i got the facts right if i remember your case right this was the robber who needed a hearse never lost you couldn't find the location where he was supposed to stick up the jewelry salesman that's correct your honor but the jury salesman says he did stick a mock and broke the window and pointed the knife at him well he didn't say he stuck i'm up and that was in evidence at the court relied on with the court relied on why isn't there enough i've been happier frankly if the district judge had had a hearing and made findings but she did and why isn't it enough that she said well this kind of robbery these people been associates for a long time they  know what's going to go down so he could anticipate the use of the knife because it precludes meaningful judicial review because under the statute she's required to make those findings and she didn't make them why does that preclude review why can't we just decide whether it's reasonable for to conclude that how is this court to know what the findings are that this court then would be simply implying findings by the district court and it's the district court is the only court who's going to know what he or she in fact based the decision on what do you practically expect if we send it back i expect they will have a hearing that will be some challenges and hopefully they'll be a different result what facts did your client admit when he pleaded guilty to the conspiracy he only played guilty the conspiracy he pled guilty to the overt facts what was the factual basis to which you agreed in the indictment that the excerpt of record pages twelve through fourteen i'm not asking where it is for one of the kurt and five in the course of the robbery some of puncture a tire and five were found at this holiday inn express and killed those are the overt facts was he asked what he personally did and was not during the that wasn't done you're saying he just pleaded to the end i think there was a factual recitation around it but there's not one that includes this fact this you know the well your other point is that there's no enhancement available for just the honor the next one when the judge said what did he do with the change of plea did he tell a story about how he could never did find a place where there that's correct or he did he did so he admitted conspiring but i'm sorry under i didn't hear the why didn't you argue why didn't you argue that point well the discrepancy between two coconspirators exactly the same thing when you get ten months more than somebody you know it was nine my friend mean he did something that there's a two level and he hasn't for what he did lie about his identity and that was clearly wrong and he's admitted to that and so he gets a two level bump so that puts him in a different sentencing range evidentiary hearing did you come forward with anything suggesting that the jewels were worth less than the four hundred thousand dollars or did you just say i want to have an injury hearing they said that they wanted an evidentiary hearing the judge asked why and what was the at least there was some brief reference to it because they were in they were involved in a colloquy and it came down like this but why do you want to or you asking this question and he said because we think we might want to have an entry hearing and it just not you you've got to come forward with there's an abuse of discretion standard and don't you have to come forward with some evidence that the valuation might be wrong i mean if you just say we want to have a natural hearing the judge said why and you said we want an evidentiary hearing the reason he said he wanted to ensure hearing was he wanted to utilize the great tool of cross examination on the victim witness and on the the whole purpose of an evidentiary hearing is to provide a reasonable opportunity present evidence you can present evidence by way of cross examination well then why is the standard an abuse of discretion the point is if you don't have anything to engage an evidentiary hearing there's no need to have one well eventually hearing just simply isn't for the purpose of cross examining people unless you've got something to talk about there was one or one other aspect that was brought up and that was with regard to having evaluation done which is why they brought up the idea of having an evidence or hearing so they could have these jewels independently evaluate and that was brought up and was not permitted counsel as as i recall what you do to get an evidentiary hearing and findings as you say here the points in the pre a comment in discussing this with the district court that he wanted to have an evidentiary hearing and she said i'm not inclined to do that was there also a request for an evidentiary hearing on whether sordo really did use the knife to break the window and threaten  the victim there is no evidence or hearing on that i didn't ask that i asked whether there was a request for an evidentiary hearing on that no i don't believe that was on that point your honor i think what was the point was made was that case law was  cited indicating that this enhanced it cannot be applied under these facts here's what i'm getting at i was the district judge there be a pre sentence report and that's going to be it those are going to be the facts of sentencing unless the defendant says or the government says that's not true paragraph seventy eight or whatever it is is not true and then they put in a  sentencing brief and they'd say paragraph seventy eight isn't true i want an evidence for a hearing in a finding of fact on whether it's true or not and then we'd have an evidentiary hearing and i'd make a finding and i just looked again or i mean the sentencing brief and i didn't see where it said that but i could overlook that is there someplace that i can look where it says it's not true that it was four hundred eighty seven thousand dollar drury heist we want to hearing so we can determine a value and i gather it's already conceded that at no point did the defendant say it's not true with the pre sentence report says