one of the issues raised in the appeal that i think the government is particularly uncomfortable talking about and that is the law enforcement's decision to repeatedly manufacture an import criminal activity into the southern district in this case and in fifteen other cases in this district with the same cooperator and the same agent and in a total of i think twenty seven cases the government has or the law enforcement has designed a sensually a cookie cutter sting operation that certainly in and of itself there's certainly nothing wrong obviously with a sting operation and there's certainly nothing wrong and we don't contend there's anything wrong with doing it again and again if it works but the problem with this sting operation is its reach had i have another one i had another one with mr discount as well and basically the overview is is this there is a man named jose rodriguez who is facing essentially a life sentence and he's trying to work his way down and i had the opportunity to cross examine mr rodriguez at john looks trial and mr rodriguez is what criminal defense attorneys and prosecutors would call the real deal he committed actual crimes regarding actual drug dealers and actual drugs and he has gone out at the  law enforcement's request to ask people who he had possibly served time with or otherwise knew if they would be interested in robbing drug dealers as i as the court knows there never were any drugs there never were any drug dealers and in our case mr rodriguez went to mr cook who was essentially and i'm not sure this is particularly disputed it was essentially a penny any drug dealer on the streets of patterson in new jersey dealing in very small amounts of cocaine and heroin and over the course of numerous phone calls always to my recollection always placed by the government to mr cook with respect to the sting operations involving mr rodriguez but just looking at this this particular case what is it that shocks the conscience putting in motion a chain of events where three individuals obtained very serious weapons and a bulletproof vest and drove into manhattan like they did it because they were offered huge sums given are compelled to do it right i mean that's that's what we in the district court jury has to look they were offered a million dollars in drugs in proceeds and certainly that would be that would have been divvied up but what i would submit shocks the conscience is that and it is in this and it's in this case the government's reaching out to another jurisdiction the these defendants your honor had no ties to new york at all so much to the point that in one of the ever visited the big apple your honor there were they got lost on their way to the mcdonald's on one hundred twenty fifth street and there are there are audiotapes well yes judge but but there were no there were no ties to the point that in in applying for a one of the warrants for the phone there was no basis for that warren and the warrant ended in a day i will say inadvertently by the agent check that the phone on the application that the phone was or had been in new york and it wasn't and it never had been and so they were offered a million dollars that was to be to be divvied up and at trial mr cook said even his share of two hundred fifty thousand he said he said where i'm from to fifty is a million dollars and i think that what shocks the conscience of the court is the extent to which in this case the government drew from another jurisdiction three individuals did they told mr cook and his co defendants come ready because these are cowboys to the point where mr gill had a weapon at his feet cocked and ready to go my client also had a weapon at his at his feet and i believe that i can i get can i move you on to i take your point to the jury instructions yes judge  now you are you as i understand that the district court earning allowing a jury to determine whether the the drug trafficking conspiracy with which he was charged involve either five kilograms or more of cocaine or five hundred grams or more of cocaine and whether the drug and where the conspiracy involved either one kilogram of more of cocaine of heroin or a hundred grams or more of  on yes judge there is there is case there's case law for that in case law where when with as the corps knows whether or not want to jacks in this case we submitted i'm out of time judge  case there were as the court knows in almost every trial joint that we missed a disc and i did a joint submission but it's always been the case at least in my experience that as the case goes in it goes in sometimes a little differently sometimes very differently for example in this case we i believe submitted i think it was an entrapment defense and there was a pretty big fight as to whether or not it enough had gone in in this case by the end of the case the case simply went in in a way that there was no dispute my own client took the stand and discussed the larger quantities and there was never a dispute that this conspiracy and what the informant had said was for the for the larger quantities as far as objective what about in terms of objecting to it at the at the charge conference when you go through the record  any discussion about quantity comes in the middle of the discussion thirty nine page transcript on entrapment yes judge now how does that really aler court to that objection yes judge ought to believe it's why have i have the page but obviously the court knows that when i was discussing with the court that the case simply didn't go in that way for the lower for the lower quality for the lower quantities the prosecutor commented sort of on my objection to that i will tell the court do i wish i had articulated that objection better yes i do but i would urge the court to view that in a light so that my parlance doesn't prejudice mr cooke by subjecting him to a much higher standard of i don't i don't know her manners but she certainly it seemed to me to revise your charge to ask for what's your best articulation out of out of what you said what is it that you wanted to step back to what we simply wanted it to charge the higher the higher point to what the government said the best we could do i think what the what the government was saying is the best we could have done was the lower amount but i disagree the best we could have done was to be acquitted on that count and i believe from being there and trying the case that it was clear that this jury gave a lot of weight to the entrapment defense because on the videos i will tell your honour's there is no question that mr cook that all the elements seemed to be there and that the only way out of that hobbs act conviction was if they gave credence to the entrapment defense as a matter of fact at one point he said i was trying to sell myself to do the robbery to rob the drug dealers and i think our position is that with all due respect to the government we could have done better in that if they disagreed with that