matter however our main argument that not only the tension was the legal but you know amounted to in a warrantless arrest without probable cause you have a situation  on the facts in support of the terry stuff which you know and she found as a matter of fact that there was reasonable suspicion that your client had been involved in an armed bank robbery when he was approached by the garden grove officer robert the record this not support her factual finding that we would have to find that her determination was clearly erroneous in order to provide mr newsome relief when we know that's correct and in this case you have a plate that's quite beyond whatever the witness wasn't sure whether he was definitely involved in it and a bank robbery or not she suspected in my state is a guy running out of the bank with with the dye coming out of his back hopped in a car gets the license plate the cops go to the registered location where the car is insured of the car pulls up i mean right however it's two three hours after the robbery and the facts of the case are that the police officers or waiting at the address which was the registered address for that's correct back to the place right converged to throw our police going to the registered address expecting that at some point the car that they're looking for may return to that a reasonable expectation and that's why they were there in the first place however they converged to the car five officers with drawn gaunts without having ascertained who the driver might have been bank robbery are they not counsel i mean don't you think the officers have the right to take reasonable precautions for their own safety in approaching a suspect vehicle that may have been the getaway car in an armed robbery right however it's two three hours after the fact was  and that doesn't mean they're not going to get shot by whoever is driving the car if it turns out to be the driver of the getaway car then right but the reasonableness is this that they should have waited until the ascertain the driver description of the driver to match th then at that time they didn't know who the driver was they couldn't make out the description or the appearance of the driver they've ordered the person out now if you don't want to station an opinion that the police officers don't have the right to protect themselves they're investigating a crime of violence you do not look like a bunch of idiots if we wrote an opinion that said that right however we have a situation where the driver the suspect was described as being a white caucasian male we have a driver who was black in this case what was in there something in the factual findings about the fact that your client actually could look i guess he was fairly light skinned and it was only when the witness saw him in the shade a sign on the side that said i'm a bank robber i just robbed the very that's you it was missing from nations that the police officers had at that time was simply that this car might have been involved in a robbery and had t license plate number only and of go down general with regard to coming out the back after we know that there was a red dye package in the robbery money and your honor those facts were not known to these officers at the time can make the suspect mouth the words that the that the robber used to the teller you can have the guy turned sideways if that's how the witness saw him you can make him don a hatter a cap if that's how the or what exactly was wrong with this when the officer gave the witness the usual admonition about it's just as important to vindicate the innocent as to apprehend the guilty and that sort of thing and what was wrong with that other than what was wrong with the which i presume even on a sunny day would be under a sheet it conditional if you think inside a vehicle well we don't know we don't know whether it would have been a shade or not and it's a totally line that needs to be drawn as far as what can be done and during the feel identification however that's not the main issue the main issue is whether there was a proper detention of the defendant and another issue whether the detention amounted to an arrest given the fact that the officers had known at the time they approached the suspect or defendant if they have reasonable suspicion that's the issue of the all to clarify a few things this jackson to testify is in the record that one of the reasons she pulled up next to the car immediately upon seeing the bank robber exit the bank enter the getaway car the red dye pack coming out the window she immediately recognized in thought it's a bank robber that's why she followed the car pulled up next to it was on the same level as the car looked ill a car for approximately five seconds to get a good look at the defendant moreover it's also on the record persisting insisting that she go on with respect to that issue the record is clear there was no prompting by the officers even on cross examination it certainly came out of the suppression hearing and at trial with respect jackson that there was no prompting by the officers are you sure can't you maybe we can move them somewhere else is there something else we could do she immediately upon showing up at the scene for the infield show up stated that she wasn't was it was definite in fact she stated oh my god it's him upon seeing him in the position that she had seen him initially during during the getaway chase one of the interesting aspect  accurate obviously being able to view the defendant in court for over the officers when they viewed the defendant upon immediately arriving at the scene were unable to tell whether he was white or black at the time and there is statements in the that the arrest occurred would have been at the time that the suspicion was finally resolved completely which was at the time of the infield