please the court my name is scott martin and i read rodriguez in this appeal of the fifteen month sentence that he received on his conviction for being an alien with a nonimmigrant visa and possession of ammunition his appeal concerns the sensing court's application of the attempt guideline which is guidelines section two x one dollar in this case because mr rodriguez knew that the ammunition he possessed would be used in connection with another offense namely exporting ammunition without a license the district court applied to cross reference and subsection c one a of the firearms guidelines which directs the use of the attempt guideline if which is two x one dollar if the resulting offense level is greater than previously determined mr frame of the scheme and the amount of time that offended would have needed to finish his plan had he not been interrupted as the completing the offense becomes more imminent the reduction will become less appropriate there's also another aspect of this standard which is that and so to the court said that in order to support a denial of the reduction under the guideline the circumstances must demonstrate that the balance of the significant acts completed and those remaining tips towards completion of the seven offense this requires the district court consider the quality of the completed remaining acts not simply the relative quantities of those acts so in essence this gives you a three level desk counter being some distance minutes and the controlling case is united states versus soto and soto just like here that if it was paid to purchase ammunition and did so knowing that it would be smuggled illegally to mexico and in so like here that if it was arrested prior to the illegal transfer and eventually smuggling into mexico so to actually had the ammunition in his car when he stopped over a traffic violation appeal this court held the district court a three level attempt reduction under two x one dollar b one because there was no evidence that he was on the verge of delivering the ammunition to his coconspirator for smuggling to mexico also a done was by the ammunition put it in his car there was no evidence that so it was in a route to deliver the amish and when he was pulled over and mr rodriguez's case the cunt of the subset of fans was exporting ammunition is even less was even less imminent than it was and so mr it to aid instead a man named chivo had given him money to buy the ammunition as he had done on two prior occasions and that mr rodriguez then bought it at the academy sports store and stashed the ammunition in the bushes outside a friend's house to complete the subject of offense was to actually transport the aliens cross and it was a completed offense up here like an soto mr rodriguez was not in route to deliver the ammunition in fact he was shopping at an auto parts auto parts store so the delivery was even less imminent than it was and so there's also no evidence that prior to that to being stopped at that store that he had actually received a phone call from this man el chivo the goat what they call him instructing him to perform the significant act of delivering a man the ammunition to a man who had been a dodge caliber at a water burger and had delgo for smuggling to mexico which is what happened the two previous occasions the district court certainly didn't make that finding and this court is not the want the one to make that two findings like that in the st instance that there actually been a call now the government makes a lot of of this transcript that mr rodriguez submitted to the district court at that sentencing that there's some confusion about whether during the field interview with the agent at the auto parts store whether there was a call that came in from somebody from brain osa but even the government concedes that it's unclear if anybody actually was calling at that time or if it was el cheapo so we don't even know who was calling it very well could be that in this conversation mr rodriguez was giving the agent permission to answer his phone in the future if a call came in from ray nossa so that he could speak to el cheapo or anyone else who called but regardless of what happened with that call the remainder of the acts to be completed by mr rodriguez and others were so significant that the three level enhanced reduction should apply here st el cheapo would have to call and instruct mr rodriguez to deliver the ammunition to the man in the blue dodge caliber for smuggling to mexico not tell him to wait or to call it off completely we don't know what he would have said it was even if that was him calling we don't know what he would have said then mr rodriguez would have to retrieve the ammunition from his friend's house in macau and you  dog is closer to the east coast of the bridge and you go north then you're into macallan i don't know what the mileage is your honor and that's not in the record what the mileage was but he would have to going on google it is he would have to either do it or recruit someone these circumstances do not demonstrate that the balance of the significant acts completed in those remaining tipped towards completion of the subsidy offense of exporting ammunition without a license required validated export right license and also wrote quote pursuant to guidelines section two x one dollar b one a decrease is not warranted as the defendant completed all the acts necessary and but for the apprehension was able to complete all the acts in his written objection to that paragraph mr rodriguez wrote that quote there is no evidence that he attempted exportation of ammunition and he also wrote that it can't be said that he completed all necessary acts under guideline section two x one point one eight and that looks like it must have been a typo but he's using the language of two x one point one beat so this read written objection which used this language was sufficiently specific reference one statute but then use the language from another part of the state that would be the same situation your honor and there was no requirement that mr rodriguez reiterate his objection orally the omission of the three level decrease or was he objecting to the base level increase he was objecting to all the everything in p s and that objecting to the four level increase under the firearms guideline for having knowledge that the ammunition be transported he was elected he was objecting to not having to whether the cross reference even applied because he was contending then that he did not have knowledge that where the ammunition was going now we've conceded on appeal that his discourse made that finding that