any notes as it was required by the application note i'm application for and the second argument is that the government violated the please you meant by participating in the evidentiary hearing the district court called to resolve factual dispute that had ari is to punish those people that produce good quality notes and that's the seventh circuit case and here where no good quality notes were produced an argument would be that the higher guidelines couldn't apply because i don't answer the question then here and there like can apply to rate the often several to fifteen but the problem is maybes like i have slightly different question what you are you make a lot of sounds that it's the application note clearly applies  particular subject i don't think there's a specific authority but i do think that the government has the burden because the way the the note is written or the guideline it's written it requires the therapy obviously either  obviously counterfeit signs but that doesn't tell me that the government has the burden of proving whether it does or does not applaud at least a dozen telling off fans will just well i would produced the notes but because the court hadn't made any inspection of the notes that were involved they did reverse the sentence and i think that that suggests that there was because there were no notes involved it wasn't as if  results because and here there was some evidence that they found in the trash bag some photocopies of bell's if the district had come further and said well i think that he was the one that manufactured but took those photocopies at then it could then make that factual finding but where it can take that extra where the defendant doesn't take that extra step to actually be able to produce the know then that the person who only had the device that can actually produce anything that that person gets the fine and it might have some effect on his supervised release so i do think so that was respect to the second issue that district court felt that he had to resolve the factual issue but in order to do so didn't need the government's participation the government is in a very unique position they are more familiar with the investigation than anybody else in the proceeding they can guide and direct examination in a particular way and the prosecutor by making specific island recommendations in the way have any right to present any out the prosecutor didn't participate in the evidence charioteer in there and the district court went on to resolve the factual dispute so i do think that that's what the prosecutor should have done thank you thank you it's true the four circuit in miller did in fact say that the district court had a duty to make a determination in the first instance whether or not the bills passed minimal wouldn't pass minimal scrutiny the fi seventh circuit cases cited by opposing counsel there's there's no such folding in that it's a completely different issue with that said i note that in the fifth and seventh circuit the defendants in those cases each of those talking about here would not raise minimal scrutiny all the opposing counsel did was say wait a minute the government has not presented evidence one way or the other whether the bills could pass minimal scrutiny so a plain reading of the believe that a plain reading of the guidelines wouldn't support that the district court makes the determination in the first instance on the face of this guideline should the enhancement apply and then if there is some reason to believe that it shouldn't  the sentencing hearing at that point it should be rape for example your honor i understand that my client had a counterfeiting device however look at these bills judge these were made in crayon there's no way so under the it's individuals clearly conspired to manufacture counterfeit bills he had then made substantial step two towards completing that conspiracy and has a shop press has other counterfeiting devi clearly under the background of that explains this guideline he should get that enhancement because that's exactly what the guidelines the enhancement was meant to do to deal with the fact that people who produce it all depends on who has the burden of demonstrating that in your zero evidence situation if you've got the burdens and they don't get the point what and i believe the burden of persuasion here from a plain reading of the guidelines does fall upon the defendant if there is some reason to believe that these bills would not pass minimal scrutiny it's up to the defendant to raise that point with the court and that didn't happen here despite the fact that there was an evidentiary hearing that issue wasn't raised by the defendant and that would bring me to that to the next issue in terms of of the let the problems with the blanket rule that you know that there must always be a inspection of these bills what bills are we talking about in this particular case what should judge burns have made think that's true but i don't believe that it necessarily follows that application note for means that the district courts must in the first instance without the issue being raised by either counsel make that finding miller is the only court to find a contrary and i'd note in the miller court there were seven bills clearly available for the court to inspect that it just simply isn't the is correct your honor of regarding the the alleged breach of the plate room and i would note that obviously the government does have the duty to ensure that the district court has accurate and complete information and i'd like to point out that the only information elicited from agent graff was information squarely contained within the four corners of the pre sentence report there was nothing elicited by government counsel outside of what was already contained within the pre sentence report so i would say there might be a different animal here if the government counsel it put agent graft on the stand and said agent graff why don't you go ahead and tell us about the rest of your investigation that you didn't tell probation about that the judge know about yet that would be different all the government counsel did was simply put these in on the stand and confirm what was already contained in the pre sentence report and on those facts i don't believe there was any brief breach and i definitely believe and that it's the government's business and that the government has the obligation to do that when there was an issue raised on the morning of sentencing whether or not facts that were contained in the pre sentence report were accurate that you think that the questions that you said before that you had an obligation to check with the government has the obligation to ensure the court had accurate facts in front of it could do that the government counsel said your honor i brought a digraph to court you take over from here absolutely that the government council could have done that i don't believe the government counsel had any obligation to do so however and again i believe government will be a sion was to not put forth any other facts or advocate or ask agent graf to advocate any higher sentence and that did not occur here all agent graf was asked about and all he testified to were facts and circumstances already contained within the pre sentence report you that the questions that were asked went beyond that particular question she asked questions like and this is cited in my ear fifty eight to ten but he tell you at some point that mr allen was the source of the counterfeiting bills that you personally come from when they are not m