that that resulted in the government not having to prove that element which is required under a due process analysis or did you represent mr summer at the  that it was certainly possible that the defense counsel counsel at that point when reading the the instructions for the pattern jury instructions six point five  that so that he in his defense never never admitted to an element so that by asking the court to give the instructions that it did the burden was shifted to the government i know it's intense because he intended to drive the truck with the aliens but i think i think that's that's confusing the physical act of driving with the mens rea are the guilty mind that that really is what is it at issue here and i think under the facts of this case i know the unique facts that the government was excused from wouldn't have made a difference because the jury necessarily decided that mr summers intent was to smuggle drugs when they went through the jury instructions and this and determine the government's that's why the burden under new that was controlled substance in the vehicle and intend room are you saying that the government in this case or would not of her birth to show lack of refs you are given the case law in the ninth circuit the government would not have the burden the burden was not of families properly on the defendant strongest argument which was that there was no error at all because mitt because in this case this summer was found guilty by a jury of possessing in excess of one hundred kilograms of marijuana the guideline range that time and still is one hundred like he didn't have discretion and he did have to scratch it but first it was plain it was clear obvious and that effective substantial rights in the last thing is that it seriously affected the fairness integrity or public reputation of the judicial proceedings  unconstitutional sense seem right that's correct although there was there was no constitutional error in the sentencing because the jury determined everything which that the offense level and yes and so there was no in the sentence it was just that the sentencing guidelines are unconstitutional as a whole not on constitutionally apply to mr summers the second thing is looking at the record before in the sense in hearing the only defendants some reason summer to get into some camp or whatever right in the book camp and that's and that's another one of the factors the actual boot camp program which if the court we were inclined to do that was the court did not make a recommendation booker issue and mr smith just laid out what he believed were the fact that there were no constitutional violations in this case in that amount of justice put into the indictment mandatory minimum here sixteen months and the guideline range was sixty three to seventy months which resulted in judge jones imposing the sixty three months my argument is that even though there is not a violation in this case of a constitutional nature that booker requires the court to consider other statutory concerns  jones he would review mr sumner's prior criminal history would see that it's not agree just would see that he doesn't have to follow the guidelines although he might be found by the statutory mandatory minimum and could impose a sentence of sixteen months as opposed to sixty