the next matter on our calendar is the united states versus jiro to transport stolen property transporting stone probably we seaton and sale of stolen goods and interstate transportation over stolen car he pled guilty to all those counts he admitted that he drove a car to connecticut to new york he merely sold stone property coins that were taken from a burglary in connecticut sold to a point broker in new jersey he admitted he had stolen property in his house he denied tying people up cutting holes in the walls of various residence he denied being at the scene of fourteen  to big well certainly there's no question we have the property judge doesn't mean he did the burglaries that's just the real issue here and what it shows is there was no forensic evidence showing that no d n a footprints fingerprints toll wait there for people to come in tally them up and make them open the saves that was the m o and your honor is most importantly that m o doesn't match any of the sixteen burglaries of the sixteen burg safe instead of waiting for someone to open it in the house they took the saves with them out of the sixteen burglaries there were two safes all right so this really again and out of the one the one incident the one burglary where somebody clothing having burglars tools this is what burglars do and to show also why these sixteen burglaries didn't match the m o without by mr shaw it was just a great variation of contesting it in a federal hearing it doesn't mean that it's frivolous or false there was no proof put in shore at the scene of these rob burglaries our nd witness who testified does anyone when your arguments are just that if you make a good phase objection to funny things in the pre sentence report and you lose it has to be good faith is that the crux of it here i have it well actually i think the test is it can be as long as it's not frivolous and mr smith another person they played his videotaped statement he testified for the government to put a tape in he said he was a nephew of mr shaw didn't we have a relationship with got masks he's got burglars tools that burglar was arrested with this fellow was two smith was arrested while mr shaw is in custody so burglaries are continuing people up had cut those holes and i think what's very important is you could see the government's position change to a certain point at one point there were corners to show an active participant then after the farrago hearing and appellate brief they say he was either an active participant or an organizing force a mastermind the reason want to shift is because there's really no proof that he was there at the scene  they didn't meet their burden of proof on the front to go here and he should have got an acceptance of responsibility he should not have had a two level increase for tying people up at a burglary which he was there's no evidence he was it please the court my name is dominic gentilly i'm an assistant united states attorney in the southern district of new york i represent the government on appeal and i represented the government before the district court good morning your hon with the court's commission i'm going to turn st to mr burke's argument regarding the district court's factual findings the district court's factual findings were not clearly erroneous as they must be for this court to disturb those findings in fact just the opposite is true in finding that sure participated in the sixteen residential break ins that were at issue in the fabric of hearing judge sullivan was well within his discretion to conclude that the defendant either participated in these break ins or was involved in the planning or execution of those break ins judge sullivan had before him in overwhelming amount of circumstantial evidence such as in addition to mr shore's admitted role in the two burglaries on november th of two thousand and fifteen judge sullivan also had video recorded statements from two of shows associates scott at an jerk who is the fence to whom shaw sold his ill gotten goods and his own nephew eric smith both of whom spoke at length about shores burglary activities in fact and injure provided very specific details about his modus operandi about how sure gained entry into these homes using that modus operandi that was strikingly similar to the sixteen break ins that occurred in connecticut though it sounds to me that it was kind of generic as opposing counsel said you break into the house you take the stuff right you've got to hold the door and then you take the stuff what is so unique to mr in that  way happy to answer that your honor to put it in perspective of the sixteen break ins six involved cutting a hole in the side of the home or door of the home or the rear of the home using a cutting tool or saw of some kind the other another seven burglaries included gaining access to a nd floor window or french door in the rear of the home using a ladder there were really only two ways to get into these sixteen homes and this was to avoid the alarm the cutting the hole in the holes in the side of the homes or on the doors of the homes was to avoid setting off the alarms  going to the rear of the houses on the nd floor i believe we believe where the police believed that was a crime of opportunity where they would take advantage of either an open window or an unlocked french door on certain occasions when they went to the  are there are some differences between the two absolutely but the fact that those sixteen break ins were all conducted in one of those two manners is significant i mean it's significant because on november th two thousand fifteen the two burglaries that mr schorr admits to participating in which he has to admit to participating in them and the reason is because he left the car parked on the property with his driver's license with his driver's license in it with a fingerprint of his on the rear view mirror and with tools in the back that included a ladder that included cutting tools that were consistent with either gaining entrance to a nd floor landing  cutting a hole in the side of the house i would also point to the core point to point out for the court that testimony was offered at the fattah co hearing regarding some of shorts prior convictions for burglary one of those prior convictions included climbing onto a nd floor landing of a home out in all westbury where he was caught in the act trying to cut a hole in the home another burglary conviction sustained in long island in connection with that arrest was one in old westbury again where he was he and a fellow a codefendant broke into a home held the two people in the home hostage until at gunpoint robbed them of their belongings and left those were two crimes he was convicted of previous to the sixteen break ins in connecticut it's   how can we hold him responsible for that when we were not asking the court to hold him responsible for that your honor what mr burke was referring to was eric smith who was caught by greenwich police with several other i won't say codefendant because he was in charge but he was caught with several there people in a car with burglars tools they were stopped for investigation they were questioned and that's when the video recorded statement that was offered at the fabric of a hearing was taken  we're not saying that shaw was participated in or was involved in that attempted burglary in any way all we're saying is that these sixteen break ins of which we have substantial proof which includes again to put it in perspective for the court of the fourteen homes that were broken into i'm sorry of the fourteen homes where property was removed forty four items that were stolen from those homes that were stolen from eleven of homes were was recovered from the defendant's home was seen in a defendant's home or was recovered in the defendant's car the defendant used claimed he was offense that would be consistent with him having the material from the robberies even if he didn't do it would be except for the fact that his associate scott and injure gave the police a fairly detailed account of how short committed burglaries his own nephew told the police that show was involved in burglarizing homes we also have the previous convictions where he showed participated in very similar types of offenses which he preponderance of the evidence yes he would have to accept responsibility for that but i think that the salient point for the district court at least was that they were part of where they were comprised of the charged offenses and the it's also important to point out for your honour's that the one of the charged offenses was a conspiracy to commit interstate transportation stolen property from december two thousand and eleven to november two thousand and fifteen the exact time frame that these sixteen break ins occurred but what if it was flipped i mean what if you said instead of two out of the sixteen years and all of what he says and on fourteen of these other two really i wasn't with that be enough would that be enough to deny deny the acceptance point yeah  i would think it would be your honor because he would beef again according to the sentencing guidelines he would be falsely denying this relevant conduct and we're not getting we're not arguing the point that it was frivolous what we're saying is that this was a false denial of at least in your your honor scenario the least to we submit that all sixteen he falsely denied any false denial or denial where in the face of proponents of the evidence really boils down to to watch extent is there seeing a pattern with there is no pattern they have the witness saying that this is mr and you're on a tape saying that he puts holes in the walls he waits for people to come home then he gets some that never happened fourteen or sixteen of these burglaries no one's home one of them we're tied up he's not a dental fied the other one which i didn't mention before i don't think the we have here is a man with a prior record and we have here a position where you could you could think that maybe mr schorr could have done this but that's not a ponce of the evidence i mean here is an assumption is it's sub it's substance and it's it's underlying here once a burglar always a burglar he must have done it now when he had evidence showing he was at the scene he admitted it the reason why there was no evidence for the other burglaries that he was there is because he wasn't there are we respectfully disagree with this record findings thank you thank you c