greeting for the jury returned a general verdict of guilty and answered a special into raga tory with questing that they determined beyond a reasonable doubt the amount of methamphetamine attributable to mr leon to write as they answer that question beyond a reasonable doubt less than fifty grams several months later at sentencing judge crone jettisoned it juries affirmative finding of fact as the drug amount and some planted it with her own finding mr lee on to right is attributable for one hundred and seventy five thousand grams of methamphetamine more than three thousand five hundred times more than what the jury had found just last term in the united states versus haman's the united states supreme court reemphasized that juries exercise a supervisory authority over the judicial function by limited a judge's power to punish this court as well has recognized that a jury's answer to a special into raga tory when posed is binding in the united states versus gonzales a case decided in two thousand sixteen judge cost a route that although the law may be murky concerning when it is proper to give the jury special interop to tory's it is not when it comes to the effect of decision in watts there is a distinction made between an affirmative finding in a failure to find and these other circuits that have looked at this issue they have all it's all involved a jury instruction where the jury is asked do you find the defendant guilty and then you know they render a verdict we find the defendant guilty of you know beyond a reasonable doubt guilty of possession of less than fifty grams possession of and beyond a reasonable doubt is you have to find beyond a reasonable doubt that he had this much that's the burden on the government but your rating on that is they found beyond a reasonable doubt wh the the question reads indicate below your unanimous finding beyond a reasonable doubt of the quantity of methamphetamine if any attributable to th to find me on a reasonable doubt they had you know five hundred or fifty or this or that that's putting the burden on the government but that doesn't mean they would have found the same thing if it was find beyond appliances the evidence what he had and so that is exactly similar to finding somebody guilty or not you know if i said a not guilty but then incensing finding a firearm on it's the evidence he was guilty i don't understand how this differs from that because the burden is on the government to prove beyond proposed these instructions and this verdict form so it's not a case where this was somehow you know it's not given by the defendant this was a jointly proposed verdict for moreover had there been a preponderance of the evidence standard maybe the jury would have answered the question differently so as i read this question it says if you can make a determination beyond a reasonable doubt as to the drugs involved make it here if you can't then dump and had they the question been by preponderance of the evidence the jury might have answered it differently the fact that they answered it with the highest degree of certainty that our law having done so that does not mean they can't later and they just grew by one to the other is something more i just think how would you word this otherwise how would you is that the jury has to find the person guilty of a certain amount so rather than asking the jury to render its own judgement on the amount in question reasonable doubt it asked the jury to rather it asked the jury to substitute its own judgment to make its own findings as to the amount of drugs that were involved ok so as you see this it's not that the government prove that he only had less than fifty grams it's that he only had less than fifty grams as a factual matter and that's the question that was answered absolutely  plan reading of the four corners of the verdict form that's the only the only possible conclusion they've made a particular rise factual finding they didn't they were determining it based upon whether the government successfully proved something or not they were on their own making a determination is that right that is absolutely right and if your honor looks at the verdict of the jury itself we the jury find him guilty and then compare that question with a question that's asked on the following page that says you must next determine the quantity of methamphetamine for which  accountable not i'm sorry or so so so if somebody were to phrase this case as we're trying to decide if a quit it conduct can be considered that's not your argument here today  know that arguments foreclosed by watts watts in fact in wants itself to the supreme court seven without specific jury findings no one can logically or realistically draw any factual findings or inference from a general verdict but in this case we have affirmative findings of fact so in watts you know the what happened in that case it was a narcotics case where there was a nine  possession of a firearm charge as well so drug trafficking plus a gun the jury now the defendant not guilty of possessing the gun but guilty of narcotics trafficking and sen the judge enhanced the sentence by two points to account for having a gun the supreme court reasoned hey you know they didn't find the defendant innocent they found the defendant not affirmative finding that it was less than fifty grand fifty grams and that four closes the other alternatives as we pointed out in our brief you know if a jury makes a beyond a reasonable doubt determination if i ask you know the term beyond a reasonable doubt the weight of this brief less than a pound more than a pound or more than ten pounds and the jury answers that question beyond a reasonable doubt is less than one pound that forecloses the possibility of the other two alternatives