when i was reading the blakely case the thing that popped out at me first was going to his description of what an absurd result is and his words were that an absurd result would be where a judge instead of a sense a person for a murder when he was only convicted of possessing a firearm that was used to commit a murder and the thing that struck out at me obviously is because that's similar to what happened in the  cross reference to a federal statute that cross red cross referenced another statute that had the grid for how much in damages was caused in the pipeline so the base of fa possession possession charge was thirty seven to forty six months and i believe our briefs say that to the minimum especially seven to seventy one but after considering blakely and rereading all of the other the record in the brief i think the more appropriate is the base level offense of fourteen you've probably been thinking about this issue that we raised with the attorneys in the case before yours if you have anything to add on sleep problem go ahead and that's the problem that you know i don't have anything to add beyond what everybody else was has talked about and but i do think that that  same reasoning applies to the federal sentencing guidelines and because i don't see a substantive difference between the two sets of schemes where the jury is not finding these even though the statute says twenty years from one of the applicable statutes so is it another one forty seven months or something like that and that's a real maximum the judge just can't sentence for more than that without a particular finding fact but my impression of the guidelines is that they have more play in the joints that the numbers that they give before adjustments and departures are not so absolute and it's new to me as it is to you and thinking through that what i did was i have obviously gone to see if any circuit court has had any decisions on likely and they haven't i found for us district court decisions passing on the constitutionality of the federal guideline are unconstitutional you use the guidelines and use the well lol i think maybe it seems like what you do is just very well gosh the statute that is anywhere up to ten sentence was more than double our more than triple actually so it's quite an impact and he was just never charged with those crimes the u s attorney could have charged him with the federal statute but  of the first sentencing hearing and he clearly talks about the state sentencing statute however in the second sentencing hearing he just says i hereby adopt the guidelines well he didn't say that but if the box was checked and so it was a little confusing but there's one southern district of new york eastern district of new york west virginia and utah and now minding our game and i haven't seen that one y so are there any questions on the blakely issues before it gets made next i'd like to kind of back up obviously you talk about the trial  itself like i said before the only counts the only charge against mr lewis was that of being in possession of a firearm and what they did was basically put him on trial for shooting the pipeline yes but there also is other circumstantial evidence and other evidence that perhaps you know would have stood out more in the jury's mind had they just kind of gets me off the track but i'm going i guess now to the new trial issue have they heard randy's confession but it certainly would have undermined his credibility and they certainly would have taken a new look at this evidence other things said that they haven't jumped out too much in the briefs but the issue of the trial itself where there were only the two eye witnesses yet the prosecution put twenty four people on the stand fourteen of which were law enforcement officers and security personnel keep in mind they didn't see anything happened they never saw danny with the gun and they didn't see him throwing a gun the only person that saw him supposedly was randy yet they put these twenty four people on the stand to basically prove that danny shot the pipeline but that was not the charge that was extremely presidential for him to have photographs of the oil shooting out the t they just went too far in the evidence that they did present my time's up you i'm karen leffler assistant district attorney encouraged in the lewis case i was the trial attorney for the government on that if i can start i'd like to sort of go backwards and start with a new trial motion and just correct a couple of facts one is the picture of the hole that didn't have well in it was a picture of the hole in the vertical support member because i used to corroborate randy because he had said his brother had shot a hole about four and a half feet up and there was a picture it was the police actually found the hole in the vertical support member that wasn't the hole that the oil that come out of and that was also pictures to show that it went in about a half an inch which was the think most of the pipeline where the gun penetrated it  the law enforcement personnel that were called actually they were doing on security people and in addition to the point that judge kleinfeld made that the defendant had something that looked like a skull cut and blood on the gun that was danny's it was also a very key issue that where the rifle was found was north of a point that randi could have had it and so the law enforcement people are they doing a security people are all coming in to show that the area had been secured off and then randy couldn't put the gun there only dan he could have had it when it counts with the lack of fingerprints from the gun actually it's kind of i think the government had called a witness to testify that it's very common that there are no fingerprints i mean it's a very small percentage the judge actually excluded that witness's testimony so i can't point in the record the witness was actually called the record will show he was on the stand and the judge said he couldn't testify to that so if you're asking me the question i don't have the answer in the record other than the fact lots of times  fingerprints on matters that's a that's a pretty common thing and then the other thing is that for the new trial motion is that there was a confession from randy i think it's a misnomer to refer to it as randy's confession what we have what was before the hearing the other thing i want to point out which is relevant and sort of to do discussions is that they're actually in essence wasn't hearing because at the sentencing lisa was called to say that oh yeah you know randy finding beyond a reasonable doubt before the final sentence was imposed the defendant was convicted in state court of the very offense that was used for the cross reference in the federal case before the final sentencing oh so if we got to the likely if you hear there actually is a jury verdict a determination beyond a reasonable doubt by a three now there's a chronology here i'm sorry yes that's exactly what happened what happened is the judge wanted the defense wanted the state trial to finish before  judge sentence because the whole issue was going to be to cross reference everybody really and what happened is this a case kept getting continued again and again and finally judge that works and i'm not waiting any longer and he said i find randy credible and he was corroborated in every way and it's the practical matter of the state sentenced they're going to come out about the same i believe the state sentence was i think fifteen years with five suspended or no i think it ultimately was fifteen this is going back to my d n a days it's a long time ago but i think they get one third off a good time parole is eligible in the state but not when you're presumptive and he was serving a lot of presumptive time in state court because i think he and thirty prior convictions were various things in state court so it's a little hard sentences again i think that the arguments on blakely are really his heller put before you are the ones that should be argued the only other thing i would add is and that is in somewhat a response to judge where it was a question about thomas saying gee i'm not even sure i decided that right and it's never happened and i think every court this court and everybody universally has sent and going back to judge kleinfeld to that well maybe it will and maybe it won't but for now it's going well and that that was kind of my look what i was thinking when you would ask that question that that was the same projection everybody made off of i believe judge thomas and i had said at one point gee i think maybe i was like decided on in those stories wrong it was a five four decision but it's never been overruled and everybody said well then it's the law so that was the only other thing that i can really add that the court has any questions otherwise our ally in the br