injury based on cruises testimony and i argued in the breeze that it is clear there was not because there was a fight that was stopped before there was serious bodily injury when the law you know said you have to submit that's important because it shows an intent to stop the fight before there's any more serious damage not because they have the stuff that was not their thing that's really important about that video is that it shows the fight lasted fifty five seconds that's important because when judge cereal is repeal ting what evidence he relied on talks about the fight lasting two to three minutes now he's recounting cruise's testimony and crews did testify that the fight lasted few three minutes but it seems strange to say the pilot has to do three minutes we've got video evidence it was the only fifty five seconds that they way under section three d one point to see that where one count of bodies conduct that is created as a specific oftens characteristic of a not threat to the president should be grouped if they grouped them there would be no additional punishment for the gun and nate and the court will not be an anonymous result that's not what happens here the bodily injury gets punished either way so the hines case doesn't really do that cruise that's at issue in both so that's another area there's that's four points right there on the calculation the guidelines the next issue is aggravated assault whether this should have been a simple aggravated assault that that's a one point that matters for one point and it's frankly the same point that goes with the grouping analysis so if you didn't go with mr diaz on the gripping analysis then this becomes important if you go with him on the gripping analysis and this doesn't even matter but that the key point i'd like to make is if this was felony assault it was as the government argues under california penal code if you were five a for assault with worse likely to produce great bodily harm brings me back to my original point if there had been great luck bodily harm that would have been an ass the last point that i would like to address is the failure of just curios  and it's even more important case like this where you have a jury returning a general verdict yet you're going to sentence the man on a bunch of different crimes that were never found by the jury counsel didn't didn't didn't find anything addressing that except that the purpose of play there is to force people to bring up issues of the court can correct it real time this was brought up in real time and it was not corrected so the but the pla error here is just what i've been is a lot of what i've been going through and it's in my briefs and i can go through adhere to and that is if judge relied on cruises testimony and he recounted it when  cruises testimony had a lot a lot of problems but it was scattered throughout the entire record so if you're going to base you know whether or not this is aggravated or misdemeanor assault if you're going to say this was an extortion that mr  judge who actually listened to him testify said i find he's not credible that's that's really problematic because these are these are what was going to defense counsel from raising that specific issue nothing now i mean it seems to me on plan or that's why it's a tough call for you because if there had been an objection or if you say i need to call us to your attention that's one thing  if you're saying there are nuances in there that he should have picked up on and that's difficult under miners and i understand that and that is why i started with my guideline organs because i think that this case should be reversed because the guideline calculated in correctly in this case goes back down these issues can be addressed you can say judge curial you didn't this was not presented to you this was not his and it's you you can also present the argument for a clear and convincing standard of proof in the st instance in the district ended on this failure to review the entire record obviously a court is only supposed to be familiar with the relevant parts of the record not every single aspect of the records here defense had three months papers there is absolutely no reason why any of the points that brand new counsel on appeals making couldn't have been raised below and to the point i would ask this court to look at excerpts of record page eleven defense counsel scene hearing this is a direct quote it has been a very thorough amount of information provided to the court and the court has also requested us to be thorough in an attempt assistance of counsel claim being masqueraded is an attack on the judge because everybody had their chance all the court asked was that the parties bear their respective burdens of proof against three months there's absolutely no reason any of had problems with us some other ever screws credibility she immediately said the next breath but it's not the only of it we have corroboration here you've got wiretapped calls reflecting that significant leadership you have a wiretap or a letter from pablo franco saying my friend out there he's got he's got our you know he's in charge i mean he's got this taken care of and you had expert testimony that that's referring to so there's no reason to reverse on that point in unless the court has further questions on that all proceed to the guidelines point with the series of bodily injury i think one point i mean defense counsel makes a lot of interesting points they all would have been great in the st instance before the district court but this court has to recall that this is an abus standard here and the factual findings are reviewed for clear error that's an extremely difficult standard of review here the plain language of the relevant guideline definition i think my opponent he kind of blurs injury involving extreme physical pain now ever screws testified in this testimony when undisputed that the mexican mafia has different kinds of green lights some are to kill some or not he said this was not so all this argument about oh well they stopped the fight i mean we submitted that video you know it dick i'm sure the panel's watched it you watch it again incredibly felt like two to three minutes to evers cruz at the time yes it was fifty five seconds but what it shows is not one but two separate assailants repeatedly striking mr cruz to the head and at some point he's on the ground it even looks like they might be kicking him he can't see what's coming the intent needs to be to cause serious bodily injury i don't think it's an illogical conclusion of judge korea which again is the standard of review here that when two separate assailants are beating on somebodies head with their fi for fifty five seconds that there was an at least an intent to cause a serious injury and remember this is the mexican mafia do we honestly think that they are going to control all the drug trafficking all the latin gangs in southern california if the idea is oh you know what if you don't pay your taxes they'll just slap you around a little and nothing bad will happen to you this evidence speaks for itself