some feedback but i'm not inclined to do much with it i guess bend the back we get here you and i understand you even with the feedback i was i don't know that it would be a good idea to try try something else at this point because we can i'm going to go all right so let's let's proceed it's fine for mister keith he alleges that he received ineffective assistance of counsel when you trial counsel fail to pursue a downward departure based on average behavior the government talked of dismissed behaviors petition by arguing that mister giftes conduct constituted otherwise using it dangerous weapon that was a different position than the government to look in the underlying sentencing it arguably accepted a finding biggie he had merely brandish finding on that rejecting the government's position because what happens here is the government just didn't see that it's against the night of the guidelines and i'm wondering if you think that makes just friends i don't think it does i think that the government excepted the classification of this conduct as brandishing it was in the p s r they were asked whether there agree with that classification and they did except for that and if you look at if there are two potential classifications that can be used in the conduct that leads to the greater offense level d should be chosen and so in the district court make a factual climbing and i why did it do that it didn't make an express factual finding with respect to whether he brandished or otherwise do used but it did take into the offense level that it a level point two and in its statement of reasons it agreed with and it made the statement the court adopts the pre sent investigation report without change and that's an appendix fifty three dollars and so the categorization of brandishing was at least a fact of the advisory guideline range that the court used and the court did say at the sentencing hearing quote the advisory guideline range does take into consideration the fact that if anyone tried to report it within thirty minutes that the bomb would go off obviously in the context of this case part of our position is the government should be able to add  cynic lateral proceeding pick a different position than it did with respect to the underlying proceeding the alternative argument is that both the court and the government in its original categorization got it right that this is brandishing and does not rise to the level of otherwise using now is this are you proceeding on this battle theory or a waiver theory or both because i'm struggling for a lot of reasons with this argument that it's difficult but i'm one of them one thing i'm friendly with his wife or the assad box i think it's a waiver because the government has the burden to given the binary nature of otherwise using or brandishing an obligation to seek the greater of the two of the replies that they did not seek to categorize it as otherwise using so that's i guess the threshold issue is whether they can change their position in the collateral proceeding and argues they shouldn't be shouldn't be  my client's pro se views petition was i wasn't it was never discussed there was an available departure and he never sought to raise it so he was ineffective in that regard the government argued in seeking to dismiss it  can't take inconsistent positions in a subsequent collateral to see well let me ask you that the waiver is the intentional relinquishment of a known right that supreme court has been fanned that for forty or fifty years when when the when the government refused to object to the brandishing enhancement as the original proceeding did they intentionally relinquished the right to argue the use them a dangerous weapon later well i think that they had to because it was their opportunity to prove that at the time and they do so then that's the effect once once my client subsequent that in the cloud proceeding it doesn't permit them to switch switch tack so to speak and argue actually this was brandishing issues actually this was otherwise using ok and with respect to the merits in terms of how this should be categorized  you know it's our position that if you look at miller which is the th circuit case if you look at the bands on which is the th circuit case there is a specific asked taken with the object  there's lighting the fuse there is pressing a detonator in those cases there is something more than merely showing it and making some steps to represent that is dangerous and you know my client walked in the bank he had a box and he made some statements so that to create the impression that it was a dangerous weapon and i don't think the government meaningful of this distinguishes between a conduct that's necessary to create the impression of harm and something more that's required in order to raise it to the level of otherwise use it and if i think this case is better situated within the district of nebraska opinion and within the district of main dangerous weapon so point the why isn't there or leave that mice in this case if not more by leaving the cardboard box on the on the counter i think the distinction is that the otherwise use has to be a reference in some point you have to be using the purported dangerous weapon in order to create additional fear and there are cases that fits a fact pattern need to say where that a specific directed to take an action whether it's pointing a gun or something like that and i think just basically in this instance it's better viewed as brandishing because the same statements that are being used to effectuate fear to create that mental impression there's not anything more beyond that again he's got an empty box you have to do something to be classified as a dangerous weapon and here i don't think there is something beyond that in order to that is attorney was deficient for not seeking a downward departure under five k two dollars the simple fact isn't the analysis of this case the district court properly ruled that five k two point two zero one abene bailable one of the arguments from defense counsel here is that we shouldn't be able to go back and take a different position well of