brought our introduced marijuana into the penal facility by giving him or passing to him where was the question becomes for sentencing purposes what was the purpose for which he was given that marijuana the government alluded to the probation office that it was for mr carlton to distribute marcelle therefore he was a target to a two point one he has put in the calculation of the sentence i attached mrs anderson's complete testimony as record exhibit four for the specific purpose of allowing this court to get right to the point in c that there's zero evidence zero testimony zero the state can be made that the introduction of the marijuana was for mr carlton to either sell or distribute the marijuana into in while he was in the penal facility and therefore the court inference can be made you talk about an inference from her testimony or the evidence at the home well i think the evidence as a whole and certainly from her testimony to how much marijuana did they i think there were forty glove tips wendy i think it was forty yes sir and help me understand what happened i mean i understand it it was on the person of a child well my understanding from  the record is that she gave it to the child and through some manipulation mr carleton put his hands in the kid's pocket or salt and took the marijuana and then later digested it passed it several days later evidence assuming we all agree that she said absolutely nothing about what he intended to do with it once he got it but my question goes to whether or not there is other evidence the fish to support the finding that the enhancement was appropriate in other words other evidence a quantity large enough from which a reasonable inference could be drawn that his intent was to distribute it you understand my question understand your question and i'm glad you gave the first point to me because i agree with you there's zero testimony from her so let's let's you know who was it united states attorney said that miss anderson testified in court so if you want to say it's hearsay it is hearsay but i know that the pope probation officer allies a lot of what is told to them by the government i'm not saying the government did it on purpose i'm not making any accusations but the information conveyed was the ropes because a reading of ms sanderson's twenty three page testimony makes no reference to distribution no reference to selling out we gather if i had to speculate that perhaps in some deep breathing because she was a government witness who had played guilty acknowledging she brought the stuffiness in the facility and you know interestingly had his co counsel and i were talking before she wasn't surge before as you wasn't certain or exit leaving the facility despite dropping some of it in from her pocket so to say that he passed all forty i cannot sta no you're not ours and any way that it's appropriate we have to affirmed only that's what the law says and i think that in this case and i'm going to argue around that as best i can because i understand what the law acquiesced to the to the it and acquiesced is the nicest you know to the to the statement isn't that correct that the testimony of ms anderson said that i disagree with that explained the government says that it was invited there i think if you read it carefully the sentencing and some point the lawyer for lack of a better term because he was continually beat down by the judge and the government you know at some point it's essentially like well your honor if that's how you're going to find i sort of still disagree but let's go on to something else he i mean obviously he objected because he did right and there's two assignments of error that i address in the sentencing that he put in writing he didn't even argue the second one at the sentencing hearing focused solely on the lack of miss anderson's testimony and at some point he sort of said but you know and to me that's you know at some point with all due deference to the respect that i like to give a judge you know if you keep beating me down at some point i'm going to understand i can argue till the cows come home but you're not really buying your argument was there were there any post trial motions found by the  let me let me let me let me ask you what i hope would be a better question what i'm getting at is it just seems fair in the first instance that the trial court ought to be able to correct an error as obvious as this one in other words an examination of the transcript would reveal that the money was not the so in a post trial motion for example for a new trial then you would just point out to the trial judge in the trial just come back and says either you're right i made a big error no enhanced me or you're right i was in error relying on a testimony but there's other evidence in the record sufficient to support the enhanced me that's what i'm getting it was was a truck was this ere a call to the trial judge's attention prior to it being raised in a brief before this court no your honor it was only if you want to say brought to the court's attention in the motion to say the enhancements not proper in other words the only argument i can find that was made was at the sentencing hearing itself that says the p s or wrong ok if that's a motion i was a motion that words he objected to the p say yes now the government says he invited eric is that the argument stage of the sentencing hearing he eventually and i don't want to use the word acquiesce but he he he felt that at some point i think i got to go on because you transcript if he was convinced it wasn't there he could have just had that portion of the transcript transcribed to listen i don't know how they do it in court listen to the tape something greta but i could also say it's the government's burden because they have to filed the written objection to the sentencing should put the government on notice hey look demi be a problem here if you want to go that route there may be a problem let us as the government you could probably get a transcript much quicker than the defendant who's got to go to c