and that's not the government failed to prove that it was ten pounds that's not th juxtaposition to the case we have now because in pinero you have the the exact verdict form that judge james was referring to so let's talk about the effect this has on sensing as your honor judge found in united states versus hangs in our circuit for the last thirty years sentencing has been based on a particular his determination of the amount of narcotics that are attributable to the defendant and that is drawn from allies and from trendy that language is mirrored in the united states sentencing guidelines which also talk about reasonably foreseeable drug quantities in this case what the jury's verdict did was excluded from the judge's consideration amounts that weren't included in that in that special one so the correctly calculated range would in the sense that it also asks for particulars determination by the jury as to the amount in question and you contrast that with the st circuit of the rd circuit which has a more generalized question and i  even than the th circuit's it is it is it is it is because it mirrors exactly the language from the sense of the guidelines so it's not that the th circuit dissenters complain but some of those complaints are not here that's that's absolutely right that's absolutely right and i would stress again that if the government is not happy with its verdict form they could change but the way it is worded right now it asked the jury from affirmed a finding which was made so why did they not be happy with that i mean it's clear i mean if it's a clear thing that gets the exact thing that you're trying to go for oh mr striker you make krissy may it please the court just to to pick up to pick up where judge haynes was asking the question about effectively shifting the burden to the defendant i mean i think that's i think that's actually correct  the crucial thing in our view in this case is reading the verdict form together with the instructions the district the jury wasn't asked to do something just in a vacuum and just write answers down on a verdict form what it was asked and you'll see this at page two  record they were asked to to hold the government to its burden of proof so that to support told that told the jury at page two hundred and sixty two the government has the burden of proof in this case beyond a reasonable doubt and if it fails you must acquit and then and seventy four of the record the district court instructed the jury that one of the elements of the offense was that a particular amount of drugs was attributable a particular amount of methamphetamine was attributable to defendant leon to write us  so we think when you when you put those two things together the verdict form can only be understood as a a judgment about the government's proof and that's what mr rain all and mr lee has reddest says in his reply brief is this is not the verdict form is not a judgment about the a specific purpose and that purpose is exactly what judge jane said which is to get at statutory amounts of these these amounts five hundred grams fifty grams less than fifty grams those are keyed to the eight hundred and forty one quantities they're not key to any guidelines  numbers that they're in the guidelines ranges would would fall all over the place to pay within these various categories so the clear thrust of this verdict form is to statutory amounts and  the proof on that so the statutory minimum says rest on your proof of proving beyond a reasonable doubt ets so it's not just a random question you know what color jacket w indicate below your unanimous finding beyond a reasonable doubt so two crucial things there unanimity and beyond reasonable doubt now the district court has s an entirely different question about what your view of drug quantity by a preponderance of the evidence those are just these are just two different universes so there can't be any contradiction and even if there are even if there could be then the contradiction the case law shows it's is ok because it's something that the district court is resolving a totally different issue  circuits i think have all spoken to it i mean it may not have been teed up in the same you know the same kind of detail as it is here but the reason why was because no court thought until the th circuit in two thousand and seventeen that there was any kind of affirmative finding in a verdict form like this one this verdict form the not exactly like a verdict forms before it is very very similar i think it and what i think mr rain all focuses on and understandably so the words less than have in his view it pins the government to less than a particular amount for purposes of sentencing in our view that's not correct especially because the verdict form in this circuit i believe it's two ninety five a is the pattern instruction  quantities there's a verdict form there that uses the words less than i don't think anyone has thought until the th circuit that there was any kind of precludes of effect of that for sentencing purposes and of course as mr in all acknowledged wat speaks pretty directly to this issue of beyond a reasonable doubt finding by the jury so we would flat out acknowledge in this case there's of course the jury acquitted mr early on to write us of amounts of fifty grams  we are not able to get the statutory benefit of any amount above that and for whatever reason it's not obvious to us what the district with the jury was thinking on that but but so be it at sentencing it's an entirely different inquiry and there actually is getting hung up i mean i think that's where he's putting you know kind of putting all of his eggs in that basket that those courts didn't think anything of that language it just means that the jury found beyond