conspiracy to possess and distribute the kilogram or more of heroin he was acquitted of the charge this court has held in the united states against gonzales  requires one hundred grams or more and b one requires a kilogram or more so the defendant had no opportunity was offered no opportunity to plead to the lesser included charge prior to the  trial now i did not represent mr hilliard for the proximity the st year of his choice the case against him but once i became a saw and when i was assigned i explored the possibility whether the government would be willing to consider a plea to the lesser charge and the government was unwilling to do so so mister hilliard was forced to go to trial by the government in order to establish that he was not guilty of the charge finding of a one hundred so if we issue i mean i'm troubled by what the government allowed or did not allow but does it matter given that he did not at any stage concede two very important issues well your honor the issue of acceptance of responsibility and the courts to the district courts determination and this the case was influenced by a mistaken view of the law and that is a procedural error in the sentencing that requires reversal he was the court specifically said at sentencing that he was not acquitted and that he was convicted as charged now your question is whether there was a debate at the trial over the exact quantity and the answer is yes but the argument i think you and his leadership but you want to the issue of leadership was not an issue at trial it was it was an issue at sentencing and we did contest that that in terms of the discretion of the district court in whether somebody has accepted responsibility is quite broad and it includes matters that may be relevant to sentencing doesn't it yes your honor but the issue here is whether the court made a procedural structural error that is per se reversible  and here it's explicit in judge for said he's sentencing discussion that he was under the he made the mistake in statement that the defendant was not acquitted because in fact he was acquitted of the charge contained indictment was a kilogram of or more of cocaine the government did not prove that the jury found the government did not prove that therefore he was acquitted of that charge he was convicted of a lesser included charge but in terms of coming out of the courtroom and saying you were i was convicted of a five year mandatory minimum it's a lot better than being convicted of a ten year mandatory minimum and it's and it's a single decision in your favor on this point but your honor i would argue that the pantheon decision in it's a district court decision to believe it was judge now where a defendant went to trial was charged in a rico indictment with the mail fraud being recalled predicates he was acquitted of the rico and the rico conspiracy convicted of the mail fraud charge and he was given credit at the sentencing for acceptance of responsibility so i would say that that's a decision in our favor there's also a decision in the i believe it's the th circuit no i'm not sure that it's cited in my brief the guerrero case where a defendant offered to plead guilty to two admitted to killing grams of cocaine which would have put him in a b one b category the government refused and compelled him to go to trial and then he was convicted but this was prior to print he and booker and therefore it was the judge that was making the fact findings the judge found that the evidence supported only two kilograms and not the five kilograms and gave the defendant credit for acceptance of responsibility in that case judge priest said he say that he was acquitted that he was convicted of the charge on which he was acquitted or did he just say that he another your honor i would submit that the that's a distinction without a difference and that the error is in not as the district court did not and the government is not giving fair credit to the fact that he was acquitted there was an acquittal and three a one dollar specifically says that even if a defendant convict exercises his constitutional right to trial he may still be entitled to acceptance of responsibility credit your client through defense counsel or otherwise admit or concede that he was at least four hundred grams or more yes your honor in the pre sentence investigation we argued opening was that he had sold drugs and that contested that he was guilty of the conspiracy that was charged in the indictment that was they also presumably then  specifically argued against the p one b is probably a little more than i would concede on that let me let me let me if i could ask you about the montero purchases in the evidence of the this subject to motion practice and that's an interesting question your honor the answer is yes i was aware of the evidence i moved to exclude it but we say that it was we were on notice that was a little late in the day we were given a large amount of discovery the defendant the defense counsel prior to me move for a bill of particulars that motion was denied so there was no opportunity for us to say here are this is the parameter conspiracy with which he is the government is charging him and it wasn't explained but not ski this court's landmark case on bill of particulars says that just providing a massive amount of evidence  question well i think the question was whether his testimony was corroborated by the wiretap evidence and i think that the answer to that is not really i think that the there was one surveillance may it please the court my name is julian grossman and i'm an assistant united states attorney in the southern district of new york i represent the united states on the subpoena and i represented the government at trial the court should affirm hellier its conviction and the sentence imposed by the district court the