that i've broken window and threaten the victim with a knife i want to know but after hearing on that i think that's correct your honor if i could just make one point my time's almost up i did give an additional citation united states versus blanton it's four thirty five thirty eight eleven ninety one and the reason that  i cited this was that there's some question as to whether or not crawford applies to sentencing and certainly this decision indicates the cropper does apply to sense and although it's not a holding because they didn't make that holding because it dealt with a plain error court my name is kyle wilding or i'm going to sustain united states attorney here in san francisco judge ferguson i'd like to address your question first about the discrepancy between the two defendants i think the counsel addressed that but i just want to make clear the difference actual harm that flowed from a false identification to the probation department and what was he trying to cover up if anything what was the harm that flowed from that well that that and has been is not challenged on appeal but i'm asking you was there any harm th i would say that the harm your honor is was there any actual harm was he trying to cover up a prior or something like trying to show that he was from mexico your army is actually from colombia and i would say that based findings on something more than the nature of bank robberies in general here were something different from a hobbs robbery well hobbs act rob we can be committed in only one of three ways either actual or threatened force violence  or fear of injury that's different than a bank robbery which can be committed by intimidation alone and this court case law makes clear that in a bank robbery intimidation does not mean that the victim actually so i would say that if a bank robbery is committed with force or violence that it would be reasonably foreseeable that a dangerous weapon would be brandished and that pretty thin distinction though isn't a between the law in this guidelines is is just that an express threat of death as opposed to a dangerous weapon to get a dangerous weapon enhanced one need not show that a dangerous weapon was actually brandish one only needs to show that  somebody did something brandish something that closely resembled an instrument capable of inflicting death or used an object in a manner that would create the impression that the object is a dangerous weapon if we disagree with you that the difference between is a lie in this case is somehow dispositive don't we have to send it back to the trial court for further findings i don't think that you do your honor i think that there is evidence in the record that the district court recognized although the district court deliberately deliberately paid no attention to it set aside but i think that there is evidence in the record that supports the conclusion that the conclusion was not made you're asking us not to become the sentencing court aren't you a trial court didn't do it the appropriate function is to have the trial court do it isn't that right that's correct your honor but i think that looking at the evidence that is in the record once this court can make a har determine whether or not the district court judge was correct in his determination whether way that when there's no evidence presented as to what is reasonable if you have a trial you know you have evidence of a reasonable reasonable ma'am but what is what is reasonable court judge you go through in something you did somebody to determine whether or not his sentence was reasonable i think that there you ask another judge there's the hold up conference with other judges or what does he do i think armed robbery conviction this court said that based on the elements of the offense it is reasonably forseeable to the defendant that a gun would be brandished in an armed robbery see if i'm concerned about the fact that we have to we go about determining whether or not his determination was reasonable well judge welcome in this case the sentence the other defendant fifty one months because that was within the guideline range based on and hansen's that were admitted by that and judge walker and gave a sentence of six months so as the government's argued in its case before this court since booker the guideline range is presumptively reasonable and that's where this court should start in determining whether a sentence was reasonable i guess the question that's before your honor's today is whether judge will consider calculation of the guidelines themselves were reasonable we think that based on the elements of a hobbs act robbery which requires at the very least that a victim be put in fear of not how do we decide what's reasonable and what was not reasonable you know that your honor i think that's it's a difficult question to ask i think reasonable ness is a term that often if you look it up in the dictionary it's going to and you're going to end showing that the there are two different kind of reasonable guesses one is fifty eight months and one is sixty one but there's a difference between these two defendants in that what was the difference the difference is that the defendant the tear before you today lied about his name to the probation officer and got to point to hanson for instruction of justice if this the friend had not done that he would be in the same guideline range as the other defendant and would likely have gotten the same sentence but the differences are accounted was there in the record as to the value of the jewelry supposedly four hundred thousand dollars what established four hundred thousand dollars the united states submitted with its replied everything sentencing which i believe is in the in the supplemental and the government's excerpts of record a statement signed statement by the victim to the case the sales person from that's no longer was taken was there any background stuff from the from the business for whom the salesman worked or where he or any receipts is there how much he'd paid or somebody else who paid all