please the court counsel and there will nugent for james duckett i'd like to focus on the sentencing issues the day that was so happy to discuss any of the issues and i'll start with the jury's verdict on drug quantity if we don't respect this verdict i think the question lopez but the distinction here it seems to me is that there are her to separate crimes of which the jury convicted your client and there was nothing impairment tell that says you can't add together the quantities from two different crimes and so and nor is there anything in the verdict here that says that the quantities for sure overlapped so you had just under three kilos i thank you my garage if i'm not mistaken and then it was permissible to find  more than two kilos in the conspiracy count so why couldn't the judge just simply add those together and be done with it the jury said there was less than five kilos in the conspiracy count right the conspiracy count there's no evidence to show that the conspiracy count did not include the garage on that get a fact that there's you know a verdict that says that it is included either i mean that that's what i'm saying where there is that kind of ambiguity i mean pimentel was based on the idea that the jury made a specific finding that the sentencing judge had to respect right or wrong that's that's the rule that we had in that context but that dealt with a single incorporated a finding that there was more than five kilos contradicting the verdict on count one so it was the same count that was it issue first of all i think is the mistake here secondly there was no other cocaine that was you know in its original brick form or any other quantity to speak of the rest of the cocaine that was used by the district court to reconstruct the greater than five kilograms while he was from the conspiracy read was inferentially found it wasn't discovered different kind of criminal case the facts are clear that there are criminal homicide but there are ambiguous is the defendant's mens rea a so a homicide could have been committed intentionally recklessly or with criminal negligence the jury finds that the homicide was committed with recklessness but the judge sentences the defendant for murder instead of manslaughter i don't think this is this is nothing like that this has to do with drug quantity not state of mind so so that drug quantity for for conspiracy doesn't have to be drugs that are in actual possession of the defendant bryant but if the judge said yes or no correct ok so the fact that there is consideration of potentially more than the amount they do in  or about a particular day the day of the bust as opposed to the continuing offense of the conspiracy so the jury is being asked to make finding not only with regard to a different quantity boundary but with regard to a different time period i think that's constitutionally significant as well and you can't use the vague label of relevant conduct and drug cases relevant conduct really means drug quantity after all that there they could be interchanged they argue but you can't use that label to stretch relevant conduct from one count that's alleged to have occurred on or about a given day into a much longer period of time and in fact the jury's finding on the two counts is consistent if you frame it in terms not only of the pleading but of the government's argument and the defense argument at trial i think everyone in the jury knew perfectly well that the government was arguing that the quantity of thinking and possessed with regard to count for you was precisely the amount found in this robinson's garage rafters not more or less and that's why the parties arguments at sentencing were guarding relevant conduct were developed with regard to the evidence undergirding count one and the government is very cursory in its treatment of those facts but i think there  mean one other adduce here a sense never really clear who was in the conspiracy that's true and that's part of the reason that we argued for a judgment of the judge and therefore it could be that the jury thought the conspiracy didn't involve problems so the possession claim was with regard to the money in robinson's garage wasn't part of the conspiracy and then the conspiracy claim was and you read to do that you'd have to say that i mean the judge certainly didn't make this distinction between the verdict between the camps so you must be saying that we cannot read the judge's having  we have to understand him as having looked at the over five kilograms globally and not separately for each  wrapper that had kemar on it and some money right ray said that there was enough money found that taking out the money that might have been used for cash in the used car business there is still enough money  in context with the jury instructions it would be very clear to the jury that they had to find that fact beyond reasonable doubt and i think if you asked any of the litigants at the time of submission of the verdict the jury that the case to the jury they would have agreed i don't see is any record developed on behalf of the government that would permit it to argue differently with regard to the verdict as opposed to the court's fact finding of course if the court can find the additional facts they can find them by preponderance we're not arguing anything different that regard we're simply arguing that fact finding whatever you call for finding using the label relevant contacts to label fact finding doesn't make it constitutionally less significant fact finding and that's the core principle that comes out of all of the supreme court's work on this issue over the last twenty years going back before printing the jones versus united states from that point forward twenty years ago and i think that's the most important issue here in the case obviously i think also that the government misapprehend the preservation principles or for some reason incorrectly cites the standard of challenge to a sensing this should be reviewed and i think it's a very significant procedural point and finally on the i when i was there for three minutes for about a bit in the last few seconds i have for those three minutes i want to point out that we're still bringing the argument was that we still would like the court to reverse on the leadership and handsome and roll issue because this was not a case in which this conspiracy was extensive or which the government argued that there are really more than five participants involved but it's a five or more participants involved but instead this is a case in which the only exercise of control arguably was an attempt to if you will witness tampering to tell ms robinson not to talk to the police and control during a cover up doesn't minute pairing on behalf of the united states that counts in this case well first off i want to start off by correcting a couple of things that my opponent said one is that the district court did not make a drug quantity finding as to count one's pacifically paragraph thirty six of the pre sentence report grouped both of those offenses so judge mosman drug quantity findings were for the entire offense both counts they combine both the second is the notion that count two was somehow limited to a single day although count two did allege that mr docket and miss robinson possessed with the intent to distribute the three kilograms of cocaine that were found in her garage we know from this court's decision in united states versus sanchez that relevant conduct can include other transactions as well it's similarity regularity temp proximity all of that would encompass everything that judge mosman considered ultimately though i think where this case breaks down with pimento lopez is that pimentel lopez simply did not involve a case that had different here is that we had two different accounts with different