district court did not commit clear air in finding that hilliard had not clearly accepted responsibility for his offense he purpose in going to trial in this case was to contest his factual kelts he never clearly accepted responsibility but if the government had let him plead guilty to a lesser included offense which it clearly did not how do we know that he would not under bull's circumstances have admitted to more that is the thing that troubles me about this case is even would have been how are we to deal with that situation you don't or the answer to that question is that it it is the defendant's burden to establish acceptance of responsibility regardless of whether the government makes the desired play off or so in had ample opportunity before trial to put on the record and any of the numerous court appearances that he would have been willing to plead to the offense of conviction had the government made that offer and so it was the defendant's responsibility to establish that he would have been willing to accept responsibility and he took a no steps whatsoever that is absolutely correct your honor he disputed both the conspiratorial agreement itself and the quantity the defendant argued in summation in this case that the government's evidence at most established twenty grams of heroin which the ones that's correct to be at no point either before trial or during trial did the defendant clearly accept responsibility for the offense of conviction and at no point after trial did he do so the defendant refused to discuss his sense of these their own opinion from the circuit on the applicability of acceptance of responsibility in this situation that is where a defendant is convicted of the lesser i am not aware of an opinion from this circuit your honor i am aware of an opinion united states vs go arrow cortez from the th circuit that's the one that is correct and the circumstances in that case are very different from the circumstances here but i'm not aware of a nd circuit decision that squarely addresses this particular issue since but there's no and maybe that's why there's nothing and there's no nothing i'm aware of your honor i'm assuming so there's a new york that means there's no i do believe my research was exhausted yes i would like to briefly address the question of whether the defendant had ample notice regarding the evidence of the controlled purchases of heroin there is no question that the defendant had abundant notice of exactly how that evidence related to the charge conspiracy how many weeks over a year that that evidence was disclosed over a year before trial three weeks before trial the government produced material where the witnesses addressed explaining you know the connection between the evidence and the charge conspiracy and also three weeks before trial the government turned over marked exhibit regarding that evidence which were also the subject of a stipulation with defense counsel there was also a fifteen page complaint in this case much of which discussed montero role in the conspiracy and the indictment itself  buys that were the subject of the indictment or is it the subject of the grand jury the defendant's claim is limited to the grand jury presentation the indictment includes four overt acts and grand jury the government's witness did in fact testify extensively about montero role in the conspiracy although this court has never looked to the content of a grand jury proceeding in a constructive amendment or prejudicial variance in korea because we've always looked through the window to the grand jury exactly your honor yes you've always compare the language of the indictment to the evidence at trial and the jury instructions put simply those false statements have no bearing on any of the questions before the court montero pled guilty to making false statements to the government those false statements had nothing to do with the controlled purchases at issue  he he took responsibility the government elicited the facts underlying that conviction during his direct examination and the defendant had every opportunity to cross examine montero about those false statements to the extent the defendant wish to argue that those false statements cast any doubt on the validity of the evidence regarding the controlled purchases and again i reiterate the false statements themselves do not pertain to the control purchases but in any of that the defendant had every supported a finding of it and so it can't be it is not necessarily that the government disregarded one montero his testimony because if they had done so they also would have disregarded it i mean in geneva and on testimony alone supported a b one a finding and they did convict hillier of the conspiracy charge in the indictment albeit involving a lower quantity and so it's highly unlikely that they did not credit  exactly urine or they may have credited part of his testimony or not all or done some version of that for every witness if the court has no further questions the government will rest i'd like to respond to one particular thing that is grossman said and that is that mister hellyer disputed the conspiratorial agreement that is not correct because at no point did we argue that there was no conspiracy at all the evidence frankly was overwhelming that there was and it would not have been credible so we obviously did this with the amount and as far as the verdict was concerned we were successful in disputing it and the difference was there there was both a substantive counts and a conspiracy count and we did argue at trial against the existence of any conspiracy whereas here we did not brief i'm not sure which is it or maybe the st time that i pointed to that because it was responding to the government saying that he never accepted responsibility but it's clear in the pre sentence process with that we