show up where ms jackson came to the scene and identified the defendant indeed as the one that she described that the officers that h the description over the dispatch radio and identified the car now you're are mentioning interesting issues that might arise as to when the arrest might have been while that's the government's position as to when  fairly certainly with respect to supposing that the arrest were deemed to have taken place after the defendant matching the description of substantially matching the description to get away driver arrives at the location for the get away car in the getaway car states versus oregon out of the ninth circuit in that situation there was a general description of the getaway driver of the court form closely to the suspect who ended up having money in his pockets the court found there was probable cause to arrest the robber in that situation but stated that the fact that they didn't arrest at that time and instead waited for the infield show up to identify him they should be in fact be commended for that caution but it doesn't affect any kind of an whether there was sufficient probable cause earlier before they officially engaged in a full blown arrest go police it's very similar here that in fact the arrest occurred after the infield show off but that if the court were to deem that it occurred earlier that certainly there was probable cause to support it based upon the items that were found i do want to turn very quickly if i may to the remaining issue which i think is also somewhat interesting and not really laid out by the briefs which is the certainly but just the error of whether the guidelines are advisory in light of the fact that booker excised those portions and created those guidelines to be effectively advisory acknowledging that there's no six the memory problem what do we do with the you guys are reading taking into account of course the guy life factors including level twenty seven and a bump up for the career offender the government's position with respect to that is similar to its position in our bunker view which is that it's incumbent upon the defendant the defendant or the appellant to demonstrate somehow that the result would have been different in order for it to qualify slane error under the law no here it's in the record of the government although recommending the low end to judge  several findings about whether there were mitigating factors or aggravating factors she found she that there are few if any mitigating factors she said aggravating factors she listed several different things in her sentencing ruling indicating that she felt that was the fanfan and so on is the proceed or that the court should follow and i'm wondering what the government's position is with regard to whether or not it is necessary in a case like this to actually vacate the sent or whether it would be perhaps appropriate to simply remain and the question to just stop lawyer and simply ask her first you know would your sentence have been any different  had you know that the guidelines were merely advisory and not mandatory that the concern i have is that we now have thousands of inmates who are incarcerated all over the country and if we start vacating sentences willy nilly we're going to have to transport everybody back to your come out of prison programs that they've taken months or maybe years to qualify for and and then the the ultimate result may be no difference if you ask the sentencing judge just you know how you would handle it in this case is this one of those cases to respond to drifts over my concern where we might want to do that and i certainly don't want to take a position contrary to what the government's position is on the on bhangra view titian which may or may not be grant especially in a situation like this where it's a very isolated few items either three minutes ask the question have finding him advisory would you send him the same yes or no or other that would be preferable alternatively something along the i would have to listen to what's being said and also check the car visually to make sure there is no one else inside the car this was one of the officers testifying at the suppression hearing as far as when he thought the arrest had taken place and that was when the police officer if you spray in any way they might say i never had him under arrest what difference does it make to question a law that we determine from the facts correct that's correct your honor but at same time he should be taken into consideration as far as what they were attempting to do  second issue is to respect the sentencing our position is that mr nuisance sixth amendment rights were violated because the judge made a factual determination that he was a career offender older second is that the current offense has to be either a crime of violence or are a controlled substance case and in this situation that determination what was made by the judge and there was no to make a factual finding that harm bank robbery is a crime of violence right in this case is not talking about the prior conviction is talking talking about the current offense so what but the issue is the same the question is how you characterize the nature of the affair and it seems to me that's a pure question of law that's not a factual issue well it is i mean you have to look at what the offense was what yuri found that he a armed bank robbery what positional facts does the sentencing judge need to know in order to characterize the crime of violence well however there is a sentencing guideline that explains what constitutes a crime of violence but it's no different from the elements zero two five zero two eight ny those cases are submitted only three six he said to be argued is zero three five five five nine six r p t inverses all state insurance each cycle have ten minutes