issue is whether the jury instructions diluted the standard of proof and shifted the government's burden of proof to the defendant the second issue is whether the case should be remanded for reset unsing pursuant to united states versus dixon and the third issue is whether mr chapman should be subject to enhanced sentencing under the armed career criminal sentencing provision i'd like to talk first about the jury instructions the standard of review is plain error there are two instructions that we have challenged on appeal the these instructions can be found in the appendix on pages five eighty nine and five ninety the first instruction is is is is this it says the crucial hard core question you must ask yourself as you sift through the evidence is whether you find the truth this is a quest for truth as to the facts that is what trials are all about it is not a battle with it is not a contest of salesmanship and it is not a contest of personality the only triumph in any case is whether or not the truth  honor then i believe that there would not be error in this case however if you combine the words with the defense theory and the defense theory is that there was no irreconcilable conflict between the government and the defense like the case in rawlings your honor in rawlings this if from the d c circuit in one thousand nine hundred six the court found that language regarding the quest for the truth when there was a situation that when there was no irreconcilable conflict between the government and the defense in other words or that both sides could have been correct in this case mr chapman did not refute the fact that a gun was found in the ceiling of his bedroom that's that's the facts of this case can you put your problem here is that what you have said if that were the only thing in the instruction it would be wrong with because it didn't tell the jury really what its job was but the ensuing paragraph specifically does it tells the jury what they're to do determine the guilt innocence the base of the evidence has the obligation to prove you know innocence or something is clearly wrong this is not totally wrong talking about truth to truth so i am i just have a hard time finding this is that case i understand i understand your position as i say and i said to to judge went is that if this with the word standing alone then i do not believe that this would rise to the level of reversible error however your honor when we're dealing with a situation where there is no question of truth in this particular case both parties could have been truthful mr chapman and in fact conceded that the government agent found the weapon in the ceiling of his of his bedroom therefore conceded that the government witness was being truthful therefore when the when the district court framed did the issue here in terms of truth pitting one side against the other one side is truthful one side is not being truthful  jury on the one hand we're telling the jury that this is a search for the truth one side is right one side is wrong then you're giving them other instructions like if that directly contradict any question in these directions about who had the burden o reason yes your honor there was as a matter of fact the second jury instruction with which we take issue is this it says the issue and the only issue for you to decide is whether or not the defendant has violated federal law if you find that the law has not been violated you should not hesitate for any reason to return a verdict of not guilty by telling the jury that the only issue you is whether the defendant has violated federal law and that if they find that he has not violated federal law they should find  prove the defendant guilty and this burden stays with the government throughout the trial your honor that is correct but we have contradictory instructions that have been given to the jury now we don't know which is the instruction the jury listened to with the jury wasn't on district court to sit there and any time something is said that maybe the jury might take perhaps as detracting from something else the district court supposed to say wait a minute you know this is wrong well i'd really like you to move on to your other issues if you want i think you're pretty if she was is a little bit more difficult than than this one i mean well obviously take a look further look at the instructions as you requested but i think you'd like to  use your time in that way absolutely your honor i'd like to move on and my two point three which is which is the apprentice you the court should not have applied the armed create a criminal sensing provision for three reasons first the district court did not have enough information to find that the prior convictions satisfy the separate episodes tast second that in order to determine if the prior conviction satisfy the separate episodes tasks the court is required to conduct a circumstance specific analysis which requires a finding by jury by proof beyond a reasonable doubt why is that we have pretty much bought into the idea that committed on different occasions which is what this is is not separate episodes it's offenses committed on different occasions different from dates is there no your honor no ok how can it be that we need a jury to determine that these are distinct in time your hon in this particular case it when he was tried tried drug cases understands that these are cases these are these are crimes that usually have a continuing course of conduct that's not the test you are and if it were you know in a bar at four o'clock you sold it for ten he sold it for thirty he sold it for forty five years old and when he was in the bar you know who's attending his brother's birthday party or something you know maybe we could find the occasion is not different sort of sort of but we've got three distinct dates how could you how can it