made or this is a case about someone who was convicted of one crime but sentenced for another i know what your honor i take issue with wives only because it didn't involve a lesser included when i hear your argument boiling down to is if you've got some conduct on which somebody wasn't convicted or in which somebody was acquitted you can't use that in the sentencing context period no i'm not arguing that your honor i'm not i'm saying in this particular case other it's a different standard of proof i understand that if you have a true sentencing factor but i'm saying in this context use of a weapon is nothing sing factor it was an element of the use of the greater offense of armed and they didn't get insurance policy thereby eliminating that element of the offense do you think he survives wants i do tell me why because again it's a lesser included offense which i think takes it into a different need to take a capital case you can be guilty of capital murder except for aggravating factors and here you can be guilty of bank robbery and you may have an egg it seems to me you can have a sensing has been quite apart from that tell me why i'm wrong well the reason why you're he really merely proves the existence of a reasonable doubt without specific jury findings no one can logically or realistically draw anything actual finding any factual finding inferences so that's why i ask if there's a finding that you know of no firearm was used and there really isn't one so i mean you get down to watson and says it's two different ballgame if you have a conviction partner and once you have the conviction part then all bets are off you go to proponents of the evidence in some cases clear and convincing i now we do with the person on the offender in the offense characteristics and so i believe it is a constitutional prohibition in there and that's why you're using the sixth amendment but in terms of thirty six sixty wasn't lost it seems to throw meaning why don't you get into a different area you take a also it has no current practical effect if it were to go back that it would perhaps not very prosecuting i got you ok here's the judge's quote i'm convinced you are not telling us the truth today or at your trial you are someone a lemon some thirteen some twenty respect to the acceptance of responsibility with regard to the specific offense characteristics of the district court did not clearly err in finding that the government had established by clear and convincing evidence that the co de too small to accommodate himself and his daughter in her car seat and so there's the inference from the fact that they all traveled from the hiding point of the neon to the brain with the weapons in a small car three large men simply an inference based on one or a few facts that there's a compilation of evidence that supports it can't understand your position do you think you think he survives wants i do not your honor and tell  held that the district court could not consider the acquitted conduct because it construed the jury's acquittal as a finding that the defendant had not in fact committed that crime in this case the were we don't really need to resolve that issue  necessarily means an acquittal of the greater chance well i think that the jury's particular verdict in this case indicates that that that's not what occurred in this case but even if we  the awarding the acceptance of responsibility reductions simply because the defendant went to trial on a factual dispute we have more than that here we have a defendant who went to trial not only to put the birth the government to  burden on all the factual issues and not to preserve a constitutional or legal argument we have a defendant who went to trial and affirmatively put on the defense which the court found to be absolutely not credible we have a defendant who  testimony but it was only and i guess my concern about it is that his testimony that she rejected on truthful only went to the armed bank robbery portion of it for which he live he admitted everything else he said oh yeah you know i i went there i knew there were going to rob the bank i just didn't know any weapons well you said i reject i reject your your testimony you actually louis with respect to other aspects of relevant conduct with respect to the reckless endangerment and with respect to his his own culpability and he's behavior he claimed that he only drove because the other defendants told him to drive that way you do know i'd running a red light he denied driving at high speed all of which was contradicted by the officers and although the district court didn't apply the reckless endangerment and enhancement she did not do that sort of in an got out in his hand already as he entered the bank which would contradict the defense theory but the coconspirators that hidden their weapons in the bags from mr johnson until they entered the bank and then there are two co de ve records and i believe i understand judge greer found that the argument was preposterous sure and i'm not trying to impugn any and any evil intent to judge barrett i do think that if