erred when it applied to level it just meant under guideline three b one point four that guideline enhanced is a sentence where a defendant used or attempted to use a minor and the commission specifically to find what that means before i address why the district court erred i'd like to discuss with the court an important procedural point which will explain to the court what facts are relevant and before the court in the court below mr ander submitted declarations and statements he also had a plea agreement with the government and the trial court the district court rely exclusively on mr anderson's admissions in his plea agreement to apply the adjustment mystery under since admitted declarations that were consistent with the plea agreement but those declarations provided further context to the two transactions to the two drug transactions now the the declarations we submitted caused factual disputes to develop between the government's version and mr anderson's version but the district court did not resolve those factual disputes at the government's suggestion and urging the district court did not have an evidentiary hearing and the government the party with the burden here submitted to the district court that it could assume everything that mr anderson's declaration said were true but that the government would still win based on the admissions in the strangers and plea agreement it's the equivalent of a summary judgment motion in the civil context now the district court took up the government's offer and did not consider any beyond the stranger since plea agreement and took as true mr anderson's declarations however as all discussed later the district court disregarded those declarations and we believe that decision was an error as well the reason this is important is because in the government's papers your honour's the government cites to facts that are disputed that were not educated in the court below classic example is the reference to ms apple berry the seventeen year old in this case  the the reference uncle art to refer to my client we disputed that fact another example the government sites and it's pretty excuse me in his brief that mr anderson negotiated the second transaction  not affirmatively involve her to commit the offense he did not train her he did not counsel her he did not direct her they were working together as partners i understand we have to take our case the affirmative action and take a look at that but the wording is rather is rather all encompassing directing commanding encouraging intimidating training procuring recruiting soliciting if he did any of those things and the enhancement occurs so this is my question and i have made up my mind on this i've got a big question mark in my mind so i have in mind that i want to i'm looking for answers my question is isn't he at that time encouraging her to let him know to get involved in the drug deal that fact your honor is not from mr anderson's plea agreement the government is fighting to miss apple b true and so that the fact that the government's admits to this court was not adjudicated in the the court below but setting that aside assuming it is true at most it's an indication that he was interested or willing to continue as her supplier and i think we'd be hard pressed to say that he encouraged her when she is the one who initiated the offense in the first place but only because he was willing to go along with her encouraging her to get to him if it's called  i'm concerned about your argument that these are very important facts to the extent that it just may be correct are factors which were not litigated and you asked for an evidentiary hearing during the sentencing hearing for a hearing because what had happened was one was no longer necessary when the government told the court that it could assume the truth of everything that we had submitted so what hearing was no longer necessary was no request for an evidentiary hearing there was a request in our sentencing memorandum we had submitted declarations and then we had proffer to the court our evidence and in a footnote to our sentencing memorandum we told the court which witnesses we would call as we're required to do one of the local rules at the hearing  detailed ms apple berry statements and her involvement by assuming the truth of all of those statements there was no need for hearing the court found the statements are relevant and disregarded them because it believed that ms apple buries subjective intent moving a little rapidly lissie if i can understand what you're telling me in a footnote to your sentencing memorandum you asked for an evidentiary hearing when you got to the actual sentencing the district judge says we don't need it because i'm only going to look to what he's already admitted to in pleading guilty that is ultimately what the court did the court suggested we have a hearing your honor and the governing council and with him looking to the to that to what the def pleading guilty there's nothing wrong with that is that there is nothing wrong with that but what you're saying is that there's nothing in there that shows any of these many indications yours are exactly exactly and i gather you're also saying that to the extent that we're called upon to rely on the appleby's statement that's beyond the scope of what was considered at the sentencing hearing it would be improper to look at that statement because it wasn't part of the stipulation if you will defendant took a firm of steps and used the minor in a manner that furthered what was intended to further the commission of the offenses for example defendant rewarded the juvenile by agreeing to give her part of the drug proceeds for each drug transaction defendant was in charge defendants that you just want to be fair about the situation defendant decided whether juvenile share would be for example for the first transaction defendant gave the defendant gave a juvenile five hundred dollars of the two thousand dollars in drug proceeds the juvenile said the defendant only gave him gave her three hundred dollars for the second transaction is this the record yes your honor it is nowhere yes on you do you agree you did say i did you are committed the government to that mishra at any point did you tell the district court of course we want you to consider things the it she judge armstrong could take that the content of the declaration is as true that there were things in those declarations that were contradicted by other places in the record are you are the government pointed out to the charge that not eight we all understand the difference in a proceeding in any trial court where one side says there is no need to call these witnesses i assume that if they were called  sworn that what's contained in that declaration is what they would say under oath in front of your honor we are as opposed to saying your honor me assume that what's in these declarations is true and correct you record a charge said let's set a hearing that is completely unequivocal the government made a position the judge said let's start hearing and then on page ninety three you have a waiver from the defendant reason they agreed not to have a hearing or not to demand a hearing but i think she agrees with what you just said that the defense said we don't need to hear because the the the defense made a tactical decision and now they seek to rewrite the record they upon the records he's saying is the reason they didn't want to hearing is that you on behalf of the government conceded the truth and accuracy of what was contained in the declarations and i take it your position is you did