and five years consecutive for the night twenty four c the district court determined using apparently using a preponderance of the evidence standard that the basic sense level was thirty eight for the drugs that it was appropriate to apply though the judge imposed what would appear to be a below party line sentence or sentence at the lower end of the guidelines it's important to consider the burden of proof because so is the advisor guidelines are so important to determination of the ultimate presumptively reasonable and in fact is that ruled on that yet the circuit has not ruled on that and i don't know if it's pending i believe it i'm not sure if it's a pending party probably i'm sure it is but i'm not sure which case the and you know the guidelines are ones actually to be considered but they are usually just because of one term practice i mean the guidelines have been with us for almost twenty years now most district judges are used to the guidelines there are very few district judges still sitting who were who sat before the era of the guidelines most of those are judges or on senior status so must i just start by looking at the guidelines and if they're going to vary the sentence they vary by reference to the guideline five kilograms or the fight graham cut off and so it's important in these cases especially in any case i would argue that the judges use a standard of proof that gives adequate confidence to the sentence to be imposed for example and in this case even even if we leave quantity of side because in this case of the second the first three sentencing the second sentencing the judge used a clear and convincing standard andrae party even if we only look for the role and just meant the difference between a guideline range of thirty one thirty eight and forty one which would be that's the difference with three level rule attachment is three twenty four to four hundred for no or very small drug quality at twelve versus thirty eight at the upper end finally of course mcmillan has been substantially undermined if you still good luck and i can't argue still talking about what we're talking about it's now i suppose advisory staff advisory maxima so what does that mean i i mean i don't think any of us really know you know maybe that this court will and the case will have to go until i thought well absolutely but i do think that it can be it has been undermined by play clean booker and i'd spaced this case distinguishable from dare because it does not involve mandatory minimums and both of that is not binding and sentencing now i would not be controlling because it would have been made under substantially any stipulation as to the statutory quantity would have been made under substantially lower burd government would respectfully submit that the great south holds that it is not booker rejected the remedy that would have been grafted a reasonable doubt and jury trial requirement onto the sentencing guidelines instead of that it ought to form a choice that probably took a lot of this by surprise it was a choice to render the guidelines advisory but still required they be apart as they had been for the past eighteen years which was through judicial fact finding on a preponderance standard so i think that book or itself provides the answer to this particular to a jury although we use the short here and the government certainly uses it well i don't think that booker was silent on the fifth amendment question it was simply applying a pretty to the federal sentencing guidelines and a pretty clearly was based on both fifth amendment and six minute concerns to the extent it is addressing the fifth amendment issue so there is not a constitutional problem that needs to be avoided here to the extent that there is any ambiguity in book or this court is not faced with the prospect of having to but recognized that it might have to suit found by current committing other struggle was over one hundred fifty kilograms at the last sentencing it never really became an issue because defense counsel did not challenge any of the factual statements in the p s are final analysis your honor i think that the constitutional avoidance argument that's rooted in the fifth amendment is really a strawman argument that misapprehend spoke of because a pretty was based on fifth amendment concerns and because we're not dealing with a blank slate here we have a longstanding precedent that upholds the use the preponderance standard under the guidelines as long as the guidelines applied in advisory fashion there should be no a print slash due process problem any longer mr powers any further questions i'm prepared to submit this point