denying acceptance of response i think at the outset we need to acknowledge that there's no on point finding eight circuit case law that holds whether or not a district court in real life soley on  creepily conduct and i think we know that from the millsaps case were just recently a panel discord assumed without citing the issue presumably preserving it legally so i think what this court needs to turn st to is the text of thirty one point one because that's the best evidence to resolve this issue and i think panels of this court have done a good job in the past and in doing just that the  example look to the term responsible in saw that it's defined as quote to answer for one's conduct so when does one answer for one's conduct since that's rather unambiguous in the federal criminal justice system it's one when where one pleads guilty because prior to that time you have an absolute right to go to trial refuse to take acceptance and require the government through be guilty beyond reasonable  i think we also know that because the surest way to lose acceptance of responsibility is to do the opposite to go to trial not take acceptance or responsibility and then later sense to try to show remorse that won't work again from the falcons so i think the text of thirty one point one three helpful the purpose of the rule i think is also very helpful and i think that's also guideline it is clear that pleading guilty is now at a guarantee for that reduction so does that cut into your argument a little bit that to put too much emphasis on that that there are two different assessments pleading guilty and actually assessed accepting responsibility which could does in fact take in a number of other factors other than simply and knitting the elements of the offense i think you're absolutely right pleading guilty to answer for one's conduct act anything that happens before one answers for one common one is conduct is irrelevant because that's the not only symbolic that's the legal time where you actually go and and we see that language now petition no one see that a voluntary payment of restitution each be done in the courts or should look to prior to two to cation guilt that's not in there as it pertains to voluntary termination property criminal conduct so i think one could say a sentencing commission knows how to put that in since they didn't that should be given what about application no one  a which is the language in it describing the appropriate considerations that they include but are not limited to so that there's a whole range of things that big that can't be appropriately considered including the voluntary terminations or withdrawal from criminal conduct or associations whether they surrendered voluntarily and promptly those are things that could be considered as court to take into account serious criminal behavior a person who's who's pleading to a separate offense when the court is trying to consider whether the person is has demonstrated that they are and that they should receive a more lenient sentence right i think why it's not appropriate is that what the government's proposed rule i think encourages is the district court to make its own determination as to when that time period begins is it before prior to arrest let's say the criminal is ongoing and also during that time commits other crimes that are crimes aren't charged and what i think the government's argument is saying is that well the minute should turn themselves then when they should get acceptance responsible and what i think we need is there's no other court better that to take a look at the plain language in the purpose of the rule and to make a correct analysis of it and then just because you know other circuits are doing it you know this is not broadly interpreted ruled this way doesn't mean the other circuits are doing it right you know we have to use a case like the rehab case where courts are just collectively misinterpreting the law and i think it's important not to lose the forest for the priests here we have mr cooper he pled guilty with an almost three months of being indicted that's exactly one and if the court were interpret this r otherwise you're giving mr cooper and so many that others like him no incentive to plead guilty be mindful go to trial take his chances with the jury and and juries are unpredictable maybe though couldn't and i think that's the contrary thank you may please the court my name is phil copy and i represent the government in this case about the only thing i think i agree with mr goldberg audit it's really not in my brief as he does take issue with my assertion that the decision as to whether or not to give acceptance of responsibility is discretionary and that's all correct but i think he is right that the question that this court is asked to decide in this case can the court consider can the court consider pre plea conduct that probably is a do novo review because that's a question of law now where i don't this where i don't agree with him is he says this is an open question and the only authority he has for this is that footnote that says we don't need to decide it in this case and he says that proves that unpublished opinion that footnote proves that this is an open question and you know during oral or arguments this week one of the things that came up was a question you mentioned re hafe and there's a case that recently came down from the court brooks davis where judge lo said we don't need to decide whether a stipulation by itself is sufficient well as we pointed out an argument that's already been decided in the lotto ins case so he overlooked it and obviously whoever wrote the unpublished opinion and millsaps overlooked the fact that the case law is clear now in his reply brief mr goldberg says we're asking for two different standards we're not what we're saying is that the guidelines as they are formulated and as they have been interpreted by this court allow a court to take into consideration in determining whether a defendant is entitled to acceptance of responsibility any conduct that occurs subsequent to the commission of the offense that's what the case law says and quite frankly he has to acknowledge and and we haven't cited all of the cases this is just a representative sample of one of the cases that we cite was the when he said it doesn't stand for what i said it says and i looked it up it does but in the process of looking up the hudson case i see two work cases that support our argument that are cited in that opinion that we don't cite or copy i do so let's assume for purposes of this question that the district court is free to look at pretty please conduct the guidelines do however focus and say that the evidence of a guilty plea i think the language is maybe outweighed by the conduct of the defendant that is inconsistent with such acceptance of responsibility do you think that in this case the district who are really focused on that language in determining making a factual finding as to why this particular