and calling from the district court at sentencing there was somebody armor that was found in the house maybe that's attributable to someone else but if it doesn't fit him it shows that he is hanging around with people who have a use for body armor w the court went on to explicitly discuss how this body armor suggested that mr bruce's offense was more dangerous than the elements of conviction would otherwise suggest and then mere minutes later only ten pages in the sentencing his fleeing from the police officers when they came to serve just to arrest him was you know in appropriately considered by the court but the court certainly gave  specifically noted that the drugs recovered included heroin and that which is extremely dangerous that your client re sister to rest that he fled in with in his home that there was some scuffle with the officer that ended up in a broken arm for the officer he possessed a loaded gun that had an extended magazine given all of those factors how can you a stamp wish that it's in the fact he got a low end guideline sentence in this case how could you establish a reasonable possibility of a different sentence given those strong words and those facts certainly your honor i think that in this case it really just turns on the fact that the court so explicitly addressed this idea that in addition to obviously those aggravating factors there was this is information that the court believed to be true that there was this body armor at the scene and therefore that that you know imply that above and beyond and those are obviously aggravating facts that there was additional activity that required it and an even heightened level of protection and that and really saying that when when the court and i'm looking at the transcript when the court talks about the body armor which was not a fact here where he says well maybe it's attributable to somebody else but then he's hanging around with wrong people so he keeps seems to shrug off that maybe it was a mr bruce's maybe it's somebody else's i mean is he really putting that much emphasis on it given that language you know i would argue that he he is i mean you know we can't i'm not standing here and arguing that this is the sole factor that he was considering as an aggravating factor that just is not in line with with the of course yes you could have gone down further and you have the fact that he had a nine dollars c conviction so his total sentence was still you know one hundred and ten months and and and twenty four see conviction especially given you know mr bruce did have several mitigating factors in terms of his background and the fact that he was a low level drug dealer and all of those the court considered  to i'm not contesting that he consider them my argument here is that this is one this body armor and it's in the implication that you are mr bruce or one of his associates in the house was engaging in you know a higher level of dangerous conduct was considered an aggravating factor based on the explicit discussion by the judge and then when he imposed the sentence he harkened back to all of these things that i that i have mentioned so not only did he say oh there you know there was the mr bruce's specific behavior during arrest but he said it and the other thing that and given all the rest that i brought up and i think it's reasonable to read this transcript as all the rest that i brought are including the reference to the dangerous that the body armor conveyed when he when he was speaking mere minutes before just before defense counsel had given its his argument she and so you know for that the sentence would have been different there is this distinct possibility that the district court's misunderstanding of the facts of the case affected sentencing assessments and therefore even under the clean air or standard of review it would be appropriate to defendant should be affirmed because the district court did not rely on inaccurate information when it sense that the defendant and because the defendant has not shown that his substantial rights were affected but when you said you just record didn't rely we all agree that there was inaccurate information and we all agree that in sentencing defendants do even a due process right be sentenced on the basis of accurate information so how how can we be so confident that this you know didn't cause you know a month or were you know anything the supreme court has said that even a small increment and sentence is enough to make it differ well judge because the reason is the standard here is that in order for you to show error the district court had to allow relied on that information when it sentenced the defendant and how the record here i mean what ms remain argues is and frankly the government makes this argument on the other side all the time the government you know people will complain that the three thousand five hundred and fifty three factors weren't looked at are different things in the government is oh you have to look at the whole discussion of the district judge and even though the judge mentioned something twelve pages earlier it doesn't mean that the judge did it into account so really that's all th but it was an aggravating factor and we are not in a good position to know you may be right if we send this back to re sentence the judge may just slap the same fifteen month sentence on again but that's not the standard well judge we know that the defense that the court didn't really really rely on that accurate information because she specifically says or the district court specifically says what you did rely on and body armor didn't come into play a reference to ms thomas and i thought the reference i know the passage you're talking about on page sixty six or appendix page thirty six but below that as mr may accurately observes there is a reference to given all the rest that i've brought up so why isn't that a reference to the