text:
This application claims the benefit of U.S. Provisional Application No. 60/691,465 filed on Jun. 16, 2005, Mexican Application No. 2005/011765, filed Nov. 1, 2005 of the same title, and Canadian Application No. 2,525,024, filed Nov. 1, 2005 of the same title, which are incorporated herein by reference for all purposes.
a vehicle-operation changing assembly mounted adjacent to the track and manually operable for selectively changing the given operation of the toy vehicle while the toy vehicle is supported in an operation-changing position, the vehicle-operation changing assembly including a fixed frame and a rigid movable frame, the movable frame being movable vertically relative to the fixed frame between a first position in which a contact surface of the movable frame is spaced from the operation-changing element and a vehicle-support surface aligned with the track supports directly the wheels of the toy vehicle that are drivingly coupled to the drive mechanism while the toy vehicle is in the operation-changing position, and a second position disposed below the first position in which the contact surface engages the operation-changing element, the vehicle-support surface is spaced below the wheels of the toy vehicle leaving unsupported the wheels of the toy vehicle drivingly coupled to the drive mechanism, and the body of the vehicle between the wheels is supported on and in contact with the fixed frame.
2. The play set of claim 1, in which the drive mechanism is configured to drive the vehicle selectively in at least first and second speeds, the operation-changing mechanism being a switch mechanism included in the drive mechanism and having a speed switch element movable for switching the speed of the vehicle; the operation-changing position is a speed-changing position, and the contact surface of the movable frame engages the switch element of the vehicle when the movable frame is moved from the first position toward the second position while the vehicle is supported in the speed-changing position.
3. The play set of claim 2, in which the switch element is configured to pivot relative to the vehicle body during switching of the vehicle speed, and the movable frame is operable for pivoting the switch element.
4. The play set of claim 2, in which all of the wheels of the toy vehicle are free of contact with any support surface when the movable frame is in the second position.
5. The play set of claim 2, in which the switch element forms a top surface of the vehicle and is movable vertically for switching the speed of the vehicle, and the fixed and movable frames straddle the track, forming a passageway containing the travel path, the fixed frame including a pedestal for supporting the toy vehicle body while the toy vehicle is in the speed-changing position and the movable frame is in the second position, and the speed changer member is biased toward the first position.
6. The play set of claim 3, in which the movable frame includes a handle extending above the fixed frame, the contact surface of the movable frame is disposed above the vehicle when the vehicle is in the speed-changing position, and the handle is movable downwardly for pressing the contact surface of the movable frame against the switch element.
7. The play set of claim 2, further comprising a vehicle junction assembly including a junction in the travel path providing a plurality of alternate path portions, and a path-switching mechanism having a track element moveable between a first travel-path portion and a second travel-path portion, and a release element moveable from a first position, in which the track element is retained along the first travel-path portion, to a second position in which the track element is allowed to move toward the second travel-path portion, the path-switching mechanism being actuatable by a vehicle traveling less that a first vehicle speed to move the release element from the first position toward the second position.
8. The play set of claim 7, in which the toy vehicle is configured to actuate the path-switching mechanism.
9. The play set of claim 8, in which the track assembly further includes a support assembly for supporting the track above a work surface, and the track element includes a trapdoor disposed in the track, the first position is a closed position in which the trapdoor is aligned with and forms a part of the track and fully supports a toy vehicle positioned on the trap door when the release element is in the first position, and the second position is an open position in which the trapdoor is removed from the closed position, and the path-switching mechanism is adapted to be actuated by the toy vehicle as the toy vehicle travels along the trapdoor.
10. The play set of claim 9, further comprising a vehicle trap assembly having a cover defining a chamber, the cover being movable between open and closed positions and disposed below the trapdoor for receiving a vehicle passing through the opening in the track when the trapdoor is in the open position.
Canadian Intellectual Property Office, Office Action for Canadian patent application No. 2,525,022 (which has the same inventors as U.S. Appl. No. 11/333,987), dated Nov. 27, 2008, three pages total. Applications concurrently disclose CA 2,396,567 (national phase of WO 2001/51155) cited in this Office action.
Canadian Intellectual Property Office, Office Action for Canadian patent application No. 2,525,024 (which has the same inventors as the '987 application) dated Nov. 26, 2008, 2 pages.
Canadian Intellectual Property Office, Office Action for Canadian patent application No. 2,525,039 (which has the same inventors as the '987 application) dated Dec. 7, 2007, 3 pages.
Canadian Office Action mailed Dec. 7, 2007 for Canadian application No. 2,525,039.
Division of Patents of the Mexican Institute of Industrial Property, Office Action for Mexican patent application No. PA/a/2005/011690 (which corresponds to U.S. Appl. No. 11/334,180 having the same inventors as the present '987 application), dated Apr. 15, 2009, 7 pages total. The disclosure includes the Spanish-language Office action plus a partial English-language translation prepared by our Mexican Agent.
Division of Patents of the Mexican Institute of Industrial Property, Office Action for Mexican patent application No. PA/a/2005/011764 (has the same inventors as U.S. Appl. No. 11/333,987), dated Aug. 26, 2008, seven pages total. The disclosure includes the Spanish-language Office action plus a partial English-language translation prepared by our Mexican agent.
Division of Patents of the Mexican Institute of Industrial Property, Office Action for Mexican patent application No. PA/a/2005/011765 (having the same inventors as the present '987 application), dated Apr. 23, 2009, 5 pages total. The disclosure includes the Spanish-language Office Action plus a partial English-language translation prepared by our Mexican agent.
Division of Patents of the Mexican Institute of Industrial Property, Office Action for Mexican patent application No. PA/a/2005/011765 (having the same inventors as the present '987 application), dated May 22, 2009, 5 pages total. The disclosure includes the Spanish-language Office Action plus a partial English-language translation prepared by our Mexican agent.
Moon Adventure toy play set, sold by Guangdong Auldey Toy Industry Ltd of Guangdong, China, package shows a 2004 copyright notice, 6 sheets total, comprising: (A) photographs of the package for the toy playset (2 sheets) and (B) photographs of the toy playset (4 sheets).
Rev-Ups Skyway Stunt Set, 12 sheets total, comprising: (A) Fall 2004 Mattel Toy Sell Sheets, cover page and p. 39 showing Rev-Ups Skyway Stunt Set (2 sheets); (B) Photographs showing product packaging (2 sheets); and photographs showing the product (8 sheets). The Rev-Ups Skyway Stunt Set was publicly disclosed in the Toy Sell Sheets in the fall of 2004.
