should have argued its application he contends under oath of tally of the circumstances test that the cleric missing evidence standard should have been applied based primarily on the fact that the district court increases base level robber hundred thousand dollars loss for a million dollars i mean with respect to lost yes he did challenge the loss holding him mr lee responsible for the ten million dollar loss attributable to  question had to do with whether i want to know if there was an objection to the pretrial report that was clearly made at the time sentence was imposed either by counsel or when the defendant w the either way or both mr leask counsel objected to say i object to the ten million or a little bit on the ten million we really don't think that's true and we have no proof one way or the other the way he put it was based i believe that i went to the defendant was asked if he had anything additional pressure sensing that he wanted to indicate to the district court right yes and did he say anything about the ten million dollars being twenty cents or one hundred dollars or some other figure no no he did but i don't think he could have did he have any idea of what he stole and was not a van load of electronic he loaded boxes i think it's i don't think it didn't know what he was doing i think he knew he was probably involved in a robbery but whether what whether he knew what was in the big jackley what was in the boxes and what they were worth i don't think he knew that and this is one of the big problems here with holding him accountable for the relevant conduct without without using a clear and convincing test that the indictment that's the government's position the government's position is that the conspiracy charge should take care of it for purposes of analyzing relevant congo and imposing the enhancements however the conspiracy that the indictment and specifically the conspiracy conspired to commit any specific robbery and it doesn't specifically allege whether and when any robberies actually occurred and so we i don't believe that using that argument that because he was convicted of conspiracy all the stuff he was aware of all the stuff that these enhancements can be applied based on the conspiracy conviction right that's the standard it is for civil but it's it's not consistent the degree to which he agreed to participate is not necessarily consistent for purposes of a role in conduct analysis with this part is that that's exactly what the crowded report disclosed in no uncertain dollar terms and cited a source from which you came and you're saying neither counsel nor the defendant wanted to hassle with the court at all and the knowledge of the robbery there was conflicting evidence of that so that would have been raised if the higher standard would have been raised i  issue which i think had been raised by that  various convicted conduct apply discourse to proceed carefully in determining whether the relevant conduct has been proven even in cases in which the issue is only what guideline level ranges of clickable and i think that that really applies to this case because the jury was unable to convict mr lee of any of the nine twenty four counts unable to convict him of the second robbery and he wasn't charged in the contract robbery if you combine that with the ambiguity and the lack of specificity in the indictment i think that the issue of how to apply relevant conduct in this case becomes pretty standing trial counsel's failure to even delve into how the probation officer supports the loss amount and i think i think that is true however i think that there is a difference between conduct that is not included anywhere i mean here we have the context included not only in the indictment but in the conspiracy count and while reach a verdict i think the court did properly consider that and that's why in this case i think the defendant simply cannot meet the burden that his sentencing the outcome would have been different had a different standard been applied here  in the district court consider that and while the district court it's not entirely clear the court said it is clear and convincing fury ed and if you not that certainly via preponderance though it's not entirely clear what standard was applied stuff in the e r for us we have testimony of ten million dollar loss and here we are fighting about the standard and the proof of the fact and you've got it you don't even put it in the i r s supplemental i apologize for ineffective because of the standard of review i don't know that i think the problem we have here is the district court since no one made factual objections to the calculations in the p s r the district court had no reason to go any further to consider that and that's what some people think but others think quite to the contrary that every element of sense assess to be proof and that the government bears the burden of proof and the and i think in this case because it's raised in the context of a twenty to fifty five and i think that you can always find something that council should have done differently and i was adequately represented here both in the district court and on appeal and i think the district court had all of the necessary evidence in front of it to make its findings so for that reason i don't think there remained as necessary