corrected my name is dennis hart i appear today for the third time on behalf of mr miller before this court this time it's for his we sentencing that occurred about a year ago with the court's permission i'd like to address one issue first and that is a waiver the waiver we're concerned about is the government's lead argument about not being able to argue in front of this court the quantity decisions the role in the offense and the weapons and hansen i wish to address it first because the government response has some attraction to it and i needed to spell that out of course mind as quickly and as cleanly as i can their response is that it was not raised in the first or second appeals and therefore was conceded and cannot be raised in the spirit of people i believe that it traction is a false attraction for the following reasons when the first rule of appeal lawyers school it is go with your best issue that's the golden rule that's the primary rule that's what's drummed in you in appeal or your school now i don't always follow that rule and i mean it's a hard ball to follow but i still recognize that as best practices and sometimes i break it but most times i trying to follow it but i do recognize that it is best practices go with your best in many cases this was never a problem with mr miller scares because the arguments about quote quantity of drugs and role in the offense and the weapons and hansen were never issues in the first appeal they were never issues of the second applying to the c c e conviction well the c c e conviction if it had been held by the judge i would agree with that but it was not it was a jury verdict it was finding by the jury i don't see how i could attack other than by some extraordinary amount of insufficiency but it was a jury verdict not a judge finding it was a mandatory life sentence the trial ordered an attack at sentencing i could not attack that appeal this court would have laughed at me for trying to do that i try to avoid the co said that he was making a reasonable force it's the ability finding and and determining the amount of drugs attributable to mr miller he listed various arguments and then he said quote after listening to the testimony at trial and the evidence presented at trial lamberth listed occurred ten years ago and i don't know many how many trials he heard in between but i think it's unreasonable to assume that he would call the ten year old trial well actually two trials that lasted three and four months each ten years later and could specifically point to facts that support of that conclusion but more importantly we need an opportunity to respond we can't tell the judge no you're wrong if we don't have anything to respond to that blanket conclusion does not allow us to explore the issue it must be particularized and we've listed the cases that this court has required for that particular ization that blanket statement is not sufficient if i can return to the waiver i would suggest that if the court adopts the government's theory that these issues were waived because they were raised in the first and second appeal it invites the appellant's in the future to engage in in briefs that are no more than one hundred bullet points i can see that some judges might like that that's an argument we but i don't think that's the way to resolve the issue and i say that because it would require repellents to engage in diagrams of alternatives and assign responsibilities to those improbabilities an impossible task for most opponents i would suggest picking a complex case like this one thing the record in this case does not demonstrate but which is found in the record the issues involved who would edit the briefs and who would make the decision what issues to go forth and not fact they came to this court and filed motions that we had to litigate i mention that because words are valuable they cannot be wasted on alternative or possible issues and they have i think we've heard argument on that on the four for to question but on the merits of that that drug quantity question what more by explanation or by findings do you think is required i mean we have  findings by the district judge as to mr miller's leadership role in the conspiracy and has written opinion from two thousand and seven and it's true that a lot of time passed the prism of the district judge also has access to the records of the  proceedings did he have to go through and out of the drug amounts what's your what's your case on what more a district judge is required to do on the drug quantity question he has to give more than that blanket he was the right hand man he's believe that this court has approved many times cases in which they've taken suppliers two or three kilograms a week things like that generalized statements that were testimony at trial that we could address and added those up over the life of what eighteen months conspiracy that's sufficient but that was nowhere near what judge lamberth did in the present case we have to have the ability to say no judge you're wrong because we cannot say that when the judge says i listen to the  is full time job appears to be managing this drug conspiracy and this quantity of drugs is assuming that we will against him on the first point about the quantity the quantity of  conspiracy what what further nexus is required and on facts like this well a great deal of of nexus is required the drugs must be found in proximity to the weapons involved in the enhancement there must be a clear connection between the firearms and the drugs found there were no drugs found in the residence from which the drugs from which the guns were recovered or drug paraphernalia i mean we've had we've had cases where it wasn't drugs but they were scales and glass and bags or that kind of thing and it is your position that there is no such facts here there is a container which had the order of p c p why isn't  we don't know how close they were we don't know what quantity the container was it's for three personal use that's not involved in drug distribution and i would add that mr miller was charged with p c p distribution