course we should because that's the analysis under strickland one was that it deficient performance but two would it of change the outcome so we have to look at what analysis would have occurred if don't work is because with out the action being made or the seeking of the downward departure the government doesn't have the opportunity then to present evidence to challenge that so in this particular case specifically had defense counsel sought the departure under five k two point two zero four and claim that it wasn't otherwise used two things probably would have happened one the government would have argued against that presented the facts and two who would have sought the higher enhancement under the guidelines for the bank robbery to be three dollars four point enhancement for a dangerous weapon busy busy being otherwise used what we have here is what typically happens in cases where there's a plea agreement there are facts that aren't contested when the pre sentence report comes out the parties you know except what the outcome is and proceed forward if there is something that is highly contested or they and that might be because the range doesn't work out appropriately then both parties have the opportunity to present evidence but without the seeking of the downward departure or the objecting to the enhancements it is a wave argument by the government it didn't relinquish a known right because it wasn't contested at the sentencing was there new evidence that you presented in front of the district court up paper wise argument is that the government didn't really have a cancer present anything at that at the st proceeding i mean i could see that this record coming in and saying well under your argument now there's something now it's clear that it was actually yours and of course at that point then though is the district court accepting the pre sentence report its factual determination and its guideline calculations as it is with out any objections or additional evidence and the reason it's reasonable for the district court to do that up because it happens all the time we only present extra evidence when there is an objection by you their car so for whatever reason both parties in this case with the present report as it turned out in the resulting guideline calculation and the range felt that that was policy but that would be mostly the seek conviction of the highest penalize crime not necessarily the enhancemen and we're not under you know every case kind of plays out on its own in this particular case the facts are as stated in the pre sentence report and both sides acquiesced to that and the district court agreed with that as well if i understand let's just agree did here i think that this report said that it had not made in the twenty to fifty five it relied on the facts in the twenty in the pre sentence report that is true there were really contesting the underlying facts of the p s r is that your understanding my understanding is just i don't know if it's a legal or a factual or a mix question on the application of which enhanced but there's no real factual dispute about what happened that is that your understanding mister clapper it is your honor you know this is a case he had a fake bomb but that's not contested it was presented and shown to the bank employees that's not contested he made verbal announcements to the bank employees and threatened them  detonate the bomb if they contacted the police within thirty minutes that's not contested and what also isn't contested is the effect that it had on the employees which was testimony presented by those employees that the sentencing hearing itself and so that the real issue here is you know again is it otherwise used and the district court wasn't asked to make that decision at the sentencing level but if it had all of the facts were available to the district court after that time to deny seeking that  downward departure i don't know where i'm at on time here but we got about a minute and a half bla plenty of cases out there that say that objects that aren't dangerous weapons but are used as dangerous weapons satisfies the requirement of a dangerous weapon definition under the  guidelines i don't think that's contested at all whether it's possessed d brandished or otherwise used and then what we get into is the distinction is that basic object thousand and nineteen neither one of them cites this district court opinion from nebraska that e c relies so heavily that on in this brief and that was back in two thousand and six so these courts have had  opportunity to consider similar fox and similar acts on behalf of the defendant and found that the coercive effect or acts by the defendant with a weapon that would otherwise be believed to be a dangerous weapon qualifies for the otherwise used and would then prohibit or make it so average behavior would not be available to a defen there's no real factual dispute about what happened and i think my view i was going to start with your question is the factual basis statement is the the anchor point for the facts and we don't dispute that that's what the court's reasoning was predicated on so why you need an evidentiary hearing when there's really no factual dispute and that's really a legal call on the significance based on that in other words whether the departure could have been achieved based on the fact that you don't dispute and then there's a kind of a think we're entitled to an evidentiary hearing as a matter of course and is preferred under two thousand two hundred and fifty five b what what troubles me is that the district court said it never would have been available to you because it's otherwise use and to speak to one of the judge strapped strauss's questions i think that the court made a finding your i mean i think the government waived it and then the court also made a fine and goes to both issues it's baked into the finding that this is a  conduct of twenty two and remember that there's a finding that this is a three level unhandsome and which is brandishing not for level which is otherwise using and i'm trying to respond to the questions from the panel i thought if i