just on the remaining gun counts people to you six hundred sixty pounds or fifty five years but that being said there are just two things that i want to point out to you today and i'm prepared to rely  support five and six ironically state and i actually called my office this morning trying to figure out why i made this mistake that the council didn't argue below that that's you can't count fo record that just people were wrong and that there is evidence in the record just sustain a conclusion that the council weren't for the roots of the conspiracy that santiago continued to operate the drug distribution enterprise from the yellowstone county jail and that mr smith was dutifully collecting debts that were both yours and fish and continuing to distribute methamphetamine for it  could we think and look at what you have siebel did with regard to mr garcia and say judge siebel was correct in denying mr garcia's motion the record clearly supports the district court's decision he was wrong with regard to mr smith but mr smith is the watch the man you know he wins the lottery today and that really does leave you i think with judge fisher's suggestion that if there's any  arguing anything let me help you with another analogy try this try this one we sometimes hear arguments with regard to inconsistent jury verdict and had judge siegel been sitting in a bench trial and made findings of fact and ruled that mr smith was not wild bill but mr garcia was would we also have to remain and because of the inconsistency and the verdicts that were render range of what we do with the with the court statement that even if he considered it he wouldn't have to part well might if he could properly consider seem to me that the court was when he was made just statement  what we're talking about is thirty five fifty three and a mitigating factor under thirty five fifty three i think that the deal is you know i mean is the analysis any different is ten to ten i read the import of so just statement the same yes then no one would ever go to jail for drug well we're not really using that as a defense we're using that as a mitigating factor under the political aspect of the diminished mental capacity i don't see how that's any different i mean the co would only go to the mental element of intent to distribute isn't your argument that if he if he is diminished in his responsibility of any can't form the intent and therefore he should be thankful you know the argument is with respect to the volitional impairment aspect this defendant might know that as he is committing this conduct it's wrong and it shouldn't be doing it nevertheless it is a deficiency and it's by virtue of his addiction that he cannot control his conduct and that's a matter of the mind because the mind is a so your argument would be you can still be convicted of it but you shouldn't be punished as severely for doing because is the result of drug use and here because we're proceeding under thirty five fifty three it doesn't matter if it's the result of drug use the guy has a diminished mental capacity and if he has  whether it's a matter of or rather if you addiction as in the times the case for gambling addiction as in the other case the fact of the matter is that it's an addiction the proof as this man from controlling his behavior and that's a to reduce the sentence for that reason well then then let's go back to the question i started with if that's your position and we send it back to jim siebel and he says i told you the last time that i was here that if i could consider this i wouldn't give him any credit for going to the lower what have we accomplished well this is what we accomplished he says that i have not found a case under thirty five fifty three where i can consider it and then just evil says well i said the last time around that if i could consider it i wouldn't depart any lower so i just i'm not sure and i understand the point of this whole exercise  comes down to how you and i read what he said and you may have a better feel because you were there but just looking at the words it appears to me that what he said was if i could i would not quite a bit much i could find them  and in this case the record that the jury heard that the jury convicted on was the evidence that is listed in our brief and then i can discuss the part like the ultimate finder of fact the jury in this case did find that undercount twenty two and twenty three have a why did george c will come to the inconsistent positions that we believe that the same evidence apparently we believe that judge people made an error but you didn't appeal that that's correct john so why aren't your stuff basically and make our own independent finding that collaterally he was long therefore it's ok for what he did hear or see and i find that troublesome the united states government looks at green and  have different factions between the two of them viz of the timbres involvement wasn't that his activity it was all turning on third party wasn't it whether or not kimberly was still involved yes you're ok so what is the difference whether you're still involved was not that's correct ok so you lose on that factual determination and what you are now coming up and saying well if you look at what those facts rather than you are going to his involvement are all these people right that's actually ok can you help me then with regard to the evidence that ties garcia to the conspiracy in the early part i'm going to basically discount for five and six did change significantly during the part of just circumstantial case pressure in that respect correct what what what is your circumstantial evidence to show the dirtiest supplied the drugs or grossly or was tied to alex or help me out are forty two became more comfortable with each other and distributors to then move to may of two thousand and three when we have the first trip to montana with the methamphetamine but mr santiago and mr green and some of the other compatriots at that point they were getting methamphetamine and at trial no one testified as to who provides that methamphetamine however there was reasonable evidence based on that testimony that they were prior to our dealers with regard to cocaine and personal use by mr black of methamphetamine provided by garcia while she was it take it to the people did you people did people come to you answer from the spot i said we would go to their houses or they would come to where we were question and that occurred in july august september and october  washington mr miller testified that early in his arrival to know for member also from previous testimony this is june of two thousand and three mr miller testified that he became a provider in line sixteen  when blacks testimony again s t r one ten and a prior testimony regarding so far we've got th quantities of methamphetamine later in the summer and fall of two thousand and three and that santiago had a source of supply in washington earlier in the april may june timeframe that that source much well yeah i'd like to see if you agree on this matter that the district court had made a ruling that under thirty five fifty three even if he could consider been and the way that the conspiracy was charged if they charged distribution of controlled substances and not specified methamphetamine i think it would be an easier argument for his lawyer to me but why can't the jury look at the substantial quantities that he was supplying leader in this time around and then based on the testimony of ms black that she was obtaining methamphetamine from our studio earlier grief he she talks about got them before this vast conspiracy really got going that she was going back to washington and she stayed in washington to tell at least august and then she comes back to montana and and he's trying to get this th business going but it's not going very well and so this is in august and they say so did you did you help him get his drug business going again yes what did you do i called martin and asked him if there was any way i could get crystal meth from him it's august third end of august ok she knows she can call him and get crystal now isn't it reasonable for the jury to infer that thank you very one hundred twenty four f thirty five forty nine when they state that we believe that this decision will not open the floodgates i don't know that it's a floodgates decision if it's if the problem with with the exercise discretion don't choose to go any lower than i'm otherwise going because of it and i don't know how that would be in a reasonable sentence post possibly a as a matter of fact it would be an clear error analysis that the court would have to undertake on appeal or so you really do you really do want more than district judges you have the discretion to consider you want i directed that it has to reduce and it has to result in a lower sent not in this case i don't in this case i don't think it's appropriate for the court of appeals to make has the same sort of record that the court of appeals considers witness testimony that you saw is that what you really want you want to remain for a recent thing so that you can call an expert like  lord is that what you really want to hear if you want an expanded sent another shot it at sentencing to see if you can develop this diminished mental capacity argument better well i hadn't thought of that but i certainly could