was acquitted of six counts however he was convicted of count one in the indictment which was a heroin conspiracy the other six charges related to a murder that took place in the only contested the murder trial and then secondly in the closing argument we again conceded the government's case in the closing argument my client admitted to the conduct in the course you would do exactly what we would but we would have been left with the guideline calculation as it is and so essentially the argument is we went to trial because of our client's due process rights on the boosted our ability to defend the client and that's what we felt compelled to do it however however we conceded it at the very st moment and so it was a it was a tactical strengthens our client's due process rights on the remaining counts is constitutional right to go to trial was strengthened by the ability to concede the government's case government if you look at apple concern the drug conspiracy with the instructed that they had to find guilty by beyond a reasonable doubt yes your honor you didn't concede you didn't concede that there was proof beyond a reasonable doubt t that the defendant was in an untenable position here due to the data or of the juxtaposition of the charges on count one which was the drug conspiracy which by the way the government would have had to put on the evidence of the drug conspiracy anyway to show the relationship between the various individuals that were involved in proving their case with the murders so that the idea that they would  been subject to or they were put into an undue burden by that is just not the case because they would have had to present the evidence of the drug conspiracy so i don't think they were prejudiced by the having having had as strong a position in defending the trial on the murder on the murder counts and so therefore he would have weakened his d due process rights if he had pled guilty to the drug conspiracy and let me go to ask you if you ever contest you contested the heroin even at sentencing  so i don't understand your honor well you discussed example an application to the defendant who goes to trial to preserve a legal if issue but still offensive responsibility and you argue as you just did very well that this example shouldn't be read to exclude a defendant like your client from receiving acceptance of responsibility credit but given that your client didn't accept responsibility on to this bill to start of the trial at the earliest what does it matter if this situation seems to resemble this example or not cite a case where i defended who went to trial wasn't entitled to a two point acceptance of responsibility credit was indicted on the murder and and that we would have without without the cloud of potential murder charge hanging over his head he probably would have resolved this case by way of a pl because that's what we did at the opening statement and so it's you know so then when he once he was indicted on the murder which we knew was for months that was a potential that was coming that throws any plea responsibility relies on basically four legs two of them have to do with activity of his attorneys at trial in the opening and as mister o'reilly's told you he indicated to the jury or mister sheehan may have defendant in count one this does not equate with acceptance of responsibility as your honor said divined and i want to make sure that you understand judges i don't criticize or take anything away from mister o'reilly and mister sheehan for what they did i think as you indicated it was a it was a tactical move to say those things that opening and closing and i think the purpose of it was well thought out and i think it worked i think they did a good job for mister blake on counts two through seven which had all had to do with the robbery murder that his client was also charged with but the fact of the matter is these are not these cannot be acquainted with acceptance of responsibility because they leave open st of all circumstances and so what they were telling the jury they were they were telling the jury one thing and actually doing another because once we started to put our evidence on it is not as though they let it come in and they cross examined both cooperating witnesses extremely vigorously  a number of different topics most relating at least as far as mister roseboro is concerned one of the two cooperating witnesses with the drug conspiracy so there's no way did they not contest that even though they told the jury that that's what they were going to do in fact to the extent that they that they did not contest it or that they minute it they admitted it with no effect because it was just them saying well here's what we're going to do and then they did something different anyway  the the idea that the united states did not have to try count one after mister sheehan indicated in opening that the defense would not contest is i think silly the jury was count one the jury was told what was in what i don't believe they were given the indictment at the practice in this district now but they knew what kind of one was and they understood and were told by the judge that we have the burden of proof on  we have to prove one beyond a reasonable doubt and the fact that mister or mister sheehan and said he doesn't contest it did not change that at all so we still have the burden of proof and we sustain the burden of proof one and  the two level reduction is not really contemplated for a person who puts the government to its proof by the terms really of the application no to let me ask let me ask you this i take you or your points and united states versus cantrell is this something that we need to be can start with here at all well i don't i mean this is just me talking here but i don't really think  exclusion like that would would be appropriate i think that it's left currently in this circuit to the discretion of the district court and i think that's really where it belongs one can imagine any number of scenarios where defendant has done something other than fully admit the offense conduct and fully accept responsibility but because of other extenuating circumstances like conduct after he was arrested or others other matters that perhaps i can't even imagine that there might be a situation where you put the government through with proof and went to trial and yet was worthy in that in the sound discretion of the trial judge receiving the two level reduction i don't think this is such a case though because again the as i've said about the statements made by the attorneys they just don't do it the other two statements that the defense relies on is one that the defendant made at the probation interview defense argued for a lower of base level based on their view of the amount of heroin that's involved mister mister blake admitted to probation one hundred grams that's a statutory minimum threshold for the five year mandatory to which he then became exposed mr o'reilly argued at sentencing for something like five hundred and fifty to six hundred grams of heroin and the judge ended up calculating that it was more  than a kilogram of heroin but this issue was hotly contested at the at the sentencing as were the issues of whether or not there was criminal likelihood that was going to be asked for and was denied by judge arterton whether there should be a think is that at the sentencing mister blake did address the court and he get it indicate that he was sorry for any people who had been hurt by what he did and you may now listen to their being drug sold but once again there was nothing in his statement which went to the duration of the offense the number of people involved who they were d or what his role was or what kind of quantity of parenting we were talking about the issues that have to do with what he actually did were simply not addressed by the defendant after the trial during the trial or before the trial and under that circumstance it does not seem appropriate that he should be given the two level reduction for the   think that on the record before the court as was the case on the record before the district court i think that the denial of the two levels of for acceptance of responsibility was well within the discretion of the district court  for the cross reference to the murder guideline the court did not find that clause reference because it held that the government had proved its case by a preponderance of the evidence we had made other constitutional arguments but that's the threshold and the court said the government didn't even meet that lower standard of proof as far as the cross examination of mister roseboro we were contesting the drug conspiracy and all there what we were forth i think we estimate questions regarding the duration of his involvement with mister blake and that was only because he had stated that he had told a certain amount of heroin to him under certain amount of occasions and it modifies that language by the word primarily and so therefore that would suggest that there are other circumstances in which acceptance d could be granted and i think this is one of those extraordinarily rare