person committed procedural error when it applied a five point enhancement for a firearm that had previously not been contemplated between the parties now i say that with full understanding that the district court of course is not bound by any plea agreement what distinguishes this case in our view is the fact that the government clearly has the burden of course to prove this kind of an enhancement or any kind of sentencing in and spent but in this particular case wrote not on one occasions that it could not meet its burden that it did not have direct evidence that it didn't section well to the extent that the court itself has no independent evidence and the government's position is that it's investigated the case it's spoken with it's cooperated in the case and based on its own investigation it doesn't believe that it could prove that at a phatic hearing so if it can establish that there was that the firearm would have been within the scope of the defendant's knowledge would have been foreseeable to the defendant and i mean the government i think here is a very uncomfortable position it seems because they have literally not written once but twice to say first to  can't prove it at all the second time to concede to some extent to the district court by saying well of course you're a man's right to ask this question but the answer is we don't think we could prove it we don't think we could prove it for these reasons we don't think that the defendant we think that the defendant who entered the last possible moment that the defendant who was not a part of the planning that defendant who was in encouraged to participate in this because it at the last moment for the pure purpose of driving the vehicle and had no stake in the outcome and was never going to leave the vehicle and in addition the government inform the court that this particular individual who was added at the last possible moment when when a gun did in fact come into the vehicle that the individual is driving was a large s u v s it was a suburban they've the weapon was handed to the person outside of the web site of the vehicle and outside of the driver's view government concedes that and then the individual end is the vehicle sits in the last row and has a conversation about the planning of the robbery and the converse of the planning of the conversation is all about is all done in english and the government this particular case at all understood so so what what is the rule that we articulate that instructs district courts in the future that this is a procedural error well i think you lay it out and start really i mean it seems to me that in studley this court very clearly said what they what they anticipate would be required for the court to make such a finding and  don't know that occurred in the first briefing judge and again i was not a lawyer in either of those three things i don't believe that something was raised in the first briefing and i don't recall offhand and i can look while i have might break as to whether that was it was raised in the second briefing but certainly the concepts of studly were articulated very clearly in the second briefing and that's where the government we weaned itself off a little bit of well we we we know the court has a right to ask these questions but we're going to give you the same answers we can prove it we don't think it's appropriate we don't think it's within the scope of the defendant's knowledge and we don't think it's in the scope of the defense knowledge for all of these reasons and the reasons that i just stated is in the weapon came into of the government's concession then there by buying the gun behind the court in determining facts i think that it has to because the only facts the government says we are not aware of any evidence we can't prove this it's our burden and we can't prove it and we've talked to our witnesses on it is bound by the government's position that there is insufficient evidence i would say the very least if the court wanted to incur have its own hearing and do its own fact finding i would imagine that the court would have the right to do that but hear what the court said is it had to be obvious to this defendant because he had to assume that it was going to be done with you know fans or ropes or what balloons or something that's i think what balloons might have been a different kate clear from the record or he would have given the same sentence even without the specific details but i don't know that i don't know that i would say the judge because in fact ultimately doesn't give the same sentence as he was sort of as appears to be contemplating when i came on board after the second sentencing proceeding and after he then remanded the defendant who sort of panicked at the time realizing that he was no longer facing eighteen to twenty argument between the government in a sense and the court because the government has steadfastly sad we could not prove it we know the facts we've investigated the case and we know the facts and we can prove it we can prove that this would have been within the scope of this defendant's knowledge in jointly undertaken activity that's that's what the second circuit requires and in addition we can't prove that it would have been foreseeable to this defendant so if i mean perhaps if the judge  and the district court thought of more appropriate sentence was a higher sentence maybe there were grounds to do that but i think that particular graham for example the judge also enhanced by one point because the amount of money that was sought to be rob was over a certain amount of money and that was again was something that was within the realm of the court's ability to see it was always the edition for one point for money and one point for the amount of for the drugs those the court had an op you know how to write it to change  but with respect to this particular five point enhancement if the government is saying we can't prove it we've investigated we can't prove it i don't see how without some sort of factual fact finding hearing the just the district court can substitute may please the court my name is eli mark i'm assisting united states attorney in the southern district new york i represent the united states on appeal and i also represent the united states below it sets a judge paul as as your honor noted it's the judge the district court judges determination to make these factual findings in order to determine and properly calculate the guidelines that the factual findings here particularly what was focused on of whether the defendant knew or reasonably  to reach the standard that should be said of the government which is the highest which is that what i believe happened here is the government broadly speaking in office took a conservative view of weighing all  evidence like the defendant release or focus on whether there is actual particular actual knowledge like to cooperate when does this actually have a discussion with the defended to determine whether he knew or didn't know the government had mental cooperate says those witnesses didn't speak with the defendant and so when viewed all the evidence the government took a conservative view of that evidence and said look given the standard here while it minutely it's low it's a preponderance we're going to we're going to reserve on that but now all of that evidence was presented to judge sullivan none of that evidence was in dispute at all and judge sullivan said look i reviewed that evidence and i find my reasonable inferences are there that he did actually know or even if he didn't know he recently for if for see that now when this court is reviewing those determinations that's a clear error standard or review i mean the question and all evidence reviewed in light