rafe issue i think that's that's a cleaner issue here starting with well there was contested it was not contested and there was there was no reason for the defense to contest it because it wasn't an element at the time of trial at the time of trial all the government needed to prove was that  was a felon not that he knew he was a felon when this conduct occurred and so with respect to what was this contest it was contrary evidence presented by the defense it was not but that's simply because it wasn't at issue in the trial now with respect to the strength of the evidence they stipulated that a trial that he was a convicted felon but you know there are situations where people are convicted of crimes they don't know exactly what what they're convicted of they don't know if it was a felony at the time or was later reduced to a felony now this was a  guns he was not he had no license and one inference is that he was acting this way because he knew he was a felon he could not do this but there's other references that the jury could have drawn for instance he didn't have a license or he was not personally receiving the guns  did not want to be traced to where the guns in that up these were going to be sold and who knows who ended who would end up with them and so there's other explanations for why his conduct may have been as it was maybe didn't have the funds to to front the money to get the guns that's why he was more of a middle inference is that he was acting this way and behaving this way during the transaction because he knew he was a felon and he couldn't do certain things but there's other inferences that a jury could draw and the problem we have here is the jury was never instructed that it had to find this  so we're left with just looking basically looking through the records and trying to infer as to what the jury might have found or might not have found the tide it ok sets the burden on the defendant to establish prejudice in this it can be drawn from the way he behaved during these transactions i think and just as no direct evidence showing that he knew he was a felon at that time i think that last statement how could he not have known given the fact that he was there at the time he was word used by this court and of course you have a chance the district courts have a chance a new to look at everything with the one less count well it's not like there's one less gun though it's just like there's one less conviction that there would i guess what would you concede that he can get to two hundred months absolutely everything that's last absolutely dance you know having been a four former trial judge a lot of times trial judges there's a little bit of a holistic approach to sentencing what you think what someone did and how you get there so i think what the government's arguing is the judge did heard all the evidence at trial knew ever is there so it's not a situation that that there's going to be that even though he can't be convicted of that writes really impressed by this conduct by the gun sales including in front of this man children so you know what i'm going to keep your dangerous person i want you off the street that yes ultimately what he's really decided but it was a close call because he started off with a lower since it was like he came out for the hearing and said you know states i'll start with that figure there i agree that ordinarily in a case where a count is vacated that it's appropriate to send it back to the judge to we sentence in light of the vacant europe account it's really the facts in this transcript here though that aligns with the evans martinez case where this court said there are some circumstances where remained is not necessarily appropriate and this is one where the transcript if you march through that is what is it was between about appropriate inappropriate i might do and i would agree that it's not something that's forbidden or prohibited but involved is case this is this is for me this is the question in this case and you're talking about you know i think conceding that ordinarily it wouldn't do this so what's your best shot that we should hear it's really the transcript itself the court at the beginning and this is forty five dollars starts with a tentative four he says i came out here thinking i was going to impose a twenty year sentence or two hundred and forty month sentence but in light of the sort of and the equities that have been presented i'm going to go along with what the government has recommended which is one hundred and eighteen month term and as the court is about to announce one hundred and eighty months he stops himself and says that's actually not appropriate i can't go down to one eighty months just because of how unconscionable and appalling the conduct in this case is and as a result the court imposed a global two hundred month term at that point he had not even apportioned the sentence among the five separate counts of conviction he just knew under the three thousand five hundred and fifty three a factors that given the number of firearms involved in this offense given the children involved in this offense given the sort of talk about what those firearms would be used in order to harm law enforcement he was going to do sixteen months on count one which is the statutory maximum followed by two hundred months concurrent on counts two through five it wasn't until the prosecutor alerted the court to the fact that the statutory maximum is one hundred and twenty months that he then started to divvy it from our typical rule which is i think everybody agrees is to send it back for recent things so and even martinez itself says that it's a discretionary determination not to send it back when the transcript itself reflects that there is no reason to expect the district court would impose a lower sentence on remand no reason to expect that this report would oppose ok thank you and i think in this case given the facts in the transcript that that issue as well as the fact that the court was alerted to the lurking issues involving counts three and four that this is one of those unique outlier cases where there is no reason to expect that the district court if you want it back i think i mean i know you can't retaliate for someone for appealing but by the same token i'm just wondering you know the argument that the court really you know could say i've been thinking about this since you've been gone i really wasn't feeling good about my two hundred m i doubt the district court in this case would impose anything more than two hundred research in wouldn't urge it unless under pepper there was evidence that the defendant had engaged in some serious misconduct while he's been in custody up to this point right now i have no reason to believe that is the case so i think it really it's fits within the bounds of evidence which is that there is no reason to expect that the district court would impose a lower sentence because as your honor recognized the same number of firearms that are at issue the same aggravating conduct is still here it's just that counts three and four should have merged and we should have urged that to the court before the just before the sentencing had happened we're now in a circumstance where we've had time for reflection and agree that counts three and four should merge but ultimately at the end of the day i don't setting up to qualify or asking to see these experts to call upon their their experience which struck me as proper or certainly unusual and i put it that way so i knew what was going on there correct i think all of the facts that were it would ordinarily bill big elicited in a direct examination of the witness of that kind anyway with a fact witness you're going to go through the background of an individual in the training that the individual received before they engaged in a law enforcement activity again i think would have come out in the background i agree there are parts of the transcript where we could have been better about ensuring that we were not tethering that experience to the particular interpretation that was provided and the jury could have been left with exactly that impression so i really appreciate that you look at that it struck me as unfortunate because i think the jury could have been left exactly with that impression the reason i think you win on these is so for the touchdown for example he testified as fact witnesses that it they literally observed so i think overheard the to agree upon that using that code right and then there's other places where there's a definition for money translation and that of the other evidence shows very clearly using counting money so that in context it could have been no question that the jury would have understood so i went through each one of them i have no problem with it but i just want to give you that feedback that it struck me since you do have a few minutes left it struck me as unfortunate  t their background and experience of those witnesses was used in the way it was in the sequence in which it was used and i appreciate that you are and i and i would note i think it's really three separate sort of interpretations that wasn't working throughout all of the indictment also requires reversal in this case essentially the rule is that if something is if an element is necessary to convict is necessary to be put in the indictment and so it's our position and i'm not going to go beyond this but it's our position that not only is reversal required because it wasn't found by the jury but it also should have been indicted by the grand jury as well if the court has no further questions also it here thank you b