well now move to the second case of the morning united states andre patterson case number eighteen dash  scope of mr patterson's agreement and was reasonably forseeable to him in connection with the criminal activity that he agreed to and individualized inquiry as required by the district court the district court must be precisely why they drag when it determined the drug quantity in this case and mr patterson's mental health status matters in this case it was relevant to both the scope of his agreement and the reasonable force the ability of the drugs specifically related to patterson has what the experts in this case called a longstanding and severe psychotic disorder and at the meeting at the quality in progress that is it's clear that mr patterson is on well mr patterson and she states on that cash even though everyone else involved in that meeting tries to convince him otherwise saying i think i think you're you might be just making that up mr patterson responds when they say what are you going to do if there's no cash there he says i'm going to write what i'm concerned about here is how should the log deal with our uncertainty on drug quantity ok against the backdrop of the transcript you're talking about the meaning of the quality and because if we conclude if we adopt your position and we conclude that the record does not support the finding on the twenty kilos barker is very clear that i think he said she'd be really hard pressed to come up with any other quantity  any other quantity would have to come out of the same facts and as i understand them the main evidence or the really only have an incident in quantity is the nov fifteenth two thousand and eleven meeting at the quality and correct that track that transcript shows that there is a think this court stated in taylor that the court must err on the side of caution when confronted with a number of possible drug quantities none of which were does not mean as a practical matter in your view here i think in this case it would obviously be says because it has to be an individualized inquiry and in this case has to include his mental health and i think the best the district court can do in this case is mr patterson inquired directly one time and the answer he receives it to his direct within this thirty guideline range which is councils are going for it is your honor but i don't think that matters and my friend argues that there is no error in this case because he's still got a sentence from the same guideline range that the district court is required to start by calculating the base offense level and judge parker statement that her statement was in response to defense counsel who is continuing to argue we think the basic sense levels around here and you thought well you still got a rehabilitation efforts from the time of the first sentencing so it's very unclear what would have happened if we had started friend that means the sensible thirty and she'd given him the same twelve months off he might have gotten a sentence as low as one hundred twenty three months i mean it strikes me that him to continue on that path i think that's right that she saw in him the capacity to be rehabilitated and thought perhaps he didn't need such a law i think that the mental health can't be ignored in this case exist he makes many i tried to sit down and just count last night and i lost count many many statements about how the lord brought them tend to this conspiracy and what's particularly important about this is that these odd statements that he made at the meeting  are entirely consistent with the reports by the mental health experts in this case what dr callaway would call a complex delusional system but dr site hosty called paranoid schizophrenia why doctors those those statements are all consistent with his delusional disorder and i think that's unfortunately in this case the mental health confidence he was trapped at one point and i think that may be the case of later that for mr patterson but he is at this point convicted and it's the only statement that judge parker made regarding his mental health when defense counsel tried to argue look it's clear from the transcript the seventh circuit that when they sent the case back to us that he we were concerned with this transcript the district court said you're stuck with the conviction on count on a drug count that was her statement regarding his mental health  there is a lot though in the transcript is there not that he clearly seems to be contemplating doing a robbery i wonder whether it's of cash or whether it's other drugs and he emphasizes near the end of the transcript multiple times how it's important to be be armed to the because of what they mean countered during the robbery he's talking about the need to get them fourteen's wear bulletproof vests and the like and i think we can relate that to the man in the back and that's when you see the consequences question because if he is this delusional to the point where he can't form the mens rea or to commit a crime we've got the issue that's that not guilty b of mental disease or defect is a different question than the competency question so it's a challenge for the court system because we have to know where to draw that line as to where the delusion ends up absolving him of criminal liability and i think that that's an entirely possible for another record to explore we just don't have that record in front of us but i think the very least we can do in this case it's safe to start court was under the duty following this court's opinion to make an assessment of mr patterson's mental health at the time of that meeting in relationship to the drug quantity in this case and for these reasons we would ask that the court vacate the sentence and remain and for consideration of that factor explicitly the court brian writes for the united states i just think i would start by saying the issue presented to the court she here is maybe much narrower and narrower than the questioning and what mr patterson is addressed the only question is whether the district court clearly erred  finding twenty kilograms of the object of the conspiracy and as the district court judge said she would be hard pressed to find any other number because the object of the conspiracy consistently referenced the twenty kilogram number sort of turning  so the reason that this report was hard pressed to find any number because any way you do it unless you expurgated that statement it's above fifteen kilograms let me ask you in light of what you're saying let me ask you just to react to something ok and read the transcript of that meeting or one way to read it that doesn't seem unreasonable is that the undercover had been was represented in the book that i've done three deals in there i did one for six and i did two others for ten and in the final one when i bought ten there were ten more on the table that's how we get twenty but obviously when you buy ten there's ten there's only ten left