U.S. Patent and Trademark Office, Issue Notification for U.S. Appl. No. 11/334,180 mailing date Mar. 25, 2009, 1 page. The '180 application has the same inventors as the present '987 application.
U.S. Patent and Trademark Office, Notice of Allowance for U.S. Appl. No. 11/333,988, mailing date Mar. 30, 2009, 10 pages. The '988 application has the same inventors as the present '987 application.
U.S. Patent and Trademark Office, Office Action for U.S. Appl. No. 11/333,988, mailing date Dec. 19, 2008, 12 pages. The '988 application has the same inventors as the present '987 application.
U.S. Patent and Trademark Office, Office action for U.S. Appl. No. 11/333,988, mailing date Jul. 1, 2008, 30 pages. The '998 application has the same inventors as the present '897 application. The '988 OA includes a full copy and English abstract of JP6081504A cited above and separately disclosed.
U.S. Patent and Trademark Office, Office action for U.S. Appl. No. 11/334,180, mailing date Apr. 9, 2008, 12 pages. The '180 application has the same inventors as the present '987 application.

matches:
Application No. 60
Application No. 2005
Application No. 2
application No. 2
application No. 2
application No. 2
application No. 2


The flow of these false reports are stopped.
The government vigorously prosecutes those who submit false information returns just as doggedly as they prosecute those who submit false tax returns.
IRS is held accountable for the accuracy AND completeness of its publications instead of denying responsibility for their accuracy in IRM 4.10.7.2.8.
A detailed and complete treatment of what a "trade or business" is appears within all IRS publications.
Courts quit covering up the nature of the I.R.C. Subtitle A as a franchise and excise tax upon public offices in the government. Right now, they are making cases unpublished that address this issue in order to plunder the public and protect wrongdoers.
Selective enforcement and omission by the IRS and the DOJ collectively in implementing the above reforms are the main reason the illegal enforcement continues.
Legal Deception, Propaganda, and Fraud, Form #05.014 (OFFSITE LINK)-describes how government and legal profession violate the rules of statutory construction to enrich themselves, including with the word "trade or business"
A Treatise on the Law of Public Offices and Officers (OFFSITE LINK) -Floyd Mechem, 1890. Google Books. Excellent.
Treatise on the Law of Agency (OFFSITE LINK) - Floyd R. Mechem, 1889. Google Books. Excellent!
26 U.S.C. §6041: Information at source-Cornell. Shows that you must have "trade or business" earnings to have reportable income under the I.R.C.
"The taxpayer-- that's someone who works for the federal government but doesn't have to take the civil service examination."
As we said in the preceding section, the income tax described by Internal Revenue Code, Subtitle A is a franchise and excise tax upon “public offices” within the U.S. government, which the code defines as a “trade or business”. Before an income tax can lawfully be enforced or collected, the subject of the tax must be connected to the activity with court-admissible evidence. Information returns are the method by which the activity is connected to the subject of the tax under the authority of 26 U.S.C. §6041(a). When this connection is made, the person engaging in the excise taxable activity is called “effectively connected with the conduct of a trade or business within the United States”.
All persons engaged in a trade or business and making payment in the course of such trade or business to another person, of rent, salaries, wages, premiums, annuities, compensations, remunerations, emoluments, or other fixed or determinable gains, profits, and income (other than payments to which section 6042 (a)(1), 6044 (a)(1), 6047 (e), 6049 (a), or 6050N (a) applies, and other than payments with respect to which a statement is required under the authority of section 6042 (a)(2), 6044 (a)(2), or 6045), of $600 or more in any taxable year, or, in the case of such payments made by the United States, the officers or employees of the United States having information as to such payments and required to make returns in regard thereto by the regulations hereinafter provided for, shall render a true and accurate return to the Secretary, under such regulations and in such form and manner and to such extent as may be prescribed by the Secretary, setting forth the amount of such gains, profits, and income, and the name and address of the recipient of such payment.
The government cannot lawfully regulate private conduct. The ability to regulate private conduct is, in fact, “repugnant to the constitution” as held by the U.S. Supreme Court. The only thing the government can regulate is “public conduct” and the “public rights” and franchises that enforce or implement it. Consequently, the government must deceive private parties into submitting false reports connecting their private labor and private property to such a public use, public purpose, and public office in order that they can usurp jurisdiction over it and thereby tax and plunder it.
Provide evidence that the owner is consensually and lawfully engaged in the “trade or business” and public office franchise. These reports cannot lawfully be filed if this is not the case. 26 U.S.C. §7206 and 7207 make it a crime to file a false report.
Donate formerly private property described on the report to a public use, a public purpose, and a public office with the consent of the owner without any immediate or monetary compensation in order to procure the “benefits” incident to participation in the franchise.
Subject the property to excise taxation upon the “trade or business” activity.
Was filed mistakenly or fraudulently.
2. A violation of due process has occurred. Any taking of property without the consent of the owner is a violation of due process of law.
3. The subject of the information return is being compelled to impersonate a public officer in criminal violation of 18 U.S.C. §912.
Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or officer thereof, and acts as such, or in such pretended character demands or obtains any money, paper, document, or thing of value, shall be fined under this title or imprisoned not more than three years, or both.
4. An unlawful conversion of private property to public property has occurred in criminal violation of 18 U.S.C. §654. Only officers of the government called “withholding agents” appointed under the authority of 26 U.S.C. §7701(a)(16) and the I.R.C. can lawfully file these information returns or withhold upon the proceeds of the transaction. All withholding and reporting agents are public officers, not private parties, whether they receive direct compensation for acting in that capacity or not.
To unlawfully create public offices in the government in places they are forbidden to even exist pursuant to 4 U.S.C. §72.
To “elect” the average American unlawfully into such an office.
To cause those involuntarily serving in the office to unlawfully impersonate a public officer in criminal violation of 18 U.S.C. §912.
To enforce the obligations of the office upon those who are not lawfully occupying said office.
Of election fraud, whereby the contributions collected cause those who contribute them to bribe a public official to procure the office that they occupy with unlawfully collected monies, in criminal violation of 18 U.S.C. §210. IRS Document 6209 identifies all IRS Form W-2 contributions as “gifts” to the U.S. government, which is a polite way of describing what actually amounts to a bribe.
Whoever pays or offers or promises any money [withheld unlawfully] or thing of value, to any person, firm, or corporation in consideration of the use or promise to use any influence to procure any appointive [public] office or place under the United States for any person, shall be fined under this title or imprisoned not more than one year, or both.
