this number thirteen five seven one four united states are you know national association of criminal offense or lawyer says the amicus oral argument of fifteen minutes to be shared by the appellant and they make us not to exceed fifteen minutes for the good morning may please the court my name is chris warner from china tennessee and i'll be arguing on behalf of mr young along with professor doug berman and with the court's permission what we've elected to do is to split the reserve five minutes for rebuttal and then with the first ten minutes split it evenly five and five so that all have five minutes and then mr b or professor berman will have the second very well oh your honors i'll be addressing the the fifth amendment due process issues and professor berman will be addressing the eighth amendment cruel and unusual punishment issues and to begin i think that maybe the easiest way to do this is to just simply move into what seem to be the central areas of dispute the stablished by the briefing and the first time that i'd like to address  issue of whether or not nine twenty two g one is a strict liability statute and to an extent well to begin the term strict liability commentators will tell you is kind of a nebulous question but i'm not sure that it really matters that much what's important i believe for the court consideration when it comes to evaluating the strict liability aspect of nine twenty two g one  but the real issue is this because we're talking about a notice issue most first of all statutes that don't have a specific  intent moral couple culpability element or generally disfavor and also the the great majority of statutes do in fact have that kind of kind of a standard the significance of that for the purposes of the notice analysis under the fifth amendment is that often you don't really have a question of notice when that is actually an element that the government has to prove to establish a criminal violation this is one of those more rare situations where you don't have that you don't have that to fall back on and so then with regard to the notice issue and whether or not there's a mistake of law that analysis becomes a lot more meaningful now the supreme court in one nine hundred fifty two  the knowledge argument help me understand your argument is that the moral culpability defined knowing them and knowing what the possession is in violation of the wall and not the cases that you knew you had it yes your honor and in fact a lot of times that's how the court tends to bypass the entire analysis is you knew you were breaking the law you can't seriously say to us that you didn't know that because you know you had a firearm and that's considered to be public in general public knowledge that a felon is not allowed to possess a firearm or you were doing something else with it such as the more chase where unlike in a two thousand and eleven case from the circuit where  a man was beating his girlfriend while holding the firearm you know he couldn't really be heard to complain that he didn't know he was breaking the law that's exactly it and so i guess it is to have that this is a conditional guilty plea no your honor it's an unconditional guilty plea yes sure why wouldn't this issue be consumed in his unconditional guilty plea so that it doesn't go to the jurisdiction of the court it's an as applied challenge your honor and so we're saying that because given the circumstances here that he did that that this is not the standard that should be applied to him just knowing that he had shock and shells lambert versus california in one nine hundred fifty seven u s supreme court case and basically they said ok under these circumstances there are two things that you have to show you have to show that the defendant didn't know what actually did not know what the law actual notice and that's that that's a challenge here and the second issue is whether or not there's any proof of probability of knowledge which is fair notice and i'm sorry honestly the amount of time would you want me to finish the reason why i would ok and here with regard to the fairness issue what we have done and you'll see this in the briefing is discussed all the ways in which ammunition is treated differently from firearms in the but even more specifically shotgun shells because and you'll see that the government is unable to cite you to a single case talking about it that it's generally held knowledge that felons are not allowed to possess even ition and there are several reasons for this one is that the next it had to do with the terms of supervised release when the court entered its judgment against mr young and both in writing and orally mr young was told that he was not allowed to possess firearms destructive devices or other weapons of any kind guess what a shotgun shell under federal law is not not any of those three things and this just basically goes back to the entire issue of whether it's general knowledge in the way that it is for firearms that felons are not allowed to possess a munition generally or more specifically and here in this is an as apply challenge shotgun shells in particular and ammunition is considered intrinsically innocent  unlike for example hand grenades even farms are considered intrinsically innocent but the general knowledge that felons are not allowed to possess firearms sort of trumps that  are singled out as sort of a subset and so felons are held to that level of knowledge are the questions all right and you'll still have your rebuttal time as well mr good morning good morning may it please the court and thank you for the court's permission to argue on behalf of the n a c d l professor douglas berman representing the a t l it is often said that no good deed goes unpunished but