united states versus clarke addresses cases in which one counter one of several counts is reversed and it divides those cases into two categories one is where the reversed count ha connection with reversed because the district court could have used evidence of controlled substances of substances conspiracy can't say that for sentencing purposes of the power one controlled substance of conspiracy mr stanford did not have an adequate opportunity to present evidence that he lacked knowledge that the underlying substance was a controlled the question when you it's a very big question in criminal law about when you have a money laundering conviction and the underlying condition on the on the line whether conviction on the underlying or whether her verse of the convention on the circumstances and doesn't judge higginson as a former chief of appeals from the u s attorney's office was focusing on the same issue and that's what we were discussing and in fact i mean reference to appropriate offense in fact the statutory index lists to two guidelines or on conviction under three three three to twenty one year a c three three and two to be one point one or two and two point one and so the court had to decide which was the most appropriate for the offense conduct charge him upon the conviction and could not look at anything but himself had difficulty going there and she concluded when the government said that if she had not complied she concluded that he was had lost credibility with deceiving her  lawyer practice in south louisiana and then over suddenly becomes a defendant in this drug deal and he's convicted all of that so it's not a stretch to you know to say he was  you know not a world class lawyer in that sense so i mean he's convicted of these having been a warrior he's a lawyer representing himself in this trial and all that but my question to you is not withstanding disagreeing with ruling she made it matter of what is the core addressing your point about the issue with the judgment when the court of appeals reversed or vacated the condition on how long the government would have been entitle to retry that count because that was a first one is the one that actually played out where the court really man's so the government can decide whether it wants to retry the defendant on count one and in this particular case the government elected not to retry it could happen that was one of the it's relevant conduct absolutely but is that what the guidelines that well that the guidelines as a long time ago the guidelines furiously doesn't use a specified unlawful activity which is what the statute uses but that's what that's what it's happened in stamford wind i find that it's been proven by preponderance that's our real way one seven one five seven one seven one six seven one seven one seventy three seventy four the district court makes this fin zero one seven one five zero one seven i'm sorry once in one four five and one seven one hundred zero repeatedly invited him to present evidence on a knowledge issue and he declined  contesting mandate not binding is contesting a legal determination under the guidelines he's contesting whether the court could consider the acquitted conduct all of those are legal determinations but he's not contesting the factual finding so is no need for an objection at that point ok go ahead ok so the court gives its initial impression its initial question is i have nothing else to do but i want you to brief it you might change my mind ok and i'm paraphrasing but that you might change my mind the government's question that the district court asked to be briefed correct at that point and then we get to the hearing and here at the beginning of the hearing the judge sort of reviews the posture and says we have a status conference and i ask you to brief it and the counsel conceded a few minutes ago he doesn't specifically address the concession and i can i don't know why but he doesn't specifically address the concession he instead goes on to say a good judge we don't agree with that  think you know me and they and they talk about i'm bothering you know their argument based on bass and so they do talk about the on bundling under bass so they make you know in the court they make a sort of  for a lot of so that that's exactly where we are at what point did the defendant object and say i object to your interpretation of the concession we did not concede when is the first  the best position not only speak for her to explain what her concession meant or did not meet but up until that point nobody else in that that's my understanding of it is a partisan position of the government  isn't but the panel was right you know it just happens and asked the question and he wrote the opinion so he has an idea what he was asking and what the lawyer sat but beyond the concession the court was wrong because because it's if if they made the concession which the government argues they made that made no objection to the in the district court's interpretation and it's viewed on the plain there are for the concession alone because you know as you know the court sometimes well well often the number is the court bound by a concession by counsel so you know i could stand up here and concede at a certain point or a certain guideline argument on the two engine point mine of course is to be two point one the cross reference do we use the cross reference you know what how do we pick the osbournes guideline mr stanford made the technical a guideline calculation because you know as i said this is a a three hour sensing here in the district or didn't believe it was necessary but just what is very very careful and the last thing i want to say is this is not a case that warrants reassign law does not require a defendant ever be convicted on the s u s e that guideline uses the words underline a fans but we're actually talking about a specified lawful activity because it says an offen or work or cases that are covered by statute the reason this case is so unusual that in cases involving in this brand of drugs that is on the controlled substance schedule two deja point one is going to drive the calculation and we never talk about two and two point one which is what happened in stanford one so that's why this has arise in such a unique context this case is not bound by arlen arlen who is not about what guideline we use or limb was about whether the the interpretation of the concession was not really there were communications that work not record internal communications about this and i don't feel free to talk about what those