be that this would be even a question of fact is this essentially question of of law because we've defined what what separate occasions we're on i believe it's more than just separate occasions i believe that the that the t est is if it's a different location if it's a different victim if it's a different occasion and in the car darst case for example you're right i think that this is this is specifically one of those cases where the court said that  you can have a different transaction if the transaction occurs it's very location well your other words you can't have two different drug sales if they're both on a broader market well you're on and you can't but what i think what the court needs to to to delve into when they're determining these facts especially for something so significant is applying the aca in this in the cases is the underlying facts for example we don't know if the drug transaction on day one in this particular  was significant your honor is that they said well for example we don't have a situation where the price of the drugs first contingent upon the next cell and and the and what what card arius pointed out is that in this particular case for example we don't ok the price of this particular drug is this amount because you're going to come back in five days in and you can buy another another quantity of drugs often in these cases sales will be contingent upon each other and prices will be set upon the type of weight that is actually going so as to adopt that test and in effect do away with the distinct in time i think your honor that there's more there's more factors than just the timing issue i think with with the separate episode has three with you if the bar that i talked about you know forty five minutes or something then that at least there's an inquiry i just don't see it under the facts of this you're out of the third circuit has not yet had an opportunity to rule or to apply the separate episodes test in a drug in a drug  honor i would i would suggest that the proper inquiry would be dealing with drug offenses as we do with the sentencing guidelines and grouping them in terms of in terms of that for episodes versus separating them out one question didn't do it all yesterday is i went through the transcript and i counted the number of times the judge sanchez referred to reasonable doubt and in those instructions he referred to the reasonable doubt probably at least i mean in the right way the right way beyond a reasonable doubt the other is without burns on the government thirty eight times thirty one of those times was before this quest for truth paragraph seven times afterwards including immediately in the next paragraph so we don't think there's any doubt that this jury if it understood anything beyond a reasonable came to the exact same result in pretty much the same case with regard to north korea criminal the there are a couple issues here first with regard to separate occasions of the law of this court in schoolcraft is clear schoolcraft involved three armed robberies that took place followed schoolcraft in this exact context and i don't want to just stand here and say well every other court has done it and therefore this court should also the it's important to look at the reason behind it and the reason is is that we're dealing with statutory language here the statutory language says occasions different from one another and the normal understanding of that is of use of drugs today and come back next tuesday and sell drugs again those are obviously separate occasions this is a matter of fact or a matter of  well it's certainly a factual question with regard to the convection in defining the date of the occasion but here we have it dates and the dates aren't challenge me would be even more interesting if they were as recent reports pretty flimsy in terms of exactly what happened and what dates but the dates are not challenged so we have the issue of what constitutes asian separate from one another again is that a factual question or is it going to be a factual question some situation a question or another situation right it's both i mean first you have the term in the facts which is what are the dates that we're dealing with and then you have the legal determination of what does occasionally and i'm sorry for if it's a fact that increases the penalty why don't we let the jury decide want to or just because of the supreme court's decision in aman doris torres that says facts related to a prior conviction that increases statutory maximum are not submitted to the jury and that exception had was explicitly carved out of a printing in book or in everything that has come since say that goes to the date it goes to the day to go also to the meaning of ok jb no i think that's a legal determination even if you gave this issue to a jury it would be incumbent on the court to give an instruction as to what occasion meant so the jury could then find the fact in a prior to the law that the separate episodes test which is the definition of occasion is a legal term nation which i think has been made by this court and certainly all others the legal suggestion that my friend listen quanto is making i just don't think is a credible interpretation of the statutory language she would have it that if somebody sold drugs you could sit on the same porch in the same spot and sell drugs for every day for an entire year and she would say well that's one occasion that even if the person was in convicted of three hundred sixty five cases that's not a possible statutory interpretation what is possible is what every court has that they're dealing with difficult cases they're dealing with judge rendall's bar with the birthday party and they're saying ok here are some other factors we can consider the only quit they really found that they would not separate is that we said i think it will be case in