children i i also think that another important context that needs to be clarified for the court is that there seems to be a difference of opinion between the government's brief and the a in one eighth of an ounce of ice four hundred to four hundred fifty dollars across the board across the sellers across a period of time when the government approached my client on october twenty four and twenty seven they offered him double that amount i see no place else in the record where they offer other street peddlers double that selling price for that product and the argument for the standard thing entrapment  boss normally earns and that that was a lure especially with respect to the second deal he was manipulated into making that young and that's where the sentencing entrapment comes from  orally that's a common occurrence well i'm going to check into that your honor because i haven't found that and i find that and the basis for the court's findings as far as clear and convincing has many errors because it wasn't clear in convincing them that the government was supposed to prove if you're going to in enhanced a sentence based on a quick conduct they have to prove that was clear and convincing evidence and it just wasn't there in the record the government and the court relied on taking it as clear and convincing evidence because i don't think he's good at raising it to the level it's i personally feel and really not that it's his personal opinion about how he feels about what's going on but you have to articulate what evidence are you basing this  what evidence is the clear and convincing evidence and there just there was no evidence there the witness to testify that they relied on is new in my case testifies he only says that he was the one that no testimony that stated how many times he went to the storage place did he go inside and none of that was on the on the record at all and any evidence and that was stated in the pre sentence report under paragraph number forty these statements were not referenced by transcript estimate that per the us attorneys giving the probation department this information because there is nothing on the record that mr domingo had ever been inside this warehouse knew it was he dealt in the papers as the previous defendant did he just dealt in the smaller papers that he sold for between fifteen and twenty dollars he was not a big drug dealer he did not he was not aware of all that went on with m was the drugs ok you wash and he was told what to do you know he was a gopher he was a worker he didn't have knowledge and someone like that would not have knowledge of what the top guy had or didn't have he wasn't privileged to that information he was just told what to do circuit has said clearly that those types of questions around are appropriate and the government has acknowledged at this point when we take that and we look at that standard and we look at the evidence that was taking this case and the fact that we're now dealing with an individual who's testifying that type of questioning is just to say he's gotten a fair trial and as children unit had said something had said previously logic is not always there in these cases but i have a client your honor without any input from either defense counsel off from the government the trial judge makes these findings that basically says and i find and i would like to correct the court in those findings i'm the one who had the findings a week before your honor i'm going to have the  a week after trial and it was in those findings that the judge said he doesn't find it beyond reasonable doubt he said he finds beyond all doubt and the problem that i have with these findings john or is that these findings are done i mean when we come to court sometimes we have a feeling how the judges are going to rule in this specific case what happened this is just told just ahead of time before there was any input from anyone whatsoever before there could be any argument before the could be any discussion like we're doing over here the judge already didn't do that but when he got really to simmons what he had to do was the range of the sentence fall what your client was convicted of and nothing more he could only sentence him for what the jury found him i understand that as far as far as as far as it is the issue as far as what the trial judge can do we have a procedure that is set for that we follow as attorneys whenever we have our clients being sacked we have this procedure that is set forth where what happens is that our clients get interviewed by more than fifty grams of ice right because of that he couldn't he couldn't sentence from when it came down to it even though his guideline range is life he couldn't sentence him to life point that's neither here or there but but but what we're talking about is that a was in a circumstance in which that we still have to deal with what evidence there was regarding whether or not that evidence does that and then we have to discuss the standard of proof that has to be done and the question is i know that it was argued before that it was the proper standard is clear and convincing florida record we're arguing it should be proved beyond reasonable doubt yes i know it's contrary to the u s supreme court but it is something that obviously preserved for the record but but but besides that question that we have to look at is did she lay a sufficient foundation to what it is that what we have i think that is i think that's what you have to decide but the question is whether or not what they were saying and what the government has certain is that they said you got to know where to and i'm not going to second that you know we know it's gone chair quarterback right waiting you do this why didn't you do that but what we're talking about here is we're talking about the congress who has said they have to show it's necessary it's not it's not just something that i'm making up here i mean this is what what they  good morning please the court it's just that united states attorney tom brady on behalf tonight states unless there's question right off the bat what i want to do is just give a brief overview of what the case was involved because i'm the only one in the courtroom that was actually their trial commenced first week of june two thousand and two and this was before robert jones stretched robert jones was a physically judge from oregon the case took two weeks of the seven defendants that were indicted six went to trial i think this case in for any other judge would have been at least four weeks one judge jones kept a very tight ship and had a very demanding style to him and help the government to its burdens proved in all pounds of methamphetamine over thirty four weapons and fifty dollars in cash with that said prior to trial four to five weeks prior to trial there was a pretrial pretrial hearing in which the court  had the government present all of the evidence that was going to present at trial and it was an extensive hearing as to what was coming in and what wasn't coming in all of which were pretrial recordings the telephone conversations the audio  body wires were all laid out to counsel they already had to give objections as to which ones they wanted to and which ones they didn't want in and that was all done for the five weeks prior to trial so when we went to trial we knew what was coming in trial and what wasn't  they no longer trusted this cooperated source and we could not use him after that are cooperating source number two never did any drug deals with any of the drug members of this organization cooperating sources three and four they had information but it was not up to date stash houses pick up and deliveries that's where i think we knew that this organization was dealing drugs on the corner of all our particular partment in my pocket here in hawaii but we don't know what i mean in the drugs where they were storing it we knew that they were just the drugs about mr tall loopy but they only wanted a certain amount of information in fact they weren't giving us the whole story about what mr paul if it was about and obviously we cannot use them at that point as mr colby was suspicious of them subsequently i gree that that probably had an impact on the u s probation on how they were going to come out with the senate report however i agree with the court and the judge heard all of the is what my intentions are i'm thinking i'm going to find leadership and i don't think i'm going to find obstruction you sat before me and you said you didn't sell any drugs at all and you set before me and said that's not me on the wire and i heard the wire and i heard the witnesses me i was not given an opportunity at sentencing to object to the pre sentence report or to offer any evidence in support of why those enhancement should not be given and it was only after at sentencing that the court determined what the guideline range two that the twenty six pounds of methamphetamine was part of that conspiracy which he was convicted of and we would submit that that is relevant current out and that was something that mr domingo never addressed and i think it leads us to that second part of mr domingo's argument is that he should have been given acceptance of responsibility and we would submit that he should not and the reason for that is that trial on this took the men go basically wanted to distance himself he was due to a movie what he said basically is look i'm on the tourist drugs for the past two years at sentencing he admitted only to the substantive accounts in which he had a hand in hand drug deal with a cooperating source he never mentioned mr colby's name he never mentioned be a part of that organization and i think that was something that the court tried to give him an opportunity to do you have anything else you want to tell us i got your letter anything else you want to tell us and he said no mr domingo's denied the opportunity to clarify or remedies for sensing entrapment claim and an only one of them is the court can granted downward departure the court can also declined to apply the statutory penalty provision of the greater offense that the defendant was induced have another alternative that you didn't scots and that is you could have completely ignored the higher mandatory minimum in this case and sent this under a lower i don't think that would have been applicable in this case responsibility for what he did that he did dealing drugs that he did sour he was very sorry for what he did he was an addict and he was a party as have it so i think that he was entitled and he should have been entitled to the acceptance of responsibility because he's and we all heard this motive dozen times it's f b i policy ok well you tell me how much weight we should place on an investigation with dollars investigating it and they won't spend fifty cents to record my client's alleged confession