was charged with another offense or sentenced for another offense on l a that that makes all the difference in the world as to how you characterize this crime if you say he was alleges that he obstructed delays or affected commerce and the movement of articles and commodities in commerce and the statute express prohibits that or this done by extortion or done by robbery right true now if you say this is the next door shing case then i think we have to look at it one way if we say this is a case in which the defendant was accused of and convicted of obstructing delaying another and affecting commerce in the movement of arc of commerce it's a different cases so you go ahead make your argument but you understand that you have a struggle here in order to get at least me to agree with you that this is an extension case as opposed to a case of obstructing delaying and affecting commerce and the movement of articles and commodities in commerce and that the extortion is simply the means of committing that crime now that's one way of looking at this your honor i can't just disagree with that and i think as a government pointed out in their in their briefs and in an effort to get around what mr government was actually charged with they point to the colloquy where things became even more muddled because the in giving out the elements of the offense the court ended up giving some elements related to extortion by force or fear and some elements of extortion under color official right in such a way that there was no clear indication of what the government was charging him with a death warrant however as i also point out in the breeze regardless of what the government said there they did not have the power to can read construe the indictment the indictment is what it says it is and i believe the indictment clearly says he's charged with extortion within him or interstate commerce but through the process of acting under color of official right and even the government acknowledged this at mr mr dunn sentencing to correlate to page one hundred seventy three of the excerpts of record at one point the district court ask that the the government express the what is he charged with in this case and mr young's response is quote interference with commerce while engaging under the color of authority so despite what the government's argument fear the government's next argument is that even if mr diamond was charged with extortion under official under official right the explosion under official right guidelines does not apply to him because that guideline only applies to actual public officials the problem with that argument as you pointed out in the law which says that a person like mr diamond who pretends to be a public official falls under section one hundred fifty one's acting under official right provision and in fact if it didn't the government would have been able to charge him that way in the first place so given that him given that that provision applies to both actual public officials and people who pretend to be public officials it makes perfect sense that section one seat to see one point one guideline a clickable to extortion under official right also applies to both types of defendant actual public officials and people who pretend to be th a contrary conclusion would be illogical and would find no support in the guidelines the government the final argument by the government is that if mr diamond was in fact charged in the indictment with under color of official right the district court still did not act improperly in using the extortion by threat guidelines to sentence him because the court made a finding that he did in fact threatened to arrest the victim and that's the sentencing guidelines require the district court to quote look to the most appropriate guideline most appropriate for the fans conduct charged in the count of which the defendant was convicted i think a plain reading  instruction is the court should look to the indictment which if we look at the indictment we do not see the words threat force or fear we see the words acting under color of official right so i think it's simple indictment charges mr diamond with committing extortion under official right therefore the acting under of a under color of official right guideline is the one that applies in this case by threat of force or fear are two completely different offenses with different elements and they result in very different sentencing ranges under the guidelines if mr diamond had been sentence using section two to see one point one the guidelines apply couple to offenses involving people acting under color of official right resulting rings would have been twenty one to some twenty seven months and i'd like to point out here that i was actually in error in my opening brief i calc three months nearly two and a half times the correct rank now the government could have charged mr diamond with committing extortion by threat and then attempted to prove to a jury beyond a reasonable doubt that he didn't fact make this threat to the victim but it didn't instead to charge him with committing extortion while acting under color of authority which did not require to prove is an element of defense but the threat never took place and even as mr diamond was pleading guilty to that offense he vigorously denied that he ever threatened to arrest the victim and left the threat we're talking about a veto if there were a trial it would be whether or not touching the belt constituted a threat to  and for the purposes of trying to collect this money which he thought was oh just somebody else for a business that he was improper and he did it improperly the issue is what's the appropriate punishment for that offense and i think the th guidelines commission came up with a guideline that applies directly to this type of conduct when a public official or somebody pretending to be a public official basically extort something from a victim you sense that person under juicy one point one you don't try to fit that case into something out because because bribery  statute you have the statute in front of you yes is that in the brief here i can't lay my hands on high quote portions of in