of course the constitution says that quite unusual punishments shall not be inflicted and it is the n a c deals position that under the circumstances of this case again remembering his counsel has already highlighted that this is an as applied challenge the government's response to the eighth amendment argument seem to be based in the misapprehension that this is some kind of facial challenge that there is an assertion that this statute can't be applied constitutionally that's not at all what's going on here this is exactly the kind of rare and extraordinary case that the supreme court's durst prudent has consistently articulated in fact the reason the any c d o was eager to intervene in this setting is because these facts are so extreme is because the circumstances are so extraordinary is because this is the kind of rare case that candidly if the eighth amendment doesn't provide some check on the application of a mandatory fifteen year non punishment under federal law for the mere passive possession and i want to suggest that highlight the distinction that could be made by this court to further buttress the claim that the eighth amendment is violated as applied this is not a case of felon walking into a store buying reams of ammunition perhaps planning subsequently to go buy a gun if the acquisition of the ammunition had been done in a manner that suggested an additional intent to arm this would be a very different case but that is not as i understand it the circumstances into which mr young came into possession of this ammunition and the supreme court has itself highlighted this is actually in graham where the court was explaining the difference between  categorical challenge that it was applying and has recently with respect to juvenile life offenses life without parole sentences and the more as applied challenge that comes up more commonly for adult offenders  is the exact language from the court you should consider quote all of the circumstances of the case to determine whether the sentence is unconstitutional excessive and again that's partly what drove the n a c d l to want to get involved in this manner the circumstances of this case are so extraordinary and i mentioned it in the n a c beals brief this really does remind me of some of the scenes i'm reading now in my teenager's dystopian novels the idea that helping out a neighbor in that context coming into possession of shotgun shells inadvertently then realizing that you had those shotgun shells but not being aware as mr manners itself highlighted that that obviously was a criminal activity and then not as i presume the government would assert in order to avoid a fifteen year sentence the defendant would have had to dispossess himself of those shotgun shells immediately in fact one of the many things that i'm uncertain about in the government's defense of this prosecution in this sentence is whether they think the moment he became aware that the shotgun shells were in his possession at that moment he was subject to a mandatory fifteen year sentence even if he were to go at that point and try to dispose of the shells he still has come into knowing possession and so the application of the statute under these unique same circumstances strikes me as not only obviously rare extreme extraordinary using all the terms the supreme court has used to emphasize that there is still a basis for an eighth amendment challenge to a term of your sentence but that if constructed statutorily this way and if applied without a constitutional  limit it is almost inconceivable to me count quite honestly in a nation that abraham lincoln himself described as conceived in liberty this simple act by this fellow would lead to a mandatory year sentence one that it seems from my reading of the record the judge below had hoped he would not be required to impose but only through the work of this court applying the eighth amendment i think very consistent with established constitutional president distinguish you in that i think are very important one is obviously in that case we're dealing with the supreme court reviewing a state legislative judgment where i think there's every reason to believe additional deference is built into the eighth amendment inquiry in that setting in fact the supreme court has emphasized that point in harmaline in other cases that a big part of why it's only the most extreme cases where the eighth amendment ought to limit what can be done is because deference to state judgments and legislative judgments are important there was a clear legislative judgment by california to essentially bring the hammer down on repeated felons who hadn't learned the error of their ways this is not that kind of case in the sense that the intentionality the lack of moral culpability play here is different in kind not just that we're talking about a federal statute that i think there's good reason to believe ought not sensibly be thought to be reflecting a legislative judgment that this is the kind of person who should be subject to this fifteen year mandatory sentence but also that again this is not the intentionality behind again i would imagine if you it was a case where a person had accidentally shoplifting but technically violated the statute be a different kind of story i would also emphasize just asking about the best case and i see my time is up but let me just quickly highlight this point that the language of solo the one case where the supreme court has held unconstitutional as grossly disproportionate a term of your sentence  court emphasized the relevant factors this was a not exhausted lift but a all i think in your to the benefit of the defendant in this claim they stressed the harm caused or threatened to the victim or society i have a hard time