the first pitfall is that it doesn't address that mr brockman received a two level reduction under three e one point one a pro quo clearly demonstrating acceptance of responsibility and i think the government makes a lot of frankly new arguments on appeal that mr brock is motions and objections were frivolous not only did they not make those arguments below i think those had they they would have been rejected based on the district court's findings observation but i think for two reasons it doesn't carry the day for them one i don't think mr brockman caused any inefficiency for the government or that this court alan any efficiency here or the prosecution of mr brock it was extremely efficient he pled guilty within three months of being in charge did he try to withdraw the guilty plea i think you did your honor i think he did but there's that matter between that that seems to put the government right back in the original posture of having to be put to all of its groove well i don't think he got very far in that and i think what the district court was that that was taxon to his defense counsel but that's not a relevant  consideration under the guidelines it wasn't taxing to the government they didn't have to try the case and frankly i don't think they really had to respond to that motion there were objections to the p s r no doubt about it and the government  you know points to the fact that they had to get some exhibits together and prepare two witnesses for sentencing hearing who didn't testify in the sentencing hearing ultimately was less than sixty minutes so again i don't think this is an efficient use of time but let's just say for argument's sake the thinks that there was a record of inefficiency i still don't think that's a basis to carry the day here and that's because i think that the guideline is clear that the the floor level inhance matter and clearly if the it would make sense to allow someone to contest what they  believe would be an improper enhancement but it does seem to be to create a situation in which the government has to go to efforts that it would not have connection objection an argument is that making those types of objections are squarely within that right protected by minute seven seventy five the defendant should be able to lodge objections to the  r and not feel like that that should have a chilling effect on the rights and is why does it does the the merits of that and i know there's language about determining that it was frivolous  determination here that i recall that that his objection was frivolous but factually how is he going to win with the gun fallen out there at the scene with the narcotics i mean it it just seemed so the merits seem d quite small right i think that you know that and that's an issue too in and we raise that issue and i think that's well briefed and i don't want to get too in for the the weeds of that issue but i think there is a basis to make that argument and it was solely a legal objection right it wasn't a factual objection which caused a mini trial like in the jordan case and so there in jordan you have the government having to go to a sentencing hearing lasted two different days they had to call six different witnesses that's just not this case and and i don't think the government even argues that this is a contested sentencing hearing as out terms used in jordan and i think that's distinction here because i think defendants could should be able to make objections to the p s r and frankly that they should be encouraged to otherwise this court's going to have to look at a lot of plain air right because people are going to be afraid to make objections is a colorable is a good enough i don't know and i think the court should encourage objections and especially when i don't think it causes an inefficiency we would be expanding the concept of where is before prior to the amendment the government could rely on anything that wasn't unconstitutional essential see if the person was trying to change their plea or do something that was really going to put the government to prove but i'm just not sure this is a new expansion that it's called for by the admin can you can you help me understand why this fits what seven seventy five actually says yes your honor i think going back to the efficiency example and causing inefficiency sentencing hearing that's not out of bounds or out of ordinary the government had to prepare two witnesses neither had to testify and they had to get some photographs together person some hearing this is not taxing for the government this is what they're supposed to do and frankly any sentencing hearing so i think my concern is that a holding of this court that in this kind of contacts the government has the right one based on amendment seven seven five is that you're going to have an enormous chilling i don't think it tells you much and let me explain why i think once the district court has made the finding and conclusion that he's clearly demonstrated acceptance responsibility i mean and he stud stood by that a given the two level are gotcha and you can't that based on its finding that he clearly accepted responsibility was inconsistent for him to under saying i should probably shouldn't have given him the two points but i've done it i'm bound ballgames over right he could have withdrawn that two level absolutely would have been free to and there my name is emily morgan i represent the united states and they say this case and i did throughout the pendency of the case including at the sentencing hearing the government's position is we asked the court to affirm the district court with regard to the withholding of the third point for acceptance of responsibility as we pointed out in our brief it was not based on an unconstitutional motive as we pointed to the case law in jordan and in gay it was based upon the frivolous objections to the p s r that the court all the government's position is not that we