resource conservation or recovery act and we know a couple of things we know from the agents testimony at the sentencing hearing the case agent who obviously has the most familiarity about the case no testing was done to see if any of the materials then we have the job in the th circuit the most recent case where the district court basically made the same argument the government makes here that it had no problem with the fact that hazardous waste goes hand in hand counsel can assume with me for a nd that it was undisputed that your client used the acetone to salt out the methamphetamine if that were true would there be just about the birth and smell but i just want to before we get to see that just help me understand suppose it's undisputed suppose when the agent walked in that your client was pouring the acetone into the method mixture so efficient that it could not be denied it the acetone had been used to sort out the mess would there be any dispute about whether there was a river a violation well i guess we go back to job and we have to know w government's arguments to see is totally different so let's let's talk about that need not me understand the governments are going to see that as well it's not really bad in so that's a toxic admission i don't see anything in the briefing i don't see anything in the government's argument and certainly nothing  opinion that talks about this stored or treated and the fact that the acetone had been used to make the methamphetamine that there's a description in the actual discussion about the asked but nothing in the discussion of the holding of the case just says you have to be able to show by adversarial system we don't decide cases based on what we think the best arguments are that a party might raise and if the government's i can argue about the acetone and the storage or treatment as the p s r did here a judgment by did here and is the government doesn't appeal here then i don't and i see her standing next to an empty cookie jar with her face covered in chocolate chips can i fairly infer that she ate the cookies or do i need some like testing of her blood sugar to figure out where all the cookies  then the burden of proof here is on the government and not the thing being when dealing with a child you don't have constitutional right united states versus jodi arias judge thing was on that panel also and it says government have to prove two things st they had their heavy burden to prove harmless error but more important for our case they have to show that the sentenc mcbride was why it was a level forty three unique with a life and he said he would have given a life sentence because the guideline range was life when he couldn't because of the four hundred and eighteen months back but the proper guidelines sentence break and guidelines are actually physically lower they were not a life term guideline and it wouldn't be a just a nine dollars to five dollars day one when you go back to the harmless error of analysis by the court and got an improper guideline he would have had a life sentence range but this is the part that i'm hung up on he says and i would have imposed a life sentence that is i'm going to do what i can do at the top into the range full stop so it's not clear to me how that supports your position because it seems like he's saying i'm that i'm really concerned about the damage done by this methamphetamine lab and so i'm going to sentence at the top of whatever i'm allowed to do regardless of the guidelines if i could have done life other than life but here i can only do that's particularly true under the deferential clear error standard that applies the nd reason is that any alleged error was harmless given judge mcbride's clear statements that he would have imposed the same sentence or frankly would have imposed a higher sentence if he could have for the same reasons and based on factors that are not connected to the hazardous waste issue at all so i'll start with the st issue the record is clear  seventy one dollars of the record describes what was discovered at the scene of this methamphetamine laboratory and just a back up for a nd this is a large scale methamphetamine operation that involves gas tanks that are that have been  fabricated and partitioned in order to smuggle methamphetamine in liquid form into the united states then the methamphetamine has recrossed allies at this lab in fort worth so this is not a case involving a user who you know b some sudafed tablets and tries to make his own mess this is a large scale operation page seventy one of the record describes what was found at the scene that includes hot plates acetone cans a number of  strainers a scale the gas tanks and several coolers that were being used in the process of reconvert in this methamphetamine page seventy one of the record also describes the phone calls on which the defendant was captured explaining that he had stayed up all night the very night before his arrest working in this lab to rechristen was the methamphetamine again on page seventy one dollars and then seventy three dollars seventy cents for the record the p s r explains da lab team was called out to the scene there was a determination made that it was necessary to engage a separate environmental firm to aid in the safe destruction of these materials so that separate environmental firm eighty environmental services was that engaged and the p s r makes clear that there was no permit under the applicable statute for these activities so based on this record i think the district court was on very solid ground in common to do this but if you look at page one hundred and eighty nine the case agent was asked is it common to have somebody come in and haul away when there is toxic materials in the case and said yes it is common you know words yes it's common when there are toxic materials so i think i think what i'm saying is that the question and answer on page one hundred and eighty nine of the record that defense counsel has relied on from the case agent was a question about whether it's common to call in an outside agency when there are toxic materials and the agent said yes my point is simply that that answer that it's common to call and somebody for toxic materials that that doesn't imply that which i think counsel is trying to imply that they're called in for any time that methamphetamine is discovered that's not the case here the record shows that mission no you're right i don't think the record details the basis for the decision i think that you know the question is was it plausible for judge mcbride to conclude that the lab team having a value a did it and then calling in the environmental services team does that make it plausible to suggest that there was hazardous waste i think it does it's at the very least it's plausible now that's not to say that every time you know that there's methamphetamine there's hazardous waste that's not the government's argument here but the argument is simply that on this record or the record is undisputed that there's acetone cans found at the scene in conjunction with hot plates and other cooking instruments it was plausible here for the district court to make the finding that  let me it also just there was some issue about quantity counsel suggested that there might be some requirement that there be specific findings for you know what quantity of of a particular chemical was present i don't think there's any there's certainly nothing in the text of the enhancement to require the district court to make findings about specific quantities and there's nothing requiring the agents or the lab to make findings either i think the application of to this guideline is telling because if you look at this particular enhanced moment it's actually a multilevel than hanson the defendant here