point five one point five kilograms or your honor it mattered for thirty five to teach me a analysis that this sentencing occurred after booker at which point the sentencing guidelines had become advisory but but if more than one point five kilograms was sufficient to trigger the highest level which was then thirty eight who care who cared at that point whether it was four point two or four point three or more than four point it sort of it isn't an error sort of irrelevant at that time it's significant now but it was not them but your honor first of all i don't believe there was any error in the determination of four point zero kilograms that what that was an error was by the by the probation off looks to me like it was a transposition of the digit record on an open record does that the district court can look at the evidence that was before the sentencing court on the original sentencing and clear up the ambiguity can it now now we're only talking about a three hundred gram difference no your honor if  district court made a determination it was only about the him out distribute it it wasn't about relevant conduct what do we do about that but it's not about relevant conduct and there simply is no basis the government says if he had april twelfth two thousand and four and his answer is yes doesn't that resolve any question if there had not been in actual fact a terminations of the quantity of methamphetamine for which he was responsible then the court would be absolutely correct that mr cole that was just distribution he didn't he didn't relate to anything else that was distributed he didn't discuss the conspiracy aside the did judge then has responsibility and sentencing to make certain determinations those are determinations that you rely upon in determining whether or not there was a definitive ruling in respect to drug quantity is that is that your argument absolutely your honor and to get back to judge thomas original question because it's an important one why did why did it matter that the judge found four point two kilograms of actual methamphetamine at the original sentencing it mattered  the court was answering but under thirty five fifty three a the court had to also look to the nature and circumstances of the offense and so let's say the court had decided that instead of it or forty four point three that certainly might might have had an effect on the sentence that the judge would have believed was appropriate under thirty five fifty three let me ask you this can you distinguish your case from the other cases where courts of saying that you can go back back and have a supplemental hearing in the kinds of pronouncements the judges made in those cases that you think can be distinguished from your  either it was already clear from the sentencing record that the individual had distributed far in excess of whatever the highest threshold quantity was so for example in the hall  davis cases out of the the seventh circuit there were and in all of those cases in excess of seven hundred kilograms of the givens or for the other cases the original finding at sentencing had only been that the quantity was greater than whatever the amount was that was the highest threshold it up so the analogy would have been in in this case if judge wager had found that there were one point five kil grams or more of methamphetamine distributed by mr marino then we would be in very different territory here we would be in territory where the court had not made a definitive factual finding and on this motion the they always come back in this case the defense would have you believe that when judge ranger adopted the p s r and stated on the record what is finding was the offense level calculation that he intended to disregard the other facts that were in the p s r i think that if the defendant is a judge anywhere explicitly adopt the findings of the p s r on the record because that's what some of us do some judges do they intend to rely upon those who say at least that those or all before them as part of a sentencing decision they would say i'd opt to find his p s r if that happened it didn't happen until the court filled out the statement of reasons it which point it said it adopted the p s r but the judge did not state it on the record however the courts have implicitly found that the court to when there is no objection to the p s r the courts have found that the district court doesn't i don't know if it's in the publicly filed gnc because the statement of reasons that's prepared for the sentencing guidelines i don't think they usually get filed in the docket but the information was provided to the judge in this case are probation office collected for all of the thirty five eighty two's would collect the pre sentence report the judgment and the statement of reasons and i submitted that to the district court judge you but i always thought that the statement a reason like an i receive it by email when the judgment is is issued but i don't believe it's actually entered on to the docket but yes i believe that it but it's part of the record right yes i just  that in this case where i just a court judge has no objections before it that it implicitly adopts the p s r when it makes its finding ask a slightly different question and the play call of you were very careful to ask the judge to make a finding about total now i think it was as opposed to just regular math as a different issue on the conspiracy point i don't think there was a finding of forty pounds of total math does that make a difference in our analysis of this i don't believe so because the analysis for the thirty five eighty two starts with the court figuring out what the sentencing guideline range would have been had the amendment been in place at the time and to do that it looks at the pre sentence report and the case law is clear that the court's allowed to rely on undisputed facts that are contained within the p s r and in this case has to be an open question about the drug quantity as it relates to the issue after the after the when you're seeking the make the changes see whether or not it has been a reduction you then have to look back and see whether an open question if the if the amount has been determined and has in most cases you just dropped the person to levels of whatever is required so it's only in special cases that you have or have to go back into the record so you can have hundreds of bodies and there may be only ten or just you know you know just for purposes of argument you have maybe only ten what you have to do anything other then look at the fact that the drug quantity finding now requires a different result that's that's the normal case we've done we've done hundreds of these and so it's only when you get some question about whether the quantity was left open as relates to the factual issue as relates to the  if it's close if the judge despite all the options he or she might have had is this made a definitive determination and then you wouldn't go back when you agree i guess it would depend on how the court was reaching its it's decision that further fact finding is necessary some courts have said that factual findings are set in stone at the sentencing based on dylan and based on  point ten however the adams court in the more court said no it's not because thirty five eighty two it's not because the supreme court of the sentencing commission prohibits it it's just because it's sort of like the law of the case because in sentencing world thirty two establishes the objections that have to be made in what a district court can rely on when there is objections and when there is no objections and so in most cases they say there's no reason to go back in in the united states versus rios which was a second circuit case  there had been agendum on one of the crack re sentencings in the in the probation office had thrown in in the p s r that it was about five kilograms of crack however the defendant had only admitted to an excess of one point five at the police and the court looked at that and said