on a number of counts and was acquitted on all of them so there is a variation there that the guns found must have some relevance to the offense for which he was convicted there must be some nexus and there must be some physical proximity we don't know where the guns were found we don't know where the drugs were found if they were at the guns for instance were in the safe locked up that's certainly not proximity to facilitate the drug transaction and the but the final point i'd like to make is as i stand here today i do not know what weapons he was enhanced for i saw you make that argument you're brief but i think it's relatively clear ejects lamberth referred to the drug to the weapon at colony the guns other people used that mr miller was associated with or the guns at county road i think of that it's only colony road the government still failed its nexus for for that enhanced i mean we have very little but he does say the but that was never make or princes by the government and their brave but it doesn't hurt us because we still have the failure to to provide the nexus between the guns recovered and the your fence for which he was convicted that is drug calculation that he challenges now and that's because he didn't challenge those aspects of his guidelines calculation at the time that it was initially calculated and on direct appeal save for the fact that he did in fact object to the two point fire two point firearm and handsome and at the time the original p s r was completed in drafted which i think undercuts appellants argument today that it would have been futile for him to have made it is important to hear one of the poems arguments that he made both in his brief and today is the how how do we know that the district court had a specific recollection of the facts that supported these various guideline not relevant isn't the point that the the first appeal gave relief which then you know peels away part of the case and renders relevant and material to the sentence factors that really weren't they were in and as george williams put it they were they were very contingent yes theoretically if you're playing a chess game with the sentence you can think well several moves down the road but that's pretty demanding standard and i'm not sure what it really serves i appreciate the passage of time problem but you know that's why we have transcripts and that's why we have you find people present and at that i recognize the difficulties that the court has pointed out i think the government maintains its way of argument especially given that the guidelines calculations did drive the relevant sensing framework for the rico conspiracy count which appellant was sentenced on at that initial sensing in cell appellant would have had the incentive to make sure that the guidelines calculations were based on facts that he agreed with but regardless in this case even if the arguments are not waived or waived then right i drew real argument is that he waved it through not asserting it in that initial appeal correct and i think i used the reference to raising the two point firearms and has meant soley to you as i think it serves in the government as evidence as you undercut the argument that how it makes it it would have been pointless for him to raise any challenges to the guidelines calculations when he was being sentenced for the mandatory life c c cap that was an enhancement that was relevant to that whereas here we're talking about quantities that only become relevant given the jury verdicts on the rico count when that comes to the fore right so it's a little bit of a different posture from the conspiracy count make it but when i was like let me ask you on the quantity is it not support for mr miller's position that we have the court of appeals in the first appeal saying there's not enough evidence to support defendant's control over and is there's some quantity of drugs associated with mr ingram that would therefore a fact mr miller's responsibility for relationship with england so these drugs that related to ingram appellant would still be held accountable for those drugs when it comes to determining drug quantity because all that's him i think that i don't know if it was if there was specific evidence that every single piece of narcotics that dealt with in traffic was actually purchased from or came virus seller relationship with miller but i think that the evidence both at the district court found that miller was at the top of this conspiracy that he was the co leader of it and as this court in its opinion after the direct appeal found that miller and island were involved in the entirety of this conspiracy that would support a foreseeability finding which is what the district court found  as it relates to applying the drug quantity and i have the same question for you that i asked mr hart which is if we thought that george lambert really did intend to give a three point has meant for goal in has held in cases that sufficient to find that the entire quantity of drugs attributable to the coconspirators is foreseeable to you and here it certainly would be but i also take issue with i don't believe that the records supports the conclusion that the district court intended to find that appellant was only a manager or supervisor just one more note to more perhaps than the drug quantity to the extent that  you know had concerns that specific portions of the drugs that were part of the evidence of this conspiracy were not attributable to him appellant did not advance that argument that specific argument before the district court never asked the district court to make more specific findings trying to carve out you know certain drugs for engram and in fact now suggests in his brief i think it's footnote four if i'm not incorrect the bulk of the this conspiracy which again just further supports the district court had a basis grounded in the evidence at trial here as it stated when it found that based on the testimony at trial and the evidence presented at trial the nexus articulated by the by the district court i think it's pretty clear that the