even identifying the harm caused or even threatened when we're talking about shotgun shells as opposed to a firearm they could obviously even if unloaded be used to threaten somebody i've never seen anybody trying to threaten another either a particular victim or society by holding some shotgun shells the culpability of the offender was the other factor that the so in court emphasized again and we've gone over the point that this is a setting let's talk about the under professor berman  government in their brief emphasizes that mr young has four aggravated burglary convictions three burglaries by that offense and two  assaults that's his criminal record and i don't think you dispute that i don't dispute that what a when when was he last released from supervised custody or prison when you say his last conviction was twenty years ago but when was he last freed supervision from the department of corrections my understanding and again i don't have that counsel on that point but i would highlight that my understanding is none of those prior convictions under the sentencing guidelines would have counted to drive up his criminal history score and so one of the points that i'm trying to emphasize is that my question i understand that in his house is that in dispute or not i don't think that's in dispute i would highlight the point this goes to and we're looking at the offender with quite a criminal record with stolen property with a history of aggravated felonies ok so we've got that and the congress they've made the judgment that it's not only possession of firearms but possession of ammunition by felons that's punishable and i guess the reason is you can't do one without the other that firearm without ammunition is not lethal but of ammunition without a firearm that isn't either you got to put the two together so the prohibiting both and they punished the same way but that's their call isn't well it's a couple points on a razor i say i'm out of time but if i'm eager to answer your question in case in full detail and i agree completely that is a very important case one point to make is i believe and this is not particularly well established in the supreme court durst prudence in part because to my knowledge it's extraordinarily rare that the only strong justification for an extreme sentence like this is uncharged unconvicted conduct now we're used to that in the context of the federal sentencing guidelines where we have this notion of relevant conduct and we not only think it's appropriate to consider it as part of guideline calculations but i would submit this would be a very different case had this not been a mandatorily required fifteen year minimum but instead the sentencing judge having been given discretion by congress among a range were to say well one of the reasons i'm in this case punishing this  sentence so severely this this defendant so severely is because it's not just that he has this ammunition i'm also considering as relevant conduct another big debate over whether it's qualifiable but then your standard of review would be reasonable miss and it might be reasonable i'm not suggesting it is but it might be reasonable for the judge to have made that judgment what's interesting and i think is important to keep in mind for application of the eighth amendment challenge we make here is that congress has set a ten year maximum for this offense absent these distant prior triggers and again all of those are the circumstances of the case that make this particular application of a fifteen year mandatory minimum to mr young i think as applied i submit on behalf and he said yeah had those prior convictions been last week last month last year it's a different case had even the government charged these other o he was in the midst of being prosecuted under state law and there was an ongoing additional conviction that was going on but all we have on this record and candidly as a matter of constitutional jurisprudence i think it would be quite dangerous to say fundamentally yes more dangerous and more culpable for choosing to violate the law after having already gotten in trouble and served time although this is where the more culpability in the fair notice issue not only informs the fifth amendment claim being made here but as well has to inform the eighth amendment claim again this is what i think distinguishes you and there's no doubt that mr ewing mr lockley or in the in the companion counties or on broadway in the companion case knew full well they had a long criminal record among other things do full well th california had both by initiative and by legislation said if you're a repeat offender who keeps going back to criminal activity we're going to throw the book at you and again i want to be clear if tennessee had prosecuted mr young for these other alleged crimes if the federal government had prosecuted mr young as for these other alleged crimes this is a different case but they're here asserting and i just want to end with this point and it's a point that troubles me they're here asserting not only did congress intend to bring the hammer down this way and i wonder about that to the extent the eighth amendment is about deference to the legislature as you suggest a judge group agree that it qualifies as an armed criminal i don't think that's in dispute well i candidly it's my own belief that he's not really armed he's possessing shotgun shells he technically fits within the statute by the statute correct i've settled under the definition in the statute he qualified i agree completely your honor and that's why we are here making this constitutional claim because it's my supposition on behalf of the n a c d l that that can't be the end of the eighth amendment analysis because if it's simply