judgment of sentence and involves three important questions of sentencing i'd like to address to mainly today and both of those are sentencing united states sentencing guideline calculation issues first is acceptance of responsibility under three a one point one of the u s sentencing guidelines and the second is the three point in this case three point lead or ship enhanced for being a manager found in the three b one point one of united states sentencing guidelines we also brief substantive and reasonable ness i'd like to begin with acceptance and i'd like to clarify that yes this court has recognized that under u s v webb that were that you review for clear error on this issue the sentencing guidelines indicate that when looking as to whether or not a district court should reduce it to particular defendants offense level for two points for acceptance of responsibility we look but there's some obstruction of justice ordered that's correct your honor the extraordinary yes and i believe that's the exact word we used in our play brief is extraordinary and i'm glad that you brought up the interplay between  exceptions are sponsibility and then obstruction of justice enhanced under three c one point one i would however point out that there is no absolute bar to the two points of acceptance or responsibility and this court has recognized that in the past  that makes it pretty discretionary with the judge then to look at the evidence look at whether there was some evidence of obstruction all of that and so what is the standard that we look at here there's no absolute bar but there's no provision that says you know you've got to give it to him so what's our standard yes sure i completely agree this court's review for clear air and i do agree that the district court is allowed discretion in this matter i think however what this court  recognized in the past is that what we're interested in this particular issue in these interplay between these two sentencing guidelines is whether or not the defendants obstruction of justice indicates that he or she has not in fact accepted responsibility and in particular we cited i think it's the rouge area case which is out of this circuit in that case the defendant there was a question about relevant conduct to the extent of relevant conduct i believe that was a drug racketeering and money laundering case and in a sentencing and extended sentencing hearing that defendant testified the district court found falsely denying that he had any any activity or any involvement  significant additional relevant conduct that's not the case that we have here today mr produce go did not testify falsely certainly do i wish that that there weren't affidavits from they weren't co defendants but defendants  i'm saying that he had made what they considered to be threatening comments certainly make my case would be much stronger if that wasn't me but a couple of points first the court in denying mr reduced go the two point reduction for acceptance of responsibility did not did not rely on the instruction of justice or at least in there in its holding did not do that indicate it was a drawing on obstruction of just second what did it rely on it relied instead on a word that my client used at his plea hearing he said in the words and of course my clients speak spanish so the we have an assistance the very competent spanish translator brief certainly means the literal translation is too but in mexico it is also used for the word retire and in fact what mr byrd used to go was doing at that hearing was explaining his conduct between the events in june of two thousand and ten and then what he was doing between that time in the time of his arrest which i believe was late two thousand and twelve early two thousand and thirteen and he did tell the court and later the probation officer that what he had done is once you learned to the extent of his of his nephew's drug activity you see it decided to retire returned to mexico where he had some family and later came back to chicago but importantly what he did not do was he never denied that he was previously involved in that drug conspiracy and he didn't seek to he was not seeking making a legal argument that he had chosen to draw from the conspiracy and therefore should not be held responsible for any later relevant conduct ted the district court judge did in fact sentence him seven years under his under his recommended guideline range however we i think first of all it is an important recurring question about application of the specific guideline and second we don't necessarily know what the district court judge would have done had he been given that two points off for acceptance or responsibility the second major guideline application issue that we've raised on appeal is the three points mr produced go received for leadership for and specifically being a manager of this conspiracy because this is a conspiracy we don't dispute that involved five or more participants so under three b one point one we're looking at either a three point enhanced meant for being a is the fact that the court must find to receive either the three or the four point leadership enhanced meant that the defendant exerted control managed supervised at least one participant and the district court did not do that in this case this court is also held that merely suggesting to commit a crime which was the sort of the case and in the court matter or even playing a major role in that case again gort in court we have a female defendant it was she and her her boyfriend were involved in essentially a fraud they were defrauding a number of her family members by claiming she was under some sort