your honor my name is michael donahoe i work for the federal defender's work in the helena branch montana point represented mr gary moore here on a claim that the united states versus jordan should be possession up to and including ten years for the district it's a fifty percent increase in the since the reasoning of jordan certainly applies the logic of jordan certainly applies the government tries to make a distinction here and says well  a guideline case and it doesn't apply here and actually i credit the government for arguing the case in that style because i think it sharpens the issue here there is no distinction to draw between this although it was made it out under the terms of the statute and a guideline since they're interchangeable things there are functional equivalents to g two pointer to take two point four requires that the mandatory minimum sentence the applicable sentence for the gun can't price you one point three if we could imagine it's a scenario under the guidelines where the sentence they got license might have been lower in the mandatory minimum sentence had been higher the guidelines would require that the mandatory minimum specifically and only to the minimum is that right there is no i guess that my perspective to that question would be that there is no actual guideline range under two k two point four preponderance it nonetheless functions as a guideline and i think that if you're making the determination your honor between starting at the floor five and go in to the to the ceiling of ten based on the court's findings just one was very troubled by this case and i think for good reason the record displays his dissatisfaction but he nonetheless argue that the brandishing had absolutely no relation with the words of the drug offense you know i did not but we could you know well i i don't know that i could have your honor in it seriously i think that's a fair question and i don't know that i would have maybe and we were willing to try to sensing factors to the court by it i do not want to leave that brandishing issue that if we would go back down and i pray that we are successful today that there is still the issue of the intoxication peaceably the brandish and i don't know that we ever reached that question the sentencing is the developing craft on this record almost exclusively with that discharge well i think it does then that's a way to look at that and maybe it's a fair way to look at it but i'm going to the court to think of that now people in our position and exclusively the defense position in a situation like this these issues were framed i think they were framed nicely i think that they were brought to the court's attention and i think circumstances alter cases your honor and what happened here was that we tried to discharge the brandished took a second se and the intoxication evidence and i tell you this frankly candidly we did not recognize maybe the strength of it even from the defense perspective the witnesses were good judge white was impressed with that and i think that if we had been that's not to say that this issue i think there are some dissatisfied people with the supreme court with the harris analysis i tried to point that out in the reply brief and i maybe in terms of evolution standing by how congress reacts to the book of fanfa people preponderance of the evidence at the sentencing hearing when the district court's time since the defendant to ten years imprisonment for discharging a firearm in furtherance of the drug trafficking crime when a person violate section one twenty four c congress has mandated how that person should be punished according to the actions of the defendant it's five years for possession seven years for brandishing and ten years for the discharge the supreme court in here us held the discharging all right sorry that brandish and discharge are sentencing factors and not actually elements of the crime which is why we had this case basically tried before the judge for the sentencing hearing guideline range initiated because this is a mandatory minimum case it's either sixty months eighty four months or one hundred twenty months depending upon the findings by the district court well ok but we're still faced with the question are we not even though harris was not mentioned in these more recently since as to whether or not it's still the long arm you know sentencing factors at all is anybody know what the maximum would have been as far as as far as i can tell your honor that the maximums like i mean that he is what is the life i'm not sure the best way to answer that your honor other than one of the things that we did look at or i guess we've argued to the court in relation to the sentencing guidelines because that probably is just talking about the difficulty with this version of proof you know we have it in the hands of the court the question is whether or not it should be by opponents or beyond a reasonable doubt and i'm having a struggle here figuring  sense and argued look to the sentencing guidelines and arguing between a preponderance of the evidence which is what the judge used in this case to find the discharge and the clear and convincing standard that the defendant is arguing for but i still think it is my position our position that the sentencing judge was correct in using the preponderance of the evidence standard because of the jordan factors and i guess the main factor in my mind is was the sentence enhanced was it more than double of what an otherwise relatively short sense of what w between those two so we don't get to more than double more than double would be more than a hundred and sixty eight months in this case runners and so as a result we don't get that extreme intoxication does apply to the crime itself the offense conduct but in this case the defendant pled to the charge there wasn't this isn't about the conviction  honor in this case is a walk out of the front door in the middle of the trigger how does it further the transaction it further the transaction basically through the intimidation of the two but it still shows his theory is sinister about the fact that he didn't want the police coming to his door after these two had refused to smoke marijuana with him because this was all one  arraignment and i just don't have a memory of appearing with the man sometimes we don't do that we're in different cities at the arraignment i don't know that he was precisely advised about that and she allis of a life sentence i know that there are cases in this circuit and i think in others that indicate that the upper term for ny twenty four c charges like prison but if you take that arraignment a life imprisonment charge would be the upper term then the change of point in time to plead it's taken as this that there's an actual possession under nine twenty four c and that the necessary elements to the offense the essential elements of the offense are admitted but the sense in fact will be put off to another day now for strategic the tape and the gun coming off the wall and the two live witnesses and so on the sentencing memorandum are styled in a way that the issue see where the calculation is done and the drug guideline turns out i think to be demeaning to six zero to six months and then the gun count is talked about in terms of mandatory minimum terms and there's not one specified in the precincts record it just says that i guess will await the district court's findings could good a judge theoretically go above the mandatory minimum no i don't think given harish that you could do that i don't see how you could do that so much minimum and a maximum of same time right you know you heard my discussion with counsel and the well i'm saying that her you'd rather have the case decided on the issues if you read and write well i am but i don't want to forego any think the courts certainly far wiser than i am and if the court sees something that i look at the case and knew with better perspective given everything that transpired remember that this sensing was handed conducted in april of zero four and then we had likely in june and so on so we didn't have the advantage of those opinions that might alter the outcome thank you thank you counsel the case just argued will be submitted for decision and we will move to argument in kaufman versus american c whose company