let's let everyone get settled the use of affection involving another person in the fence the guidelines calls for defendant to get that adjustment only way he used that's the operative word fear impulse friendship affection or some combination thereof to involve another effects so the focus of the guideline is on how the person got into the fence not whether there was another person in the effects and that's a purely factual determination for the district judge set right in yes and no st i think the district court maybe didn't i think it just put eric clearly factually and so the court can reverse on that basis to the extent that the district court seems not to focused on the fact that the for abused requires an act of employing there could be illegal but i think the question in this case really comes down to  erroneous because the court looked to the whole galaxy of the facts and there was not you know that usually in a clearly erroneous there is some evidence to support it works but you still are left with a definite and firm conviction that there's been an error made because it's some limited compared to the rest of the evidence yes to which are you arguing are you arguing by merely the clearly erroneous to both to the extent that we need to if at all  we may not need to because they're made up in much of a dispute in the government and its brief does not really dispute that the word used as a common parlance is actively employed so the question for the district court think and i'm not saying court i think in this case the court simply looked at the facts wrong i don't see anything in the transcript that tells me for certain that the district court misunderstood the guidelines but i don't see anything that shows me that i understood the guidelines so that we need the background of what does the guideline require which is something of a legal question every choir is used so what issues be actively employed so then when we look at that  district court make a mistake on the facts yes the district court made a mistake on the facts there is nothing to show that mr ocular actively employed a faction to induce or persuade mr chi in this case the one you trust the defendant correct or rather what they have is evidence of what the woman after she was arrested said she felt they do not have any affection because you have to actively employed as the supreme court has told us that when you use something you actively employ it you make it an operative part of the offense simply saying hey come along with me is not actively employing a faction to induce her to come but the guideline clearly focuses on how she joint was involved not that she was involved how the guideline focused the commission use that exact language we know from the background of all the supreme court cases that we trace the go back a one hundred years and more congress knows what used means telling congress legislates against a background of all they have is her feeling her feeling can't be what she actively employed if he played a part of feelings he might have actively employed his feelings but there's no evidence of that it was only her post arrest statement that she agreed out of fear he would break up with her there's nothing to suggest he said oh do you love me you do this if you really need to or i'm going to be out there by myself if there was evidence like he would have used affection and that's the best case from the rd circuit he convinced her he loved her he's learning he's playing on her affections to get her there how many times have you and mr lynch squared off against you know it's been probably twenty years because we used to do it pretty often he's gotten  haven't i said it may not help me but judge all right in answer to your question i think it's at the heart of this is is a question about the construction of the guidelines and judge when are your question i think is right on point who are whose whose affection are we looking at are we looking at or looking at the defendant and some abuse of somebody as affection are we looking at the person who's been drawn into this that is in this case  come with me to pick up a dope load we'd be ok we wouldn't be here arguing that she's conveniently there doesn't mean that he's improperly used right that's not enough is acted she happens to be around because she likes him but i think that the guideline if you do if you look at the guy this is the an interesting guideline it's because you start with he has to be a leader and this particular one applies to do this particular provision applies to drug trafficking but if you look at this i was asking myself is it what what is this guideline about it's lower than a snake's belly guideline it's this guy is so morally corrupt that he will use the weak he'll use the young he'll use the old he'll use what does he do exploits her in this record well the circumstance was he entered her and luke on we're going to go pick up his dope load he bought the vehicles lou hahn paid a one thousand dollars for a driver to go along he was going dollars to pay a driver and in the end he didn't and the circumstance or the background behind this the present report says he was he had a chemical accident when he was sixteen and was out that was up without vision for about a year and now he has limited vision so they're going out to find a load there's a blanket on the side of the road and when he says to her he doesn't hire the driver like he said he was going to and he's going to save himself a one thousand dollars so he turns to her and says best we know he asked her to go along and then he directed her you need to look for the blanket so he was taking her for eyes he was using her and the relationship is what gave rise to it he didn't go down the block and asked somebody standing