district court committed legal error in its analysis of the acceptance of responsibility issue we submit the court did for three reasons first the court misapprehended the nature of the burden of proof here the court believe that because mr kar had the burden of proof on this issue that it was incumbent upon is the carbons the come forward with actual evidence that it was insufficient for his attorney to make argument with respect to undisputed facts concerning the acceptance of responsibility issue there was an alternative holding right yes from the district judge said summarizing there were eyewitnesses there was a police report there was a videotape showed m carthusians being involved in the purchase of eight hundred dollars worth of products shoes with a false identity this report was a precise about the involvement but noted that showed he was involved and of course we know from the record that it was that involvement that led to a finding of probable cause and an arrest warrant right with respect around him no that's not correct that's not what the district court found here in fact a district court quite clearly said that he was not making a finding with respect to mr carson's conduct in the new jersey case he said that my quote from page this is from page one ninety four of the next no one has proven in this hearing that he did commit a crime in new jersey only suggested he was arrested for such a crime and he went on further to say i am not making a finding with respect to his conduct attorney here is right didn't say i'm making a finding that the crime was committed but did make a statement that there was there was evidence not just an arrest but there was eyewitness police report and videotape showing mr karr thins at the store and indicating some involvement that's you're saying that this report didn't observe those things the district court charges were dismissed but the cases i cited uniformly hole that's enough there does not have to be there's no suggestion of the judge has to find by even a preponderance of the evidence that the defendant was guilty of those charges and then then says of page one ninety three to one ninety three i conclude my colleagues did on the third circuit that the defendant's arrest is sufficient evidence to satisfy me that if that the defendant by a fair  don't need to know a mere fact of arrest is enough for me to make this determination and what this court said and barry was determined any determination on what on whether in fact he didn't even make the determination with respect to quote unquote whether or not mr carton's accepted responsibility was and whether there was any use in it to conclude that he had met his burden that he accepted responsibility and isn't that a major difference now because in respectfully it's not because  there was would have difficulty with that with raw speculation being used for for any purpose but where is the where's the raw speculation in observing that there is evidence of criminal involvement all the judge is relying upon here though is the arrest he specifically not making a finding based on any evidence because quite frankly no evidence no actual evidence was presented to him and he says that here no one has proven this to me at the hearing at this hearing that a crime actually occurred here there is no there was references to the fact that there was a videotape but there was no planning of the videotape there was no event representations on the part of the government attorney of the probation officer as to what is on the videotape it may well be as mr carter said that his friend is the one who committed this offense and that may be what is shown on the video that we have no clue from this record and that is why the court said well there's a line on the arrest let me assist you you have given the back of your hand in your briefing to the idea that the district court could draw a conclusion from the fact that thins was with the perpetrator if mr carthew story is accepted assuming it's true that his his friend is the the lowlife here i'm not him the district court even if i assume that he's the actual perpetrator the friend this is enough to tell me that he's associating with criminals now other than your assertion that that's pure speculation is there well we've asked this way is it improve miscible for a judge to make an inference based on being present and with people an activity when what you're being sentenced for is fraudulent activity the problem with it here your honor is that the judge may no finding that mr carton's would have had knowledge that his friend was committing gather defend it was there i believe it captured from that would indicate to me and i so find that the defendant has not withdrawn from criminal associations why can't the judge make an inference like that issue whether this provision is one of strict liability that if you're with somebody and they commit an offense they take out a credit card that is stolen that you're somehow on the hook for that even though there was no basis for you to know what they were doing and the judge  somebody has made out a showing that they're entitled to a reduction for acceptance of responsibility is reviewed for clear error that is correct in those cases also go on to is interpreting the guideline is interpreted the guideline with respect to the burden of proof which we submit is erroneous and really know this you know the government is making at the termination that a mere arrest is a sufficient basis to make this determination and there's really no position that i think the government to be making which is that the the judge could properly have inferred criminal association on this record and in fact did and that that's not clearly erroneous the legal issue there is whether the judge would have to make a finding in that regard of no i know he wasn't this provision requires i know you're saying he didn't make a finding but i read the language and he says that would indicate to me and i so fine that the defendant has not withdrawn from colonel association that's right on the heels of him saying he's on tape being with this person and i guess i could read that and say well he made an illogical jump or i could read that and say he's making an inference of knowledge based on the guy being there and if i if i read it the latter way if i just stepped outside the bounds of the law respectfully estrada because the judge isn't making that i'm expressing finding there was no evidence to that effect the government wasn't arguing that he had knowledge of what his friend was there and it was that was it the the judge went on for seventeen provision with a permissible factual basis to conclude that your client had not withdrawn from criminal conduct or complaint i'm finding that you did this the u s said i'm not making that he said he's the judge said based on the reading of that complaint i am finding that you have not accepted responsibility he did not actually he did not say that on the basis of the complaint he said it on the basis of the arrests and he was quite clear about the set of threat these twelve this is and they tell me that the mere fact that you're arrested this is sufficient this is here and said the complaint provides me with reliable evidence of the fact that you actually did this he said i'm not finding that you did this this i've seen you you said that the government did make