you may proceed with judge woman may please the court and i'm clemens or at all and it's my honor to represent curtis dale on appeal before this panel of court today mr dale is forty five years old and he represented himself at trial was later represented by the public defender at sentencing and he was convicted and sentenced to three hundred months or twenty five years in prison by way a brief summary in our office we call this the case of the empty wrappers it's about how the empty raptors were discovered and who testified about them is very much about how the jury had to have rejected had to reject an increased quantity of crack based on empty wrappers and equivocal testimony of one officer and the case a bar is about who used these rappers in this disputed testimony to actually calculate the additional quantity of crack raising the sentence by about one hundred months most importantly it is about the lack of a proper finding by a preponderance of the evidence concerning the empty wrappers and vague testimony in i know during the prior argument there was discussion by the court of the very principle that that we assert which is we can not the court cannot rely that is the sentencing court cannot rely on the pre sentence investigation once there is an objection and here there were objections to the finding by the p s r and under rule thirty two there are specific things which the trial court is supposed to do to over two to rule differently from what what the ruling or what the statement was in the p s i i the jury found the defendant was responsible for this out in a couple of places in we agree basically the it is well settled that a sentencing judge may consider acquitted conduct when sent in a defendant and the district court has been free indeed obliged to consider whether his involvement had been proved by a preponderance of the evidence this is from the red key case cited by the government and in ohio again cited by the government even post book or the court may find by a preponderance of the evidence facts regarding conduct for which the defendant was acquitted judge richard arnold in the hammer case put it well i believe when a defendant contest facts alleged in the present report and the issue is one on which the united states has the burden of proof the proper base offense level for example which is exactly what we're talking about or a factor that will enhance the sentencing the government must produce evidence sufficient to persuade the sentencing court by a preponderance of the evidence that the prosecution's position is correct the problem here is that the court doesn't make that kind of fine and that the actual testimony at trial about these rappers and about the fact that the defendant may have made crack cocaine in the past is vague and so allergist testifies the expert testifies now you're holding up an item you're describing of what color it is several vacuum s bags with clear plastic tape wrapped in saran wrap or plastic wrapping additional kind of black plastic wrap with some wrapping on top of it also maybe clear plastic bag concealed bags inside an additional black the the quote i have here is your honor said and this is the randolph case which is not cited in the brief but which was based on the scott case which is in the briefs when since in court failure to chart a path through disputed or equivocal evidence leaves court of appeals unable to meaningfully review drug quantity findings the court must remain for further clarification yes sure i am sorry i didn't discover it adele later but i think i  can rely on the scott case is as i said the hammer case that the the court still has to make a finding by a preponderance of the evidence and he didn't do that what the court says this is all that the court says in its finding is that so when the police executed the search warrant of the storage locker they found a substantial quantity of cocaine additional cocaine in plastic bags and and different materials that could be used for making crack and mr dale also admitted to one of the officers that's what he did the problem is as was brought up in the objections and in the sentencing statement of counsel is that  and he was he said that he first started talking about this with with my client mr dale and said that he is he when did you start making crack and he said when i was a software in high school and that's in the eighty's so what mr mcentee said during the sentencing is this interview with officer huffer if the court recalls was kind of wide ranging interview where i believe he testified he had a conversation with mr dale over a couple of hours going back to the one nine hundred eighty s and it was not and that's what was uncovered in the conversation that it was not at all clear that about the conversation from powder to crack took place within the timeframe of these allegations your honor and remember the time frame of the fences charged by the government was over a very short time frame of time again it wasn't clear that they were talking about this particular offense while but the court needs to make some kind of finding that it's talking about what happened during this time period and it would seem from the from what the court says it's confused about what mr holford was saying but the problem is what the court does is it da the pre sentence investigation report which just takes these empty wrappers says ok there's three allare said he wasn't sure it was three thought it was maybe two kilos of cocaine not cra likely three and the p s r says ok we're going to call it three kilos of cocaine and we're going to convert one to crack there's got to be some evidence of of converting it to crap and when that conversion took place is pretty important if we're talking about the wrappers that are in this storage