most favorable to judge sullivan's determination different reasonable viewpoints i mean the government in the government stands by the police cream and obviously take that position but the government even below and point your honour's to what i think should miss coleman was point to which was at one of six of the appendix said it plainly would be reasonable for the court to find that he actually knew or or reasonably for saw it but the government stands by its plea agreement and that proof in just to go through it quickly for your honour's all of which was on object to below was the particular nature of the fence that we're talking about here i mean a robbery of another drug dealer of more than two kilograms of cocaine the defense room offense i mean he he was the driver he was also a lookout he could have been there for protection those are all things that were in the p s r that were not objected to the coconspirators actions around him in the in the in the car they these including cooperate when this is all freely spoke about the details of the plenty of the robbery that suggested that he also knew they had the gun in the vehicle with him that's also suggested that they all thought that he knew and i think the last or even the brief which is i think clearly judge solon who is very very detailed in his explanations of a sentence give a lengthy explanation and while he did reference the gun i think the clear the clear import of that is the defendant knowingly took part in a robbery and the nature of this offense even if it was to credit you know the defense argument that he didn't know about the gun which the nature of this event is so significant so is and the risk of somebody who would take part in this is so much that he did not see that that society could accept a lower sentence and so i don't think to your question earlier i think judge sullivan made it very clear on the record that the guidelines were not what was driving him in this sort of particular determination because when he's saying the guidelines are trying i think what he's it possibly saying is this particular dispute is not driving that determination his his belief and it really deals with jointly undertaken activity but even if the court so that we should be reviewed for plain error but even if the court wanted to sort of entertain the studly analysis i mean this is uniquely german or take an activity to defend a pled guilty to a robbery with others in the plural he was in the vehicle with the others who's in the vehicle with the person who possessed the firearm the application notes particularly talk about robberies or jointly undertaking activity and even if you're going to consider each of those particular points that studly points to looks at which is really trying to determine joint owner taking activity for things where there's a sort of vast conspiracy each of those points would support the fact that this was join or take an activity am i correct in my understanding that mr lopez was on lately calmer to this conspiracy he came on the day of the robbery he was recruited by his nephew but it wasn't that he was just there for a minute you know today it just seems to me that i'm not that person today because it seems to me that the facts belove as were laid out in the government's own brief not my brief the government's brief we're very late late comer was the government's expression in its presentation to the district court a late late comer wasn't involved in the planning that had gone on for a considerable period of time was a minor player not a four point minor player because this was a robbery but the government agreed to give this individual a three point reduction for being a minor player the government just did here and said well there was discussion in the car and there was a gun in  car but in their brief to the district court not once but twice and in oral argument to the district court the government said very plainly any discussion that happened in the car happened in english and this defendant doesn't speak english they said that the gun was given to the individual outside the car outside of the view of this defendant and then it was hidden in the car and then if there was any ability to see it it was in the third row of an of a suburban it was the government that pointed out that it was a very large vehicle and that th have seen a rip off a drug dealer of two kilos of drugs in the bronx do you think you might think there's some in the team here might have a gun to do that that's one of the things that just so focused on was really well i think that is what judge sullivan focused on hundred percent correct except that we don't know even the extent from having not had a hearing we don't know the extent of what the defendant knew other than the fact that there was going to be a robbery of a drug dealers that was reasonable foreseeability  well to reasonably perceivable we're going to rip off a drug dealer in the bronx and two kilos of cocaine that you know somebody might have a gun that's still with us i think that if the government had any facts that supported that they would have present those to the court they had the ability to have  hearing and not only that they put in their own papers that they didn't believe based on their investigation which included debriefing a cooperator based on their investigation they didn't believe there was any reason for that to have been foreseeable they didn't believe that that would have been in the scope of any jointly end of the sentencing letter before the senate did say we think there's enough here for the court to make the conclusion they did not withstanding the facts that they found and the fed and the fact that they made it clear to the court that they couldn't with they didn't think they could withstand the burden if there if it were if it were to go to a hearing and i think that i mean why do we have phatic zero hearings why do we have any sentencing hearings if the point isn't for the government to prove its case maintain its burden not to have the court respectfully make up what it thinks is really you know what what's in its own mind and and frankly a let me get let me give you just a hypothetical which a sudden aside the gun and everything else judge sullivan listens to all of the circumstances around this is aware of it from the p s r and says you know i don't think this is a guideline sentence i think this is something that deserves a sentence turns out he was would you be here arguing now and i wouldn't be and in fact i didn't say that but he didn't say it in a vacuum judge he said it in the context of having the facts that do contradict that position and i think that that's a meaningful distinction to the reality here is i didn't argue in my presentation i did not view the script the discrepancy because i knew that the judge had made up his mind and as many years as he and i have argued i knew that that was a probably a losing battle and so i took a different position which was just the social impact of this individual and his home and his home and his family and i think that the little bit of consideration in terms of the new guidelines that the judge gave that i think was a function of not dealing with the with the with the disagreement the disagreements among the parties but rather that there was another area of consideration that the court was permitted to go to i think it is another and i don't i think you might let me i might if i thought i had a minute and over the past i don't know how many times i've been here i just for myself and i'm sure i speak for my colleagues here but just thank you for your continuing service on the panel that's my place much appreciated thank you judge and mr mark nice to meet you and thank you