the terminations with the hopes it is a patient of conviction document showing up that would substantiate the p s r but of course those conviction documents never showed up though rather than changes determination that he couldn't meet his burden of proof the prosecutor and doesn't determine have to have some notion that you actually have a basis for it and that you've done investigation and you have something that's that's that's provable and there's a reason for some reason all context in which it was made which is that this was made in the context of a poor proceeding and so the prosecutor couldn't just have some abstract belief but instead he had to know that there was sufficient evidence that was brought into court that would meet his burden of proof not your argument depend on the r being insufficient so in other words if we determine that the court can properly considered what the probation officers investigation revealed then doesn't that flow from that that the prosecutor  in good faith rely on that only if the probation officer had himself sufficient evidence and here the probation officer didn't but that's what i'm asking you so your argument rises and falls on whether  entirely i think mostly in the distinction i do want to draw is that at the sentencing hearing the prosecutor claimed he was simply relying on his hope into space and of conviction documents showing up and so i think what happened the sentencing hearing was the probation officer mention for the first time a reference to the cia now the the prosecutor himself never relied on that or unclear what that is what it references to and the underlying reliability of what it's linked to and i think at the end of a day that's why even the prosecutor himself didn't discuss it to the mere reference of a cia is obviously not sufficient i'm looking at the ad that that prepared by the probation officer responding to the objection that the defendant filed on criminal history points and the probation officer said that during the investigation the officer or the probation  that conversation took place but i don't think that the mere fact that some unnamed third party claimed that missed an unnamed c d c official claim that my client's poll revoked is sufficient i think that's why the prosecutor himself didn't mention that the sentencing hearing he knew that once the the p s r was challenge typically what happens in these cases is that the the probation officer then produces documents in those documents either prove more but what he said the work in this case obviously was it never got the documents at all they couldn't find them so i don't think the mere fact that the probation officer spoke to some unnamed third party that unnamed third party doesn't give the district court a basis to judge the reliability of the information the probation officer is relying on the united states i understand the court's earlier point about that is that your term and by language in the plea agreement and i agree that it would have been a better practice to produce a document sensing nonetheless that the prosecutor's determination was not made in bad believe it has in the context of a legal proceeding doesn't it have some context i e something that i can go to when judged on and in good faith or who was the case i mean that i have i have i have enough evidence to propound i agree or honor and this is where the precise nature of mr news is objection below is important he never claimed below that the p s r was inaccurate he never claimed that he was not in custody in two thousand and one were produced evidence to the contrary many claim that it wasn't  and bad faith and i'm not sure why you're focusing on bad faith given our history here our case law united states versus johnson united states versus camper those weren't bad faith errors there were cases where there had been a plea agreement since i was totally understandable negotiated by one prosecutor a different prosecutor winds up showing in court you know for whatever reason and makes a mistake nevertheless in those cases the case law is pretty clear that those are instances where the court considered that the police agreement to  breached and then under center belo this is quite extreme result of having to remain in the recent and sing before a different district court judge so given that case law a history of you have to contend with why are you focusing so much on good faith that you're this if a district judge had accepted the probation officers calculation of criminal history category points that would be well within the district court's discretion exercise discretion to sustain that objection but under this court's law it could have gone the other way and based on that the government had a legally sufficient basis to believe that mr new in years was in fact in criminal history category six the rap sheet summary is a preliminary criminal history that's prepare at the time the defense arrested it's not as thorough as the criminal history is prepared by the probation officer and relied on by all the parties at sensing and that's apparent from the face of the documents themselves for example there mr nunez violated the terms of his two thousand and two conviction two thousand and two supervised release when he returned two thousand and four that's reflecting the p s r and was never a challenge and yet that's not in the rap sheet summary well let me right correct although in challenging rehnquist this means it means the same thing isn't it here the p s r was objected to it was just that there was no evidence on the other side of the ledger from the p s r in the probation officer yes i understand but i still think that you don't have case law right on point is there something else i'm missing that you want to call my attention to because i'm happy to look at whatever you want me to look at in the third case that reiterate set rules united states versus felix which again is a similar situation in which the p s r is objected to but like here a defendant never claimed that the p s r was in fact inaccurate if if the court doesn't have any further questions you two brief points your honor first with respect to marion quaver in addition to the points george burns on made about the distinction between this case and that case i think an important fact in that case was the underlying documents were fingerprint matched so there was a basis to judge the reliability here we don't know what these what the underlying reliability of this database is even if it's a database or or what the references to second with respect that judge know when your concerns about whether it's court that the district court could have in its discretion you agreed with the government's position this case i just i don't think there's a basis for any court to have done that at the end of the day the only basis well what i go back to is just the basic  law on the court's determination as to what evidence to accept and as i understand it the district court at the time of something can can really consider anything that has sufficient the sheffer liability and we review that determination for abuse of disc so one judge can look at the same record setting aside the specifics of this case and say well i think that's sufficiently reliable the probation officers research in coming up with the points is reliable another jet says i would have wanted to see the underlying records so i'm going to sustain the objection that doesn't necessarily lead to a determination that the government acts in bad faith though does it because otherwise any time a district courts are rejects the government's determination and reading of the record the government is therefore then precluded from marking in good faith in a situation like this where there's really no agreement at all as to criminal history i give them is everything you said except how it applies to this case in this case the district court judge had no accept it he said this is a five not a six i agree with that but i also said what is unusual is once typically the defendant challenges the p s r of an appeal sort self there's no evidence of anything is only as good as information going into it and so here the only information we had go into to that evidence even though even if you consider reliable doesn't add up to a preponderance of the other things even deferring to the district court judge if the court doesn't for the question