nine millimeter shell casings that were found in his mother's car at sentencing the district court overruled his objection to application of a cross reference under section two k two  a for attempted murder which resulted in a thirteen level increase in his base offense level and increased his advisory guideline range from twenty seven to thirty three months up two hundred and eleven two  hundred and thirty seven months although there's a one hundred and twenty month maximum based on the the offense of conviction in macon rican is that conclusion the district court relied solely on a statement by the s alexander who told the police that mr kasten had shot him while they were in neighboring cars at sentencing the district court failed to consider the physical evidence that had been produced well i'd suggest you are in light of the decision last year in united states versus sam's that we cited in our brief that because it's application of facts to the sentencing guidelines that would be to novo review it isn't it  if it's a mixed question i could see that but some of these challenges it strikes me are sure historical facts type questions about what actually happened such as are that question when i suppose would be a fact western however our argument is primarily that the district court failed to consider those facts and making the decision on the application of this cross reference that there was significant evidence in the record that casts doubt on whether those two distributor shell casings were in fact used as part of the shooting but is that enough is that enough to to bear your burden the fact that there's other evidence suggest the district court was wrong if the standard of review is clear air doesn't doesn't this don't we have to affirm if but just records the year that the shell casings came from that shooting was a plausible view d of the record well that was not a finding made by the district court the district court did not address the shell casings at sentencing the district court's decision was based solely on  the conclusion that mr alexander statement was correct and he had in fact been shot by narry and cast here where sorry at sentencing the police detective who testified gave pretty significant information to the court that was not apparently not considered by the court  conclusion first that the bullet that was removed from mr alexander could have been one of four different caliber bullets were only one of which was a nine millimeter bullet could have been or a th and fifty seven as well as a nine millimeter and the detective testified at the sentencing that the that she did not know that we did not know whether that the bullet and she didn't know that if casings were from bullets that were fired also when you say he didn't consider i mean isn't is another way to say that just in way that evidence the way you would have weighed it maybe if you were the judge you know there was all this evidence was presented to the judge in some situations i think but the court has to be clear has to present a record that the court considered the parties arguments and i think just total silence on this issue is not sufficient to show that the significant fact it was a significant factor in the argument made on behalf of mr cassatt sentencing that these bullets were not that the bullet that shot him and the were not from these shell casings that's not just  some some fact that was thrown out there that the court didn't address that this was a very significant fact and it was central to the limit that was raised on behalf of mr kasten and again in addition to the fact that the police officer testified that we could not tell whether these the bullet were shot at mr kasem came from these shell casings or that the bullet that was removed from him came from the shell casings that she did testify eventually that the location of the shell casings found in the car i think casts some doubt on whether those shell casings were involved in the shooting at all that one shell casing was found underneath the floor mat behind the driver's seat and the officer acknowledged that it would have had to move through some debris to get to the location where it was found and the other shell casing was under the back seat and it was not located until the crime scene technician removed the back seat cushion and found the shell casing underneath it so i think that those facts and additions show that that there's some likelihood that those shell casings have been in the car for some period of time but then yet described isn't that kind of it's a required finding or in order to apply this enhancement so it seems to me that's absolutely what the district court found b that's not specifically the the letter is not specifically the argument although again on the the record that we have here is so sparse i mean that it's totally devoid of any discussion about the shell casings so any  attempt to try to define what the court how the court considered them at the court in fact did consider these is just sheer speculation and again and that's in terms of you know even going back to the connector case that he was convicted of possessing were the shell casings from which the bullets were fired at the shaun alexander and so i think oh go ahead i'm sorry and i think that the  that when i was not able to find any cases where the court dealt with a relevant a significant relevant fact at issue that upheld the district court's decision based on well i think that technically hearsay is is not prohibited at sentencing but it has to be has to have a reasonable liability and again here there's nothing other each other for some period of time and so that does not necessarily make it that much more reliable the fact when he just pointed out mr peston and again the fact that he refused to testify at the policeman or examine him and he did not testify at sentencing i think under good morning your honor this may please the court my name is aaron lane and i represent the united states your honors there are two issues on appeal here this morning st whether the district court clearly erred when it of the attempted murder based offense level under the firearm guidelines cross reference provision and fact can't whether if the application of the cross reference her vision was warranted that district court erred  applying attempted murder rather than aggravated assaults turning to the st issue looking at all of the evidence in the record as a whole the district court did not err in finding as stablish ing that the bullet that was removed from the shaun alexander says lay was shot from the shell casings that were recovered in the field called by that i mean there's no physical evidence tying that bullet to those shell casings because there was no firearm that was recovered in this case that was a point of discussion at the sentencing hearing there is a multitude of other advocates in the record which ties to a shell casing removed from the pontiac bonneville belonging to the defendant's mother that tie those ammunitions to the shooting up to shot alexander primarily as the defense just discussed there's the eye witness identification of the shooting victim naming without hesitation and without marrying cast and as his shooter this information was conveyed detective larson at the sentencing hearing mr alexander also provided details to detectives which was conveyed at sentencing about the type of firearm mr kasten years in in the shooting specifically saying that it was a black colored semiautomatic hand gun and that mr cassatt was driving a gray pontiac bonneville at the time of the shooting detectives as the testimony explained in the sentencing hearing or able to corroborate that statement by finding that mr caster's mother had and has potentially a pontiac bonneville registered to her hours after the shooting detectives went to the house of the defendant's mother and found it gray pontiac bonneville parked outside the defendant's mother was home to touch detector spoke with her and she admitted that her son the defendant had possession of the pontiac bonneville that day