the defendant in response filed very detailed intensive objections to those facts provided in detail alternative set of question some of the conclusions drawn by the government you know as facts and question with concrete analysis the credibility of some of those does he provide a detailed narrative equivalent to the government's self serving same in if you will did defendant shows heart many of the objections as noted in the reply brief or actually using the government's own evidence to show discrepancies or false statements in the government's but where there is a clear material difference of fact that's what this court said in u s versus humanise mightiness in which the government there was a case of drug case in which quantity was an issue and the government created a larger argued for origin of quantity based on the fact that there was a statement from a  codefendant the defendant said it couldn't possibly have been that time or station because there was no language in common between the two of them that statement not even considered by the district court saying the p s r is not the be all and end all of the facts statement the court has to take into determination those facts that are laid out in dispute was the problem you have is that then the defendant pleads to a set of facts and his rule leavened and the government is allowed to say whatever they want to say whatever they want to ascribes a rule to your client rule involving planning how the crime was was carried out how he behaved after the crime was carried out in terms of perhaps some involvement with the ransom money and so forth and he denies a lot of that this is your position that disembodied of that dispute the judge should have said ok there's a dispute here in order to solve but i need some evidence and so i want the government to present evidence supporting its characterization is an involvement and your client then has to present counter evidence that  have had to think well some kind of an evidence or hearing as to some of it in order to resolve those issues as a general rule i think this court this thing   under the circumstances this case whether in fact the defendant did see them or actually knew well i think that would be somewhat of a  conspiracy rule over fires because it does require that in a conspiracy a person is responsible for what is reasonably foreseeable to them and their position in that conspiracy but i also think what happens here is that the judge conflates that and the civil laws for example with the gun there is no  suggests that so then what the what the judge is arguing which is what the argument is basically that because it was a violent actually only had the case that's all in your brief thank you ok thank you very much counter narrative that was proposed simply didn't rise to the level of require a resolution of every issue it's stated as you point out in our brief a number of the points were matters of inference and not even really opposing a fact the government set stated they for example disputed that he actually had lived really one of the few that was a direct conflict so the rest really matters of interpretation or inference based on facts that weren't really in stuart and that in that sense i think the court really wasn't under any obligation to resolve them and it's as we point out court could have found as it did were issues that were there were actually put in dispute that maybe one of the few that he was actually whether or dissipated in any way after the kidnapping took place the court could have resolved them on the record it had and to suggest that it's evidence or information  sentence report the degree of reliability so that a simple counter narrative of no but not any evidence for can't overcome the the wasn't a suggestion that this other witness will say that it didn't happen that way or that it wasn't there nobody in the in this case the witnesses the is the defendant there why shouldn't the defendant's contradiction be taken that direction including his participation in at least one planning meeting right before the event that the drove him to the place where he was held the fact that the material showed up on his hands even assuming that that on that point i think it's fair to say that some points have a little greater credibility than others or are more directly country than others there was sufficient information to record without holding a hearing to resolve them and first it didn't work and simply found that that wasn't a credible what the government's argument was it was not was that not that every kidnapping for ransom involves a firearm and it's foreseeable in every case but under the circumstances of this case the way in which took place it was forseeable to him and i want to add a little to that because i think it's important during the course of it they stepped forward and took him from a car right in the locked in right in front of where the van was that that's made it was driving and there's testimony from another person who was there i think it's torres that says that she observed them brandishing a forward and never figure out that one of them has a gun so there's there's more here than there and you might say that it's sort of like your legs believe in some sense and those things are really not skewed but i would also add that the circumstances of the kidnapping including the government did argue that it was it placed in daylight it took place at a time when you would need to subdue somebody rapidly but didn't really run the risk that they would say you know let me out of here you need him to come and the fact that it took place the man forward in venice going to mediately that this was part of the kidnapping that would have been understood so again but it's not direct evidence that he saw but his argument that he was surprised doesn't necessarily disprove that he could have it a surprise especially at the meetings he doesn't say he was surprised at the time that place he said he didn't hear about it in the meeting the that that doesn't disprove the rest of the differences that could be drawn assuming he didn't know about it at the meeting that he did it out at some point right time and place may i ask you to come in on one issue which we haven't heard about an argument this morning and that is the sentencing disparity issue because i know your position in the brief which is basically that we're distinguishing between cooperating and non  g witnesses which kind of stand the the one point that i think that may be not nested that does not necessarily resolve is that is i understand it and you correct me if i'm wrong if i understand it  on how we reconcile your honor without knowing and i have to say that i don't know the calculations that were behind that sentence so to compare and that's one of these we point out is there's nothing in the record about their criminal histories and about the other information that would have gone on to what is considered which could rise to the level of being nice but we have several cases now though they do go into relative culpability right and so where it does come up i think that there would be i can see that there would be some issue of what i don't know whether there'd be an opportunity to see to your your daughter's point about preservation gets you past one step in some sense that but it doesn't get to the point of when when when you can actually dress it which is still have to wait until everybody every relevant  a witness to the zone participation and it could be viewed as a kind of offer of what you would be prepared to say you put under oath are you suggesting that in order to really generate a factual disputes that the district