and certainly judge korea will did nothing illogical and that's that you know this isn't a again mr miller's an excellent advocate if you've made these points below who knows maybe the judge goes the other way but on this record there is plenty of factual evidence to support at least an intent to cause a serious bodily injury in the last point i want to make on that is that this inherits but there's a big difference between the intent in the effect a simple example if somebody wants to do a drive by shooting lowers the window shoots at the victim in the bullet only grazes the victim's  minimus injury but clearly the intent is separate so here just because ever screws you know he's a tough guy he ended up the pictures are there bruises cuts that definitely satisfies the injury the district court could infer an intent to cause extreme pain otherwise the mexican mafia they they sure wouldn't be too scary to people moving on to the grouping and else is now grouping and i want to make the government's point i mean there was no objection to the specific arguments being made on appeal and so by that standard to just object under grouping generically is not to say oh there's double counting with the bodily injury to avoid an appeal here judge korea was given absolutely no advance notice that this was the problem in the st sentencing had multiple groupings as well so with player review under united states in the government's brief the question is this error has to be so plain so obvious any competent district judge should be able to avoid it without benefit of objection and the government would respectfully submit that that high standard is not met here example i don't he gets caught up on the fact that case what it holds is a matter of law and what the commentary to three d one dollar says is that it basically group should be merged if the conduct is co extensive here from outside when the amounts changed so if we want to say what is the obvious error here i think it's within the court's discretion specially have this been brought up below to say look this the office conduct for both groups purpose a different aspect of the harms cause the aggravated assault to evers cruz was purely physical and he was the only victim of that but for purposes of the extortion group again it's not an illogical conclusion from this extorting not just him but anybody else because it's the other people in the westside gang who end up paying that tax so you victimize you attack him in the jail directly but the victims are the entire west side gang and not only that this is solved for purposes of this rd group is the strictly physical harm the government would submit it's not an illogical conclusion to say for purposes of the st group there's both it only hard you argued about the harm of the physical assault so they've been here your other argument aside doesn't leave us in the position where in fact the district court was doubled down but again i wouldn't say impermissibly or author because we still have these other rules even on the most preserved record in the world you know i think it's one be one of those application notes specifically says in one the one point one note for b that enhancements under chapter two are to be applied cumulatively and may be triggered by the same conduct so here when the district court or st the probation officer in the district court followed that reasoning you're going through the separate chapters separate parts of way to hash out whether it's in permissible or not is to then bring up these concerns well you know defense very easily below could have said i think this is double counting the judge would have said why let's look at the law so here since there was no objection below the probation officer in the court adopted the position that we wanted them to i don't think it was incumbent on you know the prosecutor below to to lay a record for some claim that might possibly which as it has been be brought on you was there error that was so plain so obvious and you know it also to the point on the big picture i think it was brought up earlier you know this defendant got into i believe a fifty one month sentence reduction methodically gave him a fair shot he went through all the record he did not just apply the same sentence as the last time i mean you know in the months when by all of these arguments could be brought up  again you know i just think on planar view if it's to mean anything you know a district judge should be given a chance to address these kinds of arguments in the st instance and as far as aggravated assault is very clear the case is beside him in our brief that that felony that flow to his conduct can be supported by exactly the conduct that happened here soon it won again i think with with the arguments raised just i don't want to sound like a broken record but he and even my opponents is on reply to page eleven the whole point of playing their views to give the district judge a fair chance hear all the arguments that were brought to the judge with that you're on i think that is basically law of the case the st appeal united states versus berrigan to publish case held that you know extent of a conspiracy there's a multi factor test the court la that out and said it's long been our practice that you only need to prove these attacks by a preponderance when they go to the scope of a conspiracy that should seem to be not only law of the case but also binding simply because it's  presidential opinion and i think we have a part point out in the all of that to the extent all the evidence cited for the enhancements in this case they came from sworn trial testimony or videos or undisputed wiretap point so i mean if you want clear convincing evidence it's there i mean you know the court is basically courage creoles simply following the mandate as as it came to him from the original opinion and i think the last thing i see a twelve seconds i'm not sure i think my opponent maybe refer to the th amendment point in a special verdict this sentence is below twenty years twenty years is the stat max with no special findings so there are no th amendment so that i just want to point out again that the government pointed out that there's various levels of green lights and the facts are with the facts are we actually have a video of what happened we know that they stuff that we know that they stopped it well short of anything like a serious bodily injury happening but my bigger point is if you luck off the orms or kill all your minions you're not going to be able they do through that much you a lot of times you're you're trying to keep them in line but you're not trying to seriously hurt them and that is just what was happening here and mr cruz went back out on the street when this was done and i care a member his colorful way of putting it back to slinging  in this particular instance these gentlemen are not trying to inflict serious bodily injury not using weapons that are available if they had intended to they could have and if you look at the video it is clear that they could have and they chose not to and so that image and