receives the lowest enhancement which is a two level unhandsome and just for the presence of hazardous hazardous waste within the same enhancement there are higher level enhanced once up to up to six level enhanced meant if there is a finding that there was a substantial risk of harm to human life or to a minor and in the minor meaning a child in the in the application note it the two level enhancement that there is a necessity to make any sort of findings about quantum as far as that acetone i think that the jobs case that was cited from the th circuit is distinguishable the acetone in that case was found in a garage the opinion makes clear on the page i believe eight thousand eight hundred and fifty eight of that opinion that it was only known if manufacturing was even taking place at that premises so that's clearly a case where there's there's a chemical that's found on the property but there's no connection necessarily to the to the actual office likewise in the sauce ada case the court did not make any decision based on acetone p s r apparently relied solely on the fact that there was fumes that's not that's not the case here here we have a p s r that specifically noted the acetone and specifically cited the resource conservation and recovery act and that there was a violation of that act but here they didn't  fair and it was plausible for the district court to think that there was only some acetone still present at the time it was found and i think it's any of it your honor there was no testing done of the record does not reflect any testing done of any of the hazardous materials the only testing that was done was of the purity of a portion of the methamphetamine but as we  lining from any sort of container that it's been in so i think that the i think what those regulations make clear is that chemicals like acetone that are ignited will are dangerous not only in and of themselves but also to the extent there are they've been in a can or they've been in contact with some other surface because realistically there's always going to be some sort of residue particularly if you're if if it's the morning after you know the chemical has been used so there it's still it's still a dangerous substance even even after it's been used and again it's plausible it's more than plausible for the district court to conclude that acetone was actually present in substantial quantities as part of this conversion process there was forty nine kilograms of methamphetamine discovered in this laboratory that's a very large amount of methamphetamine and so i think again the record supports the notion that there was acetone and sufficient acetone there to apply t meant let me turn to the harmlessness issue a couple a couple things i'd like to respond to their woman is counsel mentioned the five k one i don't know if it's the five k one was denied in the sense that the district court did not actually grant a below guideline sentence but if you if you look at page one hundred and ninety nine of the record the district court in a sense actually granted the five k one because he the district court said that he found that the defendant did provide substantial system so the government and that the defendant would qualify for a sentence below the bottom of the guideline range so the district court actually found that there was substantial assistance and that the district court therefore did have the freedom to impose sentence of you know essentially whatever sentence it wanted i think that's further evidence that the district court was in no way viewed itself as anchored to or connected to whatever the guideline range was so the notion that you know the district a look at the goblins and then he did top of the guy that way i don't know that i don't know that that's how i would characterize what happened i think what happened is that the district court wanted to give a life sentence but was constrained by the statutory maximum and so he said i want to give a life sentence and again that was based on the evidence of the very substantial nature of this method man methamphetamine you know smuggling and distribution substantial now that is correct your honor under the under the level forty three dollars category one the guideline range would have been life but for the statutory maximum so in a sense and your honor just graves that's why i'm a little hesitant here because there's there's two issues one is what the guideline range would have been and then what became the de facto guideline sentence based on the statutory maximum so that the guideline range would have been life but it defaulted to the statutory maximum not just mcbride made very clear that it especially in light of the way the government had charged the case and it essentially not charges as it could have to to bring that life exposer into play he wanted to give a life sentence but he was constrained by the  there's no indication that that the guideline this issue of the environmental hazard played any role in that so we think that you know he made himself very clear he discussed how this is a case involving a mexican cartel importing huge quantities of mess he would have imposed a life sentence he also said on multiple occasions including in connection with the five k one issue that he felt that the government are already sufficiently rewarded the defendant simply by charging the case in a manner that caps the sentence of forty years and so that's why even though even though the district court found that there was substantial assistance and that the defendant would qualify for a sentence below the bottom of the guideline range he just said he for other reasons he decided not to impose a sentence so i think that the five k one issue you know by by finding on page one hundred and ninety nine dollars of the record that five k one was satisfied that takes the case out of the guideline range completely the judge at that point has said this case is no longer subject to any guidelines because i've found substantial assistance i can impose a sentence below essentially essentially whatever i want and nonetheless i still think a life sentence is appropriate but i'll do the forty years so on this record again it's  a it is a you know this is obviously every case stands on its own record our position is the this record here shows that for all the reasons that the district court discussed the life sentence was the sentence or the forty year sentence is the sentence that would have and you'll hear me now all right so i want to go back and talk about my exchange with judge roll them because during the break i did hold up the and so they thought they could infer reasonably in the mission from the smell maybe that's right so say this that it was wrong i'm not sure what that has to do with the acetone will be good the way operating the briefing  had a little time to do it but it's talking about the fact that same argument the government here a book they found or i asked and acetone those are hazardous substances per se and i ask you is that sufficient well candidly i'm not familiar with the thank goodness the concept of meth to make but i think you're almost getting to the point where than any meth lab you know apply  still just minutes the governments are argument to say that because i'm reading it that's the argument the government made that the presence of those three chemicals alone was hazardous waste st say under the resource government fifty birds and not come back to the fact that judge mcbride knows how to make his sentences appeal we know that from the codependent thing judgment broad goodness easily said i don't care how we resolve these objections i would have given a life sentence anyway we no judgement broad knows how to say that and that's not what he said this was based on the guideline