you were doing that  not agree with it but on the finding of bad faith we submit that it's clear air here the court is specifically pointing to this kind of evidence you've got these affidavits from two different f b i agents that there's a real problem with witness intimidation i think that is another reason that goes to bad faith well the order itself is not challenge here and i can understand the reason for does asking to represent himself change the posture of that issue because i believe the district court can say that's can be precisely reject that it's not credible here you have a defendant who has been knowingly engaging in intimidation just because he suddenly he says what he thinks the judge wants to hear and the judge is entitle i believe to make an implicit adverse credibility decision on that respect and that how does it affect the case hollins may think by stepping forward himself he's going to get the information though the judges said no we're hollins now says the words that i'll live with this from the court's respective does that make the court's prior decision with regard to withholding the information even from one's acting as his own counsel does that put his prior decision in jeopardy i don't believe it puts it in jeopardy but at least you know if it's going to be clearer view when you look to the totality of what informing the judge's decision and if the overall question is good faith or bad faith the judge i believe that's not a random leap because i believe in the reply brief that you know opponent said oh it's just speculation he has demonstrated evidence of a proclivity to disobey already the law in not intimidating people i mean it will not go so much the issue of delay but i think it goes to good faith bad faith now another point i wanted to m say without any you know prior exposure to a lot of the discovery that your going to be able to represent yourself that puts me in a bad position because now you know it's almost like you're damned if you do damned if you don't and again i  point this out only because i believe that this record record shows that the judge is able it's within his power to not give those representations there for their face value especially when after the first time there was a request it was withdrawn and then he comes back two weeks later you know and one other thing i would point out is that there still would have been i believe nasa prejudice the prosecution in the court as the core pointed out i mean you have a jury that's have all these incredible security measures witnesses are lined up ahead it's all and i don't think it's unreasonable for the judge to say you know what if suddenly one person wants to go pro se without having any knowledge of poor witness discovery in the same way that their lawyers have had for the last six weeks that that would really come up the works in cause prejudice i mean that's what fritz versus spaulding says the court could take into account and that's because it's he says as well so that is at least with respect in the case that was the thirteen twenty six where there were only four months elapse between arrest and trial here there definitely was such a funny and again that's excerpt of record sixty seven to seventy four that are those are all the detail findings the judge the broad made and not only that at the january twenty ninth hearing judge brought specifically made clear for the record that virtually all of the same concerns that he had with mr applied equally to mr foreman and so in that sense he was able to clarify that the record that the bad faith finding was made as to both people that's what i understood both defendants yes and then finally with respect to ross we would stand on the rule and as i pointed out early in france versus calling nine hundred eighty two this court says in as many words a self representation is request as timely made before juries and paneled periods two weeks and thirty is just clinton's pointed out was about juror forty seven the prosecutor put forth at least three pages worth of five race neutral reasons why he struck that juror the fact that her employment status was a temporary worker in a two week trial had no full time benefits she had a child care issue as the sole provider of an autistic child she lived in the same neighborhood where the west coast crips operated she had once witnessed a crime where the victim decided not to press charges said i would find that those stated reasons are consistent with the record consistent with the statements attributed to her fourteen there has been no attempt to dispute those reasons and even if that the defense tries to pick and pick a two or three of them are main factors that those same constellation of five circumstances were not present in any other juror now if that were the end of the question this i guess i would sit down but we do have what the judge prosecutor offered to do i would submit to this court defense tries to read in the worst light possible he is making a good faith effort even if it is misguided as judge clifton says you're going to you know if i'm going to be accused of racism i'm not afraid i was unwilling to put another juror on who didn't have any of those five problems that he had when juror fourteen juror sixty seven lived in carmel valley a half hour north of where the west coast curves operate he's a retired engineer from one of the world's largest defense contractors were the words he used yet until then seven of whom were adults one of whom was in high school he was relaxed enough to be cracking jokes and although he witnessed two domestic violence cases they didn't appear to impact in the same way as juror fourteen we would submit that that how can that be evidence of racial animus if the defense is saying we want