of penalties and that's what i'm relying on is that in this case a probation officer decided without benefit of consultation with the u somehow it seems to me to be under reasonable or unfair for met a judge or to deny a judge's discretion  based on speculation estimation and concession that in this case we don't know the quantity of drugs which is one of the other issues but also on the fact that a gun was found in somebody else's bedroom and it was not associated directly with the with the drugs in this case or the conspiracy in this case with as you see in this case and that's there was a two level bump  resulted in a mandatory life sentence i know if he does not speak specifically to that the mandatory the maximum sentence was life and prison if we get to the guideline calculation into the drug calculation pretty broad as you know in terms of yes clearly that gun can be virtually anywhere at any time during the conspiracy so it would just help me to understand in light of broad guidelines how that know this sometimes happens we get up here on appeal and it would be better if it were raised then the judge could say well either i'm surprised he i do or don't need to have some kind of fact finding or form i need to make a determination you know beyond a reasonable doubt whatever the case is b finding of guilt on the conspiracy i argue in my brief that the conspiracy approved by the government was not the single conspiracy alleged in the indictment but rather multiple conspiracies and as i see it there are at least there are at least two additional conspiracies one involves scary morris and the other involves involved in the distribution of cocaine they had their own deal going to morris and his wife seem to be girlfriend or at least significant other of mr jingles and texas but in any event so there are these two separate conspiracies now one of the indicators it seems to me they are separate conspiracies is the fact that neither morris nor fart were found by the jury to be part of the they were both specifically precluded or eliminated as super busy as in the  now given the state of facts as presented to the jury about their involvement in drug trafficking with mr  they began not being in their own separate conspiracy with mr jingles and the other individuals they would have most likely been found to be one conspiracy why do we care well the big deal is they were never instructed which conspiracy which of the three conspiracies was the sure i mean that's what they found they found that he had a number of people in baltimore conspiracy that's one of the elements of the c c ing a number of people involved in the conspiracy he had stands the jury's getting the information you got three conspiracies out here ladies and gentlemen you've got five super the zealots do they have to be the same there was no instruction to the jury that they johnson you can't find him guilty of this conspiracy or you can find him guilty of any one of these conspiracies plus the five it's all going to be the same because the conspiracy if i'm not mistaken was also listed as a right the other in the other instruction it seems to me that should have been and should have been requested and i'm going to try to preserve a minute or two if i may  having to do with ok he's been found guilty of conspiracy and he's been found guilty of the c d c and since they mail to gether you can't be sentenced for both  the better way to handle it would be to charge the c c e o the conspiracy give the lesser included instruction on conspiracy and to pick lee with a lesser included instruction they in the jurors had the lesser included instruction been given which it was not with respect to count two the jury could have found him guilty in that count a conspiracy maybe the overarching conspiracy alleged by the government and then decided that he didn't have enough evidence for the c t e the prejudice of course lies in the fact that he was not afforded an opportunity to be found guilty of the lesser i will reserve the rest of my time in which the court has any additional questions thank you specific which drugs or drugs were involved and each drug found involved whether it found the necessary triggering amounts to get to attend to a life sentence for crack cocaine that being fifty grams or for powder cocaine being five the defendant's position is the palace position would require in every criminal case the jury check from have an end to have a finding of fact any issue which would support any change in any guideline range and you were along domain but i think we're going to little short if we were only at the very narrow issue of a handgun in the bedroom of that house because that's not the only evidence in the case of use of handguns in furtherance of the drug conspiracy there was a hand clip in it as opposed to a revolver type of a weapon in addition to the czech nine however agents found a very significant amount of ammunition they found speed loaders for the check now and as the agents were executing a search but in support of an overarching spirity trafficking cocaine in iraq accounting and those are the facts which were outlined in the first of all the evidence of trial and one by the probation officer in the probation report and which were adopted overarching conspiracy over a period of years where there are five people essentially who are continually in the conspiracy at least in the last two or three years those folks are jungles himself s foster matthew johnson walter garson and she can tell her and there are other folks who come in and out of this conspiracy from time to time david williams for instance who is the general's brother dav jingles and occasionally with williams trafficking in drugs with maurice and with find out what the jury found in their verdict was that the general said not supervised organized or and i have not spoken to the point person about that but i think it's clear in the circumstances because so many counts in so many dollars they are strictly a clerical mistake you know the judge did that the judge put out the amount of money it wasn't the court the judge briefs so it needs to be reduced obviously back to that i can't think of any way to do it except to remain and with instructions to the clerk to make a correction on the judgment since water how many of the jurors felt that the more conspiracy satisfied the conspiracy element of the c c eat the simple fact of the matter is we don't know and we will never know and therefore the conviction must fall with respect to the lesser included instruction counsel and i agree although mr twist would never admit it they found mr james goals guilty of conspiracy