our fourth case for today is united states against jo sentencing issue first and then turn to the issue of law because to the sixty nine year old man who just recorded knowledge it was nonviolent and build the erroneous lee imposed one hundred month sentence resulted in at least a three fold increase in his sentence without it he turned out to be kind of a complicated issue in the briefing the first core concept is the concept of instant offense and under the guidelines and this court's cases instead of fenced means the conduct charged in the indictment nothing more nothing less here the government charged bruce jones they can be factored into the guidelines if it happens during the commission of the offense or in its preparatory stages or perhaps in its aftermath to avoid detection but these acts must be separate so as a result the conduct charge an indictment the indictment of facts cannot also constitute relevant conduct this separate relevant conduct orbits around the instant offense the indictment conduct and here's where the concept of timing comes in the commission believes that certain convictions those imposed more than fifteen time what do you mean little bit of additional time well the relevant kind of cast to be related to the instant of fads i mean it can be can go outside of it temporarily but it doesn't go back this court has never held that x are things that happen you might think of as continuing offenses as long as you're a felon and you have the firearm you're always in a state of committing that offense i don't know why the book back for relevant conduct is just a short one well because your honor the because it's defined the instant offense is defined by what the government chose to charge it didn't blink this night some length of possession is not something that the guidelines account for at all it's not in the guidelines number time he's arrested are you saying way back in one thousand nine hundred six or me when when was he not committing the nine twenty two g offense from the time he gets the gun well your honor i again would point to the government gauges i action and the possession itself stretches back you know maybe for some person was stretched back one year maybe for somebody else stretched back five years for him to have a lot of years that i disagree i really do think it needs to be tethered to what was charged in the indictment because what they did but the government never proved proved that you are not all they did was prove what he had when he was arrested and that was in that time frame so again it's tethered to what the government chooses to bring and what they  try to if they had gone back and charged him with possession back in one thousand nine hundred sixty and had gone through and tried to prove a continuous possession all through those years then perhaps we would be looking at something different but they can't charge a snippet in time and then suddenly basically add an automatic enhanced meant know for better or for worse the guidelines often through the relevant conduct provisions wind up recommending a much more stringent sentence than the charge crime would suggest yes but the guidelines don't account for the length of possession and to get back to you point judge hamilton there is a difference between ownership and possession and what those documents ace that he owns them he didn't control them necessarily they were spent many many years at his friend's house so although the government complete now they didn't prove that this was anything more than ownership as opposed to possession but what i will say your honour's yes there are things that the guidelines specifically count for like this not one of them now i will say that if the district court had chosen to account for this under thirty five fifty three a day it could have done it but this court has repeatedly acknowledged that the district must engage in a correct interpretation of the guidelines at the get go and then if it chooses to take that into account as the seriousness of his offense later under thirty five fifty three by all means go for it but it's subject to a different standard of review and not the presumption of correctness to a quick guide light sentence and this guy they said that the critical point you're making and you know course the government will address that as well is you don't think relevant conduct in the sense of same part of the same course of conduct can then something like a possession offense even if there's evidence such as the prenuptial agreement the judge hamilton referred to to indicate that the possession has been going on for some number of years and that if the relevant conduct can go back that far then and the one thousand nine hundred five felony drug conviction totally in opposite first of all it dealt with a double jeopardy challenge like can take you can't charge somebody twice with a continuous possession but notably in that case the two prosecutions were within the instant offense time they were in this corner of time they both happened in the same time it wasn't a situation where let's look decades back call bad some sort of continuous possession for decades it just seems fundamentally unfair out what your legal principle is to cut off relevant conduct for possession of fans i can understand a factual principle so there's going to come a time that the government can't prove that the possession was happening at that time and maybe in a lot of cases the government's ability to prove is going to be cut off much closer to the offense time this happen now the government wants to say well actually part of that for sentencing purposes course of conduct of the possession it goes back to x months years time so you don't think they could do it at all or if you do think they can do it how far  was this record showed any prejudice well he was prejudiced because she didn't have access to assets that he could have used to hire a lawyer and so he would have had a different lawyer point raise that with the district court or it i would point out one factual thing is that he was during the entire process that where this was happening in the middle of april right before of twenty thirteen of twenty fourteen he was basically operating without counsel during that time his retained foyers had moved to withdraw and he had been granted i  didn't you raise it well it was first of all because it was ex parte and secondly he didn't have somebody to raise it so he would have been necessarily raising it after the fact and my point is only this he would necessarily have been raising it after the fact that this is the kind of problem that is temporary and fixable right yes so why should we undo the whole case because of the temporary fixable problem never brought to the attention of this record because the intervening decision in the we changes the calculus somewhat so although do so what it says is the baby no pretrial restraint absent a showing by the government and that showing has to happen at the forefront so these intervening decisions are binding on this corridor to change the calculus and i'd like to just turn quickly to say that the way that the government used it fifty three here brings it squarely under the weak this is a routine application of louise now though it may seem strange to have to unwind it and go back that's what happens when there's an intervening supreme court decisions that impact it he's entitled to a new trial to consider the fact that his  untainted assets were strained and that's exactly what and here by relying on these and calling them in the alternative as substitute assets those are by their nature untainted assets that step in when there aren't enough tainted assets so this is just a routine application of luis they were strained pretrial his untainted assets and he should get a chance to at least go back and have the opportunity to proceed properly now the government are good that he wasn't indigent even after the restraint of the insurance policy  third he was in jail for over a year with no end he had no counseling license so he wasn't making money he had an intervening divorce they point to a two thousand sheep but he had gotten divorced in the meantime and finally the government had previously restrained restrained on his real estate with lease pendant please the court brian writes for the government i would like to start with the eighty three issue and then move back to the sentencing judge hamilton i think that is the linchpin in your