enough to say congress wanted to be especially harsh on certain kinds of offenders and then to couple that with the conclusion that this person technically fits within the terms of a statute case over for constitutional purposes i don't believe that the framers view of what that was there in fact again this is the other point i want to make to distinguish ewing to distinguish from other cases where the supreme court has shown deference to legislatures from a framers originalist perspective of course the thought wasn't that this clause would apply to limit what state governments did the understanding by the framers for the eighth amendment was to provide a limit on what congress could do in an effort to punish citizens through the kind of oppressive mechanisms that of course the colonialists  and were concerned about you see this even in the declaration of independence the concern of making up technical offenses and sending out officers in an effort to prosecute i think the language of thomas jefferson wrote to eat out their substance if we allow this kind of punishment in this kind of application of this statute to be immune from constitutional scrutiny it would be tantamount to saying congress can do whatever it wants and then i want to emphasize this point there is a wonderful scholarship cited in our brief that highlights to the extent th always a challenge what the framers would have wanted work just judges like you looking to state patterns state guide as to what is cruel and unusual in the fact that not only could i not find a single state that would even consider applying a decade to mandatory punishment here there's only a handful of states that would even make this act criminal and in all of those cases indisputably a judge would have discretion to consider all the circumstances of the case and again that's the other thing that i want to highlight if there was a record here that the judge had looked at the individual circumstances of this case and was permitted to make a judgment that this was a proportional punishment i'm not saying that it would necessarily pass all scrutiny i am saying that that's different in kind than what we have is an application of an extreme congressional statute that doesn't reflect the very proportionality norms that are built into how the supreme court interpret let us handle it when you see what happened and then dismiss the burglaries but he was originally arrested by thursday by the local police who were investigating three burglaries he did confess to those burglaries and admitted using his juvenile son on to this burglaries state quite frankly asked us to take it over the local police and we've got another string of burglary from someone who actually has a say in his b s or has nineteen felony convictions and while he was faced with these charges in the state they wanted to make sure that he got a mandatory and we agreed based on the circumstances of the case like i said and the person you're telling us might win one thousand film he's the last time he was in jail at least for some time was actually two thousand  door so he was given probation for a year then eleven months and twenty one days you're talking about from two thousand fifty to two thousand and eleven but we know and he he admitted it that he's committed three more sets of burglaries which include thousand other charges as well so he's got all i understand that argument but when you've got one thousand felons when you've just gone on a string of think zach same type of behavior that got you in trouble before and now you're bringing your minor son into it i do think this is the type of person that congress to a certain degree judge up pointed out the new the new activity i pointed out that that he used his son and quite frankly i probably shouldn't and i know we're going to end up here i should've let him put in the declaration and should have full blown hearing and cross examine the defendant about his supposedly innocent possession of the of the of the emission because that's not what he said when he was arrested he said those are my shows at simpson he puts in the declaration and i let him do it so that's the record quite frankly i was confident the judge call your was going to do what he didn't say the law is that is a fifteen year mandatory minimum and that's basically what he said i made those organs he did not he did not address the more the other he said this is the law listed that information is listed in the p s or but it was not used to conduct or conduct unrelated to defense it was just it was org you'd know it's in there in the charges it's in there in our responses and or his confessions to these court and then i did respond in writing and put that in my argument and i did argue it and it was it's never been contested i mean it is a fact and i believe in looking at the plea agreement looking at the city transcript in guilty plea i mean the general rule is all non jurisdictional effects are consumed in a guilty plea and less you conditionally plead you can't contest the conviction on the basis or once you've made the unconditional plea and i don't see the due process maybe they try to dovetail into the fifteen year minimum but it seems to me it goes more to the conviction it does to me as well  trial now i understand that the case and he understands i know that the case always you only have to know that you possessed it and so there's the argument there but it but it seems to me the organ is a step further than that that they're trying to make their admit that he did he didn't technically it there's no doubt that he possess a firearm and it seems to me if you don't know your end but he knowingly possess a firearm in his conviction was affirmed seems to me if you don't know