nothing of the kind what the government said your honor was that we disputed the accuracy of the declarations but even if the judge were to assume that they were correct taking all of that and taking the entire record as a whole it's very clear you're on of the t and that's what you're really arguing today is not and the court could have rejected that the court offered a hearing and defense counsel didn't want to yes that was my question so let's go back to where he started i think you said that it showed that the defendant controlled the transaction because the defendant gave the juvenile five hundred dollars in the first because he wanted to be fair right he control the money he determine with the juvenile i would get for those proceedings how does that show control you gave her the money he got he got the money he gave or gave her some of the money i don't understand how that fits in as the defendant call the shots here the whole point of this was are you using juvenile status to succeed in the transaction i mean you could have it could have been somebody who was fifty or eighty years old right right your honor but he this is a that's what we're talking about h basically arguing for is a strict liability standard on this one has been aren't you and that's not the standard is your honor we're we're not arguing that at all and this report did not apply strict liability this report consider all the evidence in this case and the evidence includes the fact that the example he's the one who picked up the juvenile for both of those transactions and by july thirteenth of july thirtieth he picked up juvenile his vehicle he drove her in the drudge the by location for each transaction the juvenile was an offen vehicle for specific purpose and that is to facilitate his drug trafficking activities for example on july thirteenth the undercover abandoning operation as a result of safety concerns defended subsequently arrived at the by location he picks up the juvenile and he uses the juvenile to locate identify and introduce him to the undercover defendant not taking affirmative steps to involve the juvenile he would not have been able to complete those transactions after the first transaction a your honor noted defendant directed and solicited the juvenile to call him if the same buyer contacted her again the juvenile complied and she subsequently for the defendant the buyer wants to buy additional cocaine base which led to the second transaction anything you just read what are you reading your notes i'm reading from my notes based upon the record your honor it any of that come from these declarations or is  outside the region some of them are from the declarations for example and from the defendant's statements and from the juvenile statements with respect to how much money he gave the juvenile that comes directly from the defendant a defender did not  the undercover where to where to go he asked the undercover whether or not she had the money he talks about none of money yes a juvenile and it goes on and on and but and the judge said well this is more provocative than what is in a here's a declaration from the federal public defender's office for the purposes of sentencing but a judge should not limit her finding based upon a plea agreement she looked at everything in the record and looked at the facts and based upon these facts i was smitten this court that you need to wind up other when we owe you to question you know i want to stress you mind answering my question ok we have two cases a very significant in our so firmly involving putting somebody in the truck so there's been is this a partnership in which one of the people the young lady provides a service and the defendant provides that that's comparable to the facts in this case and the second fact of parker defendants mere presence encourage a minor to loot the teller drawers those two general those two general statements this court held that those were not affirmative  the district judge referred to a second circuit case during the time he made this determination that second circuit apparently sees things differently than we do under parker and he said i like the reasoning of the second circuit doesn't this tell us that he was swaying from parker and adopting the second circuit approach rather than following the law in the ninth circuit from my recollection judge armstrong in oakland relied tried to reload lie upon a second circuit case and and should we or should we not take that as her inclination not to follow ninth circuit law judge looked at all the evidence in this case she did not apply a strict liability inspector that portion of gaston i think the part that she that she was focusing on is the gaston says that's really what's relevant here by the defense is the defendant's inten it's really not relevant what the juvenile thought her role was because what congress the purpose of this and handsome and i don't think it's true i think you're going way beyond the question we're trying to focus on her thinking at that time and you're saying that the second circuit has absolutely nothing to do with how she came out i think she looked at she did not apply strict liability and standard she looked at all the facts i think as far as gaston your part you don't seem to answer the question that could be  no did she follow the second circuit i would say no ok i have your answer thank you thank you thank you counsel for your argument reb thank you under simply two points one i just wanted to disagree with the government's characterization that the district court considered all of the evidence including the government's evidence to apply the adjustment on page ninety three of a government counsel says your honor the government's admitted if you were to take all of the affidavits submitted all of the declarations submitted by the defense even if you were to assume the truth of them and portions of them are not true even if you were you said in your opening argument i took your opening argument to save the government told judge armstrong that she could consider the content of the declarations to be true and that's that's be true there are other things in the record which contradicted me i'm trying to find out if there is a difference between as i described earlier between saying you can assume with these witnesses  witnesses and testified what's in those declarations is exactly what they would say on the record and saying we assume that what's in these declarations and can see that what's in them is absolutely true  and if it contradicts something else in the record you take what's in the declaration not whether what else is in the record you understand the difference between the two i do and the reason the government said that everything could be assumed true even though they disagreed with that they did encourage the court exclusively at the beyond mr anderson's submissions because those emissions to the government were not probative because the government was explaining to the court as gaston explained that the intent of the miner was not relevant and i think what the court and the government were not distinguishing was the miners subjective intent versus her objective actions which is what our declaration has just handed me the he or she looks like a page ninety four and this is from the sentencing transcript this is the government quote the government will submit to this this court can decide this issue as a matter of law based upon the declarations even assuming the truth of all the decorations submitted by the defense because what they're focusing on is what the juvenile did or what the juvenile