with a sitting issue regarding mr james on march twenty fifth the two thousand and thirteen mr james pled guilty to a simple simple charge which was possession of a gun  requires that there is some general knowledge that he knew it was a good that's what he pled guilty to within four months mr james he freely admitted his guilt to the police when he was stopped he admitted his guilt of at his plea before judge focus and that was within four months of his quick very quick within four months of his guilty plea what happened after that is the reason we're here in the reason we're here is all of a sudden after the the issue of whether mr james was guilty of assault with intent to commit sept second degree murder became an issue our position is that the trial judge was somewhat confused in the reason for the confusion is is in the thirty five fifty three factors and the guidelines themselves there are hardly confusing our position essentially is that the judge if he's going to find that an individual should be sentenced to approximately mr james got two more years in prison because there was an allegation going to if you're going to make the assault the murder charge a central issue of the case then mr james should have a right to confront his accuser and that's the problem here of it hasn't that been determined i mean we had a non bike on this fifteen or twenty years ago about whether all sorts of trial rights attach at sentencing and we and every other court has held that they don't so you  can't get your full panoply of trial rights you have a preponderance of the evidence standard you have a clear error standard on the facts so happy to listen to you on either the facts or the law but on on the facts in the video well there was a video with which there was a shooting but there was no indication of who was being shot at whether i mean if the simplest thing got a gun he's coming after me and then then the next thing we know he did drop by and there was a shot fired in the record what my client told to the probation office and told the police which was never challenged until after the sentencing commit second degree murder and i'd agree that that's in the pre sentence report all right but it's not just at the something he wasn't blindsided no he was not in the pre sentence report but i would respectfully and then at sentencing effectively he it's turned into a different offense and the judge got to say that he intended to kill that guy well that's what we're there is some confusion i agree with judge white i agree with you and i'm not disputing so most of your statement i am disputing it's a little unclear what the judge said whether it was whether it was really good conduct or whether  a thirty five fifty three factor in it does make a difference there's got the judge would have to find and i would suggest as a matter of law that there was a very specific intent to kill mr willis and that's not that's just not in the record when he said well i looked at the videotape which is appropriate and then and then he went a step further to suggest that well there's all of these people in this apartment and this is a very agreed just crime is so it it went from him possessing a good to shooting in an apartment were a lot of people were present and that's saying well then do we really mandate for him to either make a specific finding that there was an intent to kill the judge that's that's certainly the option that judge judge barnes pointed out that's the law my problem with this horrible confusion in the guidelines i have to sit there and explain to a client i believe that for one thing you can suggest in criminal law that there needs to be transparency and to say that this is transparent is is is a belie i don't believe so before the plea noble there was a i just cannot remember but between mr biggers was very forthright but there was some discussion i think it was before sentencing where if we could work out this issue but i believe my just i just and i'm sorry for that but i cannot recall i do not but i want to i want to be honest with the court and i do not believe that was even an issue i do want to reiterate again he was this this third months for between an indictment  plea is really quick and he came in for he lee he admitted the conduct of the gun he had no issues with it he gave a statement to the police he gave such a statement to the probation office this issue of the second degree murder never months you keep talking about is between the indictment and the plea although the incident was about ten months before the the plea was he were they trying to find him in the  indicted or he had been arrested is not a recollection he had been and then arrested in the state saw fit to charge him with reckless endangerment ok but then the feds this is memphis they come in and do the gun charge we know that right did take you back though a minute ago about you know what you were sure you said i heard you say the pre sentence report says he shot in the year as i read it at paragraph eight it says he shot over the top of the cars are something i'm missing or are you just characterizing the same thing judge a minute mr james made a statement to the police that he shot into the air i know that but you had said to the pre sentence report i may have been mistaken about that but he made a statement in there was that i don't think that was challenge up until the point of the sentencing hearing well a big but again that not challenge only if you believe the shot over the top of the car is the same a shooting in the air and good and then in the objections to the pre sentence report you pretty much make the same arguments you're making absent an unequivocal pre sentence report says that he said that he shot into the air but the recent report is entirely attributing that to what he said it's not saying that that is in fact fact the well judge if you're going to take the pre sentence report as the facts and we admitted to those presuppose the fact is that he said he shot into the air but i believe that the pre sentence report also mentions that there's a video and that the video shows him climb out of the front passenger window and you know over the top of the car in the direction of the then you have to take it as a fact that he shot into the air because it pre sentence report mentions it and that's clearly not the case which i can't cannot respect what your gut says says he did your job for there's no question that's what happened and  but he was he was saying i didn't