you're a felon you know that that is a somewhat from me too i didn't know i could have it well i did you know i was whatever it was i was on the verge i didn't know the end of the judgment whatever if that doesn't matter you know this ignorance of the law is no defense comes into play here with regard to ammunition i do think it's reasonable to someone with felonies to think that they're they're going to be restricted obviously the courts have said with regard to firearms it makes sense that they're going to look at the government are going to look at you more closely you should know this would be restricted i don't think it's unreasonable to say the same thing about prohibit that conduct and i think that most all of the cases indicate that we should give deference to congress and i disagree with me because i think we should do difference to federal law just as much as we do to state legislators decisions on how to that there is an additional why when you're looking at a state case because you have a different software i mean would you not concede that that's a fair argument that when we are reviewing the court decision that we have to consider the fact that yes the state courts right to determine its own laws and prosecution when we are here looking at constitutionally here on the federal tells the defendant you cannot have a me now so i know that that is now whether or not that happened nine hundred ninety two were i can't say that but there but that's that's important and i think you know the deterrence factor is important clear and i think their argument is everyone knows a felon can't can't carry a weapon everybody knows that the criminal understory in the general world but the question evidence about the different out your citizenship publicly you cannot have a gun under not twenty i mean there are there are other there are nine subsets obviously of nine twenty three g of people who can't just firearms or ammunition filling it up in possession of far maybe the most certainly is the from michigan from i hear cases but maybe apples to oranges but to me it was instructive that there was a case where someone killed somebody in michigan in a federal park i think is about two hundred feet in or some some relatively small distance into the park and he argued that he ought to be able to argue there was mitigation because michigan did not have the death penalty this court said that that was not mitigation that was not relevant and mitigation because it's a different sovereign and sure you have the same stake but you're going to want to feed into this park and it's different compared to the harshness of the penalty what our jurisdiction does what other jurisdictions do so all we were instructed to look at and i believe their arguments regarding other jurisdictions arise in that the federal sentencing is less hours in the state it's usually much more that's that's one one of my first reaction when i got on this court was wow look at these guidelines and i got all guidelines i mean we're going to put all these people really that's been the policy of congress is to have harsher penalties and maybe it's because they don't have to balance the budget that they can keep writing checks and they don't have to worry about well the state legislatures they run out of money and they've got to figure out how many people can we incarcerate here and before too long there are state guidelines start going the other way but i think that's great you know that comes absolutely and we don't take every bullet but or shotgun shell cases that comes our way under project safe neighborhoods part of justice are our task is to work with our state and local partners in i mean we we like to do that and when there's someone who was a serious problem to the state and local authority we discussed which best form to handle it and that's exactly what happened in this case you've got murder investigation because there's a string of burglaries they found this and they about as i said if you have i got a call from somebody who thirty years ago had three berkeley convictions and they catch him with a bullet we're probably not here but if you've got nineteen felonies and you're still doing it and you're using your son and the local say because of shootings in schools and movie theaters turning down more on firearms and ammunition not less is making it harder to get ahold of these things it would be my take that's my take on it but we have not had a new direction out of all the direction and all the cases and all the submitted legislation i know about or with regard to mandatory minimums and drug cases you know if anything i think guns involving a minister going the other way well if we accept that he came by them honestly both because he was helping out  neighbor and also because he didn't know that he was under a disability do you see a problem with his see you still know he is on a crime spree at the time he's done it before he's been on crime spree before and that's what you have to look at all the circumstances if he if his argument is i didn't do anything wrong then you should have pled guilty ok but then should we should maybe he be sentenced for those other crimes if that's what if your argument depends upon him having done these other things going to i'm sorry for the pun but i guess i'm going to perceive a little bit of a shotgun taking sort of a shotgun approach here to begin you know one of the issues here is that the mandatory minimums preclude consideration of the individual it's the prosecution a little bit trying to have it both ways not having the consideration of any of the underlying facts and circumstances with the imposition of one hundred eighty month mandatory minimum but at same time oh look at all these other things