important to start with is the district court's finding with respect to the government's reported relevant conduct in the case the district court found that there was not a preponderance of evidence to establish a higher drug quantity the district court found that the defendant's statements previous statements were not reliable enough to establish that and then under section thirty five fifty three the district court explicitly said that one of the reasons underlying the sen gave which was sixty five months above the high end of the guideline range was that the defendant was involved in serious and significant other drug trafficking that's one of her reason i have two reactions to this first of all your assumption that the standard of pursue jand that's necessary for a quantity for guidelines purposes is the same as the standard of perception that's necessary for thirty five fifty three a i'm not sure that's right since the guidelines have these various cut off you know this range that range the next range so it really makes a big difference to the guidelines whether it's you know three kilos or whether it's thirteen kilos or whether it's sixty three or seventy seven grams  and the other thing is that you know that the district court doesn't base the one hundred eighty month sentence exclusively on the quantity she lists a number of other factors the quantities it's important but it's not the only thing that's true your honor but part of the problem here is of we're going to evaluate the a political billet he or the propriety of an above guideline sentence we have to know what the bases is  and he says look you know it's pretty clear you were a rather big deal or i can't put an exact number on it but you were not somebody who was a seventy seven gram kind of guy you had a lot more going on the six because you have to figure out whether the a degree of the variance above the guidelines is enough or too much don't have to map it onto what it would have been if that had been a relevant conduct finding you know you don't but it if she's saying that because he she believes it was three grams more a court might so record appeals court might say well that's substantially unreasonable but if she's saying doesn't i mean she she makes that clear enough in her  only were she use a significant and serious judge and i think that we're both on three grams right i don't suck so i know some people think it is and i know some people who think it's not i think that's part of the problem is the language that she used was vague in terms of what she thinks  serious and significant if she would have told us more then perhaps we'd be in a better position to evaluate it but i also don't know what evidence she was relying on to find that other than this statement from him which she said was unreliable this court has indicated in some of the present that we've cited in the bill assume your is the case that findings under section thirty five fifty three that are going to increase a guideline for our defendant sense above the guidelines need to be made by preponderance of the evidence as well and i don't see how we can say that there's more drugs by a preponderance of the evidence if the only basis we have for it is a specific statement that the court has specifically said it is unreliable on its face now it may be and  so i think the case needs to be remanded for clarification perhaps there was something more that wasn't a numerated i will i will note that the reference that's made to the the false statements and the apart he gets an enhancement for guidelines purposes of two for the obstruction nobody has a right to the three levels down for exceptions i understand what you're saying when you say it's a five levels wing it but actually just gone up to and she's saying your behavior is so awful that to isn't really the right amount we've got to you know i'm going to adjust this up further because of this actually rather lengthy pattern of obstructive behavior that he engaged in so that's another reason not one of the related why she might think this is got a bump up right but i just i think that it's not her i think for an above guideline sense that this  far above in order for it to be meaningfully evaluated we need to know a bit more about where it's coming from she says that she doesn't want to give him a benefit for a lie and that's what she says so we're trying to write in the reason and why did she say that you know why she says that because he  doesn't get it but she he doesn't he could if he would have had relevant conduct of thirteen kilos if she had thought that he was telling the grand jury the truth right that she found he wasn't telling the grand jury the truth that's the problem is it's benefit from the  because she thinks he was mostly telling the grand jury the truth and that's what my problem is what i don't even know what that means i don't even know what basis she has to say he's mostly telling the grand jury because the government points out you know there's some corroboration that white leans on him to get the first there's another reason to believe he's a pretty significant drug dealer and your honor my position on this is that if the judge is going to say that she doesn't believe the statement and then turn around under section thirty five thirty three and seem to credit the statement with respect to some quantity i think that creates an internal inconsistency that needs to be clarified and it just wasn't with respect to this this thing about the benefit the thing to remember is that if he if he hadn't said anything to the government there wouldn't be any re conduct trance all he's not he's not getting a benefit from having lied to the government he's easy losing his he's losing his three points of acceptance because of the two and there's no question he would have gotten it if not for the two points obstruction the case  his asserting that look i want this statement isn't reliable and i think in this situation just not going to testify i mean it seems with this back and forth he gets up to the brink and then he recants and then of course the government would want to use him as a witness while he can mean there was an early recantation and then there was then he said something else and then there was a second for the position the position of syncing was it simply was not reliable enough to be true what