all right welcome you here today you jumped the gun getting up to the podium a bit that's ok too late now i'm just going to ask you to recognize that we have a traffic light system yellow light means you have two minutes when the red light comes on we ask you to conclude your argument unless you're entering a question from the court and also please give us record citations when those are appropriate this is passages the st is the following is a sentence under this guideline is imposed in conjunction with a sentence for an underlying offense do not apply any specific offense characteristic for possession brand relevant conduct to the kidnapping for at least two reasons one is that counts one and five are grouped the pre sentence investigation report says the count one which is the robbery of michelle han involves substantially the same harm as count five which is the thought it's all x are for missions committed aided abetted counseled commanded induced put your or willfully caused by the defendant that occurred during the commission of the offense of conviction in preparation for that offense or in the course of attempting to avoid detection responsibility for the defense and that's one of the one point three subsection one a and then the paragraph that follows the subsections i mean it's it's very broad and that is the line that amendment five hundred and ninety nine draws the nd reason i think might address your question more directly is that the robbery counts were enhanced by four levels not just for the firearm but also for the kidnapping there is a four level abduction and handsome and that said a record six fifty two paragraph thirty seven and record six hundred and fifty three paragraph forty six and there's a four level one has been if any person was abducted to facilitate the offense or to facilitate escape enhanced by four levels so we know not just from the grouping but also from this abduction and handsome and that the robberies and the kidnapping are an extra couple intertwined or at least they're close enough in time for they are within the scope of relevant conduct is contemplated by and then at five hundred and ninety nine let me ask you a question here well i'm going to ask the government about this twenty eight chain letter that we received or did you have any response to that sure so st of all i wasn't aware of the existence of this motion until i received the government's letter but i  the court can do its press with respect to timing our preference is that we go forward for it is that this pursuit normally for two for two reasons one is that mr dixon is in the part of his sentence that's affected by double counting if we're right that he's in the court that he should still be in jail for his release date is november tour nov th two thousand and twenty four which is in fifty nine months he's been in jail for almost twenty three years so we're in the part affected by this and the other reason is that it is unclear the timeline or the result of this twenty five to fifty five petition the government has said some intended things we appreciate the letter but the government is also reserve the right to fight that motion on procedural grounds well just to ask you to think about this without answering it at the present time but i'm wondering if you're representing dixon for purposes of the twenty dollars to fifty five dollars and if not which he filed it pros say it does not amount  to go to the main argument suppose we know that the robbery counts are included within the scope of relevant conduct because of the grouping and also because of the abduction and handsome and and of course the fireman hand spent and if that's right then the pre does specifically what amendment five hundred and ninety nine dollars says not to do it says do not apply any specific offense characteristic relating to the fire but you're not really challenging the two thousand and three p s sorry challenging the opinion of this court affirming  that's wrong for two reasons the st is that it overlooks amendment five hundred and ninety nine dollars so relevant context ended when it says that the only potential double counting prohibited is to the kidnapping count full stop  amendment five hundred and ninety nine i think this comes out most clearly in the reason for amendment the st paragraph of the denim page page two it says it's not just the crime of violence underlying the nine hundred and twenty four c conviction it is also any conduct with respect to that offense for which the defendant is is is accountable and it goes on to distinguish between counts of conviction outside the relevant conduct and counts of conviction within the relevant context is not just limited to the kidnapping in our view and the other counts one in five are grouped and count one and they're both enhanced together so it's the only there's no separate calculation of the kidnapping count in the record there's just the robbery in the robberies and hence for the kidnapping if there were to be an independent calculation of the kidnapping count that still won't get the government off the hook because there is and we said this in a brief there's a part of the kidnapping guideline that says if there was a robbery enhanced to the level of the other offense or there's no there's no escaping it this firearm in our view is that i mean you have already believe it's erroneous to think it's clearly erroneous because a binary question of long if the court thinks of the two thousand and one decision was right and that's that there's there's not much we can say about that we don't have to think it was right we just think that it binds us as law of the case i mean and i'm not speaking from my colleagues and i'm not speaking from my own personal conclusion i'm just saying that's the argument right so i just do things response to that is that this is a pure question of law it's not a sort of legal question and to the extent that i think the the difference between wrong and clearly wrong i think because less work to do when this is a legal question and the other thing i'd say in support of the idea that this is clearly wrong is when the court says clearly the only double counting prohibited is the kidnapping conviction that is that is the view of the flattery decision from the th circuit that amendment five  overrule in our view well five hundred and ninety nine said it clarified didn't it did refer to it as a clarification but it also said