distribution of a controlled substance and conspiracy it doesn't have as an element i want to do that stuff so that's the what your answer to that i just have a two part answer last night the second republican presidential debate took place there was a lot of what some people pundits called later waffling it seemed at some point i think wolf blitzer couldn't get a yes or no answer out of anyone but i think when it comes to this question it's a binary proposition it's one or the other it's either circuit i think is the same on this one point and that is that as a society as a policy matter we view conspiracy is actually worse than the underlying facts and i think all the circuits are in agreement with this and that's because the overall agreement among more circumstances and the example that comes to mind is the case law regarding amendments to the guideline sometimes the amendments are defined as just clarifying minutes and so someone might say well you know with the guidelines changes and it's applied to some of the fence well you know i wrote littlejohn that strikes me as a difference without much of a distinction the fact of the matter is we're dealing with a case where there was no objection and i've gotten personally slapped down twice by the supreme court for extending opportunities  on appeal that the supreme court said i shouldn't so if we take this is plane air let's assume we have to take it as plane air and you argue persuasively that it might be an error but by having to construe so many things why is that plane error well i think it's plain i guess i think the parties briefs and there was a quote unquote mandatory funding available under the guidelines and it's not it wasn't i mean someone rightly i think the government actually started this isn't really clear and the fact is it's probably not even really mandatory rights but why from this record is a clear this makes any difference actually why should we entertain a second stage for a plane or made it appears on the record one might argue that this guy was pleading guilty didn't care about any of these collateral things he was trappy pleaded guilty that was a case where police broke in there's a standard sitting in his bedroom with a bunch of drugs and a handgun and it's even statements where well it's had this handgun and this court in that case i think a lot of people many you know monday morning really don't know and it might work it might not work but you get in three months it would be a no brainer to take that medication a no brainer because there's no downside to it so let me take that argument for just a second what was the sentence your client got in that in this case i think he did now he probably won't i don't think that's true i don't think it i don't think you can say for sure right i'm not you're going to rescue rolling the dice you're exercising what i always tell my locker is the only thing that lawyers really have which is judgment i think it's like an experimental medication i don't think you're going to do he's not going to you know it's sort of three months one hundred twenty months i don't think he's going to get a whole lot more than that if he goes to trial but if he wins then he's not in custody he doesn't have a spell he makes it he's not stripped of his benefits for the rest of his li not have the required elements you know that really strikes me as as absolute form without any substance at all the practical effect of this conviction is that he's going to walk right into this fan of you're not going to be able to get your benefits because you got convicted of conspiracy involving drugs i mean you could you could construe element in a couple of ways very technically such as you're looking to an instruction that says the elements of this crime are one two three or you can use that word sort of in a larger sense you know well what's the elemental aspect of this case all about the way maybe people on the street would use about an element of something rather than a technical element and this is for all practical purposes a drug case i mean everyone everything you read in this case is nothing but conspiracy just to drugs drugs drugs drugs drugs so it's awfully hypertechnical isn't it to say well this isn't having have an element i don't think it's hyper technical because i think element among lawyers has a very precise legal meaning it's an essential fact that has to be proven in order to establish a claim or in this case a criminal offense and when it's used in the statute i think it has to be viewed in that way as it's precisely will mean can you guarantee is that this this statute is never program i have no idea how so much respect for the ninth circuit that hopefully will understand was that hopefully they'll understand the laws out there and that's the ruling that it does not apply to defend it and so you're it's interesting you're kind arguing from the government's perspective that this guy should be able to get benefits that congress probably didn't intend and they get i frankly not sure what congress intended you know you might be winning a small battle and the people in charge of the war might look at you and say what are you doing you make of this guy available for benefits it's entirely possible surveyed all i can do is look at the statute that's in front of us and the statute in front of us requires certain elements and as i understand this is when they started walking across the hall hundred years of the go to district judge can avoid it without benefit of objection even if the court were to construe the statute somehow as applying to conspiracy this is never been ruled on before there's no case that holds this in fact especially issues never even been addressed as far as i can determine and  the real thirty two issue yes the district judge i believe comply with rule thirty two he stated on the record there been objections filed many of those i'm not going to consider and that's the problem which ones how do we know and i would agree if he said many and that was it that was the end of his statement but his statement was not just limited to men if you mediately follow that up with the objection that i consider most pertinent is the sense of entrapment argument which he then went on to  intention to the others not just infer i think it's clear because in fact one of the objections objection three i believe was to a sentence in the pre sentence report in which the informant stated that mr henderson told him he was actively selling methamphetamine and mr henderson showed him a pound of methamphetamine in the trunk of his vehicle before any of the transactions that ever occurred mr henderson objected to that statement is factually untrue but if that statement is believed it was the sentencing entrapment argument right out of water i mean it never even get started at that point because there can't be a clear sense in traffic in this case if the district judge was going to rely on any statement in the p s r that had been  and he would point to that he never looked at that he never mentioned it neither did any of the parties instead he went on the undisputed record that was there the recordings that were in there that nobody disputed mr henderson statements in those recordings his actions during the transaction so for that reason i believe in context yes if you need only the statement many of these objections we would have a problem but in context with the statement immediately followed that the nature of his ruling and the type of objections that were there i think it's clear he complied with rule thirty inserts a word that creates a little bit of a problem in this case many but in context it's pretty clear to me that he did not actually in fact why on anything did mr henderson's attorney jump up and say wait a minute judge you haven't resolved all these challenges back and rule on each objection will he file the objections i don't know if he has to do more maybe he should of i was there but the point i want to make about this was that i don't think the court can rely on the whole say well we can rely on the full record to see if the plea was october there was an agreement between two and more persons to distribute methamphetamine sounds like and i don't know i think it's an element i think he's got he's got to admit to sue for all the quantity under ben wales he's got admit that he agreed with