and i was not a trial counsel but as far as i can see there was never an object of this conspiracy where there was never a person who was to be murdered there was apparently a broken d he did unconditionally pled guilty right correct and in doing so did he waive his right other reason that i put it put it in terms of the sentencing because this case is i don't know if the court has jurisdiction i think it conspiracy to commit murder when there is no injury and no object he should not have gotten a lot of increase of up to a level thirty three a when when it in fact what it should have been if anything was twelve plus four for in this case though he supplied again to some fellow gang member with the it was with the intent there was apparently mr johnson may or may not have gone to a park he said they hammer jammed on the guy somebody else said there were shots fired i don't know i was where the truth lies it quite straight up this is from this and  then that should result that i also cited davis which which as the court well knows talks about whether it's a categorical approach have this many different places that the guidelines can go on i know i'm flipping back and forth from constitutional to the guidelines but but if you can have a thirty point increase or a four point increase and then don't give acceptance of responsibility i what i believe about this is that it was in the hands of the government and and the court just say what facts they wanted and what they wanted him to accept he stirred up and he said i'm charged with conspiracy to commit murder and i could be guilty  to be someone and and just to say that he is somebody who in two thousand and six was his last conviction and that more that ten years later as chief justice roberts wrote some toxins can be deadly will not certainly true here yet score what we're asking this court to order a new sentencing hearing stereotype based on nothing but stereotypes and improper evidence that the court should not consider s t r for eighteen or nineteen be hearing that in fact by racial bias now the government does not concede that detective sort of testimony was racist or that it was grounded in implicit b however even if it was there are two reasons that this court should affirm and just to be clear i will get back to the testimony and the reason why we did not believe it was racist or grounded in implicit bias but even if a court of concerned about that issue the two reasons the court should refer are one that the most inflammatory statement the one about in four familial relationships the one that the council has identified as repugnant was considered by judge o'neil he makes that clear in your forty's he was setting aside that testimony and the remainder of detective sort of testimony was race neutral moreover the court actually based its finding that the defendant was a gang member a finding that the court of noted didn't really impact the guideline range and the government would argue didn't impact the sentence but he faced that finding here the testimony in this case was by one expert to an experienced judge not a jury and see the question before that experienced judge this was a harmless error is that right well one point you factors claim the court can find that although if the court believed it was harmless the court could under provincial considerations consider the argument that you're correct we did not raise it ok no that's helpful to so then i left the court wants me to directly address the minor role reduction at this point i will go back to the folk of the test for the bulk of the argument from the the opening argument to or the whole of the analysis of the court is to consider in making that determination and in the scene memorandum to defend it argues one of those factors that he believe s works in his favor in the argument the court then came to the bench having read and consider the defendant and the memorandum as well as the rest of the papers that were provided to it and it was clear based upon the ruling that he made they came to the bench prepared to rule on the issue he did not take argument and this court under diaz is obligated to presume that the judge knew the lot of apply the law correctly here that if you let me go down what did the defendant are you in the in the motion did he actually argue the three be founders or did he just generally  you know the decision making issue or the you know great to which he stood the benefit or the control if he if the defendant didn't raise didn't the judge receive a specific objection delineating three be factors that he should have considered yes that is true in this case was there any similar  briefing submitted to the judge going through the factors and that evidence that might be relevant to the  factors because that's true because judge o'neil came to the bench ready to rule on the issue considered have you had an opportunity to consider the briefing that had been provided  is so here's my question about that because i say i tend to agree that it would be better to have something on the record but he said there's not enough evidence and front of me and i guess t question ultimately you agree that the defendant bears herb but that evidence and support a reduction is that right and so where did you put that in and i say you i don't know