the day of the shooting she also admitted that there is only one set of keys to that vehicle she gave officers permission to shoot excuse me to search the car and a crime scene technician recovered two pieces of ammunition named  and nineteen in the sentencing record you can see the defense counsel mr hayes are arguing to the court that the two specific pieces of ammunition that found in the future call are not tied that the shooting of the shot alexander and need to be tied in order to warrant this enhanced the district court recognize that argument but instead concluded based on that all of the evidence and the record that  i believe the court said i have a very difficult time this is to pay tonight i have a very difficult time finding anything that indicates the scoring is in any way incorrect and that after having the discussion about sentencing record judge now if i don't see her parsing out each piece of evidence that i just laid for this court instead i see the judge saying that looking at the totality of the evidence and the record which included a recognition that there was no physical evidence tying the bullet removed from the victim's like to be a munition recovered in the car ye there were other pieces of evidence i see the judge making her finding based on the totality of the evidence in the record the findings in the pre sentence investigative report the testimony of the detective the arguments of both counsel at sentencing hearing that is how the judge made her final determination and then of course as this court is well aware even if there are two permissible views of the evidence the district court's choice between those two views cannot be clearly erroneous and here confronted again with  totality of the evidence in the record mr kasten cannot establish that the court clearly erred when it found by a preponderance of the evidence that the ammunition named in the indictment was used in the shooting of mr alexander and unless there are further questions on that issue i can move on to the nd issue which defense didn't bring up on oral argument but it's a large component of their case so turning to the nd argument whether the district court erred in applying the attempted murder provision rather than aggravated assaults and the court did not in making its decision in order to prove attempted murder for guideline purposes the government musher and present evidence by a preponderance that the defendant possessed the necessary intent for the criminal activity here that would be malice  forethought and took substantial steps and for at that crime you do you think i was a little confused by that argument you cite milt but that's that's murder not attempted murder and idea i guess suggested that when we're talking about attempted murder that it's actually a higher means really that it has to be specific intent to murder and so you can you can commit murder without having a specific intent but don't commit attempted and i wonder if you could talk about that a little bit because i well there certainly certainly are so the government's position is not that the inference which is that the defendant grossly deviated from a standard of care such that he or she must have been aware of the risk of serious bodily injury or death is alone is enough to establish an intent to kill rather that the in france like it like many in france and from the law in conjunction with other facts in this case the facts that the district court found in the record are sufficient to establish an intent to kill in order to apply the cross reference provision correct corrector and i think that the supreme court and braxton did make that clear that in analyzing the issue and dicked the supreme court stated that intent may be inferred by actors conduct in the circumstances but specific intent is required and here the facts that the district court found show that mr kasten did possess the necessary intent in that he grossly deviated from a reasonable standard of care when he shot to shot alexander in the leg he knowingly and intentionally pointed a gun at the car mr alexander was driving shot into that vehicle multiple times and struck mr alexander in the leg this court has consistently found malice of forethought in similar scenarios in the snowden case where the defendant shot through a wall at his girlfriend multiple times not striking the victim in that case the district court upheld the application of attempted murder for guideline purposes in viney when the defendant pointed a gun at the effect the victim slapped the gun away and the defendant shot the weapon to the side multiple times i think twice in close succession the court upheld the application of the attempted murder cross reference provision and of course the case here is even more gre because mr kasten actually struck dish on alexander in the leg after shooting multiple times into the car mr alexander was driving the district court again carefully considered all the findings in the pre sentence report and all the evidence at the sentencing hearing when it determined that mr castro possessed malice of the specific intent necessary to uphold a cross reference to a provision in some it was not clear air for the just or court to take the combination of facts before it and to conclude that kasten had the intent to kill and the court clearly indicated that it felt that their record was sufficient sorry about that with regard to aggravated assault i think it's clear in his at the supreme court braxton case really is the leading case and should be considered that it does happen to be a finding a specific intent to kill and as was pointed out at sentencing and also in our brief that particularly the location of the shots in the in mr alexander's the bullet holes in mr alexander's s u v all low on the door show that don't show that there was a specific intent to kill i think that in these cases show that that shooting at someone is not necessarily enough to establish that that the court that there has to be a finding of the specific intent to kill and again as far as clear air is concerned i think it most the findings made by the district court that the the facts would support a finding that there was a shooting but again that there isn't has to be a link between these two specific shell casings and the shooting and as we explained i think that there just is not that link and again the most significant factor in that is that the police say that the slug pulled out of mr katter excuse me mr alexander's leg could have been one of four different caliber bullets three of which are not not a nine millimeter so three of which would not match up with the shell casings that were found in mr kasten scar client in the shooting are you you are contesting the accuracy that those caissons gained from the gun or whether there was sufficient evidence that those cases came from the gun used in this shooting that those casings should be attributed to your client and well we also have has the shooter well i think that's that's implicit in our argument that mr kasson never admitted to having shot at mr alexander and again unfortunately i supposed to look at it that way that the fact that that hearsay is allowed in there has to be but there has to be some showing of reliability i'm not sure that there was any showing sufficient showing of reliability here but the bottom line i think as far as this and hansen is concerned that even if there was a shooting and even if mr kasten shot at him that in order for that and he has meant to apply i think that that and it was argued except i'm saying the fact that mr alexander failed to appear in response to a subpoena to testify at a preliminary examination in state court when mr kasson was charged with was charged with attempted murder based on this on the shooting i think that casts some doubt cast significant doubt on the veracity of mr alexander statements but i still think again and i understand what you're saying your honor but i think that they're not so intertwined that again if there were three shots apparently were fired that in order for this to apply that to