the circuit where the sales were really simultaneous even after they considered all the factors that yuri site should jury be given that case the bar case of the will of the case side are these indeed on occasion separate from each other you know our position is that down terms of what the fact of the prior action was in fact the product action is something that the court said well that's clearly something proven there's been a jury trial so we know there was a conviction and we know it was for drugs you know on a certain da y when you go when you drill deeper than that in let's say the parson area and you say well was he sitting on the scenes and were these same people or did everybody clear out of the bar and the party is basically over and somebody else walked in is asking is a very important question that's been asked in a number of different contexts and the way it's there's nothing that explicit in this court but we cite about ten other circuits that have not only held that different occasions is a fact that a judge can find but i've also clearly explained that the fact of a prior conviction the almond ours exception is not just limited to the plane conviction on a piece of paper it has to include the other basic facts one for example which could also be very controversial is is it the same defendant is it the same person who incurred their previous conviction and every court has held that this is a decision a judge can make consistent with the prior conviction exception another which i would say goes even further than this case of trying to just ascertain the date which is what we're dealing with here date is a basic fact of a conviction which is ascertainable readily from judicial records about what about when we get into what here would have been an interesting issue because the pre sentence report just has a has a couple of sufficient but just to give my other example of a more difficult question the courts are allowed to address under the park admission exception and that's the nature of the crime as this court well knows in this court is often addressed we have the categorical approach where if we want to see if the crime is within the receipt of a statute we have to look only at the elements but then we're allowed the modified categorical approach where a statute applies to more than one circumstance and we can look to reliable judicial records under shepherd to see whether i the what the person in middle was convicted of falls within the category that that's quite a factual determination as well that shepherd explicitly permits additional court to do pursue atomic ours taurus given the plane there are standard do  at sentencing the defendant did not object to the pre sentence report and explicitly agreed that the armed criminal act would apply and as we all know a prime be can be satisfied in two ways it can be satisfied certainly by a jury determination saying because he agreed that it to base it on that but there was an in effect of this well maybe in you know maybe we'll be back i don't think so because i think legally it turns out the same way and there's no prejudice where you say under plain error standard that given the fact that those three dates so distinct in time there can be no plain error because no no jury given the law and even if you had a pretty and you felt that randy applied no jury would find that these were the same place on a specific date that on that date i think was fly twentieth he was found in this residence with additional contraband to sell and another gentleman and that's a conspiracy that's charged that other gentleman has not referred to him earlier on with regard to the president of course there's a split in the circuits this quotes view is that the fair sensing act does apply to anyone sentenced after august third of twenty ten even if their conviction was before hand the government changed its position make course and that i had the privilege of arguing to this court in texas and one way and then sending in a letter a couple weeks later the other way after after my superiors came to a i guess i'd have to say a better decision and so now it's before the supreme court on the hill case it was argued about a month ago we'll have a ruling within a month or perhaps this court's view will be overturned perhaps it won't but it doesn't matter because the only way the first since the act of plighted this sentencing was it suggested that there was a ten year mandatory minimum on count one and a lifetime maximum if the first sentence the act applies to this gentleman as we think it should under dixon then there is no mandatory minimum and the maximum goes down to thirty years but none of that had any bearing on his sentence at all because he received the guideline sentence within the range of twenty five years and up judge sanchez in his post opinion explicitly said i gave him a guideline sentence the mandatory minimum didn't matter the final reason we know the mandatory minimum didn't matter is because he had a concurrent mandatory minimum of fifteen years on count four which is the armed criminal act so that that ten year meant tory went away in this case no matter what a missing quanto has suggested that are not right about that because the sentences on counts one in two could be lower if you look to the drugs alone and that's just not right that's not how the guidelines operate the guidelines say that you come up with a total punishment for all the crimes and you apply that total punishment to every count that section five g one point two as long as you're within the statutory maximum and within the statutory maximum on count one he receives a twenty five year sentence even if the first sensing act is applied making it a thirty year maximum so it just didn't have didn't have a bearing in this case what does matter in this case and is the anchor criminal act i mean