a reasonable doubt that the government couldn't go more than and i said well what but that doesn't mean not to exceed certain amounts for by a preponderance of the evidence right i think pinera well in euro didn't involve exactly this issue because the the defendant there didn't make the same argument that mr rein always making i would acknowledge that the  close to this case and i think it points directly to the conclusion we want the court to reach but their argument there wasn't quite the pimental lopez argument of this affirmative finding notion at the same time yes we're free to do each ever way we want to go free to do what i don't think this issue has been presented squarely in this court but united states versus fairness also says in so many words without without you know any doubt at all it says the district court must still after booker make findings drug drug quantity problem findings are sensing findings by preponderance of the evidence even where those findings contradict the jury's findings and of course the work contradict there is i think that's a loose use of the word because again there can't be a contradiction when that would hold up and sinan seeing that there's no way you can phrase it so that it would be binding on the court it's sentencing i think it's well for starters i guess i would say we don't concede that the jury that even if there were such a that even there there were such a verdict form and i presume there is some way to word one but even if there were one that would make the i hereby find that what the district found beyond reasonable doubt is wrong i'm finding something different beyond a reasonable doubt obviously that violates the defendant's right to a trial or to a to a jury trial at sentencing it's different because since at least since one thousand nine hundred and forty nine at least since the williams  york case the district court can lower a sense in court and state courts as well under the th amendment is is free to consider all manner of conduct including acquitted conduct that's not that's not part of the jury's verdict in one way or the other and again so is your position that that if it's what if we had a series of the and one of them said one of them temp exactly what's here and didn't have another one below fifty for sure if it said that is it your position that the judge could still use acquitted a would it conduct even if it has that separate finding of a by preponderance of the evidence i believe that's yeah i believe that would be our position because i think because it's not changing the statutory range of the statutory minimum or maximum so what the supreme court's has talked about in a lean in a pretty in those cases is  it's a very extreme hypothetical but i do think our position is and again this case doesn't require any of that any of that because of the verdict form is about a reasonable doubt which is a different question but yes i do think that's our position wh they are the judge can do whatever the judge wants to do based on the p s r if supported by a the government of course must prove it it's sentencing facts by a preponderance of the evidence or sometimes when you know there are those really unusual extraordinary cases where the tail wags the dog and there's some conceivable way that the government standard at sensing may have to be clear and convincing evidence that way distant within solace because gonzales speaks only to the issue of whether the district court is displacing true trial verdict of guilty or innocence on a specific theory of guilt or innocence i believe and that that is about an element of the effects guidelines issues are not elements of the offense and therefore the jury the th amendment right is about the offense and about the elements of as you say their case supreme court has made that very clear where the supreme court has moved a little bit in the last decade or so has been on the statutory issue when you're finding something sad to tory you get  as a guideline i'm not aware of any case it is said oh the guidelines are to be decided by the jurors that would rather radically change the federal courts make them similar to the tech sports i'm not saying that's later bad i'm just defendant for sentencing purposes that maybe legitimately received by the disappear for sensing purposes we take that that there's no suggestion anywhere in the case law that i'm aware that that statute is unconstitutional i think that statute speaks to many of these issues about how should the district limited what can the district court do can the district or contradict i think it can but again i think in this case there's no contradiction in any event because of the two different standards of proof the other the other thing i would say is there are anomalies to mr reynolds position if accepted one of them is that he would have been and worse off if he had been acquitted of count one because so he was convicted of count one account to drug conspiracy money laundering conspiracy imagine a situation which he was acquitted of count one the jury said not guilty so we're not making any factual findings about drug quantity but this report then is totally free to decide at sentencing you know for purposes of count two the underlying offense for the money laundering was of course with the drug offense and it would again make the same drug quantity calculations that it did and that's the one not yet another reason to think that this verdict form doesn't mean what mr rangel suggests it means and the other the other thing too is that if eleven jurors had thought that the appropriate quantity was what the district court thought but one juror thought you know what i'm just going to throw up my hands i have no idea what mr lee had to write us for saw