the brief i do not have a the full factual right but after you get beyond the words what is it robbery or  or forced or or extortion the rest of the statute is definitions right right correct and and so if this indictment had said by means of he pled guilty to the indictment including the word extortion did he not extortion modified after well extortion right yes and then he went on to acknowledge that he was acting under color of law or official right and true and then he went on in the middle of that he engaged in some threat and that's another way of committing extortion is it no i one response to that question was i don't believe what he ultimately said he would do would be a threat that would qualify well he needs you know you will acknowledge that he agreed with the government's proffer and the government's pro included trick he agrees of the government could prove would be on the priest produce witnesses a could prove that although he denies that he actually made threat now you understand and i'll just tell you but i'll just tell you so you can respond to my now if the district court is correct in the process of sentencing finding as a matter of fact that in addition to using color of official right extortion i think the republican there would be if your bill of particulars filed saying well there's many ways to commit extortion how do we do that ok but that's not what happened here because when the government presented this case in the grand jury they said you know under nine fifty one b two the term extortion means you paying a property from another with this consent induced by wrongful use or actual or threatened force pilots or fear or under color official right and they said you know what we're going to we're going to go on that second thing we're going to put the under color of official right here and by doing that they narrow the definition of extortion because they they got off into the definition is that is the i don't think that you can read the statute too narrowly we're really only creates one offense because once you incorporate the definitions in and you end up with a handful of different offenses which have different elements depending on how the charge and result in different guidelines all punishable by a maximum of twenty years and then that's true ok all right thank you thank you your argument is that  argued that to be three point two should apply as opposed to to be three point three is not an overarching claim as to forth and pull our scholars that would enable them to bring this issue before this court  while you're on it even if well first of all there was no clear error and i guessed at the end of the day the issue that counts the most is since defenders not trying to get his plea undone and go back to that point under to see one point one court the district court made specific factual findings in those factual findings she did not abuse her discretion and by that i mean the court found that threats had been committed in this case not just the based upon the government's proffer but also based the fact that the fan admitted he used the word threats himself in describing what he did and if you look at the facts surrounding this case it supports the district court's finding of a threat and by that i'm not just simply referring to this profit by the government but the fact th defend it and identify coconspirator showed up at this company wearing all black wearing badges around their neck motion towards if as if they had handcuffs told the defendant he had to pay thirty thousand dollars or there would be serious consequences when the defendant came back the second time he had an extremely realistic b b gun that resembled a nine millimeter handgun clearly under those facts a district court did not abuse their discretion to not and find that a threat had been committed and that's important because if even if they found it is correct and we should be looking only at to see one point one you still under that subsection are directed to be three point three it's very specific in that guideline section on the notes if there is any sort of threat  not under the sentencing guidelines if he's charged with crying extortion under official right as you're on a has defined it you go to to see one point one where you end up you end up with to be three point three under the guidelines and so if they specifically direct you to go to that guideline section quite relevant conduct that's pressure on it and it's actually specifically set forth in that guideline section if there is any threat or they define what qualifies a threat then you go to to be three point three so even if  his conduct in this case now to change a plea it was described that the extortion involved the force the fear etc so in any event at the end result the end of the day under the words it includes other words also that you say should be taken into consideration as a matter of fact in sentencing correct and the district court struggled i thought was this whole plea as you recall  correct everybody was all over the lot on the plea then would it come time to sit and we have now this problem of what the indictment says we have the problem of the defendant the district court he was careful in what she was doing and yet she is the only one that we can reverse or firm and it looked to me like this whole case was just was just very summary of this case is that no that's correct right but with one at a point is that even if you go to the guy like section the claim you go to now the court would have to find just record i think you know maine erred in making the factional findings and she made and i don't do the record i don't think that would be a part or that or that she couldn't make that factual finding under this indictment because she was for close from doing so well you're on to it that's another possibility you you agree you agree essential it was what i said about this case your client didn't wasn't willing to say unequivocally anything much until everybody repeated l repeatedly framed this case for him and he was and he's at a point now where he wants to continue with his plea in spite of some of the weakness in this record am i right i