j and so forth and get a treat you know get the twenty three pages and then just read it and say you know again i probably envision that is something she may have told the government in deep breathing but that's speculation on my part because there's nowhere in this record does it say that you said several times today that this was a factual error or that what ms anderson's testimony was that the court was factually wrong about  correct yes me ok do you we have a we have a line of cases in our circuit that says factual error can never be plain error because it can always be corrected at the trial because it can be fixed the same types of questions that judge the judge graves is asking you about why it wasn't fixed what do we do with our precedent that says it can never be plainer but it can be clear there's there's a lot of cases all i don't know of anything that precludes them from putting misandrous on the stand to testify the sentencing hearing so mr carleton styled a written objection that's noticed to the court morning your honor my name is minion griffin and i'm here on behalf of the government in this case your honour's a mistake was made below when mr kaufman was sin against miss anderson's testimony was in appropriately characterize but the mistake was made by the court the government and for purposes of his appeal most importantly by the defendant the defendant was not brow beaten into accepting a version of the facts as put forward by the district court if you look at the transcript of the senate's in hearing it starts out with mr cochran i'm sorry mr cottons attorney conceding the appropriateness of the enhancement for the use of the minor to commit the crime and then he goes into a discussion of the law about the appropriateness of the enhancement for distribution of drugs in a penal facility and then at page record citation for seventy he says it was his codefendant if anything provided it to him just i mean they simply on her testimony of what he was going to do with it i don't think that's enough to say that he was going to distribute it at that point he's conceding that that is what ms anderson testif and the government is now look is no longer now required to put forth any evidence the government had the agent they are he could have easily testified as to ms anderson's statements to the government and establish the need for the  government believed that it had carried its burden through the evidence at made it at trial if the court and the government had been made away or that that was a or that that is not in fact what mr henderson said then it could have been corrected that day do  we know if this was a mistake made by the probation officer in much misunderstanding things or was it the u s attorney who misunderstood and represented to the probation office that this was a trial i believe there was on the government i'm not i'm not going to blame the probation officer but it was also on the court who specifically said that he recalled miss anderson testifying in this manner i would point out that miss henderson had previously pled guilty to the same offense and it could be i don't know we do not have a transcript of that proceeding it could be that that testimony came out either at her guilty plea or at her sentencing and that would be how the court was where but of course the court would not normally be aware of the type of pretrial interview that that it would have come out again that the government would have been aware of but i just want to point out that mr carleton's attorney at trial right at the sentencing hearing did affirmatively agree that that was her testimony without being proud beat by the judge and then two pages later he again affirmed well your honor i mean that's what miss anderson testified to but besides her testimony nothing else has been provided to prove that fact that statement to be about so at that point he had invited the error of which he now complains and he is not entitled to really unless  i'm sorry he is not entitled to relief unless he can prove that he has been subject to a manifest mis justice and there is case law in the circuit that says that a minor discrepancy in of the sentencing guideline range calculation does not work i mean if it's mr justice is it your position there is no manifest injustice here for the dish no reason the forty one the quantity of forty monitor is so large that it wasn't likely to be personal use and that sort of thing it is your honor that was also argued by the trial court at the sentencing hearing miss anderson testified that she brought in she she bought some gloves and she took the marijuana and she placed it in the tips of the gloves and cut the tips off and tied them up and she stuffed those in her bra and carried into the penitentiary forty to fifty of these she called them tips they were also referred to as billings about the transcript to mr carlton at some point she went into the bathroom and she transferred the marijuana from her bra into the chop the child's pants from which mr co later retrieved it the bureau of prisons inexplicably to me did not search miss anderson before she left the facility even though they stopped the visit based on the suspicion that he was swallowing something  pockets while she was waiting so they did recover i believe three of the marijuana tips and those were there were no whole tips recovered from mr carlton once they passed in his system there were five  ruptured pieces of of latex recovered from his feces but they did recover the three that she had dropped but the fact that it's forty is not in dispute no ma'am  testimony from what witnesses that i believe was unrebutted it seems to me that the court is saying that it's relying on that statement in making its decision so even if we have independent evidence of a large amount that would look like it was for distribution we also have the statement from the judge that seems to say that he relied on that statement in making his ruling i agree that that it can be construed to mean that i could also argue that the court really