justice act then we'll hear from you st thank you your hours and that please the courts and council on may th two thousand and seventeen jamie shoulders was catching a ride with scott benson and clarence yellow short time later clarence yellow give soldiers a gun and directs them to go check on benson during this drug you motive is important in this case because it was one of the factors that the judge well and was really missing and that's why i'm reciting a little bit of these facts your arse because when mr shoulders goes to check on mr benson during this drug transaction he sees a gun on the center console of that many bad and according to mr shoulders he freaks alex scared the stomach tightens up and then he fires two shots at mr denise's legs the three men fled and unfortunately mr cheney's died neither benson nor the victim cousin were injured shoulders was apprehended four days later and gave a statement and his statement provided the only evidence that was available to the court to determine what his motive was mr shoulders was not part of a drug deal he had no prior criminal history concerning gun violence no prior criminal history concerning drugs he had no reason to be there he was merely a passenger parties had the money for the drugs so the motive was clear he was afraid he was scared and he freaked out unfortunately causing the death of mr cheney's when he after he fired the st two shots you drop the gun and then clarence yellow hot jumped and finished mr jennings off firing multiple rounds into his body so let's pled guilty to acknowledge his responsibility and was sentenced to twenty five years in prison respectfully submit that the clearly erroneous facts and rd the court failed to properly explain its sentence i'm going to start with the significant procedural errors that i believe exist your honour's st when talking about departures as the court court is well aware courts cannot the park unless it basically find is that there is an aggravating or mitigating circumstance taking the case out of the heartland were typical cases in this case nd degree murder i respectfully submit that using a gun to kill somebody is clearly not outside the heartland of cases and nd degree murder cases well the death is undeniably tragic this case is not undeniably births it's not  it's certainly relevant to a minor extends more to the point i do not believe that other than the mere fact that a gun was fired by mr ginny's there was no appreciable increase in risk there is no evidence on trajectory certainly no evidence to contradict the statement that by calling it mr shoulders that he fired downward into the legs and the autopsy showed that mr denise was struck in the legs and in the upper  factor the base offense level for nd degree murder contemplates not only the obvious that someone has died but also that a weapon or a dangerous instrumentality with used in causing death first on the death policy context of a nd degree murder case and that was us versus roston which concluded that that offense level already contained a risk for the personal injury the two ca cited by the government in support of the proposition for the use of that enhanced or united states versus terri and united states versus mother government and i believe there really easily distinguishable st of all in the united states of the two innocent motorists but there was a charge out that of that of the other driver we did not have that case here the nd case united states versus money that concerned death of somebody who is there is one statement the court made in addition to many but the statement that the court made he said there was a gun that was used here and a substantial increase is wanted because a firearm was discharged used that and intermingled that with the three thousand five hundred and fifty three dollars factor so it's fairly difficult to determine or discern exactly what weight he gave to what factor the judge didn't say i'm going to go of i'm going to depart upward based upon the gun and upward one point for the death he didn't do that and so it's difficult to tell but it is clear by the judge's own acknowledgement that he gun oftentimes guns are fired and there are other people in the general vicinity and obviously you know the bullet can record and hurt people whether they're inside or outside of a vehicle i think that when we look at all of the factors the impermissible factors of the core looked at i believe that it's fairly clear that there was an error and it was not heartless especially when the court said it was he's basing his decision to depart significantly on the mere fact that  in my view this sort of murder with a gun warrants more than what the sentencing commission recommends and therefore it's a variance well i think you can do that your honor but i think it starts with the promise as i understand  circuit and sentencing laws that we have to look at the sentencing guidelines to make sure that we get a correct application of the sentencing guidelines and then the decisions flow from there and when we consider also all the mistakes the fact vexed the court and frankly it backs everyone because there is only one possible reason that mr jennings died or that mr shoulders fired the weapon there is actually two possible reasons and one is completely not appropriate one that he just indiscriminately one up for no reason in a drug transaction that he had nothing to do with and shot a male or two as he suggested to the law enforcement that he scared upon seeing the loaded weapon what turned out to be a loaded weapon in plain sight in the reach of mr johnnie's who was involved in this drug transaction so i'm going to reserve if it's ok with the court the remaining time for my wrist is rich you you froze on the screen right after judge grimes asked his question and so we didn't hear anything from the end of the question until just when i interrupted you there so perhaps you could go back and respond again please other people also in the while it's not existant is what it does and the government is requesting the court expand in and increase its prior holdings to account for that i have not found a single case that supports the government position and there is no evidence in this case that it should be applied roston case does actually prohibit application in this instance the government indicated that there were other facts involved in iraq and there are often court did not explicitly state that it was prohibited from using the death of hands when a nd degree murder case the court roston simply said that the circumstances of an intentional killing must have been taken into consideration by the sentencing commission in formulating the guy like range for nd degree murder accordingly the fact that roxton intended to kill his wife standing alone would not be used to depart upward from the base  offense level in that case there were other proper grounds to depart upward the court specifically said no we can't use the death of house but in this case these types cases touching briefly on the mo the the evidence that was on the record in that case even though he personally presided over the all out trial but he talks about the extreme nature of the offense and i think the extreme nature of the offense was more towards the that he couldn't figure out what the motive was rather than any sort of a heinous killing or here just circumstances of the crime in this case not that there should ever be a standard nd degree murder case or a standard murder this or gentleman was was simply was shot there was nothing extraordinary about that other than that he was shot for no apparent reason other than my client do any of this the only possible reason is that he was frightened and freaked out i think the court missed weighed many of the factors gave too much weight to some of the factors and not enough to some of the others the court considered those errors and i believe the court did consider the fact that at least the understanding that mr genius was wife was in the vehicle  even though he might have presided over the trial sometime before it apparently wasn't clear in his mind it's time the sudden because he said basically that mr shoulders made her a lifetime victim as well and that