you had the salesman saying was worth one hundred thousand dollars why didn't anybody ask him can you back that up where the receipts give us some definitive stuff i don't know whether that was done or not the evidence showed that those victims came from out of the country and i don't know whether in my street answer to that is so what you're trying to put per person in prison but you should have some evidence the other the other evidence that the district court relied upon for the four hundred thousand dollars figure was not only the victim's statement but the fact that the codefendant agree hundred thousand dollars that was part of a plea agreement right which that you know that counts for nothing then the robber said it was worth four hundred thousand dollars i'm not sure why it counts for nothing because it was not a sweetheart plea agreement it was the guideline calculation that the government is seeking against mr sort of presumably which i think it's it's kind of counter intuitive to use the confession from one crock as to how much money we stole from the victim against another crook well i guess it's counterintuitive to think that hearing itself he does say that he wants an independent valuation of these diamonds what the jewelry was worth at the time wouldn't wasn't that appropriate it's not your honor here in this case the government came forward with evidence as to what the valuation of the jewelry was the defendant came forward with no facts in rebuttal the district court is not required to hold an evidentiary hearing every time a defendant just says i disagree clear something up here what would be nice we don't have the robbers took the jewelry and and the jewel and the wholesale salesman the jewelry store never saw it and the salesman lost it to the robbers and never saw it again that's correct and the government never got it that's correct so what about all we can have then is what the hong kong manufacturer distributor says and what the salesman said that's correct we don't even have what the distributor that is they are the distributors your honor i think that the complaint in this matter talked about how the story salesman come from overseas and and visit jewelers directly and sell they only jewelry yes they do they represent the company so that they pay four hundred thousand dollars three hundred thousand are how much they pay for it well they represent the manufacturer they come from the manufacturer of the jewelry jewelry so was this wholesaler retail it was a question the people that were so worried rob were wholesalers who was the who was the robber who said i agree it's four hundred thousand dollars he's identified as good as your that's good news and that was part of a plea that he made it was worth four hundred thousand dollars that's correct your car was a plea bargain it's the it's the same guideline calculation that the government plea bargain the only plea to get anything in return for the plea the government agreed to recommend a sentence no higher than the mid range so that's why that figure was suspect he bought into a plea bargain he didn't say it's worth one hundred thousand that's tantamount to simply agreeing ok i'll buy that so i can get what the what the deal goes that's not of worth anything as a valuation well i disagree with that your honor for a number of reasons you're not in good position to disagree with have a go ahead there's the guidelines and hansen here just jumped up to three levels at two hundred fifty thousand dollars i'm not sure why the defendant would would agree that it was worth four hundred thousand dollars when he thought it was actually worth two hundred fifty one thousand because you independent evaluation is the government going to be able to come up with when we don't have the jewelry so if an evidentiary hearing had been called in the and the district court said government bring in an independent evaluator if you want i don't think the government would have we would have relied on the same evidence relied upon before presumably or for maybe the defendant would have brought in his codefendant who's who would say that the jury was really worth less than four hundred thousand dollars questionable whether we whether we can even get the anybody from the hong kong insurance company or from the hong kong company to come so who has to prove the figure the government it's the government's burden to prove the figure be your problem not the or that the government did prove it it came forward with evidence from the victim saying that this jury was worth four hundred thousand dollars i think that's enough especially in light of the fact that it might be that it might not be enough to prevent a that i first of all we think that the defendant didn't clearly ask for one but i don't think even if the defendant did that the district court of used her discretion in not granting an evidentiary hearing in this case i guess the defendants could say i was drunk it was cricket's we took it to the fence we we only got forty thousand dollars and you get twenty cents on a dollar it's only two hundred thousand right i mean i don't know believe me you know jewelry is is subject to markup and i think that cases that the robber sell it for for much less than it could actually retail for so you know i don't know i think it's a reasonable estimate of the loss based on what the victim said there's a lack there was nothing that was given in response by the defendant only that he felt the government had to prove that lost by by beyond a reasonable doubt that was really the genesis of why the defendant was asking for an evidentiary hearing here he was taking the position at sentencing that the government had to prove all of these and hansen's up beyond a reasonable doubt was post blakel jackson two the adjustment for brandishing a dangerous weapon yeah but where does he say anything about the valuation he doesn't say that he doesn't and he doesn't ask for an evidentiary hearing on that either he did not your waits until the time of sentencing that seems tardy not timely