because it was unchanged after you know the three of the five convictions were reversed but could the district court properly consider even acquitted conduct in sentencing able to consider a critic conduct as relevant conduct but here i think we have a little bit of of a unique situation and what we have is registration we have a really good comparison here we have the the  the initial sentencing we have the five convictions we have these and then we have three of all men are are reversed by this court and we have the same defendant the same history with three less convictions and certainly every condition like certainly has to carry some sort weight too and certainly has to have some impact on a sentence and so when it goes back down with the three less convictions first the court itself recognized that the conspiracy condition was completely off the table after after the appeal convictions conditions and the second one is so and so certainly the two hundred forty months can it will seem a reasonably high when you compare it when he was convicted that same thing for the five convictions yob and on the career offender issue council is it your view that we would have to use a categorical method to evaluate that eight fifty six conviction conviction is the focus and you have to look at what the conviction status and so in this case so in this case we just have the the jury instruction that says manufacturing distributing or using but there can be instances where you have the jury verdict maybe a special or or it's written differently or if there's another conviction right if you have the conspiracy conviction for example woods presumably support treating the fifty six as a as a as a drug trafficking crime judge telling us that really doesn't matter to me because if i call correctly there's really no evidence that anybody was using drugs at mr m grave home but there's substantial evidence that that was the place to pick up cocaine from tuesday or gordon stevens barkin boehner if i remember correctly i think part of the with district judge statements that the sole timidly doesn't matter because i've got substantial evidence in front of me indicating that this house was in fact used for drug distribution and i want to treat it that way were whether i was whether i'm right about this kind of hyper technical guideline issue or not because the guidelines tell us that you have to look at the conviction and you have to look at what the innovation established that's what the guidelines say what the guidelines are guidelines and so we've been we've got a district judge here doing from one perspective what members of this court in variety of opinions for the court have urged district judges to do look past the technical guideline issues going to ask yourself under thirty five fifty three  what's the appropriate sentence and the judge here is telling us he did that you are because if it did in the way that the instruction was a fifty six i mean if it would have been different i mean it could have changed the strategy on how you approach the fifty six if if the defense knew that if the six was just going to be a qualifying offense no matter what or if it had to somehow arguing that if that a fifty six limited to you had to parse out those three different  change something or whether they gave a special a verdict or something to that effect where we figure out what the jury is actually funny it's just as reasonable to say the jury looked at the same structure and said well at the very least i think you know there's probably a use being going on there so let's just convict on this one is so we don't know exactly what the jury found here and what he was convicted of and whether or not eight fifty six is a qualifying offense here before we even we have to the judge has to figure that out  that to calculate the guidelines before we even get to relevant conduct the context of evaluating whether there was proof beyond a reasonable doubt and it is true judges entitle to make findings by a preponderance and we've got some circumstantial evidence that this was framed by  analysis in this court's opinion it says that there was no evidence that apart from that theory there was no evidence to support an inference and that there was no evidence tying there was the intervening search which didn't recover the gun and then and then may please the court counsel don boyce from southern illinois here this morning on behalf the united states musgraves is challenging his sentence on remand after his first trip to this court his first challenges to that finding that he was a career offender under the guidelines  the government's first response is that he was not sentenced as a career offender the low end of the career offender guideline was two hundred sixty two months and the defendant was sentenced to forty nevertheless the calculations the judge started with did call him a career offender direct to correct absolutely and the two forty cents is higher than the sentence without the gryphon much right but he was not sent as as a career center the court also or not the district court was correct in its finding that musgrave's was a career offender so that is in the government's view the essence of a harmless error analysis to the extent that the court ordinarily louis just push you on that little bit it if this were the first sentencing i would have little trouble with that but if we look back at the original sentencing transcript we see the judge reagan was troubled by the way he called it the sentencing tail  and i frankly tell you i'm a little more skeptical about that kind of a declaration under these circumstances where several convictions are set  aside and in the judge impose the same sentence again not please you legally he can do it question is was a proper here well judge i think that the transcript basically speaks for itself but i think the judge said at least three different times this would be my sentence even without the finding of where finder he did mention the tail wagging the dog again although he didn't analyze that analogy much further but if it was mentioned so really here you go back to the the findings of the court under thirty five fifty three a and the court in the government's view did not abuse its discretion that the record shows that the court was troubled by the nature of the offense drug dealing in danger in children being sold from the house where children lived  basically adjacent to a junior high school the court was very troubled by the defense criminal history especially a lot of prior convictions that did not receive consideration under the guidelines drug trafficking priors violent priors prior for possessing weapons things that really do go right to the heart of what this case was about the court noted that the defendant had done that a lot of those prior convictions were committed on her various forms of court supervision and the would guess that he's around age forty something or in that in that general area the court calculated called musgrave's adult wife and basically a history of not working not supporting his children selling drugs and possessing weapons while under court supervision so to really boil down to the heart of the sentence those are proper factors those are proper considerations under thirty five fifty three and so to go back and answer your initial question of should you really look at this is harmless error i would submit that the record does support that that when the court says i would have done this with or without the  up as to the issue of considering the acquitted conduct on counsel admitted correctly that the court can do that so where that leaves musgraves is challenging factual findings of the district court at the clear error standard so this court would have to find that those factual findings of the district court violate the laws of nature or are so improbable that no reasonable fact finder could have drawn those conclusions so as the advocate of the framing theory i'll readily admit that it requires inference and no one saw musgraves put those items in jesse smith's car let me let me throw a civil hypothetical and let's suppose the person who's accused of doing the framing is a police officer in a civil case where so let's take it's mr smith's car mr smith testifies that he has no knowledge of the gun or the cocaine that was found in his car he didn't put it there and it must have been the only person with access to it other than than smith himself was and all police officers maybe arrest so it was planted by the officer that a reasonable inference could be if space is believed and that's the kind of credibility determination of the district court was able to make in this case and in this case there are a lot of other surrounding circumstances beyond what was contained in your hypothetical you know oh it may not only gets beyond a reasonable doubt for reasons we stated in the earlier decision we understand and don't the bottom line is this reasonable miss and the district court was may not have weighed the factors as mr musgrave would have liked it may not have weighed the factors as this court would but to say that's an abuse of discretion when the court tied it reasoning very clearly to those thirty five fifty three factors and pointed to facts that really do tied to the problems in this case and really do tie to the defendant's own history and do tie to the the goals of the sentencing statu so calculating that first guideline range certainly anchors the judge perception of what i am appropriate guidelines sentences and so that anchors it all the way up there at two sixteen three hundred so is harmless error and possible not correctly calculated on this anchoring theory i would think so i think we have said i don't know how many times that a judge who confronts this kind of very technical