gun he's talking about is not one of the guns that was that the evidence showed people were running around with it was the gun that he had at home and so what's what's the government's position on why that enhancement pi's so here they are going to physicians is that the district court found that mr miller the quote is was in fact in possession of a firearm during this drug conspiracy based on the evidence that the court heard and saw appellant never requested further more specific findings from the district court as to the basis of the district court's belief that there was the nexus the connection the relevan any review would be for plain error now and appellant cannot demonstrate that the district court plainly erred given the ample evidence in the record that the gun was recovered from appellants home in june two thousand and four which was during acetone an agent that is often used to cut her dilute p c p tools of the drug trade which puts this again both in time and in proximity to conduct that is relevant to the drug and  conspiracy here and you see that as an argument that could have george lambert articulated could support the gun bomb the question is is that what he was thinking i mean arguably i guess i'm just asking you does it so i don't think here where appellant didn't of jeff engine request those for their findings he acted to the gun he objected initially to the application of the gun bump the court addressed the application found that it was going to apply the gun that mr miller was in fact in possession of a gun during the conspiracy appellant never made the argument initially that you know well there's not enough of a nexus between that gun and the  conspiracy and didn't ask the district court can you elaborate on your basis please provide findings for this and under this course the government since that subjects this claim now to review for plain error so is that required you know this comes up a lot where somebody makes an objection the judge addresses it and i think government lawyers have different views on this are you supposed to them is the defendant supposed to then say well you know you've addressed it i'm not satisfied and i don't think a lot of district judges actually act that there's going to be further critique of what they're being reserved for to you the extent that the challenge on appeal is that the district court failed  there's this requirement you've made an objection the court has dealt with it and then you don't like the way the court has dealt with it that in order to preserve their for appeal you have to reemphasize reject apologize i will  i think that when you say on page twenty nine of our brief mack for the proposition that when a defendant fails to object to the adequacy of the district court's findings review is for a plain error and i'm happy if you find addi cases to support that proposition if the court would like but again here there was the district court made findings and there was certainly ample evidence in this record especially given this court's recognition and the evidence at trial that supports the link between drugs and guns there was evidence at trial that numerous other of the coconspirators had guns and carried guns in connection with a drug activity here ballantrae and that's sort of is rolled into judge lamberth common possess guns museum but then that sort of falling together a lot of things that he doesn't there were other guns but given the reference to colony in the in the gun seeds economy it seems pretty clear to that gun even to the colony outguns i think it was three that it is relevant and the fact that other coconspirators are arming themselves with guns during the course of this conspiracy supports that that is that the gun that miller possessed in his home was possessed during conduct relevant to the narcotics conspiracy here he's at the top of this conspiracy you know has its trafficking in twenty thousand dollars of drugs i think the evidence was a week at times there is a well recognized link in this court's case of between drugs and guns it's played out at the evidence at trial here the gun is found during the life of the conspiracy is four hundred through failure to raise in the course of the appeal right or wrong those arguments stand or fall without any reference to law the case  completely i hear you and i think it's kind of a shrewd waited to cloud except i'd rather go back to the reality that there was some gain for the defendant in raising those issues earlier he would have court first i would make you have the observation that mr miller c c e sentence was not a guideline sentence it was a statutory mandatory minimum there's nothing to challenge in the guidelines that would change that if i were to come for this court in the second peal which involve the second trial and say that the jury verdict that's jury special finding of of so many thirty fifteen kilograms should be vacated i would have a hard time coming up with a reason for that based on the evidence and the standards by this court for insufficiency that would prevent this court from not making fun of me i raises an important point for instance we asked for specificity the government says well in the public's briefly mention mr ames mr ames did testify a trial that that amount was involved if the district court had said to me i would lie on mr ames than i would have had the opportunity to examine the strange testimony and tell the district court that he had no idea of the quantity and he was only telling that to the jury in court because that was part of his plea agreement because the government had told him the amount of drugs involved and he had to agree to it to take the plea that's what i would have told the district court if it said i rely on mr james that doesn't go in the  that only requires the district court to make one reference to a witness and we would have responded in that way we were denied that we have to court some cases back mr hart you were appointed by the court to represent mr miller  in this case and the court thanks you for your variable assistance in the matter