26 C.F.R. §31.3401(a)-3 Amounts deemed wages under voluntary withholding agreements.
Notwithstanding the exceptions to the definition of wages specified in section 3401(a) and the regulations thereunder, the term “wages” includes the amounts described in paragraph (b)(1) of this section with respect to which there is a voluntary withholding agreement in effect under section 3402(p). References in this chapter to the definition of wages contained in section 3401(a) shall be deemed to refer also to this section (§31.3401(a)–3).
26 C.F.R. § 31.3402(p)-1 Voluntary withholding agreements.
An employee and his employer may enter into an agreement under section 3402(b) to provide for the withholding of income tax upon payments of amounts described in paragraph (b)(1) of §31.3401(a)–3, made after December 31, 1970. An agreement may be entered into under this section only with respect to amounts which are includible in the gross income of the employee under section 61, and must be applicable to all such amounts paid by the employer to the employee. The amount to be withheld pursuant to an agreement under section 3402(p) shall be determined under the rules contained in section 3402 and the regulations thereunder. See §31.3405(c)–1, Q&A–3 concerning agreements to have more than 20-percent Federal income tax withheld from eligible rollover distributions within the meaning of section 402.
1. The amount reported must be ZERO for everything on the form, and especially for “wages”.
2. If any amount reported is other than zero, then the payroll clerk submitting the W-2 is criminally liable for filing a false return under 26 U.S.C. §7206 , punishable as a felony for up to a $100,000 fine and three years in jail.
3. If you also warned the payroll clerk that they were doing it improperly in writing and have a proof you served them with it, their actions also become fraudulent and they are additionally liable under 26 U.S.C. §7207 , punishable as a felony for up to $10,000 and up to one year in jail.
1. To publish IRS forms and publications which contain untrustworthy information that deceives the public into believing that they have a legal obligation to file false information returns against their neighbor.
"IRS Publications, issued by the National Office, explain the law in plain language for taxpayers and their advisors... While a good source of general information, publications should not be cited to sustain a position."
p. 21: "As discussed in §2.3.3, the IRS is not bound by its statements or positions in unofficial pamphlets and publications."
p. 34: "6. IRS Pamphlets and Booklets. The IRS is not bound by statements or positions in its unofficial publications, such as handbooks and pamphlets."
p. 34: "7. Other Written and Oral Advice. Most taxpayers' requests for advice from the IRS are made orally. Unfortunately, the IRS is not bound by answers or positions stated by its employees orally, whether in person or by telephone. According to the procedural regulations, 'oral advice is advisory only and the Service is not bound to recognize it in the examination of the taxpayer's return.' 26 C.F.R. §601.201(k)(2). In rare cases, however, the IRS has been held to be equitably estopped to take a position different from that stated orally to, and justifiably relied on by, the taxpayer. The Omnibus Taxpayer Bill of Rights Act , enacted as part of the Technical and Miscellaneous Revenue Act of 1988 , gives taxpayers some comfort, however. It amended section 6404 to require the Service to abate any penalty or addition to tax that is attributable to advice furnished in writing by any IRS agent or employee acting within the scope of his official capacity. Section 6404 as amended protects the taxpayer only if the following conditions are satisfied: the written advice from the IRS was issued in response to a written request from the taxpayer; reliance on the advice was reasonable; and the error in the advice did not result from inaccurate or incomplete information having been furnished by the taxpayer. Thus, it will still be difficult to bind the IRS even to written statements made by its employees. As was true before, taxpayers may be penalized for following oral advice from the IRS."
The term “foreign estate” means an estate the income of which, from sources without the United States which is not effectively connected with the conduct of a trade or business within the United States, is not includible in gross income under subtitle A.
5. To receive what they know in nearly all cases are false information returns against innocent private parties who are nontaxpayers and to act as money launderers for all amounts withheld from these innocent parties.
6. To protect the filers of these false reports.
6.1. IRS Forms W-2, 1042-S, 1098, and 1099 do not contain the individual identity of the person who prepared the form.
6.2. Only IRS Forms 1096 and W-3 contain the identity and statement under penalty of perjury signed by the specific individual person who filed the false information return.
6.4. The IRS then comes back and says they don’t keep the original Forms 1096 and W-3 either! Consequently, there is no way to identify the specific individual who filed the original false reports or to prosecute them criminally under 26 U.S.C. §§7206 and 7207 or civilly under 26 U.S.C. §7434 . In that sense, IRS FOIA offices act as “witness protection programs” for those communist informants for the government willfully engaged in criminal activity.
1. Generally, information returns are destroyed upon processing. Therefore, original returns cannot be retrieved. In addition, the IRS may not have record of all information returns filed by payers. The Information Returns Master File (IRMF), accessed by CC IRPTR, contains records of many information returns. The master files are not complete until October of the year following the issuance of the information document, and contain the most current year and five (5) previous years. Taxpayers should be advised to first seek copies of information documents from the payer. However, upon request, taxpayers or their authorized designee may receive "information return " information.
2. Follow guidelines IRM 3.5.20.1 through 3.5.20.11, to ensure requests are complete and valid.
3. This information can be requested on TDS.
4. This information is also available using IRPTR with definer W.
6. Form 1099 information is not available through Latham.
7.1 By penalizing filers of corrected information returns up to $5,000 for each Form 4852 filed pursuant to 26 U.S.C. §6702.
7.2. By not providing forms to correct the false reports for ALL THOSE who could be the subject of them. IRS Form 4852, for instance, says at the top “Attach to Form 1040, 1040A, 1040-EZ, or 1040X .” There is no equivalent form for use by nonresident aliens who are victims of false IRS Form W-2 or 1099-R and who file a 1040NR.
7.3. To refuse to accept W-2C forms filed by those other than “employers”.
7.4. To refuse to accept custom, substitute, or modified forms that would correct the original reports.
7.5. To not help those submitting the corrections by saying that they were not accepted, why they were not accepted, or how to make them acceptable.
8. To ignore correspondence directed at remedying all the above abuses and thereby obstruct justice and condone and encourage further unlawful activity.
1. Turns innocent parties called “nontaxpayers” into guilty parties called “taxpayers”, which the U.S. Supreme Court said they cannot do.
