thank you carl gunn appearing from mr sharper your honour's there were two plain errors here one of them the government's own the argument is there would have been a sentence anyway the other one the government doesn't concede there but i would submit the language of the guideline is in fact plain i can start with either one of those if the court as a preference but all you know was the one you st of all their argument that gee the wooden pole would have supported a dangerous weapon handsome and anyway clearly fails under both the guidelines commentary in this court case law you can't when someone has two weapons or when conspirators have two use one for the one hundred and twenty four c and one for the enhancement that i think is clear and in the case of second the argument that there would have been a departure anyway doesn't carry the day for i think multiple reasons will i think we need ask the district judge what's he going to do i mean that's right i think you have to remain an especially when you're talking about a life sentence i just can't see a court of appeal to a lesser something really express the government's argument is that for purposes of the dangerous weapon fists pull feeder the same thing as a gun and there's two reasons that doesn't work your honor st of all there has to be a factual finding to that effect but nd of all under the commentary in the case law when conspirators have two weapons here the guns and the wo have the grouping air which i think is also plain if you look at the language of the guideline i just submit the government can't get around it st you have section three d one dollar b it says when counts involved the same victim and two or more acts are transactions connected by a common a criminal objective or constituting part of a common scheme or plan you have that exactly here what you have is taking the car to drive the victims to this hatcher past syria that's the taking the caster to see the carjacking is the escort taishan that constitutes the kidnapping frankly it seems to me it's really just one act at the very least it's to act connected by that you could kidnap the person in your own car right correct but i understand that isn't what happened but i suppose that there i guess my only question is whether he would need a fact finding our news too as to whether this was on line  think you would your honor st of all the government talks about how this car wasn't necessary to the crime but if you read the guidelines there's nothing in the guideline that talks about the one of the acts being necessary to the other it's just that they're in fact both committed together for a common objective here the common objective was basically punishing the victims and teaching them you know the community a lesson or whatever so i don't think the necessary is a red herring because the guideline doesn't require unnecessary the other argument the government makes is to grab on to this substantially the same harm language and i'm not clear how it's defining that but the thing is here is the guideline define substantially the same harm as being either subsection a b c or d if you read the guidelines it says all counts involving substantially the arms shall be grouped together into a single group then it says counts involving substantially counts involved substantially the same harm within the meaning see here which is even more clear if one of the crimes gets used as a specific offense characteristic in the calculation of the other the group here the abduction got used as a in the  carjacking guideline now the government says oh gee that's a mistake well that's still an error that's plain that requires remit nd of all i'm not sure it was a mistake the government says oh well the car was only taken to facilitate the murder will that you know the st thing that mr sharper supposedly talked about according to his codefendant was punishing the victims by stealing from them so it seems to me very very reasonable view here that he punished the victims by both attempting to murder them and stealing their car and the event that question would be open on remand as well i think so yes what do we have in the government all right i was going to address the role but i can i'll a little strange that they missed these bills so the question is if the trial judge with only the pre sentence report and two sentencing memorandum was essentially required to find what mr gunn able he briefed over twenty five plus pages least required to consider them they both are pretty good arguments probably correct but at least pretty obviously at play and to me the real fault here is with the pre sentence report right well i mean everyone this day i mean myself included that was not a tactical decision knowing that this would obviously be appealed but i want to address both the grouping calculations and at least try to clarify what weather the group may not always be clear cut and in the introduction to that section it says the rules in this park seek to provide incremental punishment for significant additional criminal conduct and here we have a situation where it's like well if they're kidnapping they might as well continue and carjack and commit other crimes again this resulted in one additional point so it's an incremental additional sanction and so again on a plane air review i don't think the judge was required to group the especially required to do so without anyone objecting and not being noted in the pre sentence report so we do make an argument under this three d one point two c just a minute i just don't i'm trying to follow you required to do that why not no our position is not an obvious is that i'm sorry let me clarify that our position would be even henri man that these would not group and i mean for the reasons that we've stated in our brief there's an incremental additional harm it should have an incremental additional deterrent factor again the kidnapping you're not arguing no that that in fact it was correct to do this well you are you  i'm arguing that it's not to group the carjacking and kidnapping arnaout in this circuit in the examples is if the defendant is convicted of kidnapping salting that they can fit them during the course of the kidnapping the counts are to be grouped together how is it i  understand this wasn't just an assault but it was a carjacking but it was no more or less connected to the kidnapping than the assaulting right so i mean here the victims were kidnapped it kidnap and assault those are both crimes against kind of a physical but nonetheless there the same criminal transaction in there yeah what's interesting is under that last subsection v that for some reason carjacking and kidnapping are specifically excluded from grouping i understand that doesn't control the human is the decision plein air because you can make an argument even if it's a rather bad argument therefore it's not plainer i mean i guess i i don't think it's a bad argument but the court may disagree  so i mean but in this instance again i don't think it's so clearly obvious that these would have to group under the facts of this case and under the facts of a different case but in the facts of this case i think the more another interesting issue is this firearm unhandsome that though and it's clear that was an error but what should give the court pause here is the fact that the nine hundred and