s the district court applied the wrong burden of proof and making findings under section one hundred and twelve d of the sentencing guidelines when the beyond a reasonable doubt standard is required it is undisputed that the court applied the preponderance standard and that the beyond a reasonable doubt standard must require now the court's use of the preponderance standard when creating new counsel conviction that were never put before a jury or found by the judge beyond a reasonable doubt cannot be said to have been harmless error in this case on the burden of proof here is relative to the substance of your argument please how did you raised this argument before the district court why haven't you waived or put trial on this so this is at the end of his letter the st several pages fifty six dollars pages of his letter was focusing on the lack of a jury finding on these issues but he did make the alternative argument recognizing the court may disagree with him that if the court's going to apply that he explicitly said that the section tells the judge to in fact use a beyond reasonable doubt standard and so when he saying that he's talking to if the court is going to reject his argument the court has to make th finding beyond a reasonable doubt and mr jeffs and his resentencing hearing he also explicitly told the court at the end of his objections recognizing the court may overrule his objections that grouping was inappropriate at all he made the court telling the court specifically if it's going to overrule his grouping objection that one the one to the requires the court to make findings sitting as a trier of fact and he did so on page seven of the appendix and it was even more important to show they raise this issue and preserve it for appeal is  looking at the context of their argument throughout this entire case you know they made objections for the trial that vishy be put to a jury and that was rejected they made objections against the grouping analysis always focusing on the lack of beyond a reasonable doubt finding and so how do you keep those during trial important even in their sentencing position there how did it alert the court because the whole point is you have to give the district court the opportunity to address this otherwise we're going to review it under plain error how did they alert the court specifically that they thought the court should be applying the beyond a reasonable doubt standard the arguments i understand your arguments that they certainly told the court they should have received a jury trial on this issue this wasn't something the court should be determining they wanted to unanimity and struction on it but i didn't see in the transcript in the objections to the p s r in the submissions prior to sentencing any direct argument that judge if you're going to decide this issue you must make this determination beyond a reasonable  is to alert the court that they were asking the court if they're going to overrule manage action that you apply that standard and that's that they shouldn't to preserve it for appeal no turning back to whether this error was harmless it's important to understand why the beyond a reasonable doubt standard is required for this particular kind of line because it is a little unusual when the rest of the guidelines require only a preponderance standard the sentencing commission here made an intentional decision that it was so important that these findings be made beyond a reasonable doubt because what the court is doing is creating new counsel conviction that were never put to a jury of defendants peers and so we want to be extra careful in this circumstance that the court is not creating these new types of conviction when it hasn't made these requisite finding under the heightened burden of proof  because the risk is that we might be putting defendants away for extra time when the court didn't make the findings or a jury didn't make the finding and that's what happened in this case the government sites if you wanted to pass in comments made at mr jives hearing to suggest that this was harmless error and the error did not assess the court sentence but if you look at the court's comments and the contacts of both mr jeffs sentencing hearing and both death and sentencing hearing i don't think you can say is this harmless for one these comments were only made at mr jeffs sentencing hearing which occurred before mr mckissic and if you look at for example i think it's appendix eleven where the court makes the passing reference that there that the court is going to find that the evidence at trial was sufficient to show that mr jett and mr mccance and mr walker were coconspirators and this conspiracy and they overrule the objection to the grouping analysis so i think that statement makes it very clear that when the explicit in talking about the one b one point two enhanced meant she found that there was more than a preponderance of the evidence and i'm quoting from her it was evidence beyond a reasonable doubt and very strong direct and circumstantial evidence of mr jeffs participation in the conspiracy and all of these acts in the conspiracy she didn't say the jury found that she said it was evidence a reasonable doubt how do you get around that under a harmless error analysis yes you are so i think that statement is problematic if you look at it and isolation but if you flip to the next page when the court is doing her purported one do you want to do  analysis at the end of the appendix page eleven line twenty one dollars clues and based on that and says so the court is going to find that the evidence at trial was sufficient and so i don't think i think what she was saying on page ten is again referring to the sufficiency of the evidence but at a minimum what she's doing is unclear and i don't it does not satisfy the requirements of one thousand and twelve d because there's no specific she's not addressing each