wasn't shooting a person wallace in my hollow point here now and it's well i'm or going to the jury that whether or not there was a specific intent to kill and i think that's the problem i'm having the problem having it but the problem you're having is what the preexisting law on sentencing is because you're exactly right that if this was an indictment for second degree murder you'd have to have proof beyond a reasonable doubt you would get all those protections but the law is not that for sentencing is that there are maybe it ought to be but well i would maybe invite the court potentially since elaine i mean i  do think i am going to stand pat on my statement between a printing and a way in the court as having all kind of problems even supreme courts having problems defining words it was this is is this an element of a crime or is this a sentencing factor i would suggest respectfully that would be much simpler for the judge just to look at this is a thirty five fifty three factor i think the judge looked at the thirty five fifty three factor the whole problem here was that there were other people that then he would have to justify it as a variance would he not because it would then to get to the sentence that he had it would be outside the sentencing range that's exactly right or it would be very favorable to you well but thirty five fifty three i think that's  and in the problem is as i cited in my prefer the what's happened even though since booker now these are supposedly advisory what's happening i'm defending these in court and i'm put in a position of having to defend a second degree conduct in then we're fighting a second degree murder i'm not suggesting i think elaine said that if you're going to sit ins people to conduct that they have a right to confront their accuse and i just under this set of circumstances did you excuse me did you ask for more witness judge that's i've got a criminal defend guidelines are there and they're easy all you have to do is look at a box this makes rational sense and then bringing witnesses and kurt and actually having a trial is a difficult it's a difficult proceeding and you never tempted to withdraw the plea or anything where we don't we don't suggest we just suggest simply very simply that if the court would just look at the thirty five fifty three factors in not put my client as having to defend the second degree murder charge it doesn't mean it's inconsistent the state solve a fit not to charge him with said the state the state charged him with the right thing the state charge him with reckless endangerment which is a general intent meaning i didn't really intend to keep the killing out shoot somebody and i would respectfully request that that's the appropriate analysis and i know that the law of the judge box is correct the law says we're supposed to look at the guidelines but i think if the court would if think if the court were to only look at the thirty five fifty three factors there would have been a different outcome and i guess i am asking you to remain on the case back to up on judge folks for recent saying there was nothing in the record that suggested any point there was a specific intent to kill he did say well i looked at the video it's the video and m appeals said specifically even though there was a shooting if the judge is going to use this guy have got one provision it must make us of a specific finding and that simply wasn't done here thank you lines forty twenty one the court clearly goes through how he found the defendant's intent to commit second degree murder he pointed to the actions that occurred prior to the actual shooting the in the sentencing hearing after hearing from officers matt and as well as reviewing the video in addition to that the court also had the opportunity here from marshall said bruce who testified about  letter obtained from the defendant's sale doing a search where he intent he sought to have his girlfriend comment testify to say that he was not trying to harm mr walsh but only shooting into the air and i'll point out for the record going back to this particular case the defendant did hear of the facts is read into the record the change of pleading and at that time he objected to the facts regarding the shooting and there was debate there was the basis for the open also suggested that this was a very high crime because other people were present in the apartment which doesn't go to dieppe specific intent to kill mr wallace it goes to the wall itself it doesn't goes it goes to thirty five fifty three factors in that that's essentially my argument it's just it's it is unclear of the page that your adversary cites and this is oral stream of consciousness  says murder in the second degree is an intentional killing we're not talking first degree murder in the second degree is an intentional killing the video was just compelling it is just obvious that seems to be a reference to the point he's just made do i know it's an intentional killing and he then you know gives lots and lots of reasons and several times in it he refers to an attempt so you're saying that wasn't clear enough jotted intentional i think the rest of it is the problems with the rest of it and the rest of it has to do with there was many people in the mean he either had a specific intent to kill mr wallace or he had a specific intent to kill everybody in the apartment and i think the court's problem was with the everybody else and that's i think this that should have been left to mr wattles or the thirty five fifty three factor certainly to judge certainly could have considered this shooting at mr wallace and shooting at other people in the apartment so says what i saw on the video does not support reckless endangerment which is the alternative which takes us to me it to me again that's the indication that he found the opposite second degree murder which as there is a good i mean there's a good there's an excellent argument and i just think if you're going to charge somebody with second degree murder it has to be specific it shouldn't be left up to argument in  speculation and i know it was very close and i'm not suggesting that but what you've done is you put somebody in a position of having to defend against defend a second degree murder charge and maybe that's the  is the status of the law today but i just think if that's what we're going to do then there needs to be a specific statement in the record yes i saw him deliberately intend to kill personal loss and that's just not in the record