bulletproof vest well your honor i would submit that when he talks when the judge is stating that all the rest i mentioned if you look back at what the actual record says he's going through all those thirty fact of the three factors such as the mitigation that the defendant brought up the defendant's and it to during allocution the defendant's arguments even since even tells the parties and be true the transcript what he's relying upon the sentencing memorandum the arguments of counsel appropriation records the the defendant's criminal history the nature is of the offense so and in none retiring on the things that the court is rehearsing there that he fled tossed a weapon away the weapons loaded had an extended magazine the body armor paragraph comes right there so you're asking us to just completely unrelated but when but i would suggest that when the court actually lays down its sentence and imposes sentence he never goes back to this idea of body armor and i would suggest that had the body armor been something significant to this court to the district court something that it was relying on to establish a sentence it would have been at their point again where the district court said hey look at this body armor that the defendant those out and maybe that's because at some point the district won't realize that that was some no nobody was addressing that situation but then or maybe that's because it's generally come that's just speculation the very next paragraph after the body armor consider everything so i mean i don't have a window into his brain but i'm concerned about the way this on here and your honor that the court did not do the dangerousness that the court was talking about was the dangerousness associated with the crime itself and the district court laid out everything that he found in the car the crime itself and he did not mention again this the body armor when i would go into the fact that i had the body armor been something that the core was was honing in on or it was going to base and send signs and this shows that he didn't rely on the sentence was this be inaccurate information and that is the standard here we have to look at what the court relied on and what it said and what it said was i'm going to the it's the possession of heroin that's laced with not it's the fact that he had a weapon it's the fact that the weapon was loaded and a brand that he fled from police that he resisted police that he broken officers hand in the process of resisting then he proceeds to go into the rest of the three thousand five hundred and fifty three factors again not mentioning anything about this hobby are key talks about the defendant justice any of mention he talks about the mitigation and he addressed the pendants mitigation again this was only mentioned one time even though i know your honour's talking about it being part initially around when he was discussing is he didn't even potenza lee attribute the buyer to the defendant which i think you can consider but what but the will crew which crucial here is when it was time to sense the defendant he didn't even mention it even states in upon i cannot fall below the guidelines because pork says for all that i have just said and if you look at that what he just said was talking about the last bit through thirty five billion and three factors that i just mention it wasn't the body armor that came several pages before before the yet actually counsel against the conclusion that the court specifically considered the misinformation and you're honest even if they're working or as your honor is saying his rights have not been substantially affected as was previously brought up assuming there was an error has the defendant been able to show that there is a reasonable probability that his sentence would have been different and he has not been able to show that he was agreed there was an agreed guideline range of forty six to fifty seven months he's not been able to show that that four months above the low end of the guidelines was attributable to this inaccurate information finance rules are even is very hard to show so unless the district court has made the kind of statement that they sometimes make saying you know and a five missed anything about the guideline calculation i'm just stating for the record that this is the sentence that i regard as a fair and just sentence for this defendant in the exercise of my th that's not the standard is whether it has substantial rights were affected and when we look at whether someone substantial rights were active that the cases show where a something like a guide misappropriation of guidelines or  improper guideline range or that the court relied on an extra conviction or that the defendant was a seven time seven time convicted felon versus the six time convicted found those are the cases where he talked about affecting substantial rights this is not that case here  the court specifically pointed to this information and specifically expressed concern about it regarded lists of whether it along to mr bruce you know obviously if the court had had information that this body armor belonged to mr bruce it may have been even further aggravating but indicated that it was an aggravating and concerning fact that it was considering in in in this audience and so just factors and it's reasonable to conclude from the transcript that we have that this misinformation was was one of the aggravating factors that the court was rolling and in that case as judge  pointed out maybe if the court hadn't been under this mr misapprehension it would have imposed a forty seven dollars or forty eight month sentence instead of the sentence and mr bruce's substantial rights to an additional two dollar or two months or any amount of time not in prison were affected and we cannot rule that out and i urge this court judge find that mr brace is substantial rights were affected and allow the district