on the corner hey would you come along with me and of all it has to be a minimal involvement this is the st time she did it i don't think but i don't think clyde gets this for asking bonnie to go along in a bank robbery i don't think that's what this applies to i think best i think the court  defer to the district or but i think best is wrong because the girlfriend she provided twenty bottles of pills forty prescriptions over a period of over a year she was an accomplice she was involved in that i think that testimony was probably him trying to minimize her because he felt bad but i don't think that it's magical because he said i love you baby would you give me some pills so all we're lacking in this case is he didn't say i love you baby would you come along and look for the blanket pressure prester he has to use and be actively employing this wife which is different why is not taking advantage of the opportunity to use this is not a tool affection is not a tool it's not something that you pick up i mean along and he had that relationship with her and they're clearly intimate she was pregnant although they didn't know it and i'm not suggesting that the should have but clearly he knew that they were intimate and that pregnancy is some evidence of that that gives  activity then the leader is and i guess is that right well i'm not good with categorical but i think on the facts of this case and your question goes to is did did the district court misinterpret the facts in this particular case i think on the facts of this case a nineteen year old who has never done it before who has no financial interest in it has really no knowledge of the structure and the scope of the organization and i think those are the limiting factors and then you've got the intimate relationship the affection relationship that's in the middle of it i think the guideline does apply to these  the drug what the record shows is he asked her to look for a blanket on the side of the road where the backpackers would be she rode with him from the middle and area out in the v in which he picked up the backpackers and the statements given by the backpackers after the arrest support the inference that she was in that vehicle she was in the load vehicle at the time they were picked up and then on the way back toward odessa which was the final destination there was a stop and she got out of the load vehicle and ended up in the sedan or the scout car so the inference is she went across the way she did what she was she lived in an r v with her parents and behind that r v ready she had seen the defendant and the behind unload marijuana on prior occasions and he also lived year and he said it was maybe three years it might have seemed like three years to him and that's what the circumstance but i mean my the bottom line is i don't think that the analogy to the gun in the act of employment of a gun is is really what this use goes to i think the better conception of use in the context of the guideline for these kinds of things for impulse whatever that is friendship for for affection i think it's the defendant takes advantage of it not that the defendant says some magic words i mean the example that came to my mind is suppose it's a neighbor suppose it was his neighbor and he's helped the neighbor over the years paint the house watch the cats be the dogs whatever it is and on this night he needs the neighbor's help so he goes to the neighbor says would you come with me let's get in the car i need you to look for a blanket i'm going to pick up love and the neighbor there's no discussion of painting the house taking care of the cats and dogs and all that stuff but the neighbor gets in the car and goes along assists because he's been helped so many times on that record when we say oh no he didn't use the friendship he didn't use that relationship i think he certainly did by the asking by the existence of the relationship by the by the background and by the firmness step of asking would you come and help and i think that is exploiting taking advantage of not necessarily  using it at least your point i think is that if the district judge decided that we would not say it would meet the very steep clear error standard i think that's right since that's what this just all comes down to how much latitude we give this district judge to listen to the witnesses and look at the facts and make a decision i think that's right i also i mean i don't know how it factors in  it's a straightforward issue but i think on this record on these facts the district court's finding can be can be upheld and i would point out i think sure the court's aware but i think what's at issue here is like five to eight months longer is better but you guys have had a lot of experience and you know once you've made your point that you don't have to print a bunch more pages so we appreciate that she would have come along to do this despite this big favor just doesn't it just doesn't add up well i think the government the guideline itself tells us that even if she were just his friend the guidelines goes to tell it's only about it's going to play all the time i think it is going to play you're automatically and i think the probation office going to interpret it that way or nobody's more than just being a friend because it obviously the guideline says romantic so that and that's here i mean that it's not a no evidence case because there is that  we don't know anything about him or the relationship that tells us why c would agree other than she came along judge our us point about you have free will mr durbin was and this is where it comes back to  played upon affection played upon friendship only if you don't have to use that anytime someone didn't personally whether friendship sexual or whatever yes they the