representation i think that's how he the prosecutor said if intent this court does have a number of case cases that say even when all is said and done you look at how juries constitute if they're to happen to be challenged you know jurors from the challenge race on the we're going to focus rebuttal exclusively on fred on this of course has questions about other issues let me first briefly address mr foreman's for a claim in my point it's suggest newts we express no opinion on whether after finding that a defendant seeks to proceed pro se for the purpose of a delay of delay a district court may refuse to grant the defendant additional time to prepare so if brit is explicitly left that is an open question so there is there is some opening in and for eons for the court nevertheless to determine that fred is such an important right that even under these stringent circumstances that the judge said bravo is insisting upon a very firm child that pending for quite some time your honor i believe it was actually don't have the exact date when it was first filed but there's been a believe five superseding indictments in total and a separate determination  was not going to be changed so they were clearly on notice that if they were to proceed pro se they were going to be treated as if they were defendants and represents a irrespective of the subjective motives because the subjective motives speak to the good faith convictions had been obtained what kind of argument would defendants have now saying well i didn't have a meaningful opportunity to defend myself because i didn't have the information that's the risk that seems to me the district judge has to weigh in trying to figure out how to proceed through this thorny situation so so what what reason do you think the district cut judge should have not been concerned about that because that's not really going to be a problem even if i accept the proposition that that it's not appropriate to evaluate the subjective motivation in terms of good faith bad faith since to me the issue for the district judges will how do i put this process at risk by granting or denying this request there's not a clear path so so what's the what's the upside for the judge doing what you considerable flexibility regarding the scheduling of dates in that case because of that particular district judge practices and because of the unique nature of that case so that's why there was significant deviation from the  trial schedule if you will you know here there is much less of an opportunity for anyone to to be concerned about the issues that you've identified as question because judges abroad not only in this case but throughout his entire district court practices is notorious if you want to use that term there are these what well excepted as having very firm trial that it's very firm scheduling practices or no one could have reasonably thought under those circumstances that anything would have turned out differently so he was you're clear but defendants were they quite as familiar with judges overall as practices as the lawyers next to them well i think they had lived through the case for several years your honor and they were up close and personal if you will judge sobran they saw exactly how he conducted himself i don't think they would have had any reasonable expectations under the particular circumstances of this case that judge the bra would have been willing to deviate from the a order  engage in warrantless searches of pretrial detainees for any purpose whatsoever in the california supreme court's opinion people the davis obviously does not know by this court we know that cohen the second circuit is does not vote we have argued that the reasons that the second circuit proffered in koan namely that if you're not proceeding from a security based reason intrinsic to the pretrial detention center that didn't happen here this was all directed externally if the reason for the search has nothing to do with internal reasons the pretrial detention center therefore the government would then given that we're dealing with pretrial detainees not people servants to a census there would be a reason there would be a fourth amendment requirement for the government to seek a warrant before conducting something as invasive as that as that is just setting up a recording device in a jail cell for three days in a new allowing the government to listen in to let you know at least any stock in the fact that they did that because they were concerned about threats possible retaliation if you visit they were they were all external threats or are weak knowledge that they're still in custody in jail where we're running the building as is in charge i mean you know you directives from the san diego police department working in consul to ation with the f b i special agent harding so there was nothing unique to what was going on in that detention center bailey that require that the recording the fallout from the paris hill homicide or to protect a witness a believe was identified as d f you know all those are external concerns all of them the government clearly could've patch together enough evidence to put in an affidavit put in a declaration obtain a warrant they decided to take a short cut and the judge katz been alluding to cohen the rationale and cohen should apply you know government should have obtained a search warrant and it's not ok i've given you plenty of time  know it's been a long morning but devon burstein on behalf of mr graves may please the court i would like to begin with the sentencing issue the forty five seventy three point six and why that's not a predicate i want to know that if the court agrees with us on that issue and they keep the sense on that basis it need not reach the larger constitutional issue in play any