"In Calder v. Bull, which was here in 1798, Mr. Justice Chase said, that there were acts which the Federal and State legislatures could not do without exceeding their authority, and among them he mentioned a law which punished a citizen for an innocent act; a law that destroyed or impaired the lawful private [labor] contracts [and labor compensation, e.g. earnings from employment through compelled W-4 withholding] of citizens; a law that made a man judge in his own case; and a law that took the property from A [the worker]. and gave it to B [the government or another citizen, such as through social welfare programs]. 'It is against all reason and justice,' he added, 'for a people to intrust a legislature with such powers, and therefore it cannot be presumed that they have done it. They may command what is right and prohibit what is wrong; but they cannot change innocence into guilt, or punish innocence [being a "nontaxpayer"] as a crime [being a "taxpayer"], or violate the right of an antecedent lawful private [employment] contract [by compelling W-4 withholding, for instance], or the right of private property. To maintain that a Federal or State legislature possesses such powers [of THEFT!] if they had not been expressly restrained, would, in my opinion, be a political heresy altogether inadmissible in all free republican governments.' 3 Dall. 388."
2. Constitutes a conspiracy to destroy equal protection and equal treatment that is the foundation of the Constitution, assigning all sovereignty to the government, and compelling everyone to worship and serve it without compensation.
"It has long been established that a State may not impose a penalty upon those who exercise a right guaranteed by the Constitution." Frost & Frost Trucking Co. v. Railroad Comm'n of California, 271 U.S. 583 . "Constitutional rights would be of little value if they could be indirectly denied,' Smith v. Allwriqht, 321 U.S. 649, 644 , or manipulated out of existence,' Gomillion v. Lightfoot, 364 U.S. 339, 345."
4. Constitutes an abuse of tax forms as a federal election device to unlawfully elect those who aren’t eligible and without their consent into public office in the government, in criminal violation of 18 U.S.C. §912 .
6. Constitutes a plan to implement communism in America. The Second Plank of the Communist Manifesto is a heavy, progressive income tax that punishes the rich and abuses the taxation powers of the government to redistribute wealth.
At common law, a "corporation" was an "artificial perso[n] endowed with the legal capacity of perpetual succession" consisting either of a single individual (termed a "corporation sole") or of a collection of several individuals (a "corporation aggregate"). 3 H. Stephen, Commentaries on the Laws of England 166, 168 (1st Am. ed. 1845) . The sovereign was considered a corporation. See id., at 170; see also 1 W. Blackstone, Commentaries *467. Under the definitions supplied by contemporary law dictionaries, Territories would have been classified as "corporations" (and hence as "persons") at the time that 1983 was enacted and the Dictionary Act recodified. See W. Anderson, A Dictionary of Law 261 (1893) ("All corporations were originally modeled upon a state or nation"); 1 J. Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the United States of America 318-319 (11th ed. 1866) ("In this extensive sense the United States may be termed a corporation"); Van Brocklin v. Tennessee, 117 U.S. 151, 154 (1886) ("`The United States is a . . . great corporation . . . ordained and established by the American people'") (quoting United [495 U.S. 182, 202] States v. Maurice, 26 F. Cas. 1211, 1216 (No. 15,747) (CC Va. 1823) (Marshall, C. J.)); Cotton v. United States, 11 How. 229, 231 (1851) (United States is "a corporation"). See generally Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 561-562 (1819) (explaining history of term "corporation").
7.10. Terms in the Constitution have been redefined to limit themselves to federal territory not protected by the original de jure constitution through judicial and prosecutorial word-smithing.
8. Constitutes a plan to unwittingly recruit the average American into servitude of this communist/socialist effort.
TITLE 50 > CHAPTER 23 > SUBCHAPTER IV > Sec. 841.


Doc. PhDr. Vlastimil Fiala, PhD.
In compliance with the provision § 1751 par. 1 of the Act no. 89/2012 Coll., Civil Code, as amended (hereinafter only as the “Civil Code”) those Terms and Conditions (hereinafter only as the “Terms and Conditions“) of the company Publishing House Moravian Chess, se sídlem Gorkého 31, 779 00 Olomouc, Czech Republic, identifikační číslo: 22999698 (hereinafter only as the “Seller“) govern mutual rights and duties of contract parties originated in relation or based on a purchase contract (hereinafter only as the “Purchase Contract”) concluded between the Seller and other natural person (hereinafter only as the “Buyer”) through Seller’s e-shop. This e-shop is operated by the Seller on the web address www.moravian-chess.cz (hereinafter only as the “Website”) through the interface of the Website (hereinafter only as the “Web interface of the e-shop”).
Those Terms and Conditions shall not applied in cases when a person who wants to buy goods from the Seller is a legal person or a person who is ordering goods within its business activity or within independent performance of its profession.
Regulation different from those Terms and Conditions can be negotiated in the Purchase Contract. Different provisions in the Purchase Contract take precedence over provisions of those Terms and Conditions.
Provisions of the Terms and Conditions form the integral part of the Purchase Contract. The Purchase Contract and Terms and Conditions are executed in English. The Purchase Contract can be concluded in Czech.
Those Terms and Conditions can be changed or amended by the Seller. This provision shall not affect rights and duties originated during the validity of previous terms and conditions.
Based on Buyer’s registration performed on the Website the Buyer can access its user interface. From its user interface the Buyer can order goods (hereinafter only as the “User Account”). If the Web interface of the e-shop enables it then the Buyer can also order goods directly from the Web interface of the e-shop, i.e. without registration.
During its registration on the Website and during ordering of goods the Buyer shall insert all information correctly and truly. The Buyer shall update all information mentioned in its User Account if it changes. The Seller considers Buyer’s information in its User Account and during ordering of goods to be correct.
Access to the User Account is protected by the username and password. The Buyer shall maintain confidentiality about such information necessary for the access to its User Account.
The Buyer does not have the right to allow third persons use its User Account.
The Seller can delete the User Account especially in the case when the Buyer has not been using its User Account for more than 2 years or when the Buyer breaches its duties arising from the Purchase Contract (including those Terms and Conditions).
The Buyer acknowledges that the User Account does not have to be available ceaselessly especially in view of the fact that Seller’s or third person’s hardware and software equipment has to be maintained.
Every presentation of goods located in the Web interface of the e-shop has only informative nature and the Seller is not obliged to conclude the Purchase Contract about such goods. The provision § 1732 par. 2 of the Civil Code shall not be applied.
The Web interface of the e-shop contains information about goods including prices and return costs of the goods if because of its nature such goods cannot be returned using common postal method. Prices of goods already include VAT and all related fees. Prices of goods are valid for the duration when they are displayed in the Web interface of the e-shop. This provision does not limit Seller’s right to conclude the Purchase Contract under individually negotiated conditions.