didn't give any serious consideration because it didn't feel that it had to do the argument about the quantity of drugs being brought in to him and had he given and that's what i've tried to get is there is a two or three times and maybe nobody knows  asked that question and there was no the chemist was not able to come to any conclusion he weighed three things or tips that were sent to him and it weighed they weighed one point four three grams total so i averaged that out over the three and multiplied it by forty to fifty this is in footnote eleven of my brief and i came up with nineteen points oh seven to twenty three point eight grams of marijuana what is that gives me how many joints i am trying to get in i asked that question your honor and i was told that it depended on whether the joint was the size of your form of the size of your pinky basically you can make a joint as big or small a g well you smoke and lots of small ones but so we don't know i tried to all right i have no idea how much marijuana is generally consumed by an individual at the time i have never been a drug prosecutor your honor and i asked that question repeatedly of d n a agents and state police in this drug specialist and i go you have no personal experience i have i would just have been in this case given the standard of invited error the fact that this is a very small discrepancy in his guideline range the range is calculated by the p s r was twenty four to thirty months if the objection had been granted it would have been eighteen to twenty four he received a twenty seven months i understand the three months is very important to him but in the grand scheme of things it is a not a manifest mr justice if you thought this was a missing person's testimony of her plea or at her sentencing why wasn't that included as part of the record because the court could rely on that in the related why why didn't you bring that to us to say oh it mint that was given because of the use of the child yes mail to remind me of the the defense attorney raised that in his in his brief but not again in the reply brief so i assume he agrees with me that it is because  at the sentencing hearing the defense attorney waived that objection he initially made one and then on record excerpt for sixty eight he waived it he could he said with regards to my objection on number four which is the use of the child will concede that point right said that that's that's conceded and that's not before us about the use of the child it's me shaking his head to agree with you on that one other thing that the enhanced mint was appropriate no ma'am the take it to through the end of the hearing the he the defense attorney was saying that it was inappropriate because of the legal point yes but that all the way through the to the and are no more what was the prosecutor that was at the sentencing the same prosecutor that was at trial he sat at the tables very new at the time of the child he sat at the table but he did not actually participate in the trial is my understanding but by the time it came for sentencing the attorney who handled the trial had left our office and so the sentencing was assigned to him the top but someone that was it and the trial that heard the testimony that was at the finishing he said there i think my opposing counsel made two key points that was brought up earlier she said and i wrote it down the arrow was made by the government in the court and then she argued invited there but she specifically said first the government that we can argue about that but i think it's clear that it was made by the government in the information provided to the probation office because the probation report says the as to whether misunderstand testified to this at her sentencing or her plea i have no clue i could only speculate like i said i'm assuming it's either out or police are well i think counsel said it was not her it was not her  she was given to her husband to distribute but but it was not trial testimony that might be splitting or here but it might be enough of a here to split different that i might have to concede that point  talks about the distinction would have been it just talks about the distinction between the level of sentencing because of distribution rather than not distributing so i really can't find anything similar to this kind of situation i mean and i'm speculating but my hope would be that affect will air at glaring is this just gets corrected by the trial court at the trial court level and i guess that's what troubles me the most about this is if the objection was made that she didn't say judge grey's and i and i would think that most of the time it probably is or when it becomes an issue like this somebody says well let's just pull the transcript and see what happens and then you got an answer to that question  it is point here this court does not have the authority to to correct a factual but that could be considered a plain herb it's a factual error well you have the authority to fix an error if it's if it's a clear injustice which is even harder standard than plain error so if you can't do it under plain error how can you possibly do it under manifest injustice well it inappropriately added to the lives of a person's in car course or a city and i think our maybe that's the wrong terminology ok at some point he gave up i think just read just my reading into it where the judge specifically asked the question on page four seventy two what doesn't the testimony in the records say that court doesn't appear to be hostile appears to be open and listening there's nothing in the end that says i don't want to hear from you anymore sit down mr so and so there's nothing like that in some point you know it when counsel argues a point that even on appeal at some point i could argue as strong as i can but if you continue to come against me at some point arguing the law point excuse me so was arguing the law point right not the fact moment where he was arguing i think the fact that his motion started everything and it's error and should be reverse