here twice today i guess you're up first and let me tell you now i'll tell you once for both your cases but thank you for serving under the criminal justice act you know the court certainly appreciate that work that you do you and many others do thank you you can raise that lectern if you want there's somewhere there's a button quinn went to trial on a charge of theft of a firearm from a federally licensed firearm dealer at the time of trial the defense had requested a instruction setting out the elements of the offense one of the elements i think which is basic is that when one commits a theft a person has the intent to permanently deprive the property owner of that at the sensing of mr glenn before you leave that how do you distinguish van elf else and were we to steal i mean i'm paraphrasing but the word steal means depriving somebody of their property well that that case dealt with the misappropriation of some retirement funds and i believe that with us code eight hundred forty four and in that case the employer had taken the employer had taken some of his employees funds retirement funds that he was supposed to place into a retirement account and use that for his own personal purposes prior to trial he paid it back and so the issue at the trial was would that type of evidence come in and under that specific a specific statute that statute deal with not only stealing but converting the funds and so when one looks at that specific statute when dealing with employee retirement funds this court said that the intent to permanently deprive of those funds was not necessary in this case which we have actually the statute is defined as labeled as theft of there has to be a intent to permanently deprive the property owner and you your argument is that he didn't intend to permanently deprive the property owner of the weapon that the video shows that he matched and took away you know the defense at trial was that he was not the person identified in the video the hand wasn't he is that what you're saying well the fingerprints certainly weren't as that were found at the scene so that about his tattoos or something like that yeah the uming that was his arm how could it ever not be an intent to permanently deprive when whatever arm reached over and grabbed the gun and well that is an issue for the defense in this case the argument at trial wasn't the person that took the gun was simply borrowing it that's not what we argued the argument that the defense was that mr glenn wasn't the person that it was borrowing it yes and so you go the court then goes to well is that a structural error that requires a new trial where a critical element of the offense is not included or is it harmless i i think was some kind of tax case for fraud case and the supreme court in that case yes it should have been included but the defendant never argued that it wasn't material so we're going to use a harmless error judge scalia in his dissent stated well when you take away when you don't give the jury the opportunity to determine an element you're taking away the right to a jury trial and that's exactly what happened in this case a basic elements of the offense was taken away and it deprived mr grant of his right to a jury trial ok let's go to your sense either issues yes at sentencing there was a four level increase mr glenn was sentenced was convicted of a violation of nine twenty two you which is from a federally licensed dealer he was sentenced under nine twenty two g which is an unlawful user of drugs and possession of a f are many things wrong with that first of all he wasn't convicted of being an unlawful user and possession of farm secondly he was never charged with that offense had the government believed it had that evidence it would have brought that if third here's what the evidence was that he was an unlawful user at the time of his police interview he said to the police i'm not go i've been smoking and or i was smoking and chilling and hanging out with my girlfriend well what i understood judge read did look looks at the for sentencing by the time of sentencing he had an interview and in there it talked about using marijuana i can remember but on some sort of regular basis so whether time it came to sentencing she had the information that he was a user of marijuana or a fairly regular basis so why granted that wasn't what he was charged with it wasn't what he was tried with but by then she had that in the p s r so well that it would you know that interview was done pretrial services so that that was done to determine exclusively what has been conditions should or should not be ok but but it wasn't presented at trial it was not presented at trial that she had that information and she had it and she used it to increase its base of fans all by four levels it was information that was given to the pretrial through officer but how do you get around with you know the supreme court has told us that the sentencing judge can consider all the circumstances to consider  anything that potentially relevant to sentencing and we as an appellate court are supposed to stay out of it well there are restrictions on what sensing court can use and in this in my brief i said i couldn't find any directives from pretrial services information placed into a pretrial services report to use during recent person sentence but since then the government has shown to me what's called the guide to judiciary policy and i'm looking at volume eight the specific section that deals with pretrial service interviews and part one paragraph c regarding the objective of the confidentiality of crete trial services information it states quote disclosure of pretrial services information for purposes other than the determinant determination of pretrial release particularly for prosecution purposes would defer deter defendants from cooperating with pretrial services officers so in this case on the day he were arrested pretrial services goes to interview the defendant about his bond information no attorney is in jail no miranda how long have you been using and he said i haven't used it in five months by the way and it was once a week but then they take that information that is supposed to be confidential according to the judiciary policy and then they use it to increase the s do now when that in or of that officer goes to interview that defendant knowing that anything that he says is going to be used against him as it was in this case at times of sentencing it puts the defendant on it puts the defense lawyer in a difficult percent increase in mr gillon sentence when she made that statement when the district court made that statement that i would give the same sentence no matter what the circuit finds or if if the circuit finds that i was right or wrong there was no reasons given there was no reasons in support of that upward variance and the court this court has stated over and over and over again that if there is a variance particularly one that is significant there has to be significant reasons for that variance and in this case there wasn't those reasons given it was simply if i'm determined to be wrong at the circuit i would have given the same sentence under thirty five fifty three that's it and  start where mr she's left off he indicated that the judge indicated that her sentence would be seventy eight months and she gave no reason for that would submit that the record is inconsistent with what machines mr she's just indicated  sentencing the government put on evidence of some shootings that her occurred with on during august specifically a terrella taylor testified at sentencing the judge made findings with regard to that she indicated that her concerns were based on that so i think they are the findings necessarily right next to that indication that she was given the same sentence no but she does as part of her her statement of what sense she's going to give she took goes through an explanation that this defendant conduct is increasing that he's becoming more dangerous as she references in that he's a drug user evidence by the fact he's making these irrational decisions so she does lay that out i think  in the sixty's of the sending transcript where she can fully lays out why