The Web interface of the e-shop also contains information about costs connected with the packaging and delivery of goods. Such information about costs connected with the packaging and delivery of goods mentioned in the Web interface of the e-shop is valid only if such goods is delivered within the Czech Republic.
information about costs connected with the delivery of goods (hereinafter together only as the “Order”).
Before the Order is sent to the Seller the Buyer can check and modify information which it has inserted into the Order and the Buyer can also check and correct possible errors which can occur when the Order is completed by the Buyer. The Buyer shall send the Order to the Seller by clicking the button “Order”. The Seller considers Buyer’s information in the Order to be correct. The Seller shall notify the Buyer that it received the Order immediately through the electronic mail to Buyer’s electronic address mentioned in its User Account or in the Order (hereinafter only as the “Buyer’s electronic address”).
Based on the nature of the Order (amount of goods, purchase price, expected transport costs) the Seller has the right to always ask the Buyer to additionally confirm its Order (e.g. in writing or by phone).
The contractual relationship between the Seller and the Buyer comes into existence when the Seller’s confirmation of the Order (acceptance) which is sent by the Seller to Buyer’s electronic address is delivered to Buyer’s electronic address.
The Buyer agrees with the fact that the Purchase Contract will be concluded using the means of distance communication. Buyer’s costs connected with use of the means of distance communication in relation to the conclusion of the Purchase Contract (internet connection, phone calls) shall be paid by the Buyer itself and such costs are not different from the basic rate.
Together with the purchase price the Buyer shall pay also costs connected with the packaging and transport of goods in agreed amount to the Seller. Unless it is explicitly stated otherwise the purchase price means even costs connected with the delivery of goods.
The Seller does not require any prepayment or similar payment from the Buyer. This does not affect the article 4.6 of those Terms and Conditions about the duty to pay the purchase price of goods in advance. This provision shall not be used for the goods made to order.
In case when goods is paid in cash or in cash on delivery then the purchase price is due when such goods is taken over. In case when goods is paid cashless then the purchase price shall be paid within 5 days since the Purchase Contract was concluded.
In each cashless payment the Buyer shall include the variable symbol of such payment. In case when the goods is paid cashless Buyer’s obligation to pay the purchase price is fulfilled when the particular amount is credited to Seller’s bank account.
The Seller has the right to demand payment of the total purchase price before goods is dispatched to the Buyer especially in the case when the Buyer has not additionally confirmed its Order (Article 3.6). The provision § 2119 par. 1 of the Civil Code shall not be applied.
Discounts from the purchase price of goods provided by the Seller to the Buyer cannot be mutually combined.
If it is common in business relations or if it is required by generally applicable laws then the Seller shall issue a tax document (invoice) about any payments based on the Purchase Contract. The Seller is a VAT payer. Tax document (invoice) shall be issued by the Seller for the Buyer after the purchase price is paid and it shall be send electronically to Buyer’s electronic address.
The Buyer acknowledges that in compliance with the provision § 1837 of the Civil Code it is not possible to withdraw (apart from others) from a purchase contract on delivery of goods if such goods was modified according to buyer’s wish or for its person, from a purchase contract on delivery of goods which is subject to rapid deterioration and also goods which was irretrievably mixed with other goods after it was delivered, from a purchase contract on delivery of goods in a closed case which was already removed by a consumer and because of hygienic reasons it cannot be returned back in and from a purchase contract on delivery of audio or video recording or computer program if the original case was already opened.
If it is not one of cases mentioned in the Article 5.1 of those Terms and Conditions or other case when it is not possible to withdraw from a contract then in compliance with the provision § 1829 par. 1 of the Civil Code the Buyer has the right to withdraw from the Purchase Contract within fourteen (14) days since the takeover of goods and if a subject of the Purchase Contract is more type of goods or delivery of more parts then such period begins when the last part of goods is delivered. Any withdrawal from the Purchase Contract has to be sent to the Seller within the period defined in previous sentence. For the withdrawal from the Purchase Contract the Buyer can use the sample form provided by the Seller which is attached to those Terms and Conditions. The Buyer can send the withdrawal to the address of Seller’s shop or to Seller’s electronic mail: fialav@hotmail.com.
In the case of the withdrawal from the Purchase Contract according to the Article 5.2 of those Terms and Conditions the Purchase Contract becomes invalid since the beginning of its validity. Goods shall be returned to the Seller within fourteen (14) days since the withdrawal from a contract. If the Buyer withdraws from the Purchase Contract then it shall pay all costs connected with the return of goods back to the Seller and even in the case when any goods cannot be returned by common postal method because of its nature.
In the case of the withdrawal from the Purchase Contract according to the Article 5.2 the Seller shall return all monies received from the Buyer to the Buyer within fourteen (14) days since the withdrawal from a contract in a same way as it was received from the Buyer. The Seller also has the right to return all monies provided by the Buyer when goods is returned by the Buyer or in other way if the Buyer will accept it and there will not be any additional costs for the Buyer. If the Buyer withdraws from the Purchase Contract then the Buyer does not have to return received monies to the Buyer before the Buyer returns goods to the Seller or proves that goods has already been sent back to the Seller.
The Seller can unilaterally set off its claim for the compensation of damage against Buyer’s claim for the returning of the purchase price.
In cases when in compliance with the provision § 1829 par. 1 of the Civil Code the Buyer has the right to withdraw from the Purchase Contract the Seller also has the right to withdraw from the Purchase Contract until the moment when goods is taken over by the Buyer. In such case the Seller shall return the purchase price to the Buyer without any unreasonable delay and to the bank account specified by the Buyer.
If any present is given to the Buyer together with goods then the donation agreement is concluded with the resolutory condition that if there will be any Buyer’s withdrawal from the Purchase Contract then such donation agreement about such gift shall cease to exist and the Buyer shall return such present together with goods back to the Seller.
In the case when the type of transport is negotiated according to Buyer’s special request then the Buyer bears the risk and possible additional costs connected with such transport.
If according to the Purchase Contract the Seller shall deliver goods to the destination defined by the Buyer in its Order then the Buyer shall take over goods when it is delivered.
In the case when goods has to be delivered repeatedly or in a different way according to the Order because of Buyer’s reasons then the Buyer shall pay all costs connected with such repeated delivering or costs connected with other type of delivery.
When goods is being taken over from a carrier the Buyer shall check if packages are not damaged and if there are any defects then the Buyer shall immediately inform such carrier. If the package is damaged and it is discovered that there was any unauthorized entry then the Buyer has the right to reject such delivery.
