it's our position that the evidence is insufficient to hold the conviction in two respects so i wouldn't have done if you cation was never challenged by the defense and most of the evidence in fact all of the evidence placed mr hughes before the bank robbery in a vehicle in post after the bank robbery there were paid bills found in his possession but no one including the eyewitness that said that he saw the bank robber actually enter to do with the consecutive since that he received fifteen years at the time of sentencing and the semi automatic assault weapon there is no testimony or nor did the jury find that that weapon was in fact the situations and facts that would go to the question of three fifty five three which penn state should be factories that would be evaluated at the core prior to sentencing and taking into consideration at the time  weapon that would fall within the purview of one twenty one who simply wasn't any evidence regarding that issue there was a lot of descriptions about the weapon but there was nothing that he didn't find that weapon by any of the witnesses during the trial what we had was the probation officer  what we do with the appeal waiver the appeal waiver we have these two situations here one is a conviction by a jury as to the only one credit union bank robbery and then we have a plea agreement regarding the to see whether or not i mean i think the court could say that had booker been decided at the time or prior to him mentoring to the plea agreement that may have factored into the nature of the plea agreement and maybe some of the considerations that might have been taken fact that booker actually changed the way in which in turn into pretty green it's harder negotiated in terms of sentencing this is an argument that was not a knowing involuntary entry into the plea agreement because he didn't understand the  ok one thirty five was for the bank robberies and then there was a ten and continue consecutive sentence and were there two bank robberies sentenced concretely or consecutively concurrently that is to say if the s assume for a moment that the court with this case and with harris and with our case and their remain as they are for now assume that we're going to follow harris and there should we would draw submission for a time to see what happens today or to see what happens to harris the reason i ask that question is so long as your case remains alive on direct appeal your book or a fan can issue remains alive  say that that's my question really is why do you say that's the defendant holding the the something automatic weapon because the very next morning it was found under the seat of his car and the detective testified during the trial he compared the photographs from the parking lot if there's any cop cars or how busy the bank is another driver is coming in they get into a confrontation because she's trying to get out of traffic to get in through the proper entrance if he's trying to go out the next day or two days after the bank robbery she picks him out of the photo lineup based on that confrontation that they had face to face he's not wearing it the mask at the time he's trying to go up that same afternoon of the bank robbery he goes and purchases a car there was five thousand dollars taken in that golden one credit union robbery he has six hundred sixty dollars in his pocket he spent four hundred dollars for the car his one thousand six hundred and he gave his girlfriend fifteen hundred dollars and she testified to that as well twenty five sixty basically half the money in the bank robbery there were only two people in that stolen getaway vehicle when it was there at the bank four minutes prior to the robbery occurring i think it's pretty safe to assume based on the description descriptions of the the robber that that was marshal and he was at hand and has the weapon in addition the gun case for that particular semiautomatic assault weapon is found in his apartment on the twenty seventh the next day after the robbery we did the search warrant basically with respect to the circumstantial evidence in this case was was in my my view in the government's view very overwhelming on the golden one creating the wrong defense did not really focus on that eyewitness idea on the golden one credit union robbery because they were more focused on the i wouldn't say he's in the bank of the west where they thought they had a better shot at trying to walk that reason that was important is because we're tonight twenty four c counts here that's second one twenty four seek out what occurred a consecutive twenty five the definitive pretty well here in the government's view in fact the offer prior to the the trial was played to the two bank robberies one nine twenty four seacat and that's precisely what he wound up with when the jury hung ten to two for extremely unlikely what is your view of the appeal waiver my view of the appeal way or is it applied to the bank of the west robbery and it also applies to the sentence on that count so how does that parse that out for me what what aspects of the senate started a fact and what aspect it not a fact the only aspect of the sense that it might affect would be if this court would overturn the gold and one credit union robbery then he would receive the two levels for grouping you know that's it that would be the only effect on it