allegations the conspiracy count named both mr docket ms robinson and mr ramsey count two by contrast only named mr looking at two different things they made different findings because the verdict form was drafted differently and by different amounts though they're completely consistent amounts they are no contradiction there what i think is significant though is that  to the extent the defendants arguing that this case is controlled by pimentel lopez it's really very different in fact pittman tell at page eleven forty two this court held any jury finding that does not set an upper boundary would leave the district court free to find a greater quantity that's precisely what judge mossman did count two had no ceiling so at the time of sentencing he was permitted under the law to do precisely what he did which is examine all of the drug quantity that was available in this case including the some of the evidence that the jury never heard for example there were fourteen let me just let me just specify that because it says five hundred or more correct map so i could be any amount more important to the german crack according to the jury and according to this court's decision and come into lopez so you have the prosecution urged the jury in this case to consider the two counts and underlying drug amounts all together we didn't make a specific drug quantity  did we never asked the jury to consider drug quantities separately for count one as opposed to count two so they were there they were asked to consider the drug quantity together both counts correct i believe that's correct so why isn't it true that the jury did simply consider both together in count one when they said it was less than five kilograms you know the answer your honor is we don't know we don't know how the jury broke this down because they were never asked to specify we know from judge mosman findings and from the pre sentence report that we had a number of empty kilos cocaine wrappers that were found at mr ramsey's house we have the timing which is mr duckett would show up at mr ramsey's hass he would leave briefly he would come back we would see a whole bunch of foot traffic he would come back and then two days later in the trash we would find an empty kilo wrapper that tested positive for cocaine so the jury heard a number all of quite a bit of evidence about the traffic between mr docket the house where he mixed as drugs mr ramsey's residence the foot traffic that whatever other rappers miss robinson's saratoga residence ok but then those are all listed in paragraph thirty six of the pre sentence report sentencing that mr docket had amassed at least eighty thousand dollars over the course of this eight month investigation if you also claim that he had six and you rappers so if he had six of you rappers that represents more than eighty thousand dollars worth of cocaine  well and is there redundant right judge mosman found that the full eighty thousand would be redundant his reasoning was the twenty two thousand was not because i don't understand even matter because  think question whether it's more than five kilograms or not so so once you get past one or two extra wrappers whether he had five or six or three were the eighty thousand money you know fairly an amorphous estimate sort of way he thought he didn't you mention the other five wrappers but he wasn't really relying on them directly as i understood it more as some estimate along with the money well and we need to look at the rapper's in context with the testimony at trial which is that the rapper's coincided with m all of the foot traffic the apparent small transactions so the fact that the i think judge must mn picked out the fact that the camaro wrapper that was found on mr ramsey's porch in fact had the same  the three cues that were found in ms robinson's garage nevertheless the other wrappers were equally important and equally plausible because they were directly linked to mr dockets visits to mr ramsey's residen and all the increased foot traffic consistent with small and drug transactions and we know from the controlled by those that were conducted at mr ramsey's house which formed the basis for the search warrants other mr rams in fact selling small quantities he did so fourteen times through controlled by is that we were monitoring unless the court has further questions our position is coming to lopez although if if for example we only had count one pimentel lopez would apply and would cap but here we have count two we have a jury finding that in fact this offense involved five hundred grams or more and so under judge mosman had the discretion to do precisely what he did here which is to determine the actual drug quantity in this case by a preponderance of the evidence and there's been no suggestion by the defense that in fact there was any factual problem with judge m instructed to consider both counts together well it's certainly possible again because we don't have a specific finding it's also possible that the jury looks at the fact that count one accused both robinson ramsey and that in fact it was not mr ramsey who was involved in the three kilograms that were found in miss robinson's garage it's also equally plausible i would know that the sentencing findings for mr ramsey he pleaded guilty and the drug quantity computation that applied at his sentencing was between three hundred five hundred grams so he received a sentence of twenty four months based upon that drug quantity finding there are a number of other issues the grouping of counts for sentencing is a statutory procedure it's not some kind of a back door to the sixth amendment guarantee of a jury trial as every fact that makes up an offense or in the case of a drug stance offense with  degrees depending effectively upon drug quantity makes up a greater degree if that offense so why would the government ask for a five kilograms of fine for an offense counsellor it's a different sentencing rancher and well i'm i'm adopting a characterization that comes factors are sentencing facts are found by a preponderance of the evidence correct but not when they expose the defendant to a greater sense that would otherwise be permissible which is precisely why the government asking for ordinarily let's say in this case there were no upper limit the jury had said five hundred grams or more for everything the judge would be free to consider the evidence under a preponderance standard correct yes right ok and i will agree with counsel the issue here is not the quality of judicial fact finding or the quality of the facts that made that fact finding possible it's the procedure it's the procedure because the court made fact finding interrogation of the jury's verdict in direct contradiction to it that was requested by a party that the parties are trying to run away from and the finding that the drugs were not more than five kilograms is not support fluids somehow and the question becomes what could the government have gotten differently at sentencing had gotten the finding that it initially requested which is a finding of greater than five kilograms obviously there's there's there has to be some reason that the government request a special verdict with the great the drug quantity because the government understands the force of the case law that request and in the context of all we've been talking about here today i'll be candid i will say that at the jury's verdict i think it's pretty clear is that the jury decided not to make the inferential leaps that the court did the jury's verdict was consistent with finding three kilograms as i think the court pointed out in questioning counsel just a few moments ago and the three kilograms were the only i would argue part of cocaine that could be found beyond a reasonable doubt on this factual record the wrappers found at the