object affect her passing comment it was more that pending passing that she specifically said it was evidence beyond a reasonable doubt that they prove not only his participation in the conspiracy but all of the paragraph again if we assume that she is making a finding under one of the twelve dollars d and this court disagrees that she's referring to the sufficiency of the evidence standard there i still don't think that's enough that the court had to do to satisfy the requirements under one of the ones who talk about making these findings with respect to each object defense i think it's reasonable to expect that the court when applying this particular guideline because of the sensitivities in creating a new tonic condition  defendants here that they have to have to go through and make findings on each specific object sense it does the job is not to belabor the point but i don't think just a passing high level reference collectively referring to the object defenses is sufficient to meet the want to be exposed to what the burden of proof was separate harmless and their error analysis from instrument which there should be but i don't understand why if she made one finding refer to finding she's making with respect to mr jett mr mckissock and mr walker do you think it is important then to look at what she does mr to fix or she doesn't refer to the beyond a reasonable doubt standard at all she doesn't make the very clearly applying t preponderance of the evidence and it only makes finding under that standard and so if she really was convinced that she says mr jeffs that there was that she was making finding beyond a reasonable doubt it's logical to expect she would have also made similar comments and mature to six and it does that the judge did err in applying the preponderance standard of the whole question of harmlessness is would it have mattered i do think it matters here your honor because again i think it matters when reasonable doubt standard but even just looking at the differences in their transcripts you know she doesn't make the since she doesn't make these comments that mystery typically i think it raises raises the question of whether she was confident beyond a reasonable doubt that defendants committed each and every one of the acts object offenses that was listed in the single count of conspiracy and if she wasn't one hundred percent certain and were not for sure i don't think you know this court sort of firm that instead we should send it back and be extra careful before we put the  think it should be i don't so that that turns to the nd issue on appeal on whether two hundred and thirty months was sufficiently explained by the district court and i think because there is no explanation in the record for the disparity between the st in this the nd sentences defendants received it really raises a considerable question on where this two hundred and thirty months team from and because there is no explanation the record and the court cited identical reasoning at both their sen s i don't think you know we're not even in a position to challenge the reasonableness of two hundred and thirty months until we understand where that came from and why it is the court decided to give a different sentence on count one at resetting thing which she was there's a fundamental now there's no fundamental error in that analysis the error is really the disparity between the st and nd sentence and so if the court has a reason for giving two hundred and thirty months that's something we would need to consider when we went back down but as it stands right now we don't think it justifies anything more than what they were given that two hundred and eighty nine in the two hundred and three months at their st sentencing hearing and so i'd like to reserve the remainder of my pie for a bottle  have much of an argument against airing their argument against harmless error really goes to the actual error that occurred but and i do want to mention your honor pointed out the difference between jetton patristic which i think was not maybe sufficiently the joint center initial sentencing judge pratt's said she had quote no doubt whatsoever that mr chips identifying mr majestic this time was the person that committed breeds so the court and consider that as well  i think there is some fundamental fairness at work to the evidence against both used it so i get to call that finding harmless error and for this argument for one and not the other i application of the it was that it should not be applied because there is a lack of the jury finding and control a violation of the jury right and there was confusion they did not point to the applicable standard of shotgun simultaneous pro se and represented procedure is frowned upon and i think so i don't think the court really should give that much credence anyway to i think that statement really if it was close it was certainly more in the context of a complaint about the right to jury trial either way when we look at what the attorneys representing two defendants that they were they did not in the opening portion of the argument we would just say that reiterate what we said in our brief that this was a guideline sentence it was both the same risk in real and relative terms as the sentence five to three factors and the parties arguments and the court's explanation in clearly clear of the hurdle explanation necessary for a guideline sentence sykes just briefly with respect to mr mckissock the government made a comment about what the district court said at his st sensing hearing a comment about having no doubt whatsoever that mr mckissock participated and the conspiracy again i think the fact that the court never made hicks counsel refer ball to the written objection and the letter submitted by mr meant to say as there as containing their objection so i think it's perfectly fine for this court to consider that and the government suggestion that