over here which are un charged which are have to do for the constitutional now i mean statutorily he is he qualifies for the for the minimum sutton's and under the statute that's what he gets i mean the argument here is ok that's what the statute says but  statute violates the eighth amendment and congress can't do everything they want they might want to be very harsh on every criminal but the eighth amendment actually applies to congress and it was it was an act of two to apply to congress and it has some teeth and this is this is the situation as applied to mr young that violates the eighth amendment and this is what the directors of the bill of rights intended here but what he was convicted of your honor was the possession the knowing possession of the shotgun shells and i'd like to read and in a few minutes hopefully i can return to the point that you were asking about whether or not that was subsumed within the guilty plea i'm going to try to get back to that point but to discuss what you just raised right this moment the shotgun shells let's be very very clear about this shotgun shells were not stolen the shotgun shells were not used in the commission of any crime the shotgun shells had nothing to do with why his home was searched the shotgun shells were completely irrelevant and isolated from every other circumstance that existed in this case if if the federal government wants to take over these prosecutions and discuss this crime spree then they can go ahead and prosecute those crimes but they did not in this case they prosecuted him for the possession of seven shotgun shells which it is uncontested he came into possession of un and innocently and his possession of them was passive there's absolutely no doubt about that in the record it is uncontested and you know so and then suddenly discussing the sun moon and stars you know in terms of you know these other charges that were dismissed it doesn't hold water and you know that that creates a real problem and you know another way in which the another prism through which you can view that is his criminal history kind of category is one and his sentencing guideline range in the absence of your career criminal act would have been ten to sixteen months he's already exceeded sixteen months in prison right now and you know that is where you know you look at ok so what is this violation really and that's what the tend to sixteen months tells you and in terms of all the other a c c cases that are out there and i'm very aware that this court said in two thousand and eleven on i think two separate occasions that there's never been a successful constitutional challenge cia but i don't know that there's ever been that kind of a sentencing disparity because you're looking at a situation where i believe that if he had been given sixteen months which i think you can tell from the comments from the court below he would not have been given it would have been on the lower end but that's what i've been times what he received was a leaven times the maximum that he would have received since a guideline range and if it had been the minimum which i think is far more likely it would have been ten months and that's eighteen times his sentence is eighteen times what he likely would have received and if you look there that one of the one of the elements of the crime mr gonzales his failure to renew his annual sex offender registration was that he had to know he had to know that he was supposed to do it in the record it's unchallenged that mr young did not know when he put guilty so that that's out of the picture isn't it no your honor and i think he i mean that element of the fence right and no your honor no no shotgun shells your honor that's true or he discovered that he had them actually is probably the better way to put it after he had actually taken possession of them and i'm guilty of the crime yes your honor guilty plea agreement yes sure but what did he get mixi just a two level reduction or are of what the sentencing guideline range would have been he went from a fourteen to a twelve it's not really waived appeal of one issue i'm sorry he's saying that there was an agreement where he explicitly waive the appeal of that issue i think that  for i mean i mean we're letting it go kind of loose here but i think it's only fair to get you appreciate that again i want to emphasize the point the point in response to the government council has highlighted certainly there is a basis and it would be nice if we had a record where the government felt some kind of compunction to go into the district court and make the case that mr young deserves such a severe sentence for being an arm career criminal but that's where mandatory minimum dimension of this combined with the eighth amendment claim fundamentally as i see it because of the broad technical reach of what congress passed i'm not candidly sure this is what congress intended but looking at the text of the statute in this response you don't griff i don't think there's any dispute that mr young's conduct falls within the strict terms of the younger criminal act mandatory minimum fifteen years but it seems as though what the government says and to this court is claiming creates no constitutional problem is to use that technical statute in order to over punish what it thinks the defendant has done or has admitted to or claims to be involved in and again to the extent that and i heard it  from oral argument here it's not twenty years ago crimes that they were lying on and of course that was an even well developed those of course are the predicates that makes mr young technically fall within the statute but nothing the government claims he admitted to now none of the conduct that they think is why it was appropriate