you this is essentially a sentencing appeal in which i've raised thirty three claims of error with regard to baseball fans level with regard to role and ultimately the sentence that was imposed with regard to drug weight  application notes due to the one point one of the guidelines make clear that to the extent the defendant can show that despite the agreement he made he was not able or willing or intending to distribute the amount of drugs then that amount of drugs should be reduced from the overall level here we had a phatic zero hearing at which mr spilt these client mr saeed testified my client filed a declaration and he also prof think the totality of the evidence put forward on that record shows that these defendants in fact never intended to distribute one hundred kilos of heroin mr conne my client barely scrape together a three kilos sample which was  advice the fact is that he could i think that's not a good fact for my argument but i think that the greater abundance of facts compels the conclusion that they really never intended to do it at all he indicated in the proffer that if he had to do it maybe he could get an a to do it but their real point was they were going to try and rob you see omar of a down payment on the wholesale amounts when they arrived in bangkok as well as to get paid on the profits from the sample the three kilos that they had earlier distributed i think on balance the record shows is favorable to the defendants more so than it is to the government with regard to weight secondly with  kahn on this record did not supervise or manage anyone there are seven possible people that were suggested by the government i think during the phatic of proceedings mr saeed was his partner so known to be a freelance errand runner mr khan paid him the reason of them and they directed him to pick up and deliver drugs in afghanistan and afghanistan yes this was in  in a way directed mr khan more than mr khan directed him a solemn solemn mot provided the source of drugs which could be got far with whom mr khan could negotiate a price solemn  said that he would in fact take control of the heroin and make the conveyance to the under cover back in the capital city and he's the one that came up with the plan to hide the heroin under the tomatoes so as the way it all functioned as the man on the ground drew is the man on the ground right and he's the one that seemed to have the inside knowledge about how this could actually come off so i think again with regard to solomon that while you've probably pointed to the number one person among the seven that i was going to speak about i still think that doesn't show that mr khan had any supervisory or managerial role v relationship was very short lived as i've noted and solemn up again seem to control con with regard to logistics finally with regard to substantive and reasonable miss of the sentence i will just note briefly that the probation department recommended a ten year term of imprisonment here we of course sought that same term because that was the mandatory minimum i think that probation probably came to that conclusion that that would be an appropriate sentenced based on mr khan's life he was born into poverty he stepped into his father's business which was not an especially lucrative one the taliban essentially ruined business he had nine kids two wives to take care of where he was heroin distribution is is big business so i'm not applauding him for getting involved but i think under his circumstance it says it was out of necessity that he got involved in the drug trade i will note that the numbers were so high in this case because the government ran up those numbers mr khan was a victim of a sting and it is no drugs ever came into this country these arguments and certainly the judge would review the submissions which developed a lot of things you just mentioned and then she sentenced him below the just not as far as what probation recommended she did but a guideline sentence can still be deemed unreasonable and i think she abused her discretion in not going down farther thank you if i may have an unusual request i have to be in central islip by one hundred and thirty so i didn't reserve rebuttal time these two know i respect them that i'm not walking away because i don't want to hear what they have to say but if i'm permitted to leave i would like to that's that's fine all right thanks very much argument in my limited time available i which is that the district court's factual findings were not made sufficient clarity to permit appellate review and that on that basis this court must remand for re sentencing with respect to what leaves us only to guess what the basis of the denial was i didn't find it back cryptic it seemed to me that your point was denying that he had the ability to move the kind of weight that was discussed in the conversations that were recorded and there was a fan of go about that and she found that no your client and mr klein are both on the hook for the full weight which is over ninety kilos and so that would lead to the conclusion that she didn't credit the statements about his lack of intent or ability well your honor there were there were the federal hearing which was originally initially all matters relevant to sentencing so mr saeed's testimony was wide ranging and went to everything his whole life his role in the crime  his alleged supervisory role which which judge would eventually found was was did not apply so the release she did not credit his testimony about his client was disclaiming responsibility for the entire ninety kilos grams and i said he's not and the reason why is because it was after the actual sentencing history well he had always maintained that he had always i had the judge would had earlier before sentencing or issued an order asking for clarification on that point and mr saeed through counsel submitted a letter answering that there was a plan a plan a was to abscond with the money plan b was to produce the ninety kilograms approximately ninety kilograms by hook or by crook and give it to the undercover and that was his position all along so it was not just at sentencing but at sentencing the district court was still under appeared to be under the misimpression that he was disclaiming responsibility for more than the three kilogram sample and i explicitly said no that's his position all along has been that he claims responsibility for all ninety