he really wanted i don't know what the real truth was we can't know because the statement was unreliable the other problem is the government didn't have any other evidence to corroborate the relevant now and i think that if there were these claims about these other cooperating witnesses this masoud to these other guys that we had we had at a previous hearing right suggested that we should have they should be present they were not present and instead they relied only on this unreliable statement and i think if that was what the basis for the judge why do we have a serious and significant quantity i think we need more from the judge on how serious so we can decide will sixty five months anough or not enough based on how much it is and we didn't get any indication of how much it was or in fact what she said earlier was i just can't come up with a quantity if you can't move any quantity of how did you get to serious and significant i think that that's an internal inconsistency in the specific statements made by the district court and i think that internal inconsistency this court said is impermissible and so we need to remain and get clarification maybe i'll end up with the same sentence but i think we need that clarification thank you thank you drug transactions and then incorporating that finding in the judge's section thirty five fifty three a analysis that finding was based on the defendant's own statements these are statements that were made on multiple prior occasions they were made in writing they were made under oath they were made after the defendant had the opportunity to correct those statements so mr brindley point is have been cheap both not rely on them for relevant conduct and rely on them at the same time yes you honor and i think what the district court here depressed a bully is parsed the defendant's statements and on the one hand look at those statements and see what could be corroborated but it is not like she says she you know i've got corroborating evidence for your sales during this year so i'm going to release conservatively attribute this much to you but not for other years you know sent usually when you when you have say a jury believing part of the evidence or you judge believe part of the evidence you can see how they get severed you know how they get believed one of the time when it's when the question is really are we talking about thirteen kilos or not and which part doesn't she believe i think she doesn't believe i think she doesn't believe that there's evidence to corroborate the thirteen he loads which how do you then why would you believe any part of it how does she have and she divided up i think you believe the rest of what the defendant is saying or you believe that there's enough there based on let's see the rest of the rest of it is that he has engaged in prior drug sales that he is engaged with them with an individual by the name of at white that he previously gave testimony regarding ed white in the state investigation that he only recanted after being convinced or coerced or whatever you want to phrase it by mr white those are the other pieces of the defendant's story all of those pieces the government was able to corroborate more or less at sentencing the one piece that the government admits that it wasn't able to corroborate was this particular detail a very detailed part of his statement how much  he was dying on a weekly basis from mr white and that's the part that the district court sets aside and says essentially i'm not going to swing his guidelines range from at some point during the sentencing proceedings there's a guidelines range thrown out as low as forty six to fifty seven months i'm not going to swing that guidelines range and quadruple it the district court says all the way off to two hundred sixty two to three hundred twenty seven months based on the detail that the government cannot corroborate so essentially what the district court does is say i will credit some of his testimony where there is other evidence i will not credit this other testimony i will take a conservative approach here and i believe with the defender is trying to do on appeal essentially take advantage of that conservative approach and say well if she decided not to credit one piece of the testimony we can't credit any of it well but sixty five months is a big upwards adjustment one of the biggest i've seen so we've said you know this report said never mind us that you've got to have a solid justification for  change that big and you're correct judge except that as you pointed out to win that the defendant was arguing the prior drug sales aren't the only reasons that the district court gave here in justifying  and certainly his prior drug dealing is a part of it and certainly the seriousness of that offense is a part of it when she talks about the impact of crack cocaine and cocaine on the community but all of those reasons together justify that one hundred eighty month sentence and those are all reasons that were amply articulated on the record and so at this point unless there are any other questions from the panel the important that when we're when when counsel just arguing the points that talking about well what they go to the court rely on with respect to this quantity what counts is that say well i think that maybe the court relied on this and i think that's the problem because we don't know based on this record what the real what how much of a role this significant and serious other drug trafficking played in getting to the sixty five months we don't know what amount this significant serious other drug company supposed to be so we can invite whether that really was enough to justify the sixty five months and we don't know how much and how it was one of the central things that the judge talked about and whether it was mainly the obstruction and not the drug we don't know that because it just wasn't stated clearly enough and i think this is anonymous to the not anonymous synonomous a mallet this is the word i'm looking for to the claybrooks case which we cited where the judge found a problem with the reliability of the  informant question the reliability and then ended up throwing out in some unknown way and for some unknown reason and this court said you can't do that you can't have some sort of compromise we have to deal with this and so we ask for revenge so we can