were those numbers come from because it's surely not supported by any of the relevant conduct that was set in the p s r and on that basis they had an evidentiary hearing and they had the f b i agent come in and testify as to the quantities the judge also applied the findings in that evidentiary hearing to a codefendant neither of the defendants were present at the time that the agent testified or was cross examined so basically if the court finds that this rule that permits the further fact finding is more of a law of the case sort of a judicial economy then law the case can be avoided if somebody demonstrates that the finding is clearly erroneous which the defendant here didn't attempt to do the thing that's interesting i'm sorry go ahead the thing that's intriguing to me about this case is that the sentencing commission change the numbers it basically increased from one point five to four point five kilograms and adjusted the often it's levels from what is it thirty eight to thirty six as romney's all so it's a little bit like we've changed the rules of the game afterwards and now the court is being asked to go back and look at the original sentence that was imposed on this thirty five eighty two motion to ask whether or not the court will entertain an adjustment to the sentence as a result of the change by this i think that if the i think that's correct and i think that if the court looked at the factual record of the sentencing including the plead the p s r in the judge's statement the question really is the did the the court intend to make a finding that the defendant wasn't responsible for the methamphetamine manufacturing activities it doesn't make any sense in light of his admissions in the plea agreement and if you look at it that way it's like ok now we look at the p s r is this four point two finding supposed to be definitive is to the full extent of the relevant conduct that can be considered on the drugs and since it doesn't account for the other quantities in the p s r it seems unlikely but it's not it's not unusual at least in my experience to have a lot of things in the  could be attributed to a particular defendant and that the prosecutor defense counsel everybody decides they're going with those a lower amount they decide that thirty eight is the right number four point for this case and there's more drugs there they don't even and i even concentrating on the rest of it i've had p s r s with lots of things in them with no focus at all on them but the judge i and others may findings about drug quantity we were going to have to relive again all these cases where the records might support something more than what was there in the first for assistance i believe that this case is really no different than the cases where the court makes a finding that it's in excess of one point five but the s r showed it was more and in all of the cases that the defendant cites the courts went back to the p s r to see if they could take the sentencing record and make a finding as to whether or not the reduction was a political to the defendant there are circuits that hold that it's the defendant's burden to do so and the ambiguity is is held to find he doesn't meet his burden this court in the united states versus sprague basically said that once the defendant shows it's almost like a burden of production once the defendant shows that his guideline was calculated with reference to this to this particular guideline section then the government has to come up with that sprague in that case the court considered additional expert testimony and evidence at the hearing is that right correct the there wasn't just looking at the record it was actually introducing additional evidence correct in in on in all of the cases for amendment for eighty four that was where they said you have to remove the mixture you have to remove items from the make sure they're not usable and the defense would would isolate that to that particular amendment because it's implicit that you would have to do so however i think it also supports that there's no prohibition against the district court looking at these things to find out and in this case judges she had to make a finding as to whether judge wayne your intended not to hold the defendant responsible for his manufacturing inconsistent with the findings of the sentencing court right and so do we run into the problem here of an inconsistency not a few if you look at the record at the p s r the p s r says the defendant was the leader of manufacturing activities that there was forty pounds of methamphetamine a laboratory and there was no there was no finding to the contrary by the district court correct and there was no objection thank you thank you any finding on that other than the admission during the plea colloquy that he was managing the people who are who are manufacturing it was there any other anything else that was an implicit determination in the p s r not to attribute that to the goes back to that thirty five fifty three day issues that the courts all need to apply it also goes to a point that the adams court made the eighth circuit decision from nine hundred ninety seven that we believe sets out the proper role but not in this didn't we say and spray honor as i hope you are but agree holdings are generally limited to the issues that are under consideration in the case at hand and so certainly the ninth circuit didn't have the opportunity to have to comment on on  stick nature of that but the amendment itself because of what it required courts to do which was to look at the how drug quantities are determined it necessarily implicated new fact finding and on an to well your honor the sentencing commission has made clear that when the court is entertaining a motion of this sort it's to apply the guidelines in the same manner that they would have been applied at the time of the original set and as but it would have made it might have made a difference would it in fact it had to have made a difference at the time had it been had the minimum been four point five he can he admitted to four thousand three hundred seventy six point one grams and so in order to get to four point five the district court would have had to consider some of the evidence the contraband seized from the lab would would it not in order to determine whether he met or exceeded the four point five kilograms level well that the district court in sentencing made the specific quantity determination based on the party's position parties including the  that's all they had done we would be in different territory because that would have only indicated more than one point five instead the parties agreed as the sentencing court pointed out and as was noted in a p s r to a specific terms of the overall thirty five it's a three way back to determination now the government did not object to the pre sentence report which found four point two four point three and then it did not object at sentencing to the specific figure of four point two and not only was the figure relevant for thirty five fifty three a purposes but as the adams court points out it was also relevant under the guidelines provision six b one point t where the court when other counts are being dismissed has to determine whether the the total quantity is at issue adequately reflect the severity of the offense so so there was a transactions that not are here these are the and it could have been a proof issue your honor the government regularly understands that it cannot prove by a preponderance of the evidence or depending on how much you would increase the guidelines by clear and convincing evidence but let me ask you a practical question if it does does the two hundred ten month sentence also fall within the upper end of the range of a level thirty six if the quantity is four point two yes the even if he agreed to look at it under thirty five eighty two if there is more remanded for a determination of whether the senate should actually be lowered this is the step to right to step but it's just record would be