when you walk away with ten if there were twenty to start well so the the concern that i have is that all this is occurring in the same meeting it's in the same discussion at that quality in in bloomington right yes yes right that's as you point out that is the only that's in the world paterson is not involved in anything else ok and so why isn't the fairest inference from this that they were clearly contemplating a mall tight robbery but there that mr maher was advocating why shouldn't we default especially given the concerns that the court has expressed about these types of prosecutions to the last or i'm out so  you know there weren't six or you know six or ten to start with i think all of these cases are all operate under the understanding that it's not an exact science so we are looking to the best number we can i think that is spun off the agents and understood his statement to me twenty kilograms of twenty kilograms is the most commonly reference number to the extent there maybe are competing understanding's of that were under clear error and i don't think that th just record committed clear error by taking one of two numbers that was at worst equally possible and i don't think they were equally possible i think the twenty was the more likely number that they were discussing because it was a more consistently reference as the district court found so i don't i don't think we can quite say that she was the more literally the more i think you're i think you're right it just by turn terms of account it was more it was referenced more than the other two quantities but i think the reason for that was because of the recency of the transaction right it was a more recent of the three transactions that were talked about but it too was a month ago you know in other words the meeting was november fifteenth and i think by the terms of the transcript the guy i don't know who sat in the undercover i guess that that that deal for ten you know was a month ago the last time i was there so i think my only my only point is the reason we're talking about twenty years that's the most recent deal yes i think that's right but but what i would say is even if you take the first deal when the undercover agent said sixty kilograms that doesn't account for drugs that you already separate there so even if the court took the lower number we would still kilograms threshold i think it's really difficult even defaulting to the lowest number you would have to hold the lowest number discussed and then excise the undercover agent statement but there are also drugs at the house that he didn't deliver and i don't see how it to circle work and clearly error by not doing those two things i don't think there's any obligation to want to take the lowest number and then ignore evidence because it's most helpful to a argument that the court has a reluctance for the stash house robberies and as i pointed out our district at least does not take these cases anymore however this is by if not an order of magnitude more different because this was to bust up an existing violent robbery crew that was terrorizing both indiana university students and then other drug dealers and the town of bloomington which the internet is a small college town and not doesn't have much violence so this  serious issue and bloomington indiana the target of it was really dennis english the agents didn't target mr patterson he just happened to be there because mr english and fight him there he was known to the person that was  committing the robberies whether he was involved in other ones it's unclear but at least the ringleader of the robbery sought out mr patterson for this so while we know that we understand the court's skepticism of into that it twenty three so are you i mean it's almost like saying what did patterson just get dragged into he was in the wrong place at the wrong time or was he also a part of this gang of people maybe not interested lee maybe they didn't count on him as much the same time it does seem that she was satisfied with the fact that this was what everyone to call the sting was kind of messed up but he's pretty enthusiastic yes i think from a high level level generality judge parker definitely agreed and understood that this was the broc to mr patterson involved and i think it's somewhat unclear if you've previously committed robberies with the current i think i don't think we know that necessarily but what we do know is the leader of the robbery crew sought him out to commit this one and what we also know is that he he's really one of the last people that should be armed and he armed them so i think that really undercuts the argument that he didn't understand or wasn't able to understand which i would then step back also and point out that the government recognizes mr patterson's mental health issues but he was convicted of the conspiracy he's not challenging that so i it's difficult to conceive how a person has the mental facult agree to commit a crime that the not agree to a specific specific drug weight i think there is some inherent logical difficulty in that argument mr right so i have one just real brief question can you respond to your adversary's point that there is no way on this record to know that any error would be harmless peak and the reason the reason is simply that judge judge parker and you know perhaps appropriately so i came down twelve months primarily because of mr patterson success at rehabilitation efforts in prison not because she said i would sentence in the same way regardless of how i come out on this quantity question so i was servicing i think it's fair to say this is maybe not the clear harmless harmless error but i think if we look at her statement in whole she judge parker said that her decision on the drug late had no legal effect because she got her sentence one way around then and she would go the other way around the bend i think that is very close if not clear to saying that she would have sentenced mr patterson the same way either way i do take the point that it actually went down maybe a stop some indication that she would have gone down more but when a judge says there is no legal so but i'm not one hundred percent certain about that but i do believe so your honor do you happen to know what mr english received interest she received one eighty i think and then mr owings received two forty because he had a prior conviction that was more serious and he was convicted of thank you and i just wanted to point out that mr wright's point that if he was competent to commit the crime then he must have been competent to agree to a drug amount and as an advocate for mr patterson i'm not entirely certain of his san at the time of the offense but that's not something that we can challenge in this proceeding and the second point i would make is that the error that were alleging is not simply judge parker story between six ten or twenty error that were lecturing us that following a very troubling transcript