longer so i think it's a an opportune place to start if i have additional time i'm going to go to the buyer seller and explain why i think that this case is different than judge clifton decision in my butt but jumping right into forty five seven i remember going either ok well that's ok i did notice later that it was oh gee i did that ok but i've got a lot of quotes from it for you so forty forty five seventy three point six i'm just going to call it the prison statute because i think it's a bit easier so we know from the campus well first and foremost the categorical approach does apply in this  fifty one eight forty one context we know second that the california drug schedules are overbroad government concedes that this cases this court cases are uniform in the fact th california drug statutes are overbroad and that really brings us to the crux of the issue whether the prison statute forty five seventy three is divisible or not and it's our position that under mathis and court's decision in martina's lopez it is in divisible that is it cannot be divided that is the drug type r means not elements and to get there requires a little bit of a step back so what not this so when we're talking about divisibility we're talking about means versus elements when they have an overbroad statute means versus elements and what mathis says is the threshold inquiry just to quote elements or means in the easy case it's when you have a state court decision that definitively answers the question then martinez lopez on bach takes up that exact principle and what martinez lopez says is we're going to look at the cap a california decision to determine whether in the context of that statute which was eleven three fifty two whether it's divisible in what they say is quote with respect to controlled substance requirement in not statute we conclude that this is an easy case because a state court decision definitively answers the question that state court decision is a state supreme court decision that's right that in what adams says and it's progeny have declared is that if a person has multiple substances they have marijuana and methamphetamine in their pocket and they're prosecuted the two convictions one for methamphetamine one for marijuana and that's how we know the ninth circuit on our court on bunk says it's an element and it says and to quote as a result of adams and its progeny defendants  routinely subjected to multiple convictions under as under a single statute for a single act as it relates to multiple controlled substances because the controlled substances each lead to an individual conviction they must be an element therefore for those typical california drug statutes it is divisible each substance is an element and then we have our statute and it's not a typical california drug statu and we have rouse are and what router does is the same thing it cites adams and its progeny says yes in all of the typical drug statues these are elements in other words you have multiple convictions based on each individual substance right it says the case is discussing multiple convictions for possession of discrete controlled substances were decided a different statute than the one before us this statue rouser goes on to say is fundamentally different this statute is not a drug statute in a totally different part of the code this is a prison statute and  you you don't get individual convictions for each substance you have the exact opposite of adam's quote we hold that contemporaneous possession in a state prison of two or more discrete controlled substances here methamphetamine and heroin at the same location constitutes but one a vent of one offense under section four five seven three point six in other words that same example has started for the court where you have methamphetamine in marijuana your pocket under adams and traditional drug california drug statutes two convictions under rouse or and the prison statute one conviction that answers the diff is ability question because you can have only one conviction for multiple substances the multiple substances are there for error go means it is the exact adams martina's lopez situation in reverse that's recent who have taken on rouser and followed it with regard to other types of possession finding yes in other contexts outside of the drug context you can't that want multiple possession for example not a favorite sense look at the statute itself it's not just about drugs it's also paraphernalia i mean you can you could be convicted whether you had a pipe in your cell or marijuana or methamphetamine and what rouser says is you've got methamphetamine marijuana cocaine heroin a pipe a syringe one offense that's by definition well if the purpose of the there to protect prisons it's a prison contraband statute and if you go through rouser your honor that's the whole discussion is this is not a drug statute we know i mean we all know that california drug statutes eleven three fifty two eleven three seventy nine there this is in a totally different supreme court decision whether it's supreme court it says if there's a state court case that's good law and it's on point it's easy all you do is follow the decision if you follow rouser here as  instructs this court it must forty five seventy three point six is indivisible if it's in divisible this case is at an end in terms of whether that was a predicate for the a fifty one in han what is the significance of the the fifty one hands because it leads to the mandatory minimum yet so he was a double it was a yes your honor and and but the district court said that's not what drove the sentence that got him to be sentenced to life anyway that that's not exactly accurate your honor what the district court so the eight fifty one hearing takes place a month