conduct priestley conduct was inconsistent with accepting responsibility for a very different offense  well i do your honor because i you know there is a presumption that the that the district court those the law and as we point out in our brief the case law is quite clear that the the accident bed committed by a defendant do not have to specifically relate to the crime for which he's pleading guilty and so therefore the fact that it didn't for example which didn't involve as well in the honk and case which is a really serious example witnesses started conduct is directly related to the offense to which the person is pled guilty there still seems to be a fact finding there wired to show why this particular previously  right well even assuming and in this case they are unrelated the but the case law basically says is that the whole scope of acceptance of responsibility is not limited simply to pleading pleading guilty and saving the government time that's a big deal but of course we're in favor of that but the case law says that one of the factors that they list a whole bunch of these factors that factors are ceasing criminal activity and it doesn't doesn't say any particular activity i mean one of the things that we point out in our brief and i think it's correct is that if you look at the factors that are three hundred and thirty one point one you know truthfully admitting and or not falsely denying conduct you know there are cases that say that individuals who have been arrested you know having been charged yet and who lie about it you know they violate that voluntarily terminating or withdrawing from criminal activity and it doesn't it doesn't have to be argument that you can't consider that voluntary assistance to authorities in recovery of the fruits of course that can be at any point voluntary resonate from office post defense rehabilitative efforts counseling drug treatment obviously it's a drug offense that sort of thing could occur before and as the mclaughlin case points out this is a two edged sword because we're arguing for a rule or i think the court not really arguing for the rule it's it is the rule but this court has acknowledged that you know i would look pretty foolish it seems to me if i was arguing let's say this were a bankruptcy a bank robbery case in if the defendant after committing the bank robbery to has nd thoughts turns around  back gives the money back and waits for the police to arrest him i would be pretty foolish to argue that that couldn't be considered as evidence of acceptance of responsibility because i think that is the most potent acceptance by contrast if he and fleeing the bag runs over a bunch of people and then doesn't stop to aid them that seem unable shows non acceptance responsibility and of course there's cases that have pointed that out assault cases on indian reservations where the individual hasn't helped the person that walked away and this is even pre arrest so i'm not sure i'm answering your question but i think the court certainly was aware of the case law and he and  court is saying if you're committing some sort of assault and conduct or engaging in serious some serious offense thirteen days before you plead guilty you're not issuing criminal conduct and and it that's religious and that's going to violate his freedom of religion and you know the cases that i'm quoting from are me they use those words they're your courts cases i don't think that they are they mean that in a religious context they meet in the some concern as i read the transcript that if you listen and read the words that judge sax actually used is that it looked like we were trying this state related conduct and it really was going to dangerousness far more than it was going to the question of did he accept responsibility you know and at the end it seemed to me that that particular there was a moment i don't have the transcript r it the nd where where he said that you know that that he thought that that what we're talking about those two levels was or three levels wasn't enough and and i and it seemed that they were focused in on the  conduct the underlying criminal conduct much more than they were focused in on did he accept responsibility or not and to me there's there's a difference there because well thirty one point one has all kinds of flexibility i think and i think  you're making are sound but i think that there's something else going on here beyond just trying to tie it to whether he had really accepted responsibility that there's something else going on here about i think it goes to both i mean in the in the fed think proceed being you know one of the future dangerous of course is an issue but it also i mean it's necessarily tied into the question of are you are you refraining have you stopped criminal conduct and in this case obviously the more serious the kadok i mean if he's get the jaywalking ticket or something that would be one thing but he's saying if i read the record correctly that you know you not only not ceased criminal activity but you're engaging in really serious activity and i guess my answer to you would be you could look at that both from a context of not accepting responsibility you can also look at it as future dangerous and again i think they kind of blend together but i don't think that that violates the guidelines i think that that corresponds to the guidelines it's just maybe two different things you're looking at separately but but they both factor in the i'm not see i'm out of time so unless there are any questions i would urge the court to affirm the lower court's decision your rebuttal thank you your honor i think i want to respond to the government's argument about the case law because i think there is a lot of case law there i think the government has  applicable rule that gives bright line test to court test when the time starts and here even the district court said then the time has to start somewhere and i think that's at the lead and then i think it's judge erickson pointed out to got in the weeds about dangerousness so that's concerning and i think in some of the a lot of case law that the government cites to us for a circuit cases he hasn't published cases is cases if the rule that you are advocating was put in place it would cut both ways and a defendant who wants the court to consider the fact that they withdrew from their criminal enterprise in the process that that wouldn't be able to be considered because it was pretty clearly conduct right i think that it is it pertains to the criminality that is unique cutouts and that conduct would would not be considered for purposes of determining acceptance of responsibility that as it pertains to criminal ceasing criminal conduct i think that again there's this notion i think it's a valid one is that when you come up to a judge and you make a factual basis for that guilty conduct that's a very unique of that and so morning the argument you provided in the briefing that's been submitted and will take the case and