now i have two problems the first is i don't know what was discussed and the fact is trial counsel did not check this for those reason that i'm asking for a very what was discussed was what was the defendant's credibility and what he had told the probation officer about the ellis that is the nature of the contested issue but at the end of the day it is pure speculation both government would have this court how about that only cheerio bit be disclosed that becomes a very difficult standard for this court to police had an objection been made and how the court said i don't need to disclose because nothing mysteria with that i submit we may still be in the same place now the burden might be different but the question would remain the same for saying you think the most likely scenario is that the discussion i think it's fair to say that the defendant struggled through this sentencing hearing and it he went back and forth about his role in the conspiracy and what his knowledge was to the district court's increasing frustration at the moment if the court stepped off the bench it had determined the drug quantity and then wanted to know whether an adjustment was appropriate this is the second acceptance of responsibility that was point that was that issue and as justice souter points out although defense counsel was given an opportunity to make an argument there's no way to know whether the argument depends how for me it actually met any sort of conversation or some suggestion that might have occurred during the conversation with the probation officer the court julian look has representing the united states runners there was no airplane or otherwise in the district court decision to hold two short private conversations with this probation officer during the course is the thing here think there are three principal points we need to consider the first is that private communications between the probation officer and the district court are permissible i believe the defendant has conceded as such and that is certainly supported by rule thirty two and case law  the second is that not all of those conversations concerning material information that needs to be disclosed to the defendant yet the defendant's position here seems to be that any conversation that occurs during the course of the sentencing no matter how at which that could have happened it could have happened before the conversation i can see that might have been a somewhat difficult thing to do but certainly mediately upon the judge returning to the bench the defendant could have asked for some clarification about what with this cost and why there was anything material to the sentencing determination at the end of the hearing the district judge again asked the parties if there was anything else they'd like to address that was another opportunity for the defendant to ask for clarification and then of course even after this i didn't think it was over there are means by which if anything seek to reopen this that thing and could have again asked for clarification the remedy that is being sought from this court is something that was well within the defendant's ability to obtain and he simply chose not to do that since we have agreement here on both that there are some conversations that the judge couldn't had in private to probation and there are some that the judge could not have the disclosure to so the problem becomes because of the lack of an objection the judge didn't say we don't know for sure that the question of whether perhaps we can never tell one way or the other was sufficient clarity from the context in which the conversation o and you heard the explanation just given that we shouldn't for context that it had to do with credibility of the defendant well response to that you are not i don't think that that is a  fair speculation there are other types of conversations that i think are equally likely one quite likely scenario and again this is all speculation but reading the record is that the judge simply asked the probation officer does anything in your sensing recommendation to me change in light of what we've just heard at this hearing there was a discussion about whether the defendant was lying to the judge on the record and so it could have been to the probation officer he made a recommendation to me prior to the sentencing hearing which is common and part of rule thirty two because anything in your recommendation now change in light of what we've heard here today another possibility is that the district judge in the probation officer were doing some simple math that pre sentence report i did recommend acceptance of responsibility clearly the judge was considering whether or not to grant that in light of what had happened at the hearing and so the guideline calculations in the pre sentence report activity of reduction percept responsibility so it could have been that this regard was saying to the probation officer but with the guideline range the i do not grant except and so that when the court got back on it that she was able to talk properly calculate the range and so those are two possibilities thinks is appropriate i think should be so if the probation officer were indicating yes your honor my recommendation has changed i think the sentence should be different but as comporting with rule thirty two and the district of maine local rules that is something that the judge would want to keep private in terms of doing the guidelines now it's simply may have seemed cleaner rather then to be sort of passing on a record it can be a little bit confusing sometimes to read those guidelines tables and so single may have just wanted to make sure that he had both options whether he decided to grant acceptance or not in front of him again though this is all speculation if we look at the record itself and what we do know from the record the best reading of that record i would suggest is that whatever was discussed was not material information that the defendant needed to be aware of and i take that from the fact of as justice souter pointed out there were two conversations here taking a second conversation and first that was a ten second conversation  but again and already been imposed if you look at the prior conversation which was a bit longer and occurred during the course of the guidelines calculation that was immediately followed by the district judge saying to the parties i'd like you to address except responsibility and fact this quote was i don't want to even consider doing something unless you get an opportune to address it so what we have here is a judge who is quite aware of his rule thirty two  obligation and to the extent the remedy sought by the defendant is so that the parties have an opportunity to address whatever it is the district court is concerned about that seems to have happened in this case again the recess was immediately followed by the district judge stating on the record he did not want to do anything unless the defendant had an opportunity to address it i would suggest to the court that we need to take those words at face value and not take me finally to the plain error standard here as the court has noted  is the defendant's burden to establish prejudice in this case to establish in a sentencing appeal that his substantial rights were impacted namely that that this alleged error here but for that he would have gotten a lower sentence and there's simply nothing in the record to suggest that is the case i know that this sentence was a ten month variance below the bottom of the guideline range he simply has not achieved what it is about that downward varian that he thinks would have been better for him had the substance of these conversations been disclosed the sentence itself seems to have been well supported i note that the three point reduction perceptions of responsibility does not actually impact the guideline range because  whether those three points were added or not both of the original ranges would have been above the statutory maximum five years and so the guideline range either way would have been sixteen months and again the district court judge very downward the judge's decision on exception seems to have been well supported mainly he concluded based on what happened in the hearing which came out of the defendant's own mouth that the defendant had wanted to have been so take that into account and imposing sentence so unless there are other questions we would rest in our brief thirty two i imagine that something the court could have done on the bench and the guidelines range this is not about figuring out where the defendant fell on the guidelines table because the president he was kept at a sixteen month sentence at work that is not to say though that any conversation could have impacted where underage that within that zero to sixty range or ultimately selected after all defendant went into the sentencing hearing requesting under one year  and that in the future the best practice is trip require that during the sentencing hearing all of these conversations stay on the record that way there won't be any question