of unfairly prejudicial testimony during mr bond most as a jury trial the court also has i ask us to be prepared to discuss the impact of united states versus a line on its decision here i had raised in my brief the issue of the unconstitutionality of the guidelines of the supreme court of course a sense agreed with that position dealing f it's slightly lighter in the same officers testimony he was again i asked did you check and see if the gun was stolen he threw out yes i did at which in order to salvage guns and some that was the testimony of one of the officer and that he added made it at that same time that he thought the gun was probably the actual question to are that the testimony of the officer went like officer did he tell you that the gun was stolen or did he indicate he knew the opposite or say that i asked him if the gun was stolen he said it could take as he and it could be likelihood believe that someone who steals a gun is more criminally culpable than a felon who has a gun not being aware of the sentencing differences so it was prejudicial this was a case  or another the jury did make the decision obviously based on their verdict that he possessed it but the problem here is did they reach that decision based upon unfairly  von lewis who was just very briefly found sleeping in a stairwell of the hotel there was a video surveillance tape but that tape only began after the officers already sort of had him up and then suddenly there's something in someone's high end one of the officers financed that then light or is determined to be a firearm which then lighter according to the evidence was found to be stolen honor and i've started this as plain arrow on the question of am a line if i may just briefly on that the this court has said in that opinion that in that case it was impossible vidya tarmon what the trial judge might have done had he known the guidelines were in constitutional and therefore the limited remind procedure which there are a lot of right to counsel which in fact is abridged by defendant being in custody mr john lewis happens to be in prison in california there is almost an impossible idea of having an affective communication with to present factors to the court but in mr von lewis's case we can i thank look at factors such as i yes the court would have done this differently had they known that the guidelines were in constitutional judgment had been was i asked that sentencing on the basis of a downward departure based upon mr von militias long history of alcoholism in responding to that said alcohol and drug dependence are not matters that should be considered on the basis of a consideration of the guidelines and a departure under five k two point  constitutional arrow if in fact the guidelines were mandatory which they are not so that would be certainly a factor for the court to consider in its reach sentencing and there would probably be sentence within the statutory maximum of what five years for ten years you have ten years so how does the fact of the possession of a stolen weapon anywhere from zero to ten and now the only question is what the sentence imposed reasonable but that that's correct that's why i didn't want to argue against the way my hand suggested the judge bybee but i do believe that that's no became relevant because it did it addresses or goes to his knowing position of the firearm and that's something that from the very outset of the trial was was hotly contested i would suggest  in the defendant's counsel's opening statement she told the jurors that mr von lewis's mental state at the time because of intoxication other matters would it was something that they were going to have to come to terms with in deciding whether or not he was even capable of knowing possession of firearms certainly his statements about  government was entitle to show the circumstances under which the weapon was found and that's essentially saying the same thing that they're entitled to tell the story of how they came upon this guy am i misreading the transcript  honor i was just looking for the exact instruction to paraphrase i believe he did say the defense is not charged with instruction was also supplemented in the closing in the jury instructions these are also employed that and that was not anything that was emphasizing the government's closing argument any other reference to that so the result would have been different but for this year that's not understood that's my understanding of  and finally let's any other questions about the evidentiary issue i've just very very briefly attempted to try to address the sentencing issue  not mandatory i think that is the court's holding may be a closed case i'm not prepared to say it's one of the rarest cases he does make them  he actually did not engage in any discussion with counsel he in fact just i'm pleased to aspirant they gave that instruction which was a modified for all for the there was of course no for a full should the court not reverse on the fall for bait the question for remained in this case because the record does show that judgment kevin would have done something different had he not been bound by