before sentencing the judge says over rules the objections the fifty one and says i'm going to impose i find them both qualify therefore it's a mandatory life so because it was mandatory life the district court says late that mr graves doesn't do a pre sentence interview there is no thirty  no sentencing memorandum from the defense addressing the sentencing factors or that or objecting to any other making on the other guidelines issues because it's academic in the district court even later said it's academic i think we can all agree that half a painting is not the whole picture and that's what happened at sentencing none of the mitigating evidence in favor of mr graves was given to the district court now we've talked a lot about judge to brawl but he's a conscientious judge and i makes a point of going through and doing a thirty five fifty three analysis but by the again your honor my point is that he's not given he can only do the thirty five fifty three analysis on what's before him your honor i think and none of the mitigating evidence was put forward by the defense because it was academic at that point he says i think it's inappropriate to set up the thirty five fifty three factors i'm quoting to perfect the record and to make clear that if the court were to exercise discretion if it had any to impose a sentence less than life it would not but that sentence has to be taken in context not none of the mitigating evidence was prevent was presented to the court there was no mitigation package presented to the court there was no pre sentence interview nothing about his childhood nothing about any of the other when they're sentencing air so to quote from gunning when a district court could have lowered a defendant sentence we have presumed prejudice and remanded even if we doubted that the district court would have done so so now if you agree with me on forty five seventy three point six the district court could have been point of a lesser sentence under gunning the court is with all due respect required to to remand in that case and correct in you see out of pages for fourteen and for fifteen the government gets upset when defense trial counsel says we tried to settle this case there's no offer and it's a mandatory life we can't do that so it there's at least some evidence in the record that he would have pleaded guilty and sought a deal and that would have reduced his guideline range to the low life anyway even now where you send it back he could accept responsibility now and get two levels lower there's also a number of guidelines issues that didn't have to be litigated because it was a mandatory life there's a four level in enhancement that's there that we would litigate there's a number there's a gun enhanced meant for two points that's six levels that would be litigated and there's a tremendous amount of mitigation remember a mitigation package it's not in the record it wasn't before a judge brought but a mitigation package was prepared when trial counsel went to central justice to argue against death penalty which was successful that's going to happen i think in this case goes back there significant mitigating and i think mr graves will wind up with a sentence less than life if there's no further case yes and i'm happy to address buyer seller chuan if the court has question rebuttal yes your honor thank you very much so buyer seller in effect only count one there are three requirements one it's a correct statement of law here it was a correct statement of law there's no contention it was the model instruction nine point one thousand and two that there's at least some evidence in the record the government does its best to say there's not some evidence in the record that there's no way to read this record honestly and say there's not some evidence that he was doing ad hoc drug sales all the recorded sales or ad hoc drug sales there's not nothing in terms of methamphetamine that says it is absolutely not a buyer seller and all we have to have is a teeny bit of a small amount of evidence cutting the other way and that brings us to the third point and that's what judge clifton you wrote about in mo and he said in mono that the other instructions covered the buyer seller and just to quote most says that just the district  instructed the jury on the general elements of conspiracy the instruction inform the jury that a conspiracy is a partnership and then order to convict the jury to find that there was a plant committed at least one other crime and then the opinion states the only other crime charged in the indictment concerned most alleged distribution in montana to other purchasers so that's what most say you know he was instructed you have to have a partnership and the only other crime was downstream purchases here we have the opposite the same instruction you have to find that there was an agreement to commit one of the crimes alleged in the indictment but the only other crime there is marijuana conspiracy and possession with intent to distribute so if there was no other crime that unlike most there was no other goes up on behalf the united states you're on ours i'll start with the fifty one enhanced meant the district court was correctly applied the enhancement in this case the there is no real dispute that not only was the substance involved in the conviction marijuana but the conviction documents would show under a modified categorical analysis that it was in fact marijuana that he was convicted of and in prison the sole issue argued by my opponent is whether or not the statute is in fact divisible such that the court can even look at these conviction documents to show that it's marijuana in martinez lopez this court held that although the california drug tables are slightly broader than the federal definition that