Other rights and duties of the contract parties connected with the transport can be defined in Seller’s special delivery terms if there are any.
The Buyer acquires the ownership right for goods by the payment of total purchase price.
In relation to the Buyer the Seller is not bound by any codes of conduct pursuant to the provision § 1826 par. 1 letter e) of the Civil Code.
Extrajudicial decisions connected with the consumer disputes arising from the Purchase Contract shall be executed by – Česká obchodní inspekce (Czech Trade Inspection Authority), registered seat Štěpánská 567/15, 120 00 Praha 2, Czech Republic, ID No.: 000 20 869, internet address: http://www.coi.cz.
The Seller has the right to sell goods based on its trade licence. Supervision over trade licences is performed by the relevant trade office based on its province. Supervision over the field of personal data protection is performed by The Office for Personal Data Protection (Úřad pro ochranu osobních údajů). The Czech Trade Inspection Authority (Česká obchodní inspekce) also supervises the compliance with the Act no. 634/1992 Coll., Consumer Protection Act, as amended.
The Buyer hereby adopts the risk of a change of circumstances according to the § 1765 par. 2 of the Civil Code.
The Buyer agrees with the fact that information connected with Seller’s goods, services or business will be send to Buyer’s electronic address and further agrees with sending of Seller’s newsletters to Buyer’s electronic address.
The Buyer agrees with the storage of so called cookies in its computer. If it is possible to perform a purchase on the Website and fulfil Seller’s obligation from the Purchase Contract without such storage of so called cookies in Buyer’s computer then the Buyer has the right to cancel his consent from previous sentence at any time.
The Seller can be delivering to Buyer’s electronic address.
If the relation founded by the Purchase Contract contains international (foreign) element then the Contract Parties agree that their mutual relation shall be governed by the laws of the Czech Republic. This does not affect consumer’s rights arising from generally applicable laws.
If any provision of those Terms and Conditions is invalid or ineffective or if it becomes invalid or ineffective then a provision which has the closes meaning shall be applied instead of such invalid or ineffective provision. Invalidity or ineffectiveness of one provision does not affect validity of remaining provisions.
The Purchase Contract including the Terms and Conditions is archived electronically by the Seller and it is not accessible.
The sample form for the withdrawal from the Purchase Contract forms the attachment of those Terms and Conditions.


text:
as Charles Lee Moore, Appellant.
C. Peter Erlinder, St. Paul, MN, argued for appellant.
Joan Ericksen Lancaster, Asst. U.S. Atty., Minneapolis, MN, argued, for appellee.
Before FAGG, Circuit Judge, and LAY and HEANEY, Senior Circuit Judges.
Timothy A. Gayles appeals his conviction and sentence for kidnaping Maureen Shook in October 1991. See 18 U.S.C. Sec. 1201 (1988). We affirm Gayles's conviction, but remand for resentencing.
This case arises from the abusive relationship between Gayles and Shook. The couple met in 1984 and had two children together. During the course of their relationship, Gayles beat Shook and she obtained restraining orders. After Shook got help at a battered women's shelter for the fourth time, she decided to break off her relationship with Gayles. Shook refused to take Gayles's telephone calls and boarded up her apartment so he could not break in. Nevertheless, Gayles confronted Shook inside a grocery store while she was shopping with her roommate and younger son. Gayles talked with Shook then left the store. When Shook approached her car in the parking lot, however, Gayles ran up to her and grabbed her by her neck and hair. Shook threw her car keys to her roommate, but Gayles retrieved the keys and pushed Shook into her car. Their child was in the back seat. Gayles punched Shook several times, hitting her in the face, back of the head, lips, and nose. One blow knocked Shook's glasses off her face and bent them. Gayles sped out of the parking lot. He told Shook he was going to hit her and put her into the hospital. Gayles also stated he was taking her to Chicago and he was going to kill himself. In an effort to intimidate Shook, Gayles told her a story about a man who had killed his child because he was angry with his wife. Gayles did not stop the car until they crossed the state line into Wisconsin. Gayles then stopped at a gas station and told Shook to clean the blood off her face. He later stopped at a grocery store and, leery of leaving Shook in the car alone, took her inside. Once Shook saw several male employees inside the store, she decided to try to escape. She ran down the aisles screaming for help, with Gayles in hot pursuit. According to store employees, she looked terrified. The employees tried to stop Gayles, but he eluded them and got away in Shook's car.
During the first two days of the trial, the jury heard the testimony of Shook and two government witnesses who saw the initial abduction. Between the second and third days of trial, the judge became ill. Another judge familiarized himself with the proceedings and stated his intent to proceed with the trial under Federal Rule of Criminal Procedure 25. Gayles moved for a one-day continuance to see if the original judge would recover and return. The new judge denied Gayles's motion for a continuance because he was satisfied the original judge would not be able to return within a day. The new judge also denied Gayles's motion for a mistrial. Two days later, testimony ended. A jury found Gayles guilty of kidnaping. Because Gayles was a career offender under the sentencing guidelines, the minimum guidelines sentence was thirty years' imprisonment. The district court imposed the minimum sentence. A few days after sentencing, Gayles and Shook married. Gayles moved for a new trial based on Shook's alleged recantation of her trial testimony. Finding the information contained in Shook's affidavits probably would not result in an acquittal on a new trial, the original judge denied the motion and Gayles's request for a hearing on the motion.
Gayles asserts the district court abused its discretion in denying his motion for a new trial, based on Shook's "recantation of her testimony regarding the involuntariness of her association with [Gayles] on the day of the alleged kidnapping." See United States v. McCabe, 812 F.2d 1060, 1061 (8th Cir.) (victim's lack of consent is a fundamental element of kidnaping), cert. denied, 484 U.S. 832, 108 S.Ct. 108, 98 L.Ed.2d 67 (1987). A motion for a new trial based on recanted testimony should be granted if, among other things, the recantation would probably produce an acquittal on a new trial. United States v. Provost, 921 F.2d 163, 164 (8th Cir.1990) (per curiam), cert. denied, --- U.S. ----, 111 S.Ct. 1603, 113 L.Ed.2d 666 (1991); Lewis v. Erickson, 946 F.2d 1361, 1362 (8th Cir.1991).
