if you made it to new orleans before the storm i was fortunate to be called back just in time your honor and please the court will my name is kevin page and i represent dominic lindsay your honor is  part of the same course of conduct as the instant offense within the meaning of the relevant conduct guideline because this court will not assume an intent to depart or vary from a court that does not say that it   in this case i submit is overwhelming each of the three offenses before this court the instant offense and the november and april incidents involve very strikingly similar they all involve five elements they involved a defendant who was transporting marijuana they involved very similar scale of the marijuana that was found in the car between two and four ounces in november five ounces just over five ounces in april the government describes that as between four ounces and five pounds and that is an accurate description of the state charging range but the facts in the piece are established that it was five ounces and about seven and a half ounces in the so we really have a very very similar scale of a marijuana offense the rd element of similarity here is that there is element there is evidence of small scale marijuana dealing in all three cases in this in the in the present have we have a plea to that that conduct and in the november in april offenses we have baggies and cash distribute packaging for sale and cash there was finally in each me there in each case it was in a car that the defendant was caught with the marijuana and in each case there was some evidence of intoxication or addiction namely that in in in all three there was the odor of marijuana and in to he was asleep behind the wheel of his car when he was caught so we have a very striking case for similarity and sentencing commission as to concurrent sentences without an indication in the record that the court intended to do so is the is is to be precisely how did how i would describe the error that the court is  empowered to disagree with the relevant conduct guideline the concurrent consecutive sentencing guideline just as it's empowered to disagree with any any guideline it chooses to vary based on the specific facts or critique of the of the guideline that that the historical facts are in dispute it and in the case we precisely what how much marijuana the defendant was caught with in each case what he had in the car the circumstances under which he was caught all of those are are completely undisputed in the only legal issue is how whether or not we should characterize that as the same course of conduct and i would submit that the court's opinion united states forces randall shows that although relevant just to just to finish up very briefly on that with the relevant conduct issue the three factors under course of conduct or similarity regularity and temporal proximity the only one that's even contested it seems to me i similarity and there is a strong at least a possible case there and there's temporal proximity in droves it's with all of this is within eight months of the of the instant offense and there's certainly regularity we have four repetitions of a similar offense  within eight months so that i submit this is not a close case as to whether or not this satisfies the course of conduct there are relevant conduct so what was the language of the district court's ruling out of that is the federal sentence concurrent to three offenses for that came from the july conduct like literally the exactly the same conduct because they were related and then it said consecutive to all others which it which it named so there really isn't any indication at all in the transcript that the court applied any standard to determine that was a different than the guidelines from  going to get it was is this an oversight or was it got to lie by the district court in the form of funding it i think is there is very good reason to think it was an oversight and there's very good reason to think that it's an oversight about trying to determine whether or not the the prior offenses are relevant conduct and to to recognize that the guidelines run concurrently when they are the reason that we're that i think that that's an oversight as number one there's nothing in the adopting the p s r two to adopt that finding number two you have to sort of the unusual case where it's not terribly unusual but it's not usually how we think about relevant conduct we usually think about relevant conduct is what boosie the offense level rather than what affects concurrent or consecutive sentencing so the positions of the party are a little bit inverted from the typical posture and so it might be easy to overlook the rd reason to think this might be an oversight is that the the relevant conduct guideline as respects anticipated sentences is of relatively recent vintage that there used to be no recommendation about that at all with respect to anticipated sentences and then after sets or the guidelines starts to address that so we might be just sort of stuck in old in old ways of of processing cases and then finally the guideline also used to say that you have to have an increase in the offense level based on the relevant conduct in order to be in order to get concurrent sentencing for that it no longer says there's reason to think that it might be an oversight the appropriate their proper response on plane errors to reverse excuse me is to make it in remand i would like if i could to address the the government's suggestion that the cat that case otherwise but we don't really know from those cases whether or not in those cases that the court is referring to historical facts whether all of the historical truth questions of fact in those cases are undisputed or whether or not it's saying that all issues that arise under the relevant conduct guideline are  never legal that those are always classed as as factual and the st case that really makes that dives into that distinction and questions whether that distinction i submit to you is randall which addresses is really the st to distinguish between the historical facts and sort of characterizations of the facts which are which are we entrust to the district court because they're closer to the to the situation they process more cases but but which are not truly factual cases because they do involve the application of the guidelines and and i would also submit to you it can't be it is it is very unlikely to be the law it wouldn't make a lot of sense to under the law to say that any error that arises under the relevant conduct guideline is factual in nature we can all think of errors that arise under the fact of the relevant conduct i learned that clearly for instance if a court thought that it was ok to add to the offense level on the basis of that it knew not to be criminal regret not to be criminal in that situation that would be a clear legal error there that would just be a misapprehension of the scope of the relevant conduct guideline in that circumstance and so in a situation that remain an ask the ask the court did it intend to make a relevant conduct finding did it make an implicit relevant conduct finding and would it be inclined to run the dissonances concurrently if it understood that these these incidents to arise from a relevant to arise from relevant conduct and then in that case you wouldn't have to you would have to address any of the thorny issues that are that arise about the scope of lopez and in some cases about inconsistent application of of lopez this court construe them narrowly in the in the context of plain error where there are so many other barriers to to reversal about objected to air it has to has to meet all of the other standards so we impose to the extent that we are not required to by precedent please the court christina williams for the government appellant asked this court to ignore the court's holding in lopez and disturb the district court's relevant conduct fact