that's that that that those are the facts for appeal that he knew the ammunition was headed for mexico but he is addition he was also objecting to the lack of a three he retrieve the ammunition and deliver it to a man at a water burger restaurant his role would be done and would be the final act it would have been the completed act for him now might want to be in the completion of the after receiving instructions from chivo and was on his way to the water burger and got arrested that might be enough to deny him the three level decrease because that would truly be imminent but here the nature and rodriguez is not disputing that his illegal possession of ammunition was connected to another offense the act the legal exportation of ammunition as a result he also does not dispute as he did in the district court that the cross reference under two k two  c applies and that the resulting base level is twenty six dollars the only issue is whether he's entitled to an additional three level reduction under two x one point one he is not as this court's aware that provision provides for a three level reduction in cases of conspiracy attempt or solicitation but it does not provide for that reduction when the defendant has completed all of the acts necessary on his part for successful completion of the offense and it also does not provide for the reduction when the defendant is about to complete all of the acts necessary on his part it's that latter part that provides that that applies here the defendant was about to complete all of the excesses serry on his part your two it's again as defense counsel mentioned this is a very fact specific inquiry that doesn't lend itself to precise standard as this court said in united states versus wasco but here we know from an rebutted and undisputed evidence on record el cheapo correct me once again and then he has to he has to retrieve the ammo from where he stashed it at the friend's house that is true  right and then he has to deliver this and relinquish its position of it to somebody who will be identified in the phone call that he's got to take it to in the past it's been the what a burger he's got to take of the i'll go with you at three steps yes however i would say also he's already completed more steps than three when he's apprehended in this case he still in reynosa mexico he sed step one he's picked up money from el cheapo whether it's been dropped off at his place of business or picked up on the bridge to he's crossed over into the united states he's purchased the ammunition and then he started for safekeeping while he waits for that phone call and that's where we cross over into the uncompleted steps so five steps completed at the point he's apprehended and we know from the record that he's done this before and he's done it within the same day indeed within a few hours of collecting the money crossing the border purchasing the ammo waiting for the call dropping off the ammunition at the water and that's what distinguishes this case from soto in sotto there was just no evidence on the record at all even though there had been in a previous exchange well and so he had he had had the ammunition for three days absolutely yes so the next seems to me the argument that that  transaction was more imminently completed than one which had just begun on the same day i disagree your honor because in soto there was no evidence of previous transactions and there was no evidence on the record that he was expecting a call or he had made any sort it from someplace that he didn't have a session on which is one of those great i mean he can't deliver what he did and that's true your honor however so that's a critical step that he had not yet take yes whether it's a and houston we know that much but we also know from the previous offenses that that he's done this within the same day he expects to complete it that day in fact when he wrote his letter of accepting responsibility to the district court he said in that letter l chivo gave me two hundred dollars so i could purchase the box of bullets that day when i got to academy i was supposed to receive a call from el cheapo so i could give the ammunition to people i didn't know only that they were from macallan area then i got stopped by agents from the police that's in the record up to seventy two that sounds pretty imminent he's expecting to deliver that ammunition today in sotto there's no plans for delivery  fact mr rodriguez from what we can tell from the record is expecting to deliberate again to the what a burger because there's an established timeline there's an established delivery protocol i pick up the m o i wait for my phone call i take it to whatever we don't have those facts and the record is bear and we don't have the phone call we do not have the phone call yet here and there is there is some suggestion in the record that there was a phone call during the field interview but we do as as  bari noted we acknowledge that that's unclear but that's where plain error comes in had this been appropriately raised in the district court the district court may have been able to resolve this factual issue they may have been able to resolve the distance between h macallan but the objection was not properly preserved and that's why plain error applies there's factual issues here that cannot be resolved because you're saying that when he used the language from two it's one point one  b about two complete when you use that language from that that wasn't sufficient to put the district court on notice i do know about the nature of his objection no your honor he makes a passing reference and uses that that language from the from two x one point one b however his objection to all of the passing with i do because if you read the entirety of the objection which is a paragraph long his focus is very much on i didn't know this was going to mexico we shouldn't even look at the cross reference because i wasn't my illegal possession of ammunition was not involved in another affects he's saying don't even apply the cross reference so don't even go over to  hearing because he did make an effort as sentencing close he made an effort to bring up the minor role reduction but he didn't raise the three level three level reduction for attempt so it  is again if you look at the washington considerations the defendants conduct here clearly furthers the offense to conspire with or it's conspiracy or attempt to illegally export ammunition yes there's we acknowledge there's a significant step that remains that is delivery of the ammunition but just because that hasn't occurred doesn't mean that the reduction is automatic instead in a