and that he understood them and that he had overheard conversations with agents in the hall regarding this right and agent rodriguez rather stated that he gave them rights while the same time shal these are two witnesses presented by the government stella who who was asleep who had used heroin the night before as well as mr or he's and who had a th grade education and who had denied that he had been read his his rights and of course you can always make  heavily on the determinations of the court right and i brought out in the brief and again in this argument why i think perhaps maybe it wasn't sufficient based on my objection to this charges is the way in which it was presented that you you prove you did fact by proof of other facts and and he says that's all there is the circumstance but i think circumstantial evidence requires more that if we're going to but then if we're going to rely on certain facts and where the rocks are inferences from those facts but the facts must be be proven beyond reasonable doubt and that m fronts that you conclude is proven beyond a reasonable doubt because they do anything last and still dilute the burden of proof and i believe under those circumstances especially in this case rather so much then of course there's a lot of inconsistency in what in what they are to have a couple of phone call not nothing of any of that any real significance with regard to determined circumstantial evidence that you simply can't have some facts and then all of a sudden just come to a some sort of conclusion the inference and so has to be proven and the and the although you can see it's not you know but that's circumstantial evidence in its most pristine warm in where when you start talking about certain other facts that aren't so clear that aren't determinative that week during june and july we know that that simply isn't the case you know that the only conclusion is mr t s was fabricating testimony and evidence and i submit that attributing one hundred and ninety four grams of all of the facts the short length of the palace involvement according to the government just barely two weeks specular conclusion regarding this amount of heroin the amount of time that he served in jail since his arrest and sentence that th time served would have been a sufficient for the purposes the relevant guideline here the guidelines of ants level was based on the amount between one hundred to four hundred grams of heroin right we're starting with where the court had questions about the jury instruction i think the fundamental slaw with respect to the question of instruction is that has never said that every fact presented to a jury that is accepted by a jury has to be proven beyond reasonable doubt the jury has to look at all the facts that are presented and make a determination whether with respect to the miranda waiver that was a credibility determination by the district court i think the court actually went rather far in explaining that the testimony given by the two government witnesses were both internally consistent and consistent with each other and there's no basis to disrupt that determination  circumstances here perhaps the most aggravating circumstance is that mr style has previously been convicted of a drug trafficking once a salary and i think the court rightly looked at the sense that was imposed in that case conceivably many years earlier and said you know about of the guard line a room sentence here is appropriate particularly where the court said it result of direct testimony the pre sentence report came up with that figure based on the amount of heroin that was sold in the ordinary course of the three week period that mr style was involved that's one way to look at it the other way to look at it and again the just record i think up plea did so in terms of foreseeability referenced the fact that mr packaged it it would have been reasonably foreseeable time that heroin would have been sold and additionally you know the testimony was that the heroin was packaged every other day and there were at thousand two hundred grams on each of those occasions so even if we're talking about one week instead of three weeks we would have her one in the amount in excess of the one hundred gra honour's just briefly respond you know to the amount and then and then all rust is the fact that there were there wasn't enough evidence to believe that during that period of time that that that amount