this argument about the criminal associates is that legally meaningful does the judge have to confine him or herself to what the government or the defendant chooses to argue or can the can the judge look at the evidence and say look this is what i see and this is how i look at what's in front of me absolute judge not is not confined to what the government is arguing but my point here is this when your honor is asking can i in is it proper to infer that the judge is making a finding of knowledge here one of the points i haven't response is nobody was arguing  what i read in the same paragraph the judge saying these are these guys are on videotape together doing this and to me that indicates and i so flying he has withdrawn it doesn't seem to me like a giant or do we state that as a matter of law you were your client was entitled to at the time of original sentence the acceptance of responsibility even after even if there be facts later on the court after having made the legal determination that he doesn't get it because there was an arrest because of the burden of proof issue the court after hearing from this the cartons actually said i believe he's fully accepting of the responsibility for his actions you have to come for with proof i mean three a one point one cents you know but the plea itself is substantial evidence of acceptance of responsibility so how how can we read what the district court did right out of the gate without thinking error well judge jordan i believe that the court in fight at the defense to establish acceptance of responsibility one of the things that the court could not ignore at the time of sentencing was the fact that between the time of the plea and the time of sentencing the defendant had been arrested well the court in fact let's stick with the let's stick with that first issue though the first issue and the one that your opponent hit  as soon as he stood up practically is the is the court's opening salvo on page one eighty eight of the appendix pizza me some of the colloquy where the court says the defendant presented no evidence at this hearing to and the guideline itself says that that all by itself is significant evidence how could the district court be right well the court can be right because not only does the guideline provision that affords a defendant acceptance of responsibility also point out the fact that there are certain circumstances which exist in this case that may deny may be cause for the court to deny the defendant except it's a shriner ability absolutely but that's not what the court said the court said you came forward with no evidence and that's just flat wrong isn't it i mean isn't unless i'm reading three one point one wrong he did come for hundreds of cases and where juries are told instructed at the end panel been in some asian instructions that the fact that someone has been arrested is proof of nothing it's to be that he was involved in criminal activity beyond the matter for which he was being sends what why am i wrong in saying the judge made a mistake of law by saying that the very fact that he was arrested without any proof before the no evidence there wasn't anything that there was no proof that that other than the arrest nor was there any evidence that he knew that the man he was with was going to s defense counsel in this matter i mean the complaint itself doesn't make any reference to a friend what the court had before it where the facts or circumstances had the complaint itself the allegations set forth in the and the fact that it's at nordstrom's the fact that it's you know prada shoes that are that that are that are being attempted to be purchased by the defendant was it permissible for the court to review the criminal complaint at that stage in this proceed in other words at the sentence your honor i believe that at the time of sentencing the court can rely upon any reliable information that it deems worthy in this particular case where the defense has that burden of proof if there want acceptance of friend was arrested and the fended was present there was no proof before the judge that the fed knew the friend was going to steal there was no proof before the judge that the defendant was  oh couple hundred criminal trials where we instruct the jury mere presence at the occurrence of a crime is not proof of involvement you could be standing next to someone killing someone and it's no proof without more that you're involved in that murder we have a page here where the judge said the fact that he was with his friend at the time means he was involved in that personal activity where the friend was trying to steal shoes or whatever is not a is not a mistake of law when he used that fact and find that there was no except it's a responsibility i don't believe that the court was wrong i think that in this particular case i mean again we keep talking about this friend and that the friend was arrested the only criminal complaint that the court had at the time of sentencing was a chemical plant charging william carte this with identity theft with  credit card credit card fraud fraud fraudulent use of a credit card and wrongful impersonates the charges were against mr lister cartons not to get somebody else it's like an elephant sitting in the court room i differences here because there was the court was skeptical about the allegations being or the argument me made by the defense will acknowledge that other than the the facts of the complaint yes the judge took no evidence as to whether or not the charges o f the complaint were meritorious he took no evidence whatsoever is not correct that's correct all right so what the judge based denial of the acceptance of responsibility on was number one that he was arrested arrest is not evidence of anything without more proof and number two presence at a crime is no evidence of you don't receive didn't you also have a letter from the pretrial services whether or not the man was guilty of the merits of any of these claims of the arrest well in terms of evidence all of these all of these items that you just referred to can be can be considered as evidence in this case but one of the things like that you're saying the company the arrests the complaint leading to the arrest is evidence is that your position i'm not suggesting to the court that it was evidence of guilt i'm saying that it was evidence in terms of that in terms of something that the court can rely charge there's a pretrial service letter a complaint there's no evidence it's like someone charging you and saying we want to know if you're guilty what evidence was before the judge that sh to what evidence was there that the defendant accepted responsibility and that was that the evidence is he yes he cooperated with the government in that and and and the prosecutor acknowledged that i did not in to i'm sorry your honor i don't believe that i ever indicated evidence that he was guilty or not kill that's correct and it would have been a what would it possibly could have been a violation of due process if judge gardner had made a determination of guilt or innocence based on the information that he had but that was not what the purpose of that hearing was what was the purpose of the sentencing hearing was to determine what the pope what sentence was appropriate for mr carter that's at that point in time your honor  defendant had made it his criminal conduct the charge that