facility for a limited period of time so we can't go back to the one nine hundred eighty s to try to bootstrap that argument but judge derby doesn't talk about any of that he makes no conclusions no specifications he simply relies on the the p s r which has been objected to and as the court was discussing with prior counsel there's a long history in the eighth circuit  exactly what haven't you would have to ask mr kronk about that one the court does not chart the path it doesn't make specific findings as to each controversial matter the year whether hundred eighty nine or or two thousand and sixteen the actual quantity the imputed quantity the name of the trial witness although we can assume it's hard for it and it doesn't state the standard of proof that's so important the court does not say i find by a preponderance of the evidence that he did in fact convert one kilo of crack cocaine and so there is a lack of possibly of the kind of supportive evidence that's surprised that council focused on the clearly winnable argument for the government here not that the other issues are strong for the government as well but i'll address it briefly but  start with the drug quantity issue the evidence here is that mr dale is a crack cocaine dealer and when they get into his storage unit with valid search warrants and it's not his storage unit because it's not in his name but it's the one that he's using and he's the one it's the one that he says to the agents yeah you caught me at the right time or on the right day expert testimony was that there was at least two empty and pop possibly three empty kilogram wrappers of cocaine there's also five ounces of crack cocaine packaged in five separate packages announce a piece there blender or mixer there's baking soda and there's other items that were testified to that are used commonly by drug dealers to convert cocaine to crack cocaine there's a single already wrapped in other words it hasn't been unwrapped yet and it's so we have a kilogram of powder we have five ounces of crack we have empty kilogram wrappers and then we have m dale admitting that he just purchased the kilo that we found for thirty nine thousand five hundred dollars and he was lamenting that he can't make that much money on powder cocaine but he can make more money if he converts a kilo into crack and sells it for fifteen hundred dollars an ounce and he said that's what he was doing he was taking cocaine converting it to crack and making and charging fifteen hundred dollars an ounce he was getting yes sergeant halford testified that they started talking about the high price of cocaine now and how he needs to convert it to crack and he essentially can make more out of it by cooking it into crack and selling it for fifteen hundred dollars an ounce now on top of that there was a woman who testified that since march twenty sixth seen until he was arrested in june she had purchased an ounce so of crack from mr dale every two to three weeks so that's roughly four to five more answers of crack well if you add those five ounces i'm being a little generous here but if you have four of those ounces to the five ounces that we see you already have nine ounces and what you need for two hundred eighty grams is ten ounces there was another witness who testified that mr dale had provided her small amounts of crack cocaine so we've got him selling crack caught with crack converting crack and admitting that he does that a drug quantity is not an issue here and the judge jarvey is an experience district court judge he knows what the standard of proof is and he doesn't have to risk side i find each of these facts were proven to be by a preponderance of the evidence i think the court is right that when he makes these findings he's clearly finding by a preponderance of the evidence that these facts and are supported by the record and there's ample support for the conclusion that this involves more than two hundred eighty grams of crack directing the court's attention to the defendant's arguments about  the motions to suppress that he claims he didn't get a hearing for i would just say these things the defendant claims that the judge should have held an evidentiary suppression hearing even though he provided no valid grounds for such a hearing he further objects that the judge should have literally construed his motions so that his motions arguably raised a fourth  amendment argument so that he could have a detention or a suppression hearing but there's at least three problems with this first of all mr dale decided to proceed pro se he's not objecting to that he's saying i was pro se i understand that and we went through and just so you know i was there for all this i was actually advising the police before we ever got a search warrant for that storage unit i advised the agents on getting a tracker for his car i escorted the agents to see judge jackson to get these warrants i'm the one who missed numbered the ones actually and the clerk had to correct it by scribbling out the number and putting in the correct number which was a big issue for mr dale claiming that all these warrants are invalid because the clerk scribbled out a number and wrote in a different case number on the face of the search warrant in any event dale can't have his cake and eat it too he waived his right to an attorney he said he could handle it judge jarvey or i believe it was judge garvey told him there are pitfalls to representing yourself you're not a trained lawyer you know one is going to help you with your legal issues do you understand that and he said yes i do well now he wants to raise that he didn't write a good suppression motion and the judge abused his discretion by not giving him a suppression hearing but he raised no valid grounds for suppression in fact in his brief today