to focus my remarks today on on the first claim of error which is that the district court for cecily erred by considering the dismissed and acquitted charges which were not proved by preponderance of the evidence the first basis is that this claim was preserved because i'm surprised you seem to be saying that the fact that vanna rawest and the fact of dismissal of charges cannot be considered by the judge for any purpose unless the underlying conduct which led to the arrest is proven by a preponderance of the evidence it is that your argument that is my argument and i think there are pieces from th right that certainly support that now there are four or four difference there was what makes you think that the judge here was doing anything other than looking at the  other information that the josh about these charges it's my understanding the p s r itself indicated that the probation had requested information about and got nothing to say was i correct that's correct and so what the judge has the only person to have addressed those defense counsel who indicated to the court that he had himself going down to the state court review the files and based on the evidence contained in those files represented a offer to the court that there was was a representation made by counsel the p s r says essentially the charges were dismissed that is the only thing we know the fans council then says they were articulate myself better if you look at four different cases from the circuit anonymous defendant the court there held an evidentiary hearing on the pending charges made factual findings based on that evidence and there was no error in the court considering that evidence  court presided over the trial at trial there was a charge of possession of a handgun though the defendant was acquitted in that trial certainly there was no error for the district court in sidor that evidence in support of a sentence and hansen india's a rodeo apologize the state and in its supplemental authority in that case the government proffer at sentencing that the defendant's murder and its have murder charges were dismissed because importantly because the only witness to that case was a minor child who positively identified the defendant on did not appear for trial the defense doesn't dispute that so therefore the court is not erring to consider that evidence in sentencing the defendant's offense level for criminal history criminal conduct however the criminal conduct of the lying the charges potentially then and that happens you're under one do you want point three immediate relevant conduct that increases the offense though it may be that it's  ot that increases the criminal history score and therefore a one point three easy under an argument that the criminal history scores under represented i think the distinction is very important you considering that i don't as you refer to want is there any standard of proof that the district court has to apply and growing some inference from that reasons unknown to the district court i believe that as a whole the district court correctly reasonably infer that there was a pattern here of criminal behavior in this case it's clear i mean he he goes through that expresses displeasure with a repeated pattern of this kind of history where commonweal the charges seem to be dismissed the judge imposed in this case and that the judge is required to consider all of the arrest record and you would  take some speculation to conclude that the hundred sixty eight months were based on acquitted conduct rather than  that's certainly correct your honor this is a very it's very important to emphasize the fact that this is a guideline sentence that it was the district court adopted  and the sentencing memorandum which also i'm considered i'm certainly any factors that that offense brought up and which were also brought up the status of the i ask you if if we are to agree that it in an objection to that report the defendant pointed out the absence of any documentation explaining used the these charges and that was an objection that was raised in the report volves not correct that's correct your honor and this particular case however the probation officer correctly stated that they had attempted to get this documentation is from the state court but have been unsuccessful however and would have been helpful to have more of an explanation from the judge what he was going but whether the law required more of an explanation is a question here and had defense counsel said to the judge at that point i don't believe you can consider even the fact of the charges much less  into the underlying conduct perhaps we would have a better record here of exactly what happened but there was no i was such a traction and of what's involved in this case is fair notice to the district judges of what the defendant is concerned about and there was no such statement here that's correct your honor more through this history of arrests and dismissed charges and says lightning doesn't strike twice and then announces a decision and then the hearings over there's no invitation request for any further objections comments on the sentence as far as the judge is concerned it's over is not how it works well yes your honor there is no express indication from the district court however true to say that the defense or the government for that matter would need to remain silent simply because the court is not in fight such objections at that time and would be a dangerous  to to take i think it's that it has the duty to bring up these issues before the district court at that time and in this case that was not the case and terms  in the objection the precent report defense counsel focus on the lack of any documentation about these record arrests and dismissed charges of course fully understood just those objections that giving notice to counsel that they're required to make post sentencing abductions and also has clearly said that a defendant is not required to state objections after the sentence and that would undermine the idea of finality certainly of the court and it would not be beneficial to have defendants filing motions to reconsider after the judgment is entered in objections and having it a never ending cycle to preserve a record and i think this report has adequately preserve the record by making the argument that the court did that there was no evidence