of harassment by a drug gang that her boyfriend was involved in the mafia and then if her family only gave her enough money his his mafia connections would would would keep her safe in fact she was responsible for identifying family members sort of looking at their fines and identifying whether or not they had fines and the ability to sort of give money to this cause and then was intimately involved in in convincing them to hand over their money and that case the court held it wasn't enough known that in that matter looking at it a two point bump up but the standard is the same merely suggesting the crime or even playing a major role in the offense is insufficient the court has to make a factual finding that the defendant actually exerted control over someone or the defense counsel  there i remember i remember that we raised this objection and went through the multi factor test and pointed out that there was no evidence in the record suggesting that he had exerted control or manage someone but whether or not i specifically said to the court there after it was i'd like you to make a factual finding i don't believe i did moreover the court could now i i would some of the court could not have made that factual finding because there inherent problems i agree that sentencing courts can consider hearsay or other evidence which would not in another instance pass the sort of the scrutiny under the rules of evidence however in doing that the court still needs to make a determination that that evidence has the the type of reliability that we would otherwise like to rely on and i think that in this particular circumstances there's a number of reasons to question mr tourist statements number one he's making a proffered statement now certainly both the government and frankly defense counsel rely on proffer statements in a number of circumstances however the person is there because they're trying to better their situation and indeed mr tourist no more received a significant sentencing reduction because of his assistance here more importantly in this specific case mr tourist was caught red handed it was he that the da da had surveillance on had undercover buys from  he was the individual responsible for purchasing the firearms the cars recruiting drivers all the tools of the trade it was his address that was in the car that was stopped in june two thousand and ten so he knew that he was going to be found guilty for this and he needed to point his finger at someone and what he did was point his finger at the one individual who had been and later was indicted in the first superseding indictment but hadn't been arrested yet and you know if you notice when you look through the statements of the other defendants in this case there's only one other individual who says mr that my client is the boss and then individual doesn't know that he's the boss doesn't doesn't know what his role was but is merely indicating that's what i told him the two places at the good morning there please the court my name is shawn lewis appearing on behalf of united states in this matter in this case the district court did not clearly err in declining toward for us go to points for tuppence responsibility it did not clearly err in finding that he was at least a manager and they did not abuse its discretion in fashioning ascendants in this case and like to start with the acceptance and go chief judge the question you asked  what did the district court rely on when the judge not a lie on in finding that there was not acceptance judge nafta was very clear who the very at that in her findings she declined this award because she found that the defendant did everything possible to minimize his conduct he did so continually not only that he denied significant part of his behavior not only that he tried to conceal his role these are all the court's findings after looking at the entire record and that the court found that his efforts to characterize his role as minimal was quote not true that's what the quote relied on  denying the award for acceptance of responsibility layered on top of that which clearly underscores so the court did not clearly errors as obstruction of justice and hansen that ordinarily  case again underscores the fact that it's a question of discretion in were there i believe the government had appealed the award of acceptance when the defendant didn't fully  conduct the court of appeals simply said it's a matter of discretion the court knew had the discretion it elected to give them credit in that case here we have the exact opposite the court judge have clearly understood she at the discretion she made evident in counsel's argument where she said that there are two factors there one looks at in determining whether toward acceptance she underlined with a guilty plea in admitting one's conduct plea yes we have that here but that leaves that's incomplete there's a third factor and the third factor is it meeting the rest of your conduct or not denying what you did and that's where failed here and so the argument is predicated on just two of those three factors sounds good but it's incomplete when you look at the full picture the full three factors it's very evident that judge ne here reached a permissible and that we had some of the correct conclusion based on all these facts i just know briefly that this whole issue about withdrawal versus retiring is really a red herring in the first instance there is no evidence there's nothing in the record that shows that we're just going to use the word retro are versus who belong there's no nothing in the record on on that score in fact what the record does show is that both the prosecutor in