question is the linchpin of this case jones had every opportunity to make that challenge under this court's procedures and moya gomez in fact he was invited to do so the government docket two zero one said that end that situation you can challenge the code post restrain you can challenge the district court on  in the life insurance policies and then just a few days later the district court i think some of that same day excuse me the district court granted the restraining order so this was before the health care trial about six months before the healthcare trial so he had every opportunity to make either of those showings and if he represented at that point i misread thought maybe not there might have been like a day or two but in then was appointed at most a couple of days later he was appointed in that april and that happened and that april district court this court should not unwind what happened because of jones's failure to do so and i would like to then turn to the point about whether he needed the assets to the p s i would point this quote to the p all the rest of that that was the p s r after the health care trial so i think it's dubious to claim that was out of date for something to happen before the health care trial the government restrained was the life insurance policies this is a doctor with property properties and homes in indiana and montana and florida the government only subtlest pendants on three of the properties and even still list pens aren't really restraints it just it just serves us to notice that right so there's no reason he couldn't have absolutely i get i think the p s a on page seventeen is the is the best representation of that and that's again the second p s r after the health care trial indicates that he had assets that he so he could not have shown to be honest i need which is i think possibly  been anything more than a bare bones showing that he did not have guns i think that would have fallen apart at any hearing which again i think it's a decent reason that the way gomez hearing wasn't requested the real further questions and that i would like to turn to the sentencing issue essentially jones or sentencing claim is that the term commencement of the offense cannot actually include the offense that is not the proper way to read that that is what the government had to prove at trial yes but for sentencing information came in that he possessed the guns and two thousand and one and nine hundred ninety six the got the district court and this is a factual finding that there's been no raising of clear error that he possessed possessed the guns and the ammunition which that would have been easily within fifteen years like the twelve thousand rounds they found on the right it was the answer judge to his question was forty seven guns and fourteen thousand rounds of to them over that fifteen year stretch there within the fifteen year stretch from one nine hundred eighty eight the government proved that by both the prenuptial agreement and the two thousand and one transfer agreement there is evidence that he used the home there was a shotgun a loaded shotgun found closet co mingle with men's clothing which would be a typical personal protection location in montana which by the way his wife had never been to so the whole defense was that the guns were his riper the as she was safe keeping him for him so he may have owned the but not possess them well she had never been to the montana cabin only he had been to the guns there almost invariably were his moreover she was a gun safe they were in a gun safe however by neighboring montana park ranger testified that he had a were better that was by the way not a black powder pistol she was cross examined on that point very closely she said absolutely not that is a modern pistol he said he was using that her personal protection moreover he had a shooting range at the montana cabin with the targets and their bullets behind it so he clearly had been using those for shooting at that point in time too so the commencement of the offense clearly started within the fifteen year time period record i think that's mainly because we did not have been the way to go mess however that is what we did believe and we thought if put to either adam or you gomez hearing or after the after forfeiture after the conviction we would have been able to prove that i think the easiest way to explain that here is that his entire yard was fraud essentially so he was making money by health care and basically everything he billed was fraudulent and so the money going into that was almost going to  seems not necessarily a consequence if he doesn't also have mixed in there are some legitimate appointments in which providing health care services for somebody i guess i should be clear i think will say when he saw a family of but the individuals a little tricky your honor because that is only supposed to be used for someone that essentially was suicidal but there were there would have been some again one example was a person that saw him five times with his bill two hundred thirty but a large large portion of it would have been and we think that if we would have been put to our burden we easily would have shown that part of the cost certainly there's nothing to point to in the record but that is directly because we never had the  it if jones had asked for it we would have been able to show that but i take you to want a different subject as well that would frankly the one that concerns me the most in this case which is the very difficult relationship between mr jones  which is i'm i'm not sure i've seen a record of more tension between council and client where no substitute was denied and i understand you to be or you're in the court was entitle to look at the whole history of the case and how many lawyers did mr dr jones go through what we now live so he had to that we had one pretty indictment one we negotiated his surrender with then he had three and the first trial and then he was on his sick so we can split it i know jones is trying to split it with the adversarial portion but we dealt with six and one was the six attorney we had dealt with you know and how many of those were court appointed him in was the first first  i think it was proper for the district court to view his obstinacy and what a factual finding that he was trying to delay to the trials all in context again this was one single indictment back to the main substitution of counsel argument it is certainly true that there was some animosity between the two but i think all that animosity around jones running in meant to do something strategically about the trial but inman did not think would work  i think this is very comparable to open to stopping tester and which one of the attorneys call it kafkaesque and this court said yes the tourney was exasperated because he had a difficult client and they didn't see eye to eye and that was certainly true here but when you get down to it it was who inman was going to call what questions it was going to ask those sorts of things that were that are inherently tactical and those are those are not the sort of communication breakdown that we would first convictions for those are the things that happened many many times between attorney and client and while this one may be there is slightly more animosity i don't think the line can be a little more animosity equals reversal it has to be a complete communication  breakdown and i would like to make one point of clarification before i sat down in retrospect the harmless error analysis for the right to testify should actually be the chapman constitutional standard that's on page twenty four of my brief we think we need that standard for the same the three quick points and with respect to the sentencing we're talking about timing here and the element of possession it's not the fact of his guns or the number of the type and forty one point one in forty one point two tether the fifteen year look back to the commencement of the instant offense that's what it says and this court's cases enter guidelines defining instant offense solely with respect to the time charged in the indictment so now the government is talking out of the other side of its mouth trying to recast wh of making a showing that these assets are tainted before they may be restrained so that argument was not available to him before and what's more the government has conceded that it made no showing that about that nature the policies or anything else so whether