Gayles mischaracterizes the content of Shook's affidavits. Shook does not state she willingly went with Gayles to Wisconsin and does not contradict her trial testimony about what happened. Instead, Shook states in her first affidavit that she does not believe the events she testified about at trial establish a kidnaping and that she thinks Gayles's sentence is too long. Shook's subjective beliefs about the appropriateness of the charge or sentence, however, are irrelevant. Shook states in a supplementary affidavit that after she told Gayles she wanted to go back to Minnesota, Gayles agreed to return. By this time, however, Gayles had already taken Shook into Wisconsin without her consent, and thus, the crime was already complete. Shook also states in the supplementary affidavit that Gayles never held her for ransom. Ransom, however, is not a requirement of the kidnaping statute, see 18 U.S.C. Sec. 1201 (1988) (unlawfully seized person must be held "for ransom or reward or otherwise"), and Gayles was not charged with holding Shook for ransom. See McCabe, 812 F.2d at 1062-63 (Congress added "or otherwise" to extend the statute to persons held "for any other reason"). In short, the jury was properly instructed about the charge and nothing in the posttrial submissions casts doubt on the jury's finding that Gayles took Shook against her will from Minnesota to Wisconsin for his own purposes. Thus, the information in Shook's affidavits would probably not produce an acquittal on a new trial.
Even if Shook had said she consented to go to Wisconsin with Gayles, disinterested witnesses testified about Shook's abduction by Gayles from the grocery store in Minnesota, her terror in trying to escape in the Wisconsin store, and her bruised face. Thus, a statement by Shook that she voluntarily went to Wisconsin with Gayles would be inconsistent with the independent evidence in this case.
We disagree with Gayles's assertion that the district court abused its discretion in denying him a hearing on his new trial motion. A new trial motion based on recanted testimony can usually be decided without a hearing. United States v. Provost, 969 F.2d 617, 619 (8th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 986, 122 L.Ed.2d 139 (1993). The judge who decided Gayles's new trial motion heard Shook testify at trial, and thus, the judge did not abuse his discretion in declining to conduct a hearing. Id. at 619-20.
Gayles also contends the district court should have granted his motion for a mistrial because the original judge became ill during the trial and another judge was substituted. If a trial judge becomes sick and is unable to proceed after a criminal jury trial has started, another judge may proceed with and finish the trial if the judge certifies familiarity with the record. Fed.R.Crim.P. 25(a). In our view, the plain language of Rule 25 permits the substitution in this case. See United States v. Sisk, 629 F.2d 1174, 1179 (6th Cir.1980), cert. denied, 449 U.S. 1084, 101 S.Ct. 871, 66 L.Ed.2d 809 (1981). The first trial judge became seriously ill and would not be able to return to the courtroom following a reasonable continuance. The new judge certified his familiarity with the record, and went out of his way to avoid potential problems that might arise because of the substitution. Even if the substitution were erroneous, it would be harmless because Gayles does not assert how the substitution prejudiced him. Gayles appeals no evidentiary decisions, and the original judge, who heard Shook's testimony, ruled on Gayles's motion for a new trial based on Shook's alleged recantation.
Next, Gayles asserts his right to be present at all stages of his trial was violated when the jury was selected in his absence from the courtroom during a lunch recess. See Fed.R.Crim.P. 43(a). We disagree. Gayles was present in the courtroom while the potential jurors were questioned. Although Gayles was absent later when his attorney made his strikes over the lunch hour, the cover of the jury voir dire transcript shows Gayles was present in the courtroom when the clerk gave the strikes effect by reading off the list of jurors who had not been stricken. Gayles does not present any affidavit to the contrary. Under controlling precedent, Gayles was sufficiently present at the jury's impaneling to satisfy Rule 43 and the Constitution. United States v. Chrisco, 493 F.2d 232, 236-37 (8th Cir.), cert. denied, 419 U.S. 847, 95 S.Ct. 84, 42 L.Ed.2d 77 (1974).
Gayles contends his right to a fair trial was prejudiced when a juror saw him in shackles in an area near the courtroom during jury deliberations and the district court held no hearing to determine the impact. Gayles forfeited this issue by explicitly rejecting the district court's invitation to move for a mistrial or a hearing. We thus lack discretion to reverse on this ground unless the district court made an obvious mistake that prejudiced Gayles. United States v. Olano, --- U.S. ----, ---- - ----, 113 S.Ct. 1770, 1776-78, 123 L.Ed.2d 508 (1993); Fed.R.Crim.P. 52(b). We do not believe the district court committed an obvious mistake. Further, when a juror's view of a defendant in custody is brief, inadvertent, and outside the courtroom, prejudice to the defendant is slight. United States v. Fahnbulleh, 748 F.2d 473, 477 (8th Cir.1984), cert. denied, 471 U.S. 1139, 105 S.Ct. 2685, 86 L.Ed.2d 702 (1985). Even if we believed the district court made an obvious mistake that prejudiced Gayles, we would not exercise our remedial discretion to correct the error given Gayles's affirmative decision not to move for a mistrial or hearing in the district court. See Olano, --- U.S. at ---- - ----, 113 S.Ct. at 1778-79; United States v. Valencia-Lucena, 925 F.2d 506, 514 (1st Cir.1991).
Challenging his sentence, Gayles asserts the district court abused its discretion in denying his motion for a downward departure from the applicable guidelines range. Specifically, Gayles contends the district court should have departed downward because his criminal history category exaggerates the gravity of his earlier criminal activities. See U.S.S.G. Sec. 4A1.3. The district court assigned Gayles the criminal history category for career offenders, see id. Sec. 4B1.1, relying on Gayles's 1979 conviction for armed robbery and related crimes committed during the same criminal episode when he was 21 years old, and a recent state drug conviction for which he served less than six months in prison. Most of Gayles's other skirmishes with the law were misdemeanor offenses.
Under U.S.S.G. Sec. 4A1.3, the district court may depart downward from an otherwise applicable sentencing range when reliable information shows the defendant's criminal history category significantly overrepresents the seriousness of the defendant's past criminal conduct. United States v. Brown, 903 F.2d 540, 544-45 (8th Cir.1990). A district court may depart downward under Sec. 4A1.3 even if the defendant is a career offender under Sec. 4B1.1. Id. at 545. In deciding whether a departure under Sec. 4A1.3 is justified, a district court considers the historical facts of the defendant's criminal career. United States v. Senior, 935 F.2d 149, 151 (8th Cir.1991); see United States v. Smith, 909 F.2d 1164, 1169-70 (8th Cir.1990), cert. denied, 498 U.S. 1032, 111 S.Ct. 691, 112 L.Ed.2d 682 (1991); U.S.S.G. Sec. 4A1.3(a)-(e).
