y without the without participation by mr mintz we were caught flatfooted at the beginning of the trial and that decision was made at the outset and so we were laboring under that as the trial developed i can't point to anything in the record that suggests that there was problems  i can tell you the judge by sly and said ok take the shackles off when he's testifying with a man to be able to walk up and walk after the jury thinks he's free his testimony continued over the lunch break and the shackles were put back on him and we had to reapply to judge wisely to have them removed bench in a conference of the bench if i had had information like that i would have presented to him but there are cases in this circuit where there was nothing discussed during the trial at the trial court the person didn't complain of pain didn't complain of difficulties communicating and yet opportunity to develop the record i think those are the things that i would discuss about shackling interest the court has additional questions i can tell you the man has complained to me about it but i don't think i can point  place in the record where i can say that there are problems that's why i'm asking for the review and what i'd like to do next with the court's leave is to move on to the sentencing issues that are evident here our view is that describing it a specific us or anything like that but my position is that just calling it a new wrinkle was not enough to establish that it was a predator weapon and for that reason alone the enhancement from level fourteen the level exempted under nine twenty two three that's the statute that the guidelines refer to the state you know the enhancement doesn't apply if it's excluded by nine hundred twenty two b three and nine twenty two v three refute refers you to an appendix and says these are the list of weapons and if it's in the west then it doesn't apply but that's national also says that it's not an exclusive listen if there are other reasons why it might be excluded then then it should be excluded in our view that nine twenty two vs the assault weapons ban that was where congress bans assault weapons and they gave precise definitions as to what the assault weapons were and there's a grandfather provision that says weapons that were manufactured before september thirteenth i think in one nine have just very briefly eighteen of the thirty two offense levels in this case were the result of posts were insufficient findings and we think that remained as appropriate i was listening to the arguments and just kleinfeld your questions about  cut government or shouldn't the court could not have been more clear when it discussed what the meaning of statutory maximus and the prohibition against post verdict judicial fact finding i know that's inconsistent with i think  that's my view and that would be my answer to that particular question the other the other examples now mentors i'm indorsed torres example were or were were course are still bound by that after a printing but this court and other courts are bound it hasn't the supreme court directly said we do not have to present a prior condition so we won't do it unless they change their mind this is different this is a sea change and it's a sea change in the six the material when you look at those and i think when you have a situation you know when you mcmillan versus pennsylvania special where the tail wags the dog that's really what happened here you know in terms of you have a base offense level that exposes the medium to twenty one to twenty seven proceeding another another area that i should perhaps touch on is what's the appropriate remedy there has been some discussion as to whether the guidelines should be declared unconstitutional or whether you should just remain and there's been two choices recognized in the district court opinions that have come out the judge has cell in utah declared the money constitutional the other judge i think from virginia and shamblin just applied blakely to the guidelines and our argument is that you don't declare them unconstitutional argument is that you know you you make every effort you can to hold a constitution that's going to be a big ask you whether you give us the good part without the bad part is it and if there's some just test actually with that the judge  other we already have a jury determination for twenty year max but maybe that's just the difficulty with the guidelines rather than are with blakeley writing you know you know i think the guidelines have the force of law you know they really aren't acted by congress there's been several examples of the congress stepping in with the crack versus powder protect act and the senior management stuff you know directly so i think it's they're the ones that are setting the max i mean if you look at blakely you know washington had a maximum ten but i think  whatever they call preferred ranges there was a range but that was stopped by the legislature and so you know in response to that concern i guess i would say yeah but what congress has done is they've endorsed these guidelines and those are the statutory ranges and so in that instance the defendant who decides to take the gun instructions are the guidelines that were not before the court in blakely so i don't think we need to get to the blakely issue today and if we were to get to the blakely issue and think in terms of what to do if the guy if the if likely were apply i think the only thing that can be done is the guidelines would have to be considered unconstitutional in total you cannot have your cake and eat it so to speak the guidelines are a comprehensive system that were designed to encompass upward departures downward departures upward adjustments down the court took very clear steps to make sure that he employed the least restrictive alternative  and this case is different from the case in council sites where an individual had a shock belt honest person that was interfere in his ability and that there was a post judgment information in the record that said that that caused exactly i think that's the control an issue here we don't get to our most air because that there was no prejudice the court was very careful to ensure that the came down into that well to make sure that the jurors could not see the shackles when there was an accident where  illegal to have an assault rifle were guarded less if you're for having a person or not and moreover this weapon while there was evidence of the record that it was made pretty damn guideline enhancement to twenty two for can't have any weapons any pistols any rifles much less an assault rifle so he is open himself up to and has meant for the particular type of weapon he had and it's clear on the record the type of weapon mr madison this to me he says in the record he chose this weapon when he a nine twenty to be won or me two rather than the application are the a guideline itself represents nine twenty one eight thirty nine twenty eight thirty i'm sorry nine twenty one a thirty provide definition i briefly to address some of the other issues that are always in the briefing the only other two points raised was mr madison wanted to present evidence of when we back up to one thing on the fact when has there been some record when necessary for instance when mr mannus was placed on the stand in the middle of his testimony at lunch break and shackle counsel writes that with a court it was addressed immediately it seems to me had their man had missed mr manners was not one who was shy of complaining about the firearms moreover he was allowed to present and tell his story basically everything by saying i was shouting back he was allowed to talk about how the officers approached him where he said he was the officer was looking how he said he was facing  bodily injury the record is replete with from the immediate time from the first time law enforcement contact mr mann if they then find themselves with law enforcement mr masse responding with death threats responded to did not want to go back to jail though on his direct testimony was clear he used a different term to refer to jail but it's clear that he by reference to the jail knew they were a law enforcement and then when he led them on a fifteen mile chase with a chain of police cars the sirens and was wearing he should have had a good idea there are police officers when he acts that is when the vehicle finally came to a stop they ran in the woods in their helicopters and dogs and bull horns he should have had a good idea they were officers when he turned and raised the weapon to shoot at uniform state troopers the dog situation he had every opportunity to surrender there was a tape recording of the initial contact with mr mannus at his property they clearly demonstrated the troopers were very diligent in trying to coax him out of the motor home to avoid for to develop a record and i think that should happen here i mean this was shackled because people didn't like him he wasn't shackled because he presented any danger to the court or certainly no record and all you do is look at what happened judge by so i decided to defer to the marshals that's that they should be more careful about these words because it has an impact on a trial if you're asking me can i point to anything in the record and i'm truthful i can't but you know it has an impact on a human being it's under five to i'm crying i think what the impact is i mean obviously people don't like  obviously as a prophylactic measure against all the impact it could have were quite restrictive and when we allow it but i'm crying i think what impact that would have one is the jury and they didn't and the other is on communication community of people become distracted you know i think those are the kinds of things that when you're track old you know economic move around a lot you know that your freedom of movement is restricted who knows i can't point i could point now of course judge by saying was one of those you should have the point is the dignity that's associated with that and the impact that would have on somebody so that's that's that's my answer the question with regard to the some automatic weapon the argument the council has made if you just want to prohibit people from having semiautomatic weapons if they're palings you would just say so there would be no reason to reference to an exception and here the exception if you look at the assault weapon ban it was a hotly contested