higher amount that they may have acquitted him of that and if they acquitted him of that the nine twenty four c conviction goes as well thank you thank you ron you have two minutes in a bottle thank you  judge good morning america is the court edward discount for the government i also represented the government at trial i want to start if i may just with this last issue in the jury instruction from the government's perspective the invited error doctrine does indeed preclude or we constitutes a true waiver because it was part of the party's joint request and i think is judge sachs question indicated from the government's perspective this may well have been a strategic decision by defense counsel to invite the jury in what was in some respects a close  case to to to reach a compromise having made that strategic decision from the government's perspective the law of this court does not for a minute the defendant on appeal to subsequently challenge it as erroneous but even if there weren't any true error excuse me a true waiver situation a bare minimum we would be talking about player since from the government's perspective there was no objection at all logic below either with respect to the jury instruction or with respect to the verdict sheet which so similarly posed the questions on quantity into which there was no objection below the only other point i wanted to address and certainly if the panel has questions is this issue of the defendant's criminal history which was in fact quite significant included a prior manslaughter conviction including a prior  so far as i can tell our response to mr cox claim of a sentencing disparity among the sting operation targets would you like to say anything certainly but from the government's perspective as an initial matter there's no authority and i don't believe the defendants cite the appellate cites to any for the proposition that a district court is expected to engage in some sort of statistical analysis and imposing sentence indeed it would have been impossible for judge nathan to have done that because many of the other sentences imposed post dated the sentence of this defendant so there would have been no way for her to take those into account even if she was obligated to do so i was obligated to do and what judge nathan did in fact to do here is to consider the section thirty five fifty three a factors which we believe she painstakingly did in crafting the sentence imposed we have to decide whether defendant can be rewarded for accepting responsibility while maintaining an attractant defense certainly the issue is presented that particular legal question i don't believe the court needs to resolve if it finds that there was no clear error in judge nathan's determination that this particular defendant did not accept responsibility leaving aside the entrapment defense for just a moment both the guidelines themselves and the law of this court emphasize that there are limited limited situations in which a defendant may proceed to trial and still maintain or receive acceptance of responsibility credit and all of them in the guidelines themselves direct a court to look at the defendant's pretrial conduct judge anythings finding here was that there was nothing in the defendant's pretrial conduct that evidence to an acceptance of responsibility and so on that basis alone the court could affirm the decision below without touching on the open legal issue of whether under any circumstance an entrapment defense could be consistent with acceptance of responsibility your adversary opens really with an indictment of the government's behavior  of outrageous covering conduct is critical because none of those things are present here in the case at present at bar as well as the other what sorry called cookie cutter cases all the government did was use an informant to present an opportunity to the defendants in this case and in others to commit a crime and typically the way that would work was that the informant would approach someone he knew from his prior criminal dealings in this case mr rodriguez had a prior drug dealing relationship with john cook the defendant here and he told him about an opportunity to commit a crime which consistent with the office our decision and the other prior decisions of this court is entirely permissible so i'm going case by case  there is no evidence of anything that would or amount to what this course is identified as outrageous government conduct i should note in that respect that while this is the first of these cases to come up before this court at least on this issue the outrageous government conduct claim has been let litigated in many of these cases below and it has been rejected by every district court to consider it for precisely that reason in the us through one of those cases it is not your honor but the district courts below have all rejected it for precisely that reason which is that applying the governing standard looking for coersion intimidation physical force none of that is present here all that is present here is an entirely permissible use of an informant to present an opportunity to and i think that's thirty five fifty three a sex and although didn't judge nathan address thirty five fifty three factors yes judge but the pro this case points up the precise problem with doing an ace at thirty five fifty three a six analysis in the sense that this case to look at national disparity or nat similar conduct the truth is is that this case is different in the sense that the extent i did not find any cases that where that we have reaching outside the jurisdiction and i'm respectfully limiting it to this case but i will tell the court and at least one other one and i think many others the other case mr disc and i it was philadelphia i do believe that the a six analysis in this case respectfully would would require did you raise any objections below on this point we raised and that yes we did we will we raised an objection specifically with respect to this universe of cases and the sentences that had been given because there was no way for us to do a national  analysis so we did do that with respect to acceptance just very briefly i believe that what's the what pay what where we find that objection the the objection to the or in our in our brief i believe it is the not in your brief but below it would be in the see in our sentencing memorandum i believe we briefed it extensively and i did not look at the transcript of the joint appendix ten six the eight i s responsibility which mr cook didn't even do that in order to preserve a constitutional right in this case we believe that was the due process claim and if i just mean last say judge coersion intimidation and physical force respectfully is not the standard it's not the standard in any of the cases cited by the government and it's not present in any of those thank you judge thank you judges like you both for your arguments the court will reserve decision the clarke will a