in this case i know he participated in this drug conspiracy i'm just not sure took to how much i don't know if he knew the value of these pills or whatever i just think i can just say point one gram and we're going to all check the box on the bottom because i'm going to hold out on that but that means they couldn't check any box because there would have been if they if it was an affirmative finding like mr and all says several jurors would have been in a different in a different box and that one juror would have been in the bottom one so they couldn't have agreed on anything there so again another reason to think that this isn't an affirmative verdict form at all it's just doing  this struggling with that because you have to ask this question in order to get to your statutory minimum point and i don't know how you're going to ask they will still have the burden on the government without me ending up in this  we've got here i think that's right i think there would have to be something like two tracks of questions you know one spins the right the st in the rd in the th into the th have asked it that i mean that may be the so as judge graber pointed out in her dissent i mean there are there are various ways in which a verdict form can be tailored more clearly to this you know to the statutory ranges into acquittal versus conviction on elements of the offense but this is this court's as i understand it either the district court didn't pull this out of out of thin air it it you know pulled it from from the pattern instruction you know again with wedding it to the unanimous finding beyond reasonable doubt and so as i don't think this was you know there was no reason for anybody in this case you know the mystery in all says that the government agreed to this verdict form of course we did because this is the so far as we understood the standard the standard verdict form and again i point to judge  the th circuit today the i don't know what the instruction errs to your honor to be honest i don't i don't know what it is the verdict form i don't know if they've changed their verdict form in response to the would just very briefly thank you i would just very briefly talk about the abuse of trust i think the acceptance of responsibility to the denial of that is the easiest issue in this case by far of the district court it's it's entitle to more deference used car dealer he wasn't just a used car dealer he was the owner licensed owner and operator of a car dealership that in this case the central car in this case was a four hundred and fifty thousand dollars new car there are particular and you'll see it was part of this regulatory scheme and people expected him to comply with the with the license the licensing regulations to which he was subject much as an andrews yes we acknowledge anders is not directly on point from the th circuit but is very  trust that that may be so but there are downstream buyers who would want to be who would want to know where where the title was at particular times with what lien was on this car at what times i would want to know if i were investing half a one million dollars in a new car whether a drug dealer had owned it or not so for those reasons we think that he had a position of trust he did abuse it and we think it significantly facilitated the conspiracies in this case for the reasons we say at page twenty eight of our brief if there are no further questions we w between all jury verdict forms our position is that completely misses the point the less than language is is drawn from the statute and is there to define the crime of conviction the important part of the jury verdict form in this case is where the jury says we unanimously find beyond a reasonable doubt that the amount of them fed immunity question was x as opposed to simply the less than language if we look at the verdict form and can you know this is the judge change his question about designing a verdict form it's contained on pages six and seven of mr le reply brief and it says very simply as to count one conspiracy to distribute in this case marijuana you can pick between the following day guilty of conspiracy to distribute one hundred kilograms or more guilty of conspiracy distribute fifty to one hundred kilograms see guilty of conspiracy to distribute less than fifty kilograms or not guilty had that question been asked in this case i would not be standing in front of your honor's making this argument that was not the question that was asked i also hold up the pattern jury charge and special verdict form from the th circuit at its page four hundred and sixteen of the manual earlier general verdict of guilty and say to the jury in respect to the count you found him guilty right what has the government proved beyond a reasonable doubt in our case we're asked the jury was asked a completely question anymore because of the fighting so the question is the guideline and you are hearing the jury decides the guidelines how is that not letting us in texas state court again that's not disrespecting the texas state courts in any way and is saying you're putting us there or we haven't been your honor it is our position that in our federal system and according to the constitution when the jury has been asked a question its verdict is some our social contract contained in the constitution gives jurors authority over judges in this case the jury made an affirmative finding that the amount of methamphetamine in question behalf of both both lawyers today and you answering our questions i know that sometimes this format can be difficult but i think that this went swimmingly and you both the county represented yourself and your clients well thank you thank you this case was submitted and we will continue with the next argument thank you