in their discretion to bring the course the the case over to federal court was ever proven by any standard that any court would ever accept because that broad reach of this statute to get a broad reach that i'm not sure is congress's intent but is in the exact language gave them the ability not just to prosecute him for a crime not just to convict him of a crime not just to punish him for the crime but to mandate excluding anything else that could be said by either party that fifteen years has to be given for the offense and that's what the defense is possessing seven shotgun shells having been convicted twenty years ago of these predicate offenses and to me if the eighth amendment means anything if there is a limit that judges are to enforce rather than just prosecutors this extreme case is the one in which the framers intent to put a limit on how broad congress as the legislative branch could define crimes and punishment and to put a limit on the executive branch to their use of those crimes and punishment is in play i will submit and this is why the n a c o got involved it's really a question of whether there are three branches that play a role in judging punishment or if at the end of the day the eighth amendment has no role to play and instead it's just whatever congress decides ought to cover statute and it's only in the hands of judicial prosecutorial discretion even if this is and i think by any objective measure i've talked to a lot of people about this case exactly what happened in there they say something else must be going on that can't be how the statute works and i get there actually  applied here makes those considerations irrelevant at sentencing  the eighth amendment we were looking behind it which we don't normally do are you saying that for eighth amendment purposes we cannot look to his recent activity we can't look to the fact that he confessed to doing these other burglaries one word that we can look to them but they don't matter i would say two things i certainly and drawing on the supreme court's discussion of all the circumstances of the case do you think you must go beyond the technical terms of the statutory offense in doing the comparative way but i think when there hasn't been a record made below to justify that that comparative weighing would call for the gravity of the offense and here particularly i want to emphasize the point that there no nexus at all between the offense that's being used as the basis for the fifteen year sentence and everything else is being alleged we could be in a case comparable he's not good to his pet and i've got some good evidence and this is why i decided to prosecute this case as the prosecutor on the eighth amendment challenge is it is it your burden or the prosecutor's burden to to to prove an eighth amendment violation but my sense is the facts to support the eighth amendment claim is the defendant's burden if they're saying that this but if you say that the trial court doesn't have an adequate evidentiary record on the eighth amendment i would say that that's probably mr young's fault and  prosecutor's fault the eighth amendment challenge was raised by the government opposed if there is factual disputes that are going to be resolved i would think that mr young should have pressed of the district court's work was not a statement of well if you provided more mitigating evidence i would have granted the claim here and in fact what i don't really wanting to have to prop you have to have an offer of proof that your honor as applied to this violates the eighth amendment well ok i think it violates it anyway well consider the following evidence that we would present that's what offer proof it is a proffer my understanding is the offer of proof in mitigation was put forward at the district court concerning how we came into possession of this material there was also if i recall correctly evidence submitted or at least in the record concerning the neighbor that he was helping indicating that that's how he came into possession of these shells and there's no evidence again the evidence that was put forward that i don't do think forcefully makes the eighth amendment claim was that this wasn't either stolen material war that there was an intent to then go get a gun again i want to suggest if there was any allegation that the very harm that the army career criminal act is there to address which is somebody with a history of criminality arming themselves to therefore become an even more dangerous criminal right and again that's why i think it's important to keep in mind that number of nonviolent offenses such as mr young's can be predicate because i think congress is making a legitimate judgment hey even if you've done a bunch of nonviolent crimes and then you go get a gun and are planning to heighten your criminal activity you're now going to not just do burglary you're going to do armed burglary you're not just going to go after a bank you're going to come in with a gun and try to threaten people in conjunction with that it's an armed career criminal act that clearly shows in its very title that what congress  concern is is somebody with a long criminal history that triggers this getting access to a gun and it makes sense to me that if someone goes and buys ammunition they're going to go to them first and then they're going to go buy a gun that we have a different case but that's not this case and that's the evidence that was presented to the district court what the government's now trying to do is saying well we didn't really we knew we were going to roll the district court right because this report said take it up with my bosses essentially take it up with the sixth circuit we don't even have to put in the record that there was a strong