she thinks that sentence is appropriate why the alternative sentence is appropriate would know that that specific finding by the court wasn't raised in appellate issue in this particular case the defendant raised multiple sentencing issues but he doesn't actually challenge the reasonableness of that seventy eight month as an alternative sentence he objects to the findings as far as how court got to that calculation would note also back to the statement that mr sheets made with regard to the defendant being sentenced under the nine twenty two g section would disagree with that characterization to create two point one which is the sentencing guidelines for firearms sentences essentially says start at the top and work your way down pick the greatest apply the greatest so it starts with people who felonies if you don't have violent felonies you continue down you continue down the first action you get to that applies to this defendant is the user in possession the both the  are the guidelines section itself as well as the no the no the deals with that says yes one way that you can fall into this category is you're convicted of a one thousand and two g but it also reference just being a drug user in this case  court went through an analysis on whether or not that this defend it was a drug user now her primary reliance was on the defendant's statements where he said to an officer after being arrested i'm not going to lie to you what i do with my time is  hang out my lady and i smoke so that reference of smoking we know is something more than just cigarette smoking and the officer testified to that judge possibly found that he was talking about more than cigarettes that he was talking about to she had the opportunity to listen to the recording of that interview as well as speaking to the officer so based on that we are then in i believe it's a six is the user in possession  not addressed but then the stolen firearm then comes into play that's an appellate issue raised here and because of the way the guideline reads that section applies that makes is a rational way to send someone because we're looking at all the different factors so for this defendant we're looking at factors with regard to him we have that he is a user so that gets him at a certain category in this case fourteen the fact that the stolen firearm makes it worse so he gets the two level bump up because of that you would know that he also received a four level bump for being in connection with another felony offense would know that if the s firearm increase and the user in possession were not used we would still be at a level eighteen because the way the guidelines are read if you don't if you aren't to an eighteen if it's in connection with another felony we'd still be there but again sentence still comes back to the court said based on all the factors i believe that a seven month sentence is appropriate and we would ask you to affirm that the court also gave the defendant an alcohol condition we believe this was appropriate when looking at the eighth circuit case law there have been multiple cases that kind of look back and forth that some different time while we had the admissions of the defendant during a pretrial service interview where he indicated that he was smoking weekly there were also several other factors that made that alcohol condition appropriate the defendant himself as part s r indicates that he thinks that he needs treatment because he has a desired he needs to stop the desire to use marijuana when on the streets that's paragraph seventy six so he himself has basically said i'm a drug user that needs help the court also had information and cited to most of this in her decision making with regard to this condition that the defend had a recent conviction for crack cocaine in two thousand and fifteen that the admissions that had been made to officer bosun bird that this defendant had two convictions for marijuana that these were in two thousand and two but i think this supports the finding that when the defendant says i'm not going to lie to you i smoke he's actually talking here about marijuana evidence by his prior convictions defendant indicated that he had used alcohol and while still under age and therefore illegal  and that he used it until he was buzz multiple times the admissions with regard to his weekly marijuana use he indicates again in the p s r when asked about marijuana i have used marijuana but i'm not going to answer any further questions on advice of my counsel there's also indications of at least an occurrence of xanax abuse at the court makes the finding that and states that in order to be completely clean and sober you can't be using alcohol that if if you don't have the option for outhaul then we are instead in a circumstance where you may substitute she doesn't use the term cross addiction but would know that the p s r specifically a paragraph ninety five does use the language of cross addiction i think that the defendant's long term use continued use of events by his arrests and his statements put this defend it more consistent with the defendant in the ford case mr tolle over mr caliber talked about daily use i think that's more consistent with his the defendant description of those numbers with his use mr caliber also had multiple arrests for weed and coke similar to mr glenn and the court indicated in that that it was concerned about this use of substance now turning to the jury instruction issue we know that defense makes it sound like his case would have been significantly different or he would have been acquitted with this  a store he goes to the counter he reaches into the counter he grabs a firearm he's then seen running out of the store i think the video itself would have indicated that this was not a case where  the potential return or the permit the intent probably deprived was any question as we watch to defend it in be in such a hurry to leave the store that he actually leaps over a railing and begins to run  away based on those facts we believe and the van elson case we believe it's appropriate that this instruction was not given there was no error at all if there was an error that  it was a harmless error based on the circumstances and facts in this case and we believe that the court's sentencing was appropriate that this defendant was indeed a user in possession that she was only appropriate information that based on comment eight it was appropriate that the stolen firearm exception or no exception enhanced was included in any event that the alternative guide sentence was appropriate and parts one is no alcohol and the second is you can't even go to a bar or an establishment that sells alcohol so like last november when i went to watch the i want to ask a football game when i was pounded and i went to the store that's not helping your i didn't go there to drink i went there to watch the game with my friends and in fact i didn't drink so there's two parts to this condition that are are very bur this defendant was a young man so based upon this statement to the police where he says i smoke i don't know if that's that puts it up to that level of course if it had been somebody like you who with an iron will you couldn't drown couldn't you while you're watching your feet in football game well there's a lot of people that do go out and hang out with friends and don't and if they have an order not to drink you have to assume that they'll fall into like my wife but but your example not quite what we have here that somebody who had drunk and used marijuana or you're saying that that probably isn't the case and i can't remember the his drinking history i don't think it's a beer i know there's no  said related to addictions or cross addictions and so forth and we do use our general knowledge of that kind of stuff for you we have to keep it interesting i don't i don't have any specific knowledge of cross addiction issues all i know in this case the judge said in some way that she was concerned about cross addiction he she said he used marijuana and and so that was part of the limitation on the alcohol when that was the court's analysis yes yes ok ok thank you thank you for your arguments except for the nebraska iowa