that was june eighteenth two thousand and two and i did he should get two points for having been on probation that game was fully litigated but the government still didn't meet its burden so we would ask the court we met on that issue for full years earlier he had been sentenced to juvenile probation that was on march twenty second two thousand and that eleven months before the offense charged in count one avenge warrant had issued for  thousand and one and the first offense charged in the indictment june eighteenth two thousand and two the record is absolutely empty and there was no evidence as to how long their progress you must last know your honor honor because there's nothing in the record that indicates that that was in fact the term of probation imposed the court has several times in its cases that the district court needs more than a conclusory statement by a probation officer evidence whatsoever of any type not lab reports or witness statements or testimony or any kind of documentation whatsoever the probation our report simply asserted that all twenty five kilos in a conspiracy should be attributable very clear in the camp case that when the government is trying to get the district court to sentence a defendant based on a higher criminal history category the government has the burden of showing that the defendant actually belongs in that category and the government therefore has the burden of showing that mr davis belonged in category two as opposed to category one and whether there was evidence to support it or not it's the government's burden to bring that forth to the co and not and it's not the courts it's the court isn't permitted to rely on an empty assertion without any kind of documentary evidence whatsoever i mean the probation officer found that he'd been placed on probation and if they're his  of the first offense charged in the united and the government did nothing nothing to do that it simply asserted that it was but the court's case law is clear and i mention the sarah case for another reason your honor and that's because there was a davis were still on probation eight months well after that second warrant issued they still had that burden to show it and they never met that burden and it's for that reason since there was a full factual inquiry below for us it's for that reason that we would ask for a full response in sync with the government limited to the evidence it has already presented there's no reason that the government should get a second bite of the apple in this case the disparity stands for that before you get to the remedy you're seeking i think you allowed to make a presumption in that way why not you can draw an inference if you tell me that you are on probation yesterday not an unreasonable inference for me to believe that you're on probation today to not may have ended but it probably hasn't well eight months is not yesterday but what's wrong with an inference from the facts that are before the district court and are hardly not disputed the facts that are before the district court you want to show that there was a warrant issued for a probation violation but it doesn't actually show that mr davis was even still on probation time there is a period of time afterwards where i don't think it's unreasonable for a court to presume that the probation probably continues and the defense has an opportunity to come in and disprove or or rebut the inference but i don't believe the defendant presented anything here so we have a pretty barren record what's wrong with the inference from the little bit of fact that the court does have the inference what's wrong with the inference based on the little bit of facts that the court does have is that the court never probationary status at the moment of the offense based on that knowledge he said he knew that a cioppino at home on probation and that had been the sentence and he said you don't get a bench warrant on a probation violation unless you're on probation but he never made that at the time the bench warrant was issued in july of two thousand and one the first dance warrant the defendant's probation and not been revoked at that time and that in fact the bench warrants here were still pending don't see how really helps the those those things the violations were still pending because that was eight months for we're trying something that violated probation and then he turns eighteen and assume for the moment that's the termination of probation in the juvenile court without necessarily dissipate the bench warrant or would he still be tensional he arrestable for having violated probation even though he might not be on probation any longer i think you're right i think that is that is a possibility even without that would tell us that the dependency of the bench warrant doesn't necessarily tell us that probation is still in effect it tells  y i will i could have spoken more with a probation officer about this i did back but the record is this is it is here i mean that's going to support me repeated references to according to the probation report is playing probation the fertilisation officer has some kind of handle but his report doesn't actually point to what this this conclusion is based on this was from the source of all of our frustrations and certainly yours as well but if he's going to be remanded for recent scene i think that phone call could be made but certainly it would be giving the government and really the probation office the second opportunity to present evidence in this case  ok thank you your honour's the court has pointed out that the probation the government counsels pointed out that the probation officer did you review all of the records available and i would only like to emphasize that the probation officer was still if it would go back if you go back with the door closed on this issue what's the basis for that position and the court can see that that the court in this era did that very thing and in addition the on month court in matthew's which i generally the door is not closed but in particular cases when there's a full factual inquiry that's already occurred in the district court and there's only a factual question not a legal question i mean that place matthews wasn't something suitcase if i'm not mistaken it was the issue was in that case a legal question whether the district court had to look at the underlying facts of prior sink the court would have the opportunity under booker the flexibility that it was not of course aware at the time that it didn't have the discretion that it now has to undergo current amalie to give a sense based on all of the thirty five fifty three thousand factors as well as on the what is now an advisory guideline sentence and if we were if we prevailed on the probation issue that advisory guideline range would drop to fifty one to sixty three months because she's no had a great one but the court within have the discretion more discretion of course than you have had at the initial sentencing hearing to drop that number even further based on any circumstance that struck it with that seemed to be your honor the advisory guideline calculations have to be correctly made and the advisory guideline calculations in this case would be that mr davis criminal history category was one instead of two and my probation the court could do that and we would argue that now under booker instead of just a pipeline range or a guideline book to look at there are now a multitude of factors to look at the thirty five fifty three a factors of which the advisory guideline range is one ok life gets complicated do you think