may please the court counsel my name is daniel ls i'm with the federal public defender's office and i represent mr henry on this appeal raises five issues but there have been concessions by the government so given the government's concessions on is three and four and it's position i'm five i'm going to devote myself largely to the issues one in two but before i do so with regard to issue three i wish to acknowledge contrary authority with respect to my position on the district courts thirty five fifty three a findings and whether they are adequate to support the five year period of supervised release what i wish to bring the next court's tension is armor and armored decided that by making thirty five fifty three a determinations in the context of the sentence that necessarily satisfies the relevant considerations for thirty five eighty three c but of course to accept that reading an armor is to make thirty five eighty three c ornamental as i heard a member of this panel once addressed the government in an oral argument of us versus or own a bar about the effect of reading a separate statutory provision out of the statute book and how congress doesn't tend to do those things and that would be the case here thirty five eighty three se addresses the necessity of supervised release in the reasons that need to be stated for imposing it of course is discretionary or up to five years judge didn't have to impose any supervised release he did address thirty five fifty three a factors with respect to the length of sentence but you cannot import those factors and those determinations whether they are in separate context to say that therefore satisfies the separate determinations that are necessary for deciding whether or not supervised release is warranted in any regard so well thirty five eighty three c really want talking about there have to be separate determinations made under the statute for the two different things the length of incarceration and the length of supervised release that's what i'm saying and the government argues that because this is  a drug case that the ceiling on supervised release is in fact a life not five years you made the argument that it was five years if i have misstated that you are the fact remains the determinations to revised release and that would be so the district court didn't do that turning then to issues one and two and i'll take them in reverse order the criminal history is at issue here because the district court judge assessed chemistry points for the aggravated unlawful use of a weapon convictions me at two of those and the government thinks that there's nothing in this record to suggest that those three offenses the two aggravated unlawful use of a weapon plus the felony criminal damage weren't just kind of current sentences of three years and in that case even if we were to agree with you that the a u u w claims go since the case was sentence was imposed and he believes it was pled down to a misdemeanor he didn't have that really no record of that all right that's right because he didn't have a cause to fight that would have made any difference in this come on history calculations because sauce for the gander situation though so if you can supplement the record on your side then surely it would not be appropriate to limit the government to bring in new evidence to although you've asked us to impose such a limitation it would be a full recent thing under thompson and so the government could supplement it as it wishes to and we need to supplement and if it turns out that the criminal histories correctly calculated that's fine but we should accept at this juncture that the criminal history is quickly calculated given the w convictions of come off the books essentially we need to make an inquiry about the other kind of conviction and that would affect his guideline range right as for the final issue then which is issue one it's our position that the two level leadership enhanced meant was incorrectly imposed and the district court made very limited findings of the findings law i don't understand this was hughes this was news he was the leader was new not certain that he was he recruited only recruit someone of the someone helps them and he sets the price and you know splits and so on so he's running things well true he fronted but fronting isn't sufficient to impose  that's a second fact he tells poor for what the price is going to be that's a third fact and there's this split now i take your point that if it's one hundred dollars sale and you know eighty dollars comes back to him we don't know what his cost of acquisition was but i don't know that that necessarily says that he's he's still not a manager he's kind of assuming the risk of the cost of acquisition i think you can assume but he's not exertion who's setting who don't know from the record if that was a greater share of prop if he commits a fixed price that's a thing it's a it's a piece transaction as opposed to a you know it cost us this time you know fifty dollars to obtain it so and i don't know you could imagine some real profit sharing agreement that this is just a flat price i thought i could tell you you're going to charge a hundred dollars and you're going to keep twenty give me  henry gets eighty out of one hundred and poorer for it keeps the twenty that is true but i'm saying with respect to profit we don't rough it we don't know but does why does that matter because that is one of the signals of some people to work for you right it would be your hour firestarter law firm in the recruitment associate or a partner and that person was co equal with me in terms of profits and responsibilities and activities and so forth even though i was first in time it doesn't show that i actually size control over that individual that i recruited and so is the case here there needs to be a greater development of the facts and with that if i can reserve you're saying any defendant couldn't have split couldn't have changed the  the division of the spoils i'm not certain if he could in any event there's no profit left over if it's a twenty dollar profit he didn't profit more greatly and therefore wouldn't have that in dish of greater culpability i don't understand  k my point is i don't know if he's profiting more greatly so your point is i understand it is worth for keeps twenty henry gets the eighty but you think if it if henry had paid seventy to get the heroin to begin with he's netting only ten out of the sale he's letting poor for keep twenty he's netting ten it could tell you my and maybe i'm all off but that's right thought that one possibility absolutely but it could be a market share  idea about meaning pain control over the got the existing market and so it's not a loss leader but it's a breakeven prospect perhaps we just don't know from the facts and therefore we can assess the position of the all right thank you thank you mr peterson issues that the defendants raised as to the length of the supervised release term the amount of find those issues can all be addressed by the district court so what about this leader thing for once it's a full three sentencing if there are further facts to  develop is there any reason why they couldn't be developed on remand there's no reason why they couldn't however there's no reason why those facts couldn't have been developed at the original sentencing hearing that's one of a lot of things to me i gather the government might want to throw some additional fodder in to write correctly if if the issue was reopened then we could present additional evidence if necessary at the recent scene hearing however based on the record that the court has before right there is more than enough evidence to conclude that the district court correctly determined that leadership and has been applied the defendant exercise control over his codefendant purefoy he admitted in his plea agreement that he recruited purefoy to sell heroin for him not just to sell heroin but to sell heroin for him and do you think it's irrelevant whether he knew whether henry himself nets it as in my example ten dollars out of the sale or twenty or forty or anything else well it's a factor for the court to consider but all those factors that are set forth in the commentary none of them are meant to be taken in isolation or if that factor isn't present than the defendant an exercise leadership in this case clearly the defendant exercise leadership over purefoy he's the one that told him how much to sell the heroin for he's he directed what split was to be given and you know  know the defendant assumed all the risk he provided the heroin to appear for to sell if it was lost then he was going to get paid if i assume no risk he sold the heroin and got a share of the profit so that's true any time there's fronting right there some additional substance that goes into the application of the manager adjustment you have to be doing a certain number of things before you can be called a manager even if  you know there's a hierarchy well you have to exercise some control over the other person and you think there is some substantive element that the down the piano level you know maybe some people are more important than others but that still not doing would justify calling the manager i think you have to look at all the factors in each case and then make the determination if there was someone was exercising control over another person and you could have a coworker and you could make a suggestion to that coworker well you should do this and they follow it but that doesn't mean that you're their supervisor you have to look at whether there's a link to people research leap the floor may be helpful but the people who take the money to the bank are probably more important than the floor sweeper a but neither one of them is a manager correct because they're not directing anyone else as to what to do or you know what price to sell the product for and if there's no other questions as to leadership and enhance i would just point out that we agree that the district court would be in the proper position at a full recent scene to correctly determine the criminal history points and at that point if the defendant as opposed to at the original sentencing objects to one of the criminal