keeley gram it's still the position that's that's still the position your honor because it's the basis that it was so difficult for them to pull together just even the three kilogram sample that viz that it showed that my client and his partner were not the sophisticated international drug dealers that that that that they were that the government seem to think that they were so i just want to point out that the district court in denying safety cites testimony on important aspects aspects plural of the crime were not truthful and that just leaves that just left me to guess what the basis was and it was very it was almost impossible for me to argue  against the government's allegations that my client had fabricated his testimony unless the court has questions for me i do see i'm over my time thank you so you've got a minute for it all we'll hear from is about whether the judge would made a sufficient record about failure to meet the conditions or the criteria for the safety of not absolutely honor and it's really just truthfulness right that's next to the basis for denying the safety exactly right your honor in fact it would even talked about maybe there should be an enhancement for obstruction because she deemed the testimony at the phatic zero to be perjury he did and she did make a specific finding about that right where did she know she found cites testimony was quote fabricated and what but usually for perjury you've got to be more specific i mean so generally if somebody makes false statements on the stand in a trial on a hearing the court is going to have to sort of back that up with some findings about what the statement was and then it was false and intentionally false but that didn't happen here that didn't happen she didn't she didn't to be fair impose an enhancement for obstruction of perjury that's correct nor was she asked in your questioning judge would noted she made a finding that lodge warrants proffer statement was credible she made a finding that logic board statement that the defendants intended to have the capacity to supply the undercover with one hundred kilograms of heroin she found that that was credible and that lodge or didn't have any incentive to overstate their abilities in the proffer the entire crux of saeed's testimony was whether or not he had the capacity and intention to produce these one hundred kilograms of heroin or whether he has belated self serving story about plan a plan b disappearing into the tribal areas of pakistan was in fact the truth and judge would make clear that she found logic proffer statements which were of course backed up by numerous recorded interactions in meetings and calls between site in the under cover she found those to be credible and she found sites testimony to be quote at odds with lodge or its proffer statement and fabricated so on that basis it's clear from the proceedings below that throughout the sentencing proceeding judge would gave feedback to defense counsel to the government about what she found to be credible and supported by the evidence and what she did not find to be credible so it's not so much of their specific statements by mr saying that were unfair you know it's that the whole story was inconsistent and therefore not credible that's exactly right what judge would found is that as to the crux of the issue whether he was truthful about whether he intended to supply the one hundred kilograms of heroin she found that to be not supported by logic or its proffer and inconsistent with the other evidence that she found to be credible i'll also note that judge would a made clear that she adopted the government's arguments with respect to cites truthfulness and the government submitted numerous sentencing arguments and briefs in in advance of the proceeding related to this issue and her adoption of the government's argument also provides a further factual basis for her finding there is anything else on safety valve all proceed to lodge or its argument with respect to drug weight so i'd like to point to three pieces of evidence in the record that amply supported judge wood's finding as to drug weight st during a during two recorded meetings in january and in april saeed explicitly agreed to heroin to the undercover and he also described in his proffer statement that the entire point of the three kilogram sample was to get a larger deal that's a direct quote from his proffer statement be chilling i'm saying yes that's a pretty big sample your honor is exactly right only in the world of significant international heroin traffickers is three kilograms of heroin which is an enormous quantity of drugs considered a sample so given all of these points in in the record it was certainly not clear error for a judge would to find that the defendants and particularly lodge award intended to supply one hundred kilograms of drugs and that the drug weight should be level thirty eight dollars unless your owners have any questions on leadership or and where are you in that it's at least five participants we argue the six were involved and of course united states versus jacopo which judge wrote find it stands for the proposition that the defendants management of at least one ok and so if i could just respond to a couple of my colleagues questions or answers rather so the government notes faults mr cite for only noting one sentence in the entire proceedings and that's because there's that's all there is the government can't point to an explicit finding of fact or an explicit adoption of the government's arguments so you can scour the record but  you'll find no explicit statement in that regard i'm trying to decipher my writing well the inconsistency the alleged inconsistency between large words proffer and the so called self serving statement about plan and plan b i would point out that in large words proffer lodge or con he says that if they had to provide the undercover with the larger shipment that they would employ the services of a gentleman name not keep the operative word is if and that's at larger words appendix page arriving argument mr saeed made this argument in his initial affidavit which he submitted to the government to satisfy the disclosure requirement of three thousand five hundred and fifty three f because the government declined to meet with mr saeed for a safety valve proffer one last point is that the government talks about my client promising that he could get a one thousand kilograms