he raises no valid grounds for suppression that's because there are no valid grounds for suppression changing the number on the outside of a search warrant to change the case number on it does not invalidate and otherwise valid search warrant using a administrative subpoena to the storage unit facility to find out who's renting units there does not raise a fourth amendment claim mr dale went out of his way to say it's not even my unit you can't prove that it's mine he was disavowing his connection to the unit he didn't raise standing to object to the search and the judge found that he doesn't there's no nothing wrong with the probable cause in the affidavit they all mr dale seems to ignore that dog a trained dog alerted on that particular unit that had all the drugs in it which was included in the search warrant and was approved by a district by a magistrate judge so there is clearly probable cause for these searches there's no grounds to suppress any of it and then on top of that during the trial he raises a new issue that he wants present the actually it right at the beginning of court in the judge said ok ok i'll hear your motion but not right now we've got a judge where we've got a jury waiting and before this is over you'll get a chance for your hearing so it's to me on the record doesn't support a claim that the demesne defend it was totally denied hearing because at the conclusion of the evidence the judge turned specifically to mr dale and said ok what about your suppression motion do you want to put on additional evidence do you have witnesses what do you want to do and he said i just want to argue based on the evidence presented in the trial so he did get an opportunity for an evidentiary hearing and in fact he had in a evidentiary hearing because he relied on the evidence presented during the trial and the court found no valid basis for suppression if there's no other questions from the panel my time your with respect to the suppression motion the one point that i wanted to discuss on oral argument i didn't get to before is that the court actually erred in its it in failing to reconsider this second motion because a prior to trial the court found there was no standing however after trial the judge was clearly convinced that mr dale had a privacy interest in the storage units conclusion of trial and the judge presented it sensing several reasons why he did the court said well that's more possessory for a storage locker than what's more present saree for a storage locker than the key and this was in the sentencing context but it was based on the trial evidence yet was rented in the name of someone that's hard to connect because he was in chicago but it was mr dale that had the key so we would maintain that at that point the court should have reconsidered  the motion and because standing had been shown and and go to the heart of that which was a contradiction in mr bumps testimony that was raised by by mr curtis after trial with respect to that mr clarke talks about there were possibly three kilos i think is conceding that the expert at trial testified that the rappers represented two kilos of powder cocaine likely a third maybe a third but we it's a far jump from that for the pre sentence investigation report to find precisely that there was one thousand grams of crack cocaine in addition to the actual crack cocaine presented it trial and and the court does have an obligation to look at the evidence that is presented or relied on by the p s are two overcome the what it already been decided by the jury that it was not two hundred eighty greenup's you can't just say ok no it's automatically a thousand to a no no because he got s four levels higher so if there is some discussion that they might have gone over to that the court might have gone over to eighty based on the testimony referred to by mr kronk but now we're going up from a level twenty eight base offense to level thirty two so it it's it's that that thousand grahams is sort of pulled out of thin air mr kronk doesn't give us an explanation for the thousand grams the p s r didn't and the judge certainly know what's happened i believe is that an argument was made at trial offense conduct statement comes in the pre sentence investigation report without being specific if you read paragraph nineteen it's really sort of vague and then there were some subsequent interview with some officer who said he may crack cocaine what what actually took place a trial doesn't support a finding of a thousand grams it doesn't really support well judge i have a handy dandy defense attorney's book here in my pocket yeah it sure is when it comes to when it comes to drug quantity so crack cocaine between one hundred ninety eight forty two two point eight kilograms and then he was actually sense at a higher level there are some other enhancements but it's basically a two or four level problem that really isn't articulated i think it's it's brought up very thoroughly by mr mcentee the the the public defender who was representing mr dale at trial when it became pretty apparent he couldn't represent himself  but again in a huff urd's discussion is is well described by mcentee and it's in the trial transcript and he says well i was just asking i known curtis dale for a long time i'm the rock island police department officer and so sergeant hovered says how did you get started doing this well i was a sophomore in high school and somebody taught me how to make crack or cocaine into crack that doesn't deal with the impact the plastic wrappers that were only in the storage unit for a limited number of months it's way out of left field and the judge just does not give you a roadmap from which you can make a decision at this point therefore we would ask you to remain and for recent saying thank you very much