but in fact he received two mandatory minimum sentences of five years and a second of ten for a total of fifteen years so i do not intend on arguing the only reasonable a reasonable this issue unless the court requests me to do so because i think the key then becomes whether or not the district court could apply it to mandatory minimum terms to total the fifteen years he received the minimum if it is to mandatory minimums or proper and and on the first appeal this issue was reserved  until such time as re sentencing could take place but i think that as to the jurisprudence on double jeopardy there seem to be two things that run through all the somewhat contradictory cases one is that the issue is complicated and unclear and the second is that congress generally does not want to punish twice a person for committing one criminal set of facts but isn't that just when the two offenses require proof of different elements from each other well that's the that's the broad the block berger  test but in the united states versus dixon as the government points out they the supreme court overruled grieve v corben which really applied more of a condom test but the court the supreme court did not overrule ball versus united states where there were two counts charging weapons a weapon a weapon offense under two different theories one was for receipt of the weapon and the other was for possession of the weapon  so there you had a single act single criminal conduct as in the case of ranchera and in that case the court ruled that you can't be punished twice for committing the same criminal act braccia one fired he did so to destroy electronic equipment under the government's theory that was count four but the intent was to this to destroy the electronic equipment which was the instrument of his crime and that obstruction by use of arson was charged in count three and he got ten years  the case of usa versus holmes really went back to the conduct test and there the circuit held that when somebody was charged with money laundering it structuring of transactions the conduct was the same therefore he couldn't be twice punished and the court also held in the united states versus e which was in one nine hundred ninety nine case also when really back to the ball test in the home status and held that a person can't be twice punished and then you have in other circuits as well you have the fortner case in two thousand and fifteen and the dual case in one nine hundred ninety seven which are both post black burger tests and seventh circuit cases which apply a conduct test you have a fifth circuit case in one nine hundred ninety seven of corona which applies a conduct test and i would also indicate that when the conduct test was over ruled in dickson by the supreme court in one nine hundred ninety three that was that was really an odd case that there were two real there was a criminal contempt conviction and then there was an indictment a charge for the same type of conduct in most instances and there the court found that most of the counts met the block burger test but one count did not meet the black burger test and it was really kind of a hodgepodge of a decision  there were a lot of i think there were three or four different majority decisions to overrule grady versus corben but you know i go through this and frankly it gives me a headache i don't know what you know i agree it's complicated and it's unclear and i don't know with the defining test is other than the fact that francia committed really one criminal act he set fire in the bathrooms assuming the government heavens he set fire in the bathroom trying to destroy electronic equipment that was evidence of his trying to steal money few a t m machines and for that for that one act he's been hit with two mandatory minimums five years in ten years and it seems to me that if usually vick andras is does not intend to punish  and in rule that by committing the single act he shouldn't be punished twice i don't pretend to know whether the ten year count or the five year count would control i would urge the five year count but i would have a feeling that it and also as the court has already pointed out the question is whether each crew prove each count requires an l prove of an element that the other does not and here at that was the case  even if you look at the offense conduct we still find that the offenses themselves were separate and distinct and he responds to who's to sign whose comments that he did one thing said fired two skimming device in the bathtub but that wasn't the only thing that he did latin count and count for i he was charged with setting fire to the property to the building itself  and that count was different than count three which was setting fire for the purpose of destructing the evidence which was the skimming evidence and so again even if the court order applying the conduct of war versus the elements as which is the proper test under lock burger the court could still find that under counts three and four the conduct was separate and distinct is there any argument for the conduct test after there is no argument because dixon made it clear that the question is whether each count requires a and an element to proof of an element that the other does not and so the question for the court here really is whether counts three accounts for require proof of elements of the other does not and that is absolutely the case here unless there are further questions the government rests on its emissions and some it's that the district there was not one at no time in the case was there any indication was there any proof was there any theory of prosecution that braunches intent was to destroy the building it was always to destroy the electronic equipment in his apartment as a matter of fact after he set the fire he and his girlfriend stayed in the apartment and didn't even try to escape so unless the government is arguing now that the fire was set to destroy the building and he they were in a suicide pact some kind by remaining in the apartment i would maintain that the only evidence in the case was the fire was set to destroy the electronic  knocking on the door the evidence of the crime was the electronic equipment the fire was set and branch and his girlfriend were subsequently arrested and as i said and i don't mean to be repetitive but if the black berger test is the only test in the conduct shouldn't be considered that really doesn't explain all of the host of decisions post block murder