we all have to be upfront about that and that's obviously why the defense went to trial he went to trial and conceded the drug offenses and disputed the gun and  because correctly that it's the gun that drives the sentence here it's what makes him an arc where criminal it's what takes what would be a crack guideline range of maybe in the eight ten year range and unfortunately for mr chapman moves it your way up the scale and so  you i think it's clear from the cases that have come down from the supreme court that there is some dissatisfaction with taurus and i think if we take a look at the case law as it's evolved over the past decade we'll see that we've gone from a categorical approach  which was the first way that these visits recidivists actions were being were being applied you can just take a look at the fact of the conviction itself and then we realized that you know what that's not going to really work we need to take a look at smaller information so let's do a modified categorical pro choice and then finally with  i what i what what my position here is how does all that in this case how how it impacts is that we're realizing that in order for these types of statutes for the prior convictions to be applied for the aca for example that we need to go beyond just the simple fact of the conviction if there is so much more there is so much more that you need to know in order to determine whether or not it's just a conviction or whether or not it's a specific episode you need to know the actual specific facts that underlie that conviction and  order for that to happen you need to look at the specific circumstances of the convictions themselves and so what i'm asking this only of recourse when it's roots and clear whether it satisfies with approaches and you're right i think i thought i read i think that the the law we're realizing i believe that the case law and i think the supreme court is realizing is that you can't even for specific episodes type of test that you know we thought it was just narrative to look at you know if it was a different time different location different place but i think you need to understand what actually occurs during these particular crimes to see if they are in fact separate episodes for example case law supports your honor i think this is  there is no case all this that supports that i believe that the that the that the recent case that the supreme court decided in the new action case that they realize that they had to dig a little bit deeper than just the fact of the actual conviction they had  actually look at the specifics circumstances so the law your honor is flexible i think that there i think that we've it's been it's been evolving over the past decade and i think there's been a realization that we just can't simply look at the fact of the conviction or even the modified approach the actually have to look at the specific circumstances in this particular case we don't know if mr chapman said i will sell you this bag of crack you know for this price if you come back in five days and i'll give you another primate maybe that maybe the price of the drugs were related somehow maybe that  might help you if you were conspiracy case but it right these are these are separate crimes as a sort of befalling they're not following this conspiracy because i understand it was not charges conspiracy but we don't know this actually that this was a separate episode and we don't know that because we don't know the underlying facts of what actually occurred in this particular case but you use the separate episode language that doesn't appear in the statute it's offense committed on an  occasion different from each other and that's a little different and each one was you know a crime involving a loss of more than ten thousand dollars where there are you know you have to look what was the last it's definitely circumstance pacific here an occasion separate from each other it is a very different type of statutory provision i and i understand your concern  i but i believe that it's not just simply as basic as and in a time that's if it's a instance that separated by a course of days or a course of hours or of course of minutes i think that the real question is whether or not i think what congress intended was whether or not that this was part of the same transaction and i know how to use course of conduct when they want to they can say part of the same transaction is a course of conduct and we have that in the guidelines and group things together but they didn't use that language so it's hard for us to interpret that as that or a need to look at whether it was a course of conduct it's not with the don't i understand that position your honor but i but i think that in all fairness if you know especially partaking of look at the sentencing guidelines and we see that you know when it benefits the defense you know when it when it benefits the government we group it together but yet when you know that the defendant never seems to get it to get a break here  the judge simply got it wrong or is it i think your honor what happened was is that that this was a taurus was it was a misguided decision and i think that it wasn't law it wasn't wrong but i think that the law has evolved over the past decade and we are realizing that it's not just a simple approach anymore whether there's a conviction or not a conviction it's a question of what is underlying the facts of the condition as to whether or not it's the same transaction or it is a separate issue does it go to the jury are or can you judge me as the two options i believe that they should be going to the jury i believe it's a jury fact however if not then i think that the that it's that that that the court can make the decision but they need to take a look at they need to use analysis much like the sentencing guidelines do when they are grouping