bodies but the reason why i think that's incorrect even though that is the natural intuitive response or analysis is we are dealing with the united states and it's in guidelines and what's controlling here is to see one point one i think everyone agreed that application note says do not apply section three b one point three parent abuse of trust or youth of special skill act when the fence along with determined under two c one point one i e attempting to do surgery why isn't that still the use of the special skills to commit the crime even if they're used in an incompetent manner because it seems to me that your argument being a police officer making it  involve the use of special skills but if you do a bad job it doesn't that well i think that i think the real question is is the bad job amount to such a bad job or the non job that it amounts to that lack of use of special skill certainly i think this is a case in which a district court judge and the court said this officer received training and i believe that he possessed the skill the root question was was there anything in the record to show that he actually use things about the tape for instance which the district court did refer to and which is not before this court is what the district court said in terms of the tape and excerpts the record of page fifty four of the court said the court has watched the video it cannot be so strongly enough that clearly watching the video and reading the facts which are really not in dispute here the defendant on multiple occasions used this uniform and his position of trust to commit the crime after the district court makes the statements he simply says i find a defendant has substantial training to become a seattle police officer and prepared to make what we call a terry stop stopping someone on the street pending and down procedures for officer safety and if i may your honor if the sentencing commission had separated those two distinct adjustments and given them different numbers we wouldn't be arguing about this but they lump them together under a single guideline and courts including this court on other occasions seems to be  affirming the use of that adjustment even to the hobbs act violation in parent fedak lee what judge silly did i believe w applied that adjustment to the drug violation at least that's what the government was arguing it was our position at sentencing that the and we focused only on special skills the government that it's right your honor we focused on special skills because that time independently supports the adjustment i submit but i would just really did was apply that adjustment to the drug crimes which each of which are a group the possession with intent to distribute and the distribution and because of the drug quantity invited the court to place that act level fourteen really as you can see from the sentencing transcript started the morning by inviting counsel back into chambers and he mentions this later on in the transcript to basically say you folks both have it wrong and i think probation has it wrong because no one has paid any attention to the requirements in the hobbs act guideline to see one point one that this is not a level ten i have to cross reference the crime that was facilitated which was the drug trafficking i look to the guideline range for conspiracy involved in that truck trafficking that too leaves me a little fourteen and that frankly seems more problematic than applying it to the other charge crimes but in the case that i referred to in the twenty eight chain letter a frankly which is not new because mr suchi to mention the consolidate case act sentencing on page thirteen of the transcript it was one of the cases that judges only invited councils attention to back in at the california mexico border and the ninth circuit in gonzales pointed out the permissibility of that adjustment because to see of the court to apply the guideline range applicable to the facilitated crime so because there was a cross reference not being used to facilitate the commission of crime certainly it's possible your honor to possess special skills and not make use of them the surgeon who robs the bank is unlikely to have used any of his special skills from his training and education experience in the bank robbery but the guideline requires that they be used and used to facilitate the crime if you use them whether you use them effectively or not i submit immaterial if you have made use of them and in this case as judge the only observed he used his training to conduct a terry stop and a pat down to basically smooth talk his way through his encounter with the individual unbeknownst to him who is an undercover f b i agent if you stay calm be cooperative if you're cooperative and are willing to lose your drugs i'm not going to affect an  sexual encounter between a deputy marshal and a traveling salesman and then try to extort money from him and the special skills that the court focused on as an appropriate adjustment was the marshall partners use of the computer to track down the changed address by the victim the new telephone number that he tried to  n he applied for and succeeded in getting in order to avoid contact with the individuals attempting to extort money from him that was viewed as a special skill al court also talked about the fact that this was an abuse of trust but the district court had concluded that this was a special skill that sensing adjustment was affirmed on appeal by the ninth circuit and like i indicated it was a case that had been cited to judge silly in the government sentencing memorandum i see my time is up to thirty no further questions i'll submit created that adjustment they created to see they created all of the application notes if they wanted special skill not to apply it to see one point one it could have easily said so it could have said that prong simply doesn't apply that's a separate ballgame and they chose level ten it went up to fourteen to nearer the drug counts and the judge also increased it to more levels for the three point three b one point three which he said was allowed under to see one point one and