At Gayles's sentencing hearing, the district court did not acknowledge its power to depart from the applicable guidelines range under U.S.S.G. Sec. 4A1.3 or address Gayles's argument for departure under this section. The district court's oversight is entirely understandable because Gayles only raised the Sec. 4A1.3 issue obliquely in a written "Position with Respect to Sentencing" filed with the court ten minutes before the sentencing hearing was scheduled to begin. Gayles argued at the sentencing hearing for a departure based on the unusual facts of the case, but did not argue for a departure based on Sec. 4A1.3. Because the district court did not realize Gayles was seeking a departure under Sec. 4A1.3, we believe we should remand this case to give the district court an opportunity to consider whether a downward departure under Sec. 4A1.3 is appropriate. See Brown, 903 F.2d at 545.
After the parties filed their briefs and addenda, the Government moved to strike part of Gayles's addendum (containing a newspaper interview with Shook about the events underlying the case) and the parts of Gayles's briefs referring to information contained in the interview. When reviewing the denial of a new trial motion, we do not consider affidavits outside the original district court record. United States v. Menard, 939 F.2d 599, 600 (8th Cir.1991) (per curiam). Here, the article was published after the district court denied Gayles's new trial motion and thus is not part of the district court record. In addition, Shook did not swear to the information. Accordingly, we grant the Government's motions to strike.
We affirm Gayles's conviction, but vacate his sentence and remand for resentencing.
LAY, Senior Circuit Judge, concurring.
I respectfully concur in the judgment of the majority. I write separately concerning the thirty-year sentence the defendant has received.
Much of Gayles's 30-year sentence is attributable to the trial judge's decision to classify Gayles as a career offender.3 Without the career offender designation, the Guidelines recommend a sentence of between 100 and 125 months--roughly a 20-year reduction in sentence. The Guidelines define a career offender as a defendant with at least two prior felony convictions involving either a crime of violence or a drug offense.4 U.S.S.G. Sec. 4B1.1. Gayles concedes he had two such offenses: a 1979 burglary and unlawful restraint conviction for a crime committed when Gayles was 21 years old and a more recent state drug conviction for which he served less than one year in jail.
As the majority states, the trial court never considered Gayles's arguments that the career criminal status overrepresents the seriousness of his criminal history.5 I write separately to emphasize our prior opinions that hold that trial judges may depart downward in career criminal cases because the "guidelines clearly allow for the possibility of departure where the defendant's conduct is exaggerated by the criminal history score." United States v. Brown, 903 F.2d 540, 545 (8th Cir.1990).
In United States v. Senior, 935 F.2d 149 (8th Cir.1991), we approved a downward departure under section 4A1.3 based on circumstances that are remarkably similar to this case. See also United States v. Smith, 909 F.2d 1164, 1169-70 (8th Cir.1990), cert. denied, 498 U.S. 1032, 111 S.Ct. 691, 112 L.Ed.2d 682 (1991). In Senior, we observed that the then 27-year-old defendant was only 20 years old when he committed his first predicate offenses--a series of robberies. 935 F.2d at 150-51. Here, Gayles was 21 when he committed the burglary that became the first predicate offense in his criminal history designation. Gayles is now 35. In Senior, we also relied on the short sentence the defendant received for his second predicate offense--drug charges for which he served about eighteen months of a six-year sentence before being paroled. Id. We said this sentence revealed "the state's assessment of the seriousness of Senior's crimes as reflected by the state courts' handling of sentencing and by the length of time Senior actually served." Id. Gayles's second predicate offense also was a drug offense. He served less than one year in jail on this charge. This too reflects the seriousness with which the State of Minnesota treated this offense. Although Gayles has had many other skirmishes with the law, most were misdemeanor offenses that do not qualify him as a career criminal. U.S.S.G. Sec. 4B1.1; United States v. Hester, 917 F.2d 1083, 1084 (8th Cir.1990).
On the basis of the above discussion, I join in the remand to vacate the sentence for the trial court to reconsider defendant's sentence under section 4A1.3 of the Federal Sentencing Guidelines.
The statute was drawn in 1932 against a background of organized violence. Kidnaping by that time had become an epidemic in the United States.... "Law enforcement authorities, lacking coordination, with no uniform system of intercommunication and restricted in authority to activities in their own jurisdiction, found themselves laughed at by criminals bound by no such inhibitions or restrictions ... The procedure was simple--a man would be kidnapped in one State and whisked into another, and still another, his captors knowing full well that the police in the jurisdiction where the crime was committed had no authority as far as the State of confinement and concealment was concerned."
It was to assist the states in stamping out this growing and sinister menace of kidnaping that the Federal Kidnaping Act was designed. Its proponents recognized that where victims were transported across state lines only the federal government had the power to disregard such barriers in pursuing the captors.
Chatwin, 326 U.S. at 462-63, 66 S.Ct. at 236-37 (citations omitted).
There may be cases where the court concludes that a defendant's criminal history category significantly over-represents the seriousness of a defendant's criminal history or the likelihood that the defendant will commit further crimes. An example might include the case of a defendant with two minor misdemeanor convictions close to ten years prior to the instant offense and no other evidence of prior criminal behavior in the intervening period. The court may conclude that the defendant's criminal history was significantly less serious than that of most defendants in the same criminal history category (Category II), and therefore consider a downward departure form the guidelines.
The information contained in this section of the report assists the Court to evaluate the adequacy of the criminal history category in reflecting the seriousness of the offender's past criminal behavior and in determining whether a departure may be warranted.
(Emphasis added). Gayles's second attorney submitted a position paper 10 minutes before commencement of the sentencing hearing that further addressed the downward departure. The submission argued that the career criminal status "overstates the seriousness of Mr. Gayles' criminal history" because "[b]y any standard, Mr. Gayles' convictions over the past 10 years have not been of the nature that should result in Career Criminal status."
The trial judge, however, treated the arguments on overstatement of criminal history as a challenge to the 30-year sentence under the Eighth Amendment to the U.S. Constitution. The two analyses are quite different. The Eighth Amendment analysis cited by the trial judge looks at the sentence in relation to the crime and permits, as the trial judge correctly observed, only a "narrow review to determine whether the sentence is grossly disproportionate to the crime." Section 4A1.3 of the Guidelines looks only to the defendant's criminal history to determine if the score significantly underrepresents or overrepresents the defendant's record and likelihood of recidivism; it does not involve a weighing of sentence and crime.

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