that they prescribe different punishments and because they describe different punishments he's entitled to i guess the benefit of the more lenient on this woman should get five years instead of the seven years the bailey opinion talks about that the word use and it's a term of art in its it addresses whether the weapon is actively employed during it in relation to the offense and the question that that the fi s and the question that's difficult least for me to answer is how do you actively employ a weapon without spoiling it during in relation to the bank robbery that the government in its briefing posits some suggestions at the end of this  suggesting that the robber could walk into the bank and leave his gun in the car and then have a car or the weapon available for him when he makes his getaway i think it is important for the courts remember that nine twenty four c is has two prongs one is  or carriage door in relation the second prong is possession in further south and i would argue that on those facts just leaving the weapon in the car you perhaps have possession of further south but you do not have used during in relation during in relation may come into play if something happens afterwards but just on those facts no usable i there are probably ways you could seal that in you know a treasure code or something like that but certainly in this case it was plainly visible in the terminator it was fielding a few of those things i have to tell you i don't see the terminator movies i was thinking of the michael moore film bowling for columbine where you went to the bank in north dakota and you for opening an account they gave you a very well i don't want to say i have a little proud case but i remember in the first brandishing it you're you're using it in our dilemma as i just don't it's difficult for me to posit a situation where you use a weapon and actively employed as that term is defined in br they didn't want to punish the conduct that you're talking about but what transforms it from possession to use is mentioning it displaying it waving it around and i think that in those kinds of it one was present when you did when you shot the lock off the door i guess it wouldn't be grandest if there wasn't a third person there but you would be using it for the robber yes how would you get back i mean and i suppose that's true i suppose you could have  express maximum i think by case law there are certainly some course that recognizes the lies and the and the progressive penalties are stated as minimums but when you combine that with the guidelines to two k two point four where the maximum that's what i meant to say and i think the court would be hard pressed and certainly the experience of the district of alaska it would be hard pressed to find cases where the census went beyond the mandatory minimums and so they are practical ma it's the maximum you know without additional judicial fact finding and here if you especially apply to k two point four you don't go beyond the minimum unless you do an up or departure and so that's why i used the term practical maximum  the two definitions overlap completely and that you cannot use a weapon in the course of bank robbery without also brandishing and i believe most of the court has some additional questions that the example that pointed it at her but he certainly was carrying it in any event what you would look to your honor is the statutory definition of brandishing while some might argue that you have to wave it around and and you know actually actually in practice likely to shoot someone in order to brandish the statutory definition and one twenty four c four is to display all or part of the firearm or otherwise make the presence of the firearm does involve use obviously but you can also use a firearm for instance in the get a white car that can be there at the handy in case he was pursued he could be carrying has his weapon in his pocket admitted to amount legally to the definition of brandishing under those circumstances i don't believe there is a likely book or terrorists left to the extent there it was clearly controls and i and there the sentence imposed on him was reasonable and it was within the guidelines and it was imposed under under circumstances that i don't think th court could describe as tends to raise serious questions about the fairness of the integrity of the procedure in fact the time it never has then or now objected to those procedures you know as there are fewer of the sixth amendment problems there making the guidelines discretionary so how do we know the judge wouldn't have given him a lower discretionary sentence well what if if if the do understand your point with respect to the portion sizes that was imposed on count one the the bank robbery count that was indeed a guideline sentence one that did not involve any upward departures are up what adjustments but it was the guidelines with the judge believing that the guidelines dictated make relates to your examples of school devout shooting the lock off i just i don't see that as a practical example in terms of robbers it's how they haven't the guns out before it gets into the back room to shoot a lock off it would be a strange set of circumstances where that wasn't the case anchorage to visit with u