good afternoon my name is dan forrest i represent anthony in the towel over mr tall over went to trial shortly after the a printed case was decided by the united states supreme court a print instructed that he should be charged that the quantity of the drugs should be submitted to the jury and proven beyond a reasonable doubt he was charged evidence w submitted and it was not proven beyond a reasonable doubt on that basis defense filed for a motion for acquittal and the judge w requested that the quantity be represented as an element to be proven beyond a reasonable doubt and we as a as a matter  of trying to figure out what exactly to do we also requested lesser included offenses none of that instruction was given and instead an amalgamated instruction from the prosecutor and presented by the district court was given and i was going through this last night and realized that one of the problems that that i saw and i'm looking on my brief i'm sorry to flip through what the court did was it's not if you find the defendant guilty you must find what controlled substances were involved in the conspiracy and that the government's burden of proof is beyond a reasonable doubt and the decision must be unanimous then it went on to say you must in all the other cases the amount was either pled to or discussed and in this case it was not proven at all no amount they were given the top amount although like i said that's sort of a shooting in favor of the guidelines is and an effort to bypass the constitutional mandate which has been handed down by past the statute in favor of the guidelines he didn't he did not instead we can't find an amount we don't know anything about an amount and the judge when the jury came back said well that's your job you're going to do it to bypass that and permit a sentence based on a p because all the other cases preceded me they were before they knew that they had to put something in the indictment although i believe cotton did not have any amount we don't have to tell you right now if you want to go over the statutory right that's what i'm saying did you but you asked for a lesser included offense did you not i did ask that based on amount did you not correct and if the jury to said well we have a reasonable doubt as to whether there's more than five hundred but we find an amount less than five hundred and therefore found him guilty under that statute under which your client was sentenced no harm now right until possibly the judge makes a finding under the guidelines correct but at least as far as the verdict is concerned your client is a candidate for something up to twenty years in prison and i write yes and that's the maximum statutory framework under which he was  five hundred grams that we would not be here even if he had been a multi i have big chill criminal a criminal and somehow got himself up in the guidelines for something well then he was saying he had a prior felony and he had guidelines that were relevant he was a six and you were was eligible for fifteen years but the quantity was under five hundred i think and they're fine now on the other hand if the indictment alleged normally on three found guilty verdict and the truth w kilograms finding which was more than the probation officer or anyone else asked i'd like to defer to counsel o thank you please the court my name is gary house i represent brian patterson and brian is basically in the same shoes it seems to me that we've been given more than adequate time to brief is and it seems as though probably came out and some of these other cases and started talking about distinctions between elements of the crime and sentencing factors and that's what leads me to believe and to argue that you know it's one of the other but in this case the government chose to treat it as an element by clearing and tempting to prove beyond a reasonable doubt and when i look at it that way to me it's the sentencing i mean it to me it's not distancing factor of an element of the crime and then it would seem to necessarily follow that if the jury can't make a finding on an element that it's at least implied criminal i see that a little bit differently i see that as sort of an independent sentencing factor we're dealing here with something that was alleged as part of the offense and if in fact that person had a  habitual criminal background it was not alleged it was going to be used against him i see that it's working more independent you could have a number of things that come into play under the sentencing guidelines and under criminal  history and so to me that i see a little bit differently on that point that's the unfairness of it that i see in this case is we started out with the playing field being beyond a reasonable doubt on this issue and it switched fair i mean the ground rules that we started out with where it was supposed to be played and prove beyond a reasonable doubt it was not so when the question is asked what's the harm to me the harm is perhaps twofold well it's an interesting box because what i also think is what's happened since the print is courts are realized that if they logically apply this elements concept there are certain consequences around pleasant that will sense it would have been imposed below the five hundred grams below that threshold amount then as counsel and i would probably both admit we wouldn't be here that what's happened is he's been ratcheted way up into the sentencing guidelines by a thank you kevin rooney and counsel for the government i don't believe there's been any unfairness or any error in this case i think the courts obviously very familiar with the case in the briefs there's a couple points i wanted to make the indictment i'm not sure if it's a significant enough but it was done deliberately sets out the conspiracy and then it has a separate paragraph it such as further alleged and took out the quantities and that's been consistent with the government's approach i additional quantity then additional punishment can can apply and what happened in this case is not that the defendant was acquitted of anything they were convicted of a conspiracy the jury hung as to whether crack cocaine was involved they honk as to whether or not the quantity of over five kilograms of cocaine was involved the court then calculated the quantity of cocaine it refused to consider cocaine based or crack cocaine there's if there's no finding above i'm sorry it's in the state you're right what they're saying by understand them correctly the most forceful argument they're making here is that even though the sentence itself came within the producing a higher guidelines yeah i know that you have it in under five hundred grams and we're councils coming from there's a if there's five hundred grams or less no mandatory minimum supply the maximum is quantity and did that made it sentencing calculation based on that which did not exceed the maximum there could have been at the smallest amount of co chairing and they didn't apply any military minimums it's mixing elements and sentencing consideration the courts have always been given extreme latitude in assessing different different factors assessing the evidence to apply an appropriate that has to be a lashon that has to be proven and in this case there was not a quantity of drugs that the court found that increased the maximum sentence over what would have been found if the court and the court did eric i feel like i'm missing the i think we're with ships passing the night on this argument but i don't believe there's any chase that well i'm sure they're not but on the other hand this may be the first one to say it a different decision but we shouldn't go there well let's say this was a largely prosecution and the jury was instructed on grand larceny and i forgotten where th t think you can do that yes i think you can do that and that's exactly what he has to be able to do in order for you to be right i said i suppose i don't have equality but yes i think that's true he can look at and say i am limited up here i will look at the facts i will make my finding i will do that i've got a technical point just for the record the court the district court found that there was more than a preponderance of the evidence more than preponderate it to support his amounts he has guidelines for thirty seven to forty six months and he cuts but he got sentenced to sixteen months because the court found a mandatory minimum applied and i see a big distinction between this ca and philosophy or her or any of the latest ruling in that case in this case as the court pointed out the mandatory minimum was not used it was just a guideline se after the after the jury's verdict and whatnot is that what i think would know that's not my recollection i defer to counsel from wrong there was discussion with both both defendants of course about pleading guilty not pleading guilty before and i think there was testimony a reason normally of course that would not come in i wouldn't be part of the record i think mr palaver and perhaps mr patterson both when they testified said they wouldn't plead guilty because they would have to plead guilty to crack ok that might have been how it came in and i think in sentencing mr patterson there was the court gave consideration to a lot of factors mr patterson voluntarily surrendering mr patterson's more s distribute more than five kilos of poverty cocaine and the government chose not to do that that was the suggested instruction they said no no no we don't consider that to be an element we want and then you find quantity and that i do not believe this what apprentice and i would point to just in terms of the records on my excerpts page one twenty four the judge initially when we were talking about this said in fact my interpretation of the printing is that a president in effect negates relevant conduct when it comes to quantities however he went ahead and made relevant conduct quantities on both counts not just on the conspiracy but also on the attempt now the attempt was a very confusing mess and i just want to point this out to the court because it was charged the same amount that it found on the conspiracy it found five kilos as relevant conduct and i think that in both of these counts it's a problem and i think that the way that the conspiracy was charged without saying what they were conspiring to sell in terms of quantity and in terms of the drug i'm not in the way it was charged he was charged right but in the way the jury was instructed