the counterfeit charge but there was there was information that was made available to the court in terms of the criminal complaint out of new jersey the pump which is before the court but what are any proof as to the merits of that complaint before more except the complaint that the you had the complaint you had the letter from pretrial services indicating the ask a question which is puzzling to me there is a statement on page two eighty two to eighty three of the appendix where the district court judge says i believe he mr carson's is fully accepting of the record judge what exactly were you thinking there judge jordan when when judge gardner made that comment my my initial reaction was that what the court was finding was that he recognized the fact that mr carson's had accepted responsibility for that the activities that he engaged in that lehigh valley mall in terms of the counterfeiting but what the court did not find and the basis for the court denied acceptance of responsibility is because the court believe that there was other activity that the defendant had engaged in between the time of the plea hearing this sense hearing and that the defendant had not presented any evidence to the court to justify acceptance of responsibility with this is a term of art is an acceptance of responsibility that that's a that's a phrase that's fraught with legal meaning so if you say i fully accept that you are you have accepted responsibility doesn't that it shouldn't that have some legal implication for whether the me and gets the credit for accepting responsibility no i think that at that point in time well i think judge gardner's position was you've accepted responsibility for this counterfeiting activity but in terms of the activity that you've engaged in two weeks prior to sentencing however you know you haven't proved to the court that you have disassociate yourself from others engaged in criminal conduct should they have should judge gardner have considered the argument of counsel that in fact he was not involved that it was really the other individual since he looked at the letter he looked at the complaints or end of the also come from that the defense the defense at the time of the sensing hearing said we vehemently deny that the defendant was a criminal conduct but isn't that sufficient isn't that denial it is but you're  himself from from criminal conduct or associations with individuals who were engaged in criminal conduct i was the fact that he was present when the codefendant got arrested correct well again your honor and well is that what the denied any involvement he denied any involvement however your honor there was there was the representation is made to the pretrial services officer who included that information or provided that information to the court that you say by the prosecutor did the pretrial services was in touch with the individuals up in middlesex county or yes yes and based on their information and that's how pretrial services was able to notify the court that there was a videotape showing the defendant engaging in criminal conduct no reference to a friend that they that an eye witness had i did to defend it not a friend that information was before the court and in answer to your question judge fisher this standard of review is clear air we thank you ron i think there's some confusion on the part of the government here the government says that what judge garner found here was that he accepted responsibility for the offense of conviction well that that's the issue three a one point one says if the defendant clearly demonstrates acceptance of responsibility for his offense decrease the offense level by two level it wasn't that a different phase of the sentencing he had already ruled on the adjustment and the pride and the the language as judge ordered referred to  the thirty five fifty three stages a sense it was it not it was your honor he's always in there there's at the there's a huge difference i think what it shows is that there was fundamental confusion below on the part of the district court i think what happened here was that the court got it wrong as a matter of law with respect to the issue of the burden of proof believing that somehow that's how the argument that's another organ and also got it wrong with respect to the mere fact of ras the mere fact of a raft being a basis to did not i this reduction but when it came down to the factual issue of whether this man except responsibility for his offense the judge could have been clearer that he believed the debt and i think that unfortunately that the proceeding was but it's it's undisputed right that the district court did have in addition to the arrest had whatever facts could be gleaned from the the  arrest warrant i guess it's wrong the police report the criminal complaint that's one eleven and the and had the additional information summarized by the pretrial office on one o nine to one ten right that but it is what it is permitted fully permitted to look at that evidence as long as this record deems it reliable why can't this report rely on the representations of the pretrial service office based on information gather from new jersey state police and eye witnesses three responses first the court didn't rely on it and that's that's the most important here the court in and say all right i see this point unquote eminence i'm going to rely upon it and make a finding that you did this court specifically said i'm not doing that i'm not making a finding i'm just relying on the eros that's what the courts second and when we look at the celt quote unquote evidence there is none they're just allegations they don't come forward with the videotape there's no representation as to what's on the videotape my friend here said that the videotape shows the defendant doing it there's no allegation of that that's not in the memo from the pretrial services officer  tape i mean there's nothing there about you know there are there are two guys and there's confusion it's somebody saw this guy doing the crime and he's on tape doing it now if the district court judge says well i'm prepared to believe my pretrial sentence office and that there's an eyewitness who says mr karr things did it that's sufficient for me beyond a bare arrest to record judge can consider underlying conduct where a libel evidence of that conduct is presented which it wasn't here or where the p s are adequately details the underlying facts without objection from the defendant and here there clearly was an objection from the defendant with respect to these allegations and the memo itself that the district court judge got also informs the district court judge that the defendant denies any wrongdoing he says a friend of well i thought he did or you speak he was talking about the videotape but severin the only place to get that is from that memo right he was only referring to that in connection with he after he provided seven hundred pages regarding h interpretation of the cases i got i got your argument on that then he refers to mr carr thins representation in the in the memo that he didn't do it that a friend of his did it and that's what he refers to the videotape saying i believe on the video tape the judge says i believe on the videotape there's two people there yeah there's the defendant and somebody else which tells you he was talking about the lying on dealing with that right without