that previous courts of appeals took different views on the scope and that was that was the reason for the  sentencing and before the appeal was briefs i mean it was in the briefs the court did confront the issue it was raised again in a year and petition and the court rejected it and i understand that that clearly erroneous is a high hurdle to overcome for law the case but think is is much easier if he's wrongfully in prison every day behind the door is d is this prejudice a court of the cases we've cited and you know that the government has this this argument that these offenses were so serious and the judge  expressed such serious concerns that the court should just assume that even if this significant reduction in his guidelines were were made that the judge would rescind some to the to the same amount i don't think this this court decision on remand but am i correct that if we eliminated the double counting he's basically entitled to walk free within a short period of time or in my mis remembering that i believe so he and he has fifty nine months left on his sentence and he's been in prison for twenty three years and this would believe this would take if you take seven levels off a sentence the top of the guideline range would go from two hundred and sixty two months to a one hundred and twenty one months which we think would take care of the fifty nine months that are left so we think we think the answer is yes and on this record i don't mean to minimize the concerns that judge kendall stated at sentencing but i think it would be too much of a stretch to just assume the judge can cade would almost certainly an act the same sentence on remand if you were allowed to consider the question we have guidelines for a reason and the district court has never considered the proper sentence under the proper ca the court as for the questions i'm happy to answer them otherwise thank you thank you doctrine when he declined eighteen years ago to pretend as if dixon's robberies were not are all tell me about the twenty eight j letter st of all yes we have in the course of preparing for or argument w motion was spending well the court was basically informed in a footnote in a staff memo about it but it certainly wasn't highlighted and and i was unaware of it until you filed the the letter  and you say that the government is willing to concede that kidnapping is not a violent not a what do you call it a violent felony charge purposes of the residual clause of nine  c right there is generally that has been the position of the department of justice and even even if it was kidnapping for purposes of sexual assault which is i believe the way this case was indicted make that conclusion the district court could and should as a matter of discretion decline any reduction in sentence in addition even if the one hundred and twenty four dollars seed conviction where for some reason at the end of the day vacated in a collateral crimes of the type that were at issue inflammatory and only prohibited certain firearm even in connection with those possession offenses so for that reason we don't think there is any basis to are this is all one ball of wax so to speak the entire series of events was one well really i mean the guy comes into the v a are armed and he ducked both of these forces these people out of the building at the very same time he shoots the gun he he robs machine shae and he attempts to rob the other fellow and then he abduct her and carries her off i mean it's very hard to segregate  the kidnapping as to that that decision would not be a reasonable sort of not unreasonable or so dead wrong as to warrant bypassing the law of the case and i support for that the case was a did the deferred the robbery offense in count one was grouped together with the kidnapping offense and for that reason the robbery offense drove the offense level for that group and that in turn became part of the says no guideline weapon in hands and should be implied should should be applied when determining the sentence for the crime of conviction or drug trafficking offense underline the eighteen u s c nine hundred and twenty four dollars c conviction nor for any conduct with respect to that offense for which the defendant is accountable under section one b one point three relevant conduct the two instances of four in that sentence refute any contention that it's just the kidnapping count that amendment five ninety nine dollars applies to the government mentioned separate bank robberies and i think this court's two thousand nine where mr dixon raised a similar double counting argument but he didn't yet have amendment five hundred and ninety nine to support it and the separate bank robberies are not are just unrelated under this relevant conduct guideline there's the two different banks rob two months apart the mccarthy case from the st circuit three bank robberies in three states and the case from the th circuit i gather from news reports the same bank was robbed three different times and in different months those are not  are not relevant conduct of the one the one three but in this case the kidnapping in the robbery are relevant conduct and you can tell because one is enhanced based on the other the government mentions that the purpose of the double counting and points to the the five level step up in the statute for double counting under i believe one b one point three in other words before five hundred and ninety nine came out was it wouldn't not have been the defendant's contention that double counting was taking place i think it was mr dickson's contention that double counting was taking place before and this was addressed in the percents investigation report but as five hundred and ninety nine i think made that argument stronger by saying the so you say in that if if that the court could might have been wrong as picked the calculation for that the kidnapping would come out i'm not aware of any basis for that there's no separate calculation of the kidnapping of count in the record and as i mentioned earlier and as i think we said in our brief it's unclear how you get the same level or higher level for the kidnapping count without a firearm and handsome and there is a cross reference in the kidnapping guideline that says if there was a robbery convicted if there was a robbery committed to facilitate commissioner of her scape and hands to the level of were court appointed and the court is very grateful for your assistance