just had to prepare for a contested sentencing hearing but one point that hasn't been brought up one factual piece of evidence that was included in the p s are not objective to by the appellant was the fact that he had given a statement right after he was arrested and in that statement he admitted that on a regular basis he was purchasing roughly five ounces of marijuana using about half of it and distributing the other half of it at the time he was apprehended the defendant admitted that he had roughly four to five ounces consistent with what he would purchase and what he would then use and distribute so that is one of the bases for the objection being frivolous is we have that admission we have  objection to that admission there were photographs that have to be taken that initially the defendant actually objected to the fact that he had forty two bags of marijuana two in his front left pocket that were of a a bit larger size i believe it was about two point five grams and then forty individual baggies in his duffel bag so initially he was actually objecting to that even though he gave a statement that he did admit to that  the facts were clear that this defendant was apprehended in public with the gun in his pocket and the marijuana and his pocket and the duffel bag so within on his person so  essentially same location close proximity not all in the same pocket but very close together the case law and jordan both gave a point to the fact that the amendment to three one point one only includes an example of that being the government withholding the third point for the example of not agreeing to an appellate waiver and  jordan also does the analysis and addresses the fact that if the united states sentencing commission wished they could have included the interests of contested sentencing hearings and so that that's fine let me ask another question what are the parameters of an unconstitutional move an example is a protected class or race or religion something of that nature and  and it was nothing of that factor it was the fact that the appellant had made these frivolous objections and to the fact that he had previously admitted to and w we didn't at the actual hearing have to put on the witnesses or all of the exhibits it was not until that that day minutes or within the hearing that we knew we would not have to i had two witnesses ready prepared i had  filed the witness and exhibit lists i had you know multiple exhibits ready to go and one other fact that we haven't addressed here today is it wasn't just photographs it wasn't just the statement but also these misdemeanor prior convictions there were four misdemeanor prior convictions that the defendant was contesting and just based on practicality misdemeanor convictions are more difficult to obtain than any connections the often archived as they were in this case and i personally had to make multiple requests to get those we were pushing the limit of time of how close we were to the sentencing hearing it was this time roughly last year during the holidays that i was trying to obtain these and having problems getting them these are convictions that the probation office goes through with the defendant he's aware of his priors and they go through them they're not certified copies we then have defendant to prove his entitle meant to the reduction and the court can also look to the defendant conduct following the guilty plea which includes the pro se motions there were three pro se motions that were filed that again  inconsistent with acceptance of responsibility so we acknowledge that this was not a trial but it also was not an efficient process especially when these are  clearly factors true relevant conduct that the defendant is aware of and has previously admitted to including you know the statement about the drugs and the gun and also his prior convictions that he admitted to and was serving a two year term of probation so there weren't four total separate objections i've addressed there was a general objection of the court pointed out to the four level enhanced men and we believe the evidence was clear that the firearm was possessed in connection with a nother felony that being possession with intent to distribute marijuana the second objection was that the defendant did not possess forty clear bag was actually forty two and that's the response that we made by obtaining the photographs one of which was attached term brief the third objection was to paragraphs thirty three thirty three the prior convictions and again and in the sentencing hearing transcript we admitted those priors and we read them into the record for the court the identifiers and then the fourth objection was to paragraph thirty five and thirty six of the p s are stating he was not serving a sentence at the time he committed the offense and that was again pointed out to the district court at the sentencing hearing through the transcript that government read the portion of the certified prior that address  i want to go to the government's pointing to the park convictions and having a teen our convictions being inefficient used on i think we object all the time in the context of our crew criminal hands months and we want to put the government to its proof right because that's a huge significant difference to go from a ten year maximum to a fifteen year minimum and if the government can't make that proof then it changes everything and so the idea that having  go get people records is a basis to refrain from finding that motion i think that i think it has a chilling effect going back just very briefly to in connection i think there was a colorable basis to make made the observation that your client doesn't have much to commend him self or not moral judgments of his life may not but he's judged on what he did in this case not before and secondly just quickly looking back at the sentencing transcript ease of very knowledgeable person almost was lecturing to the