appreciate your willingness to accept the assignment of the criminal justice act and you may proceed when ready thank you your honors may please the court your honor this case is different than the others that i've sat through this morning this does not involve a use of unauthorized access devices and two counts of aggravated identity theft all of these acts that misstatements entered a plea of guilty to occurred in twenty fifteen the government believed and it is so set forth in the plea agreement that mistake and mr wilson a codefendant were together running this skiing from twenty thirteen through twenty fifteen we said at sentencing we said at the time of the change of plea we admit what we did in the calendar year twenty fifteen but we do not admit and it is so stated in the plea agreement that we would not commit to any acts that the government thought should be attributable to miss davis during twenty thirteen and twenty fourteen when when you government facts not are factual and it was that the end of that was everyone's understanding or yes it was your because it seemed like the court thought that you had admitted your client had admitted to the facts and section four no and that was what the colby came up judge kelly threw out and resulted in her loss of acceptance of responsibility and i thought it was perfectly clear that we were admitting only to the conduct in twenty is that right we substantially with regard to what we were taking from that judge content was we admitted to the guilt that we played guilty too that was set forth in the indictment that occurred in tw fifteen but i mean how is that communicated to the court that that is what you were admitting as opposed to the other things that were in the plea agreement in the i believe it was always clear your honor according to myself and to missed a vis time just wondering if there were something you communicated to which you could point us that we should see but maybe that's all there is well i think it was very clear your honor when the pre sentence report came out and there were multiple objections mary objections that we made always addressing the conduct that was being attributable to miss davis during twenty thirteen and twenty fourteen can the government have a witness that testified to begin thirteen and isn't that enough if the judge finds the witness credible your honor if i may just briefly review the testimony from the agent agent cry  testified basically on four matters the first matter was that miss davis was involved in a twenty thirteen incident with codefendant wilson  and wilson was arrested in maryland heights and they were in missed davis car however the transcript shows that agent crites said and she acknowledged that there were never any charges filed against missed a vis as a result of being in the car with mr wilson she was never questioned she was never arrested she just want to wait there was nothing to tie her to any untoward conduct on the part of co defendants stacy wilson agent cried also states that well between twenty thirteen and twenty fourteen  fraudulently opened asian cry it also testified in the cross examination that if another individual had given missed a visit that check to the posit there was no indication that wilson had approached him and wanted to wanted him to pass checks however under testimony by agent price at the sentencing hearing agent wright said well his mother said he had a mental level of a second grader or and nine year old and then at his co defendant woes and sentencing testimony he decided no it wasn't wilson it was really this testimony go to is that just for the role in the offense or is that somehow relevant to your overall scope argument judge kelly i would attribute t argument so it's not relevant the testimony is not relevant to the role i guess it could be your honor to i've had i don't mean to be you know if if it's the scope that's fine and what what i think is clear the law in this circuit is that when a defendant makes objections to a pre sentence report then the burden shifts to the government to present evidence and i realize this is the lesser standard of preponderance of the evidence the evidence that that was attributable to misstatements i i think the law is very very very clear on that there the sentencing court cannot determine century court tuesday make a finding with respect to any disputed facts it must do so on the basis of evidence and not the pre sentence report so is it your position that all of the dollar amounts assessed during the year two thousand fifteen are properly assessed in calculating the loss for your client yes which we would say would be a around two thousand dollars if that much your honor i see my time and i would like to please the court my name is tracy berry and i'm representing the united states in this appeal at the outset the government wants to know that at the sentencing hearing the court heard testimony viewed the government's evidence which included evidence regarding a two thousand and thirteen transaction in which miss davis participated and the two thousand and fourteen transaction that miss davis participated in allow davis the were in the pre sentence investigation report to stand but only after hearing the evidence so the court complied with rule thirty two there was no procedural error committed by opposing the three level in han testimony with regard to b j and the as i believe judge kelley wrote in and added jumo i'm not sure that i'm pronouncing that correctly that the fact intensive findings that the district court does at a certain seeing hearing are entitled to great deference and should not be overturned unless they are completely without foundation in this case there was hearsay testimony clearly however that hearsay