the court went to great lengths to clarify exactly what it was that he met and both the prosecutor in fact stated as i understand it in questioning verdasco as i understand it you joined edgar for a little while but then you claimed you withdrew from the conspiracy when you realize how big it was getting is that a fair statement answer yes and that's at page eighty seven ninety seven similarly later on the district court i'm sorry the magistrate judge did the same in essence the same thing so all of these factors layered together and i would know on the withdrawal it really doesn't matter thus the substance whether he meant to withdraw or retire he was still minimizing his coconspirators he came back was caught as appellant points out the other two apparently are still down in mexico but again that that doesn't that doesn't do anything other than i would submit show consciousness of guilt fleeing the country and then on the leadership enhancement the core did not clearly bear there either  that and counsel pointed out that there were there were not factual findings i would disagree if one looks at the record of the sentencing hearing after the prosecutor went through an outline all the facts that showed exactly he didn't  invoke magic words that verdasco control other people but he explained the evidence showing how he had done so when the prosecutor concluded judge nuff said i agree with the government we're either a or b implicit in that is both an adoption of the five which nobody the five people wish nobody contester disputes and the factual underpinning in both of those in addition later on during that senate scene hearing the court others was in fact an affidavit form and it was incorporated in whole in the p s r for the court credit to those statements those affidavits set forth in a high level of detail the ways in which the defendant  exerted control organization etc i can go through those but i think the record really here speaks clearly i would just point out insight for example in setting the price at the very clear example disco was controlling edgar you can't control price without controlling a person who's selling he's doing that and on and on and on the record the affidavits that the court credited show the way  sentence here that is seven years below the bottom of the guidelines even if you knock off these three the guidelines are still above that sentence to be caught so it's harmless even if there were an  thank you honors i have just two very brief points first as to leadership and i would i would again just say that the information provided by the government at the sentencing hearing was the information that i received from edgar and for all the reasons that i previously stated our position that information was unreliable and continue to news to be unreliable then and more importantly our next when the district court judge said i find all th credible what's the basis for the unreliability just that these people were looking for a deal certainly certainly mr tourist omar is looking for a deal second and more importantly not he's not be your regular  defendant just looking for a deal he's not a minor participant he's the leader he's the one that's going presumably going to go away for the longest and more importantly the government had a mountain of evidence against specifically  i think when you look at the statements that edgar made about mr produced as opposed to what the other co defendants said about my client it's it really brings his statements into question for instance if mr disco truly was the boss the ringleader of this operation mr rodriguez rodriguez who was the driver recruited by agger would likely have known what his role was you would know mr produce co is the boss he would have known what mr produce go with doing on a day to day basis or at least during his proffer would have been able to identify what mr produce because produce goes roloson and just the opposite mr rodriguez tells tells both the prosecutor if he or she was there but more importantly law enforcement during his certainly want to explanation but i think the fact that no one other than agger can tell anyone with mr produce cars or all of it and the fact that one person didn't know he existed never saw him there's no hard documentary evidence photographs surveillance undercover buys involving my client no phone calls suggesting that he's the boss brings it into question more importantly the issue of acceptance i would just say that comment on one two three one point one indicates that my client doesn't have to do anything other anything more than and i see my time is out thank you then admit the offense conduct i think the important take away from our position in this case is the government's theory of the case and the defense theory of the case in most cases are going to differ the government may in many cases think that the defendant had a larger role or a different role than the defendant admits he does the purpose of acceptance of responsibility is to encourage defendants to take responsibility for their actions to save the government and frankly the court time expense of having to go through a trial and i would submit to this court that in the case when the defendant timely pleased him it's the conduct necessary for him for there to be a factual basis for his plea to the charge but doesn't admit to every single detail that the court that the government believes in a serious case that he should receive the benefit of the doubt and receive acceptance responsible threatens people again i would i certainly agree that that is i wish that factors not in this case but i would point out it's not an absolute