twenty four c charge actually did not affect the sentence at all he was given a life sentence on counsel one through four and then a sentence of ten years on the nine hundred and twenty four dollars c so it didn't actually there's no double counting well but that's only true if your st point is right if your new breeds which is that there was actually another weapon that can be done without killing i think that's correct your honor i mean i think that's it's well supported but i understand on one of the plain error than these questions don't need to be necessarily reached but to the extent that they do the organizer unhandsome and was not illogical up implausible or without support of inferences that may be drawn from the record i understand as countervailing arguments and some of them are valid arguments but in the end the court found that he did find that he was the planner and organizer he said at the very least also regarding the instruction just a couple points on in response to judge present question about it could go back to her finding about whether the pole was actually a dangerous weapon i'd ask the court to be very careful in writing the opinion because that factual question only becomes relevant if as a matter of law you can use an alternative weapon so we'd want to make sure the court of the argument either stands that the question would have to be also open i did do think there's a really serious issue on the role reduction here and it's if the court's not going to leave that open and remain and decided it certainly like it to look at deciding it in our favor please please make that argument because i'm inclined to statement here you have no corroboration at all the guy on the corroboration the government points to is corroboration about things other than mr sharpers organization roll things like he was a drug dealer and stuff if you look says it was silva who came up and got him not sharper ok mind what what happens is there's two co defendants mr sylvan mr elder mr silva is the one who makes the statement that the government uses to or the apartment it was in mr sharper quote luring them unquote it was their idea to go back so the problem you have under pentel lopez is there's simply no corroboration of this statement that the government claims is pointing at mr sharp an organizer and nd even if you assume that the statement by mr silva is true take it for what it says he never says mr sharp or told him what to do or organized him or gave him direction or instructions the picture the picture that's painted here frankly is there's two types of punishment or two sets of punishment being doled out mr silver and mr elder beat the victims and they do their thing and then they go out and search the victim's car and recover some of mr silvis busy property from the wallet that they find in the car that's what they do no indication that mr sharper is telling them to do that or controlling how they do that or what they do then when they're done mr sharper takes them and doles out his punishment which is concededly far worse i mean he takes some up to catch a pass and shoots them but mr sharper is going to get a lot more time no matter what i mean either the absolute best you with the guidelines that i advance the low end is twenty four years and that's if we win on both roll and obstruction mr charter is going to serve lots and lots and lots of time here the question is whether it's going to be a life sentence or whether it's going to be something like two thousand four hundred and thirty or forty years but if you look at the pimento lopez case and look really carefully at the facts here your honor there isn't that corroboration and even if you take mr silva statement at face value he never says members of the holding case you have to organize participants not activities or property there's no indication here that mr sharp or even from mr silva that mr sharper was telling him what to do or controlling him or directing him he had his own agenda it was his wallet stolen and he himself on his own wanted to get even with these victims and then search their car and get the property back so i just don't think even under a clearer preponderance of the evidence standard that it flies here under that because syllable had pressured him that he had to do something actually supports the fact that charter actually organized this whole thing he's the only one that can organize everyone over at his house he's the one that has the weapons he's the one who has the weapons when the police find them he's the one who ends up carrying out these these prospects and you know when we show that you know initially in their opening brief they say well the statements by silver uncorroborated we go through the facts that we can corroborate within within the brief and they show that it was sharper who wanted to get even it was sharper who wanted to protect his business it was sharper who wanted to send a message like the corroboration so what's the collaboration you know the corroborate is i mean he was a drug dealer that was protecting his business it's corroborated that he was a drug dealer through all of these other accounts and the fact that he's found with methamphetamine corroborate that he's the one who brings these victims over there's no other way phil would ever have contact with elder have contact with them it's only sharper they can organize and get everyone there direct i mean they were there was brought them over right well i mean if this is a buyer seller relationship between people who are using drugs and people are selling drugs he knows they're going to be coming over and he can set that up i mean i don't it wasn't like the victims just snuck over there i mean this was a was a set up they had their own reasons for want to go over there and find this ring but again it's not on supported in the records where it's clearly erroneous that the judge found this in the same countervailing arguments were made essentially down below and the  apartment so that's where the record shows that he went back the problem is i think what we have here with mr sharper quote organizing unquote is he's organizing the location he's organizing the victims perhaps except the victims really want to come over on their own anyway he provides the place and he get a you know you know sets and let silva i guess probably know that the victims are going to be over but that's not enough under holden under holden you have to organize the participants and you have to have the ability and wherewithal to influence the participants and sort of control what the other pit participants do and that there's no indication at all of here said a bank robber coconspirators a statement about guns being possessed during the bank robbery wasn't enough when that case there was corroboration that the defendant had been involved in the bank robbery but what was missing was corroboration of the things that created the enhancement corroboration in that case of the gun here you need corroboration of the claim that mr sharper was somehow controlling the other participants if silva can even be read as saying that and i'm not sure he actually ever he never actually says sharp or told me what to do or sharp or gave me instructions or sharp or gave me directions all he says is sharper wanted to make it right all stuck on both sides for their helpful arguments