the statute is in that cases divisible and that the drug type isn't an element of the offense every other california statute that's been considered since then i think if you look first of all at the model california jury instructions for this offense as in martinez lopez it lists one of the elements you have to prove with the blank as to what the actual subway was the just the means case it's our position that that doesn't stand as clearly as to the defense counsel argues for the proposition that the jury is not required to find a specific drug type in order to convict under this statute rouser was a case involving  three strikes sentencing law where the defendant ended up receiving to twenty five year consecutive sentences based on the same stash that was found in his cell and considering that this court held essentially that you can't be convicted for two independent crimes for the same two different drugs inside your cell when they didn't hold was that that that element of what drug it was for either one of those was something that that wouldn't have to be proven to the jury and then like i said the jury instructions would require this another court of appeals case people versus george approve the jury instruction that require the jury to find a certain controlled substance so i think this case as with martinez lopez and the other california cases should be considered visible and in that case the documents your show plainly that it was marijuana if even if hearing and at that hearing the united states had the burden to prove beyond a reasonable doubt that these convictions qualified as a felony drug offense here in this case with the court held a hearing the united states called several witnesses including a fingerprint expert who tied the specific conviction documents demonstrating that was marijuana to the defendant's fingerprint and the court found beyond a reasonable doubt that these conviction documents showing marijuana were felony drug offenses so there's no need in this mini trial context to resort to the sort of blindfolding of the categorical analysis where the court can't even consider what's been introduced at this evidentiary hearing and then finally i would just note that even if the statute did not qualify as a felony drug offense the court made it very clear in this case that it was  apply a life sentence regardless of whether or not the mandatory life sentence applied the courts that said i want to make it clear that it's a clear that if the court were to exercise discretion if it had any to impose a sentence less life it would not and that wasn't just a stand alone statement the court opened with that and then proceeded to go through all of the thirty five fifty three factors that supported a life sentence even without the mandatory minimum the court noted the substantial amount of drugs involved in the offense the sort of lifetime of criminal activity with twenty four years of sentences in the past thirty years and then there including a prior conviction for beating a man to  death with a baseball bat and then the court and this is the another critical quote from the district court he said the relevant conduct in this case showed beyond a reasonable doubt that mr graves or ordered the execution of a government witness and that standing alone merits a life sentence so so we just had a discussion about that and your colleague says no mitigation presentation was made issues were taken up and so the judge was operating with what he describes as half a picture and accept the proposition if if it goes back and the rest of the picture is fleshed out expresses confidence so there's no downside expresses confidence that a different different sentence will result despite what the judge said in opposing this is what's wrong with that well your honor i think a couple things  first of all that sort of idea that it would be easy to just go back over and have a redo i mean there would be real consequences to that this was a case with multiple victims multiple murder victims sex trafficking victims and this was something that was put rest almost three years ago with the defendant receiving the sentence that he deserved and there would be some cost to sort of peeling that away and reopening again it giving him another chance to come into court and there's if you look at the record it could not be more clear that that would be a waste of time and a futile exercise given the fact that the court took through all of these thirty five fifty three factors that were that were overwhelming most notably including the that he didn't have sort of the mitigate mitigation found beyond a reasonable doubt and this evidence came in at the other trial that that mr graves ordered this execution killing that they sort of walked this man down the hill he was crying and shot him to death because he was a cooperator the court held that alone that executing a witness standing alone is a life sentence so it's difficult to to see what would have changed that even if you could present some unknown thirty five fifty three factors that were that were never introduced below so harmless in light of the court's statements what's the best case that you might cite for the proposition that what happened here was not even harmless given the court's independent analysis sure you honor i think if you look at the government's opening brief at page six i don't have the names in front of me but there's a strong side of about four different cases where courts have considered this the same situation where arm career criminal act or various other statutes with mandatory unless the court has any other questions about the substantive arguments thank you ok thank you you had some time for rebuttal i think just for we offer to give will give you a minute y