under three b one point one day the defendant has to exercise some control over others involved in the criminal scheme after the p s r was disclosed to the parties mr ingham piled objections that p s are those objections included that he quote that flatly denied that he exercised control over others he argued that each party was an equal partner to the scheme he argued that the plans were agreed to by all and he also pointed out that each party had veto power over the others and he also objected that the extend the probation officer equated directing with control mr ingham and objected to that i have a question for the council on that is is the language of the guy flying on this point in that this juncture covering either organization or control i'm sorry either could you repeat the questions or is it is the guideline language in the disjunctive so that it applies if there's control or organizational authority ways of saying the same thing that is that organizational authority is essentially having the power to direct others with the assurance that those others will follow essentially the orders  that you've given them as their leader organizer that's how i read that your honor if you're reading the word or even though it's normally a disjunctive as well your hon control over others the nice circuit case law is very clear that you cannot get the plus for unhandsome and simple for simply for having good organizational skills or good planning skills it has to be something more and that is that control over others and i just don't think there's really a great difference between having authority over the organization your honor and being able to control others within that organization be that as it may your honor should your honor read that in the disjunctive and perhaps that is a fair reading i would argue that in this case guideline in three v one point one and i would also point out that its containing three v one point one see this case was negotiated are more arm's length between the parties we came to what we thought was a fair resolution and the parties agreed that the most appropriate resolution of this case was a plus two it's unfortunate that that word leader got in there but the spirit of the agreement as one can tell from the agreement because it calls for a plus two is that my client was appropriate for three  indicates that you still have to make a correct guideline calculation i believe the case is united states versus alan i'm sorry i don't have the cite right off the top of my head but it's a recent case pose hamline  moreover united states versus sam line the on by case says that the strictures of rule thirty two which is the focus of my appeal or one of the focuses of my appeal still need to become pop complied with even after post booker and after analyzing so was this judge's duty the district court judges duty to strictly comply with rule thirty two and this court's case law is pretty clear that he has to be expressed and explicit in complying with rule thirty two in dispelling or resolving all controverted matters in this case the objections i just read to the this court which are contained in my sentencing papers on excerpts of record page thirty seven simply were never resolved by the district court the district court ultimately found that a plus for enhancement was appropriate but he didn't resolve the factual disputes the controverted matters and or is now required to make detailed findings of fact  required to come to a factual conclusion and why can't the conclusion be pretty easily inferred even from the words they use i believe that again in united states versus houston i think that is the most recent case or one of the most recent cases regarding this situation the court said that he has to be the district court has to be expressed and explicit in resolving all disputes in that case i would point out  a similar argument was made by the government that you could infer from the judge's conclusion that enhancement was appropriate i believe that was for threats in bank robbery you could infer  that the judge resolved all the speeds and the court rejected that argument by the government and said you know the judge needs to be expressed and explicit in resolving all factual disputes before the court well he did to go ahead i don't mean just that you can work backwards from the sentence he imposed i mean he made comments made specific reference to three one point one providing for the four level increases in certain circumstances and says explicitly that fits his involvement in this case he was a supervisor or activity involving five or more he was extensively involved if it wasn't for his involvement would have gone any place i understand his requirement to refer specifically but why isn't is it you say he'd have to have to articulate in order to satisfy the requirement he would have had to make a finding of whether mr ingham indeed exercise control over others in the group whether that's that that's under your interpretation of the guidelines that you're saying control is always necessary as contrasted with possibly organizational role that wouldn't require control right you're you're reading it as a commission conjunctive requirement of organization and control rather than saying it could just be organization again your honor well when the judge used the whether it's your brainchild or not does not equate to a plus for enhanced when i do believe that there has to be something more and whether it's either simply control over others or both control over others or well organizational authority we certainly objected to that in our papers with the objection that we made and the judge in my mind simply did not address those  system and even here the judge can look at the probation report and he can check out statements that are made and letters and then make a decision based on that using his own judgment his experience and  i would just say this before i sit down and that is whether one whether one preferred the guideline system or one prefers having the district court have freedom of discretion up to the statutory maxim which i think we can probably agree on for that i'll sit down here on  the plus four enhancement for roll the appellant has objected that there was a violation of rule thirty two and the government two minutes past the district court in this case did exactly what it should have done and in fact the district court made explicit factual findings in the record those are found on pages one seventy one to one seventy two stating why it believed that mr ingham was deserving of this plus for adjustment for all the district court also specifically referred to the precentor report and the addendum to the pre sentence report both of which factually laid out the reasons for the plus for adjustment because it had been recommended by the probation officer also although this was not specifically the sentence that the parties were recommending to the court the district court as this court has noted has the freedom to impose a sentence that it feels is appropriate and this case the district court of this organization and in fact on page one seventy six of the record your annals your honors one note that he calls maturing in the kingpin actually uses that phrase of the organization and the government's position is we don't know in power that rule thirty two requires more explicit factual determination relating to objection made about control maybe i'm simpl organizer or leader of that criminal activity and in this case we submit that that's a fair and plain reading of the guideline and that under that reading clearly the defendant qualifies under both promise the district court found that he was the brainchild of the organization therefore he was the organizer of this criminal activity even if this court should interpret it as the appellant would like you to interpret it that stated that the defendant was not a leader that everyone reported to him not the other way around so that we would submit that under either analysis that's a plus for hansen it was justified under the facts in this case when you when you said he was the brainchild like i think it at least that's how i heard your comment i think it's a slight mistake in the records that presumably the conspiracy was the brainchild  findings are in fact in the p s r of course and in this case they are and that is brief in our first argument in this case your honor and there is case law supporting that and that's on page i actually find i believe that the i both agree with the factual findings in the p s r work so that language and then adopt those findings then it has complied with rule thirty two so if you heard me saying things you can just disregard it i'll go back and listen to the arguments again on tape later so i pick up whatever i might have missed well i was talking so i don't know that you might have missed in other words i will listen to it later yeah make me a copy of it to the district judge he said ok we're fighting over that just forget about it i'm just past history this criminal history and i think that he had to have the maximum ten years that would be it yes so what i do think the court has an obligation i have a a few quick points to make i think are important the first is your honour's with regard to its idea of whether the government or the judge could simply adopt the findings in a p s r i would direct you to the united states versus procedure and that doesn't say that the court cannot adopt or incorporate by reference i just can't say as they are not going to think about it this is this portion of am lying your honor i was discussing rule thirty two and whether the judge it complied with rule i don't you i am i was not i was on the on bang pam anderson wasn't hearing that wasn't the controversy the the general procedure is being discussed and i understand the sentence you you read but i'm not sure that that that were overruling the prior case law that made clear that you can comply with rule thirty two or the district court can comply with rules or to do by adopting conclusions and i would also direct you to another case in my br williams while the court may adopt the p s r findings the court still needs to dispel the disputes the controverted matters before the court that were raised by by the defendant also with regard to this issue  conjunctive or disjunctive organizational authority verses control over others i point out then in the united states versus avalon they may no distinction between organizational authority and control over others i would also point out that in application no for the guideline itself when it describes some of the factors that the court needs to consider in distinguishing leader and organizational role for mere manager supervision distinguish between leader or organizational role and it and it says one of the things you need to look at is control over others so they make no distinction there so again whether you there still an issue of control over others and without your honour's i would submit and thank you thank you very much