testimony was found to be reliable and there was no counter to contradictory evidence presented by the defendant even though the defense counsel had evidence in advance or notice in advance that the government intended to present that hearsay testimony but even the hearsay testimony how did it support a finding that davis recruited fifty people that is actually the red herring that we look at in this case we would note that there was no proof of fifty people and i think we set that out in the town do you agree with that but we discoursed found that there was yes  judge agreed that that was clearly erroneous that was clearly erroneous however it was not material all right the reason why now go ahead explain why not because the defendant to be elated that there were stipulate to that portion of the police remain or did she say something about substantially agreeing with it well that's the problem your honor is that when if we look at the change of plea transcript recruited more than fifteen individuals to open accounts at us pacing so you must say you say there's a definitive yes in the police hearing to that fifteen recruitment absolutely ironic and it gets you five or more as your position on th create that he was walking down the street miss davis stopped her car asked him if he wanted to make some money that it would help the two of them and told him how he could do it took him to the bank gave him the checks to deposit into his account the money that was withdrawn from his account she took and he got a portion of that that was  hearing mr wilson b j said no it wasn't him it was her and then he looked at a picture and said that's her and then he described her car all of that is what was testified to and before the year was b j recruited and i apologize for any if i if i did but i thought that had been addressed and removed it was actually discussed at another portion in the brief but i do recall day this being in a grocery store in st louis and he was attempting to open an account at us bank in the name of another individual the defendant was with him at the time now they attempted to explain that or she attempted to explain on cross examination of inspector created that miss davis did not know him did not know mr wilson by the name stacy wilson and that she of course couldn't be held in any way responsible for him opening that account because that wasn't the name that she knew him bot but as a did create later explaining the name that he was opening the account was in a totally different name then she had advised that she knew him at last so we could say that by a preponderance of the  the government had proved that that conduct in two thousand and thirteen took place and that this defendant was a member and a willing member of this conspiracy her vehicle was used during these transactions in two thousand and thirt two thousand and thirteen and two thousand and fourteen one of the the there was some information just a brief touching upon the acceptance of responsibility and i to make sure that i do address that because it is a very very important this court has found repeatedly that there are any number of ways in which a district court can find that a defendant is not eligible for acceptance or responsibility that it's the defendant's burden to me in this case your honor in addition to the issue with regard to relevant conduct the court specifically noted a concern with the defendant walking back from statements that she had agreed were true and correct and when she walked back from those statements there is no question and then  paragraph twenty she said there's nothing to tie the defendant to the conduct that's laid out there but then on page five of the stipulation she admits that the surveillance photos demonstrate her depositing a forged chat into the account of our on march twenty fourth two thousand and fifteen paragraphs thirty and thirty nine she objects to the a number of victims that stipulated to paragraph twenty one she objects to that in page four it the defendant has also before this court said that there were certain things that she didn't agree with and did not agree with however on page eight of the present and best a geisha report she  that conduct is and the government that we don't think that's sufficient and you're not entitled to acceptance or responsibility the government submit that there was sufficient evidence before the court based upon the precedent that this to find each and every one of the enhancements that the court found and that the court appropriately determined that the defend it did not bear her burden of proof with regard to acceptance or responsibility your honour's we would ask the court to look at the law of this circuit it is very clear sensing court must make findings must make a determination at the objections of the defendant upon the basis of evidence and not the pre sentence report there was not one i oda offered that there was a total loss attributable to ms davis in the amount of forty four thousand dollars there was the testimony of the agent who talked about  oh yeah but there was no formal report ever written about asian price discussions with b j so we talk about something that's important to me big an important  facts and it at the actual guilty plea hearing to what extent did the defendant say this is true enough she just said that these are these were the government submission of facts we did usually we say that the government and the defendant agree that the government can prove the following facts we simply stated that we would acknowledge the illegal conduct  twenty fifteen your honor lastly i would just like to say my not going to say anything more i guess but but i thank you for your time if i may and just ask you this court would find in favor of the