when applying the thirty five fifty three a factors and that is what the district court did here they had testimony in litigated whether or not the government could establish that mr m knew mr mclean was bringing a gun encourage mr mclean to use the gun or was anyway legally responsible either directly or through illinois theory of accountability either illinois accountability statute for mcclain bringing a gun and then firing the gun at winters and targets and after hearing all of the evidence judge darrell said she did not find the government's evidence credible and basically the only evidence they had was one statement by mr winters although it recanted it and she literally said she just that was not enough she could not find by a preponderance of the apprehension that mr me here was had  mclean or was accountable as an accessory or excuse me under accountability theory and that means she found that there was no common criminal design or agreement between make hiya and mclean from a claim to bring a gun or use a gun therefore the government failed to prove that so it wasn't part of the circumstances of the offense because the offense was after all the events occurred at the bar what mr me here did is he took what he pled guilty  what he admitted to is he took possession of the gun and hit it and he can't do that because he's a felon he can't possess the gun now in addition to that there was this fight between in winters that p sentencing it was not argued at the sentencing but the reason it wasn't involved is that the district judge gave him she's not required to give notice ok and i understand that but the at the p s r the argument was that the gun was  i find that mr makiya committed the offense under illinois law of aggravated assault which is a misdemeanor offense so it can't even if it had been established it couldn't be the basis for the four level enhanced meant because it was a about the illinois legal treatment when she finds to me he attacked winters with a knife well first of all she didn't find mr makiya attack winters initial but does she she there's nothing that says she is required for the knife correct yes he had a knife mike thank you my point is that under illinois law if winters is the aggressor mr m he is perfectly within his legal rights to using knife to defend himself against the fear of great bodily harm and it does not matter whether or not the attacker is armed and under that is clear under illinois case law people versus evans which we cite in the brief makes clear that the aggressor does not have to be armed for the person being attacked to use deadly force a deadly weapon and people versus francis the only court said it was error not to allow the journey struction on self defense where one individual was confronted by two other individuals threatening him with bodily that constituted aggravated assault because it was a threat to commit a battery that's not the law in illinois so even if she was not required to link it to a particular statute she did  it you can't base your sentence on something that is legally has not been established and again the reason self defense and you talked about is that the parties had absolutely no notice whatsoever that she was even thinking about basing a variance on a finding that there was an aggravated assault now again as i said in the brief under a series she's not required to give that notice but one of the consequences of failing to give the parties notice that you're going to base a variance on a finding that a statute been violated is the judge didn't have the benefit of the parties saying briefing an argument to her and saying hey listen that this hasn't been a that's what she said no she never made a finding that he committed that offense i did actually considering the aggressive violent armed fight as a matter of offense contact and he committed the offense of aggravated assault under illinois law by threatening to commit a battery with the use of putting mr winters in fear of a battery while armed and she said then this is how you know she relied armed with a knife and she said i can't give you the four level enhancement for might based on my finding that you committed that offense because it's a misdemeanor she then said but i can consider that conduct in so when she's saying that conduct she is saying her finding that he committed an aggravated assault bringing a knife to a fight and and producing it during the fight well that one that's a crime and by a ground zero is not a long a long history of pulling knives on people from his mother to his girlfriend to other folks right he has a history of some offenses that involve nice but i want to back up that there's nothing on lawful for him having the knife he did not bring the knife to the fight he was at the bar on his own doing playing video slots in winters showed up so we didn't bring a knife to the fight then winters started getting it to it with his ex girlfriend who missed where he had also had relations with and then the fight started so it is not that mystery here goes down to the bar with a knife looking for a fight with mr winters that is not the evidence at all so there is nothing on lawful about machinery here being at a bar with a knife but the knife comes out during the battering that that conduct amounts to an aggravated assault or that it was unlawful in you know or improper in any way winters a six foot tall and two for mr mathias five six one forty or one sixty excuse me the judge says i don't know who boehm economy please pull court jason brown behalf of the united states and by the time mr me he had committed the crime we're here for which is the possession of a firearm he knew that that gun had been used to shoot at the people he had just been in the fight with the fact that he was not the shooter or that the district good judge said i'm not finding that you're the shooter she didn't apply a guideline against me for that but it's certainly part of the circumstances of this offense that once he's there and he knows he would have seen he would have heard the shot he then hides the gun that is certainly part of the circumstances of this offense and there's no error by the district court in considering that conduct under thirty five fifty three a was responsible morally so for the gun being brought to the fight maybe he didn't know the gun was going to be brought but he's the one who called reinforcements and who arrived with the gun that he then was there evidence of a gang connection here there was evidence i believe of again connection between mr mcgee and mr mclean they yelled the folks i believe that's undisputed after the shooting took place towards mr winters  of that mr winters i was backing up and trick tripped fell over and that the fight continued on the floor that would suggest he was in fear of a battery if he's backing up and falls down and going backwards  and i don't know with regard to the weights and sizes of the individuals involved i'm not sure where in the record the evidence of that is mr patten i think might know the record better than i do with respect to that did