a morning council out on for a moment wow you take one quick break good morning to both of you we agree with the government on all issues in this case kind of unique situation to be passed to the mare and as to the proper disposition here regard to the questions  record and and it appears to me that there's no way to say that the district court relied on necessarily relied on the residual well asked question of historical fact we're not taylor actually where the supreme court in it the government to prove everything under the residual klotz so that would be and i can  well i think we could satisfy it the way the court directed him pick it up it's a question of historical fact and we have the right to make a showing for the district court  well the court has actually on repeated occasions that there it's more likely than not that the district court relied on the clouds is provable in multiple ways there is direct evidence in the say i'm sense based on a certain class or the government could ask for that could be in the p s i i that can also be proven circumstantially in it in fact which reza case  think i'm not sure when it was before the district court but it was at least ten after our case and even by the time of it the court said that the legal landscape was not clear question as pickett has refined it is what was in the mind of the district judge and that is a question that that can be proven circumstantially perhaps by surveying other cases that this judge can are two the st difference it seems to me is that in this case we do have a square finding by the district court that there was nothing in the record that would that at least he could find that would clarify or eliminate this this question that is to say the central question here the nd difference is that in pick it we set the case that at the same judge who is the sentencing judge in the in the case that obviously is not something we could we could do here if that is the case i guess that the question that judge pryor is asking and that you can help me with is why wouldn't it be futile to send it back if there is nothing in the record that could clarify or suggest an answer to the critical question and if there is nothing in the case law that would otherwise illuminates the problem are we just spinning everyone's wheels here and wouldn't it be an act of futility her connection the whole time is spent and stable yes evidence my answer the question the reason i ask is i looked at the the the record here there's certainly nothing in the record that answers the question the district court squarely found that here and then i was looking for some circumstantial evidence i looked at the government's notice of intent to rely on nine i which tracked the objection raised at sentencing and did not term the substance of the a c s and then i looked at the case law to see if there was anything there that could possibly be used to fashion and argument that would enable you to say that the district court did not solely rely on the residual clause are and i just couldn't find anything and that's why i'm just asking the question or give me some idea of something that would suggest this isn't an act haven't had any adversarial briefing on that point but i will point you at least to the supreme court's decision taylor at the time as i said in footnote mind but court  what is it that you would want to present to the district court that the district court hasn't already had the opportunity to the district court has really not looked at the legal grounds ok but was  transcripts from period to see right per might have said at the time that that was his default and that is circumstantial evidence and i would like to be of a group before the district court  two things in response to her she said i haven't had a chance to marshal that case law that might possibly suggest an answer or at least luminary problem and nd she said one piece of circumstantial evidence that she might otherwise marring if she had the opportunity to do that looking at other comments that the sentencing judge may have made a you know other case where you might have gleaned from something judge records said in a different sentence at a different current but within the relevant current frame that would eliminate how he looked at the residual what is your response to both of those points i agree with one of the other it is considered when district court and sentencing and relied on the residual costs or not and there was and there were there was argument about right correct would it be an appropriate piece of circumstantial evidence for a looker extremes are equally outside of this record see where the district where drug might have said in another case would that be a piece of circumstantial go with the residual clause because it's a catch all provision and it's much easier than the elements clive's and i always do that i think that that's something and if and if that were combined with perhaps some other evidence perhaps mister stanton scherchen chris satisfy his sister and i haven't seen such such a such an instance but i wouldn't preclude that that was we would not oppose that but i agreed with the court that in this particular case where it's not the same district court judge and where are the reg you know and where and where the record i point out that both in picket and in and trying to extend the record was silent and both were given the opportunity to prove as a matter of historical fact in kick it what happened concluded and found that the record was final that it couldn't tell so that that opportunities already happened it's true that we didn't have beem in about how the precedent in those cases and remanded to allow the movement in both cases to prove as a matter of x or can stan lee with evidence outside of the record and i believe mister santos should be given the same this is not the universe of ways of proving a historical fact that we're speaking about in these decisions ringback and particularly in pick at the court made a point to say we want to know what was in the judge's mind at the time and as i said i think there may be a way to prove prove what was in the sentencing judge's mind you're looking at other cases that he and that's at the time and i would ask the