findings on plane air instead this court should affirm for the following three reasons st this court held in lopez and has reiterated over one hundred times since the questions of fact capable of resolution by the district court on proper objection can never constitute plain error lindsey raises the question of fact whether his prior state offenses are relevant conduct i e similar enough to his offense of conviction lots of dispute about do you just answer my question which is is there any factual dispute about what the relevant conduct was well th the factual dispute is inherently whether it is relevant conduct that's an intensely factual determination to look at two offenses and say are they similar enough  mistake the judge's ruling almost a legal matter he's had it before him and his rule and i would submit that this is not a legal error this is a factual question that had the objection been made in the district court facts could have been developed to learn more about these offenses we don't know if they were accomplices we don't know if there were victims all we know is some facts about these offenses we know they all involve marijuana but we know that two out of the four also had additional controlled substances and two out of the four had guns so they're not identical specifically while they are very similar there are differences and i guess i don't understand if we don't know what the  as to whether the prior offenses were relevant conduct was that was where the prior offenses so clearly and obviously meeting the test for relevant conduct both group of all offenses under section three d one  us that in april two thousand and seventeen he was found with between four ounces and five pounds and or stand that from later supplementation we know to be five ounces but we know that there was no gun and that it's in june two thousand millimeter pistol so we know those those aspects so i'd like to st address the parents contention that the record is silent as to whether the district court was aware of the guidelines as to concurrent versus consecutive or  whether it intentionally made that determination and the appellant in the district court filed a motion for concurrent sentences as to his july two thousand and seventeen offense of conviction he cited the relevant guideline and he asked for concurren sentences for that one offense he made no mention of the prior offenses so we know from the record that the district court was well aware of that provision of the guidelines and intentionally determined which prior offenses would run concurrent and which would run consecutive to the into state and it says and this court has held that where there are no express findings this court can look to the p s r in this sentencing transcript to discern the district court's intent and here we can look and see that the dish or court was aware of this guideline provision it intentionally determined whether it would have how it would apply it so there's no need to re man for that finding moreover the appellant focuses on the recent case randall from this court but there are key distinctions in randall which suggests that this is not the same case first randall was a case where the defendant was indicted on one count of child pornography essentially pseudo counts created by the p s r and the district court and the government never argued to this court that that was the factual determination but there was a footnote in lopez in sorry and randall  in the randall case or this case you know in this case the defendant made an argument in the district court that sentences stemming from the july th two thousand and seventeen incident should run concurrent  federal and state but there was no argument in the district court as to whether the prior fences should run consecutive or concurre concurrent to each other but there was no mention of the prior offenses in nov th seen april two thousand and seventeen and june two thousand and seventeen and that motion so he never asked the district court to classify those  so whether or not this court wants to get into the issue of whether lopez is a political even if plain air review applies here the district court simply did not commit plain error there are two reasons why  offenses are not group above conduct are my apologies are not relevant conduct under the guidelines st the guidelines require that the offenses be group of all conduct and section two d two  dollars drug possession is specifically excluded from the list a group of all offenses so that's the st reason that they cannot be relevant conduct in addition as we've discuss the district court did not clearly error in determining that these were not the same course of comma the same course of conduct or a  was the court just to clear up a little bit dig the question of what the defendant asked for there is a request in the record by the defendant for concurrent sentences as to the july charges and no mention of the other charges there is also an express disclaimer at the end of that that says any objection that i have not made is one that i have not thought of and i don't intend to waive any any objection that i haven't made here so that so the district will know if that works many of our cases would turn out very differently sure not in criminal cases your honor i don't i don't think so in criminal cases the the distinction is a firm one between waiver and and forfeiture and waiver is supposed to be a knowing intentional waiver of the defendant's rights and so when that when the the defense attorney then says i did not intending to waive any other argument and there's no concern there's no benefit to waiver of a right to a concurrent sentence in that case then i would submit to you that that's is clearly not intending to waive the argument that that is anything else should run concurrently there's no no value to that ms williams indicated to us that if we look at the at the p s r and the sentencing transcript together but particularly i think she said the p to determine what the what findings that the district court may have implicitly made but there are no findings at all about concurrent consecutive sentencing in this case but it is the guideline provision in the tell us that the that the district court was thinking about its application beyond the conduct that is literally within the instant often and is beyond the offense and often is but still considered relevant conduct i mean that that that that is a that  is a more unusual and not quite as an intuitive application of the guideline as as as just that the determination of whether five the one dollar b applies to conduct that are literally identical you seem to be trafficking marijuana and so that seems to be a reference to the pending cases the government certainly pressed the pending cases so i think they they were considered as part of what the appropriate sentence was under how we and in fact the parties could always add different facts to the record that would change the proper application of legal standards to the case and even if in a case of a clear legal error we might change the factual predicate so that there so that we would find that it's not error anymore so that determination i think has to the fact that the parties would always have an opportunity to add more facts to the record in order to avoid an error of an opportunity to the district judge to effectively correct there at a minimum it and i would submit that if you look at lopez i mean lopez is saying that you have to have  either a legal error or a manifest in justice that's that's the language from lopez to and now we've had two higher authority cases since then that cast doubt on the manifest injustice standard one that says it's not necessar which says it's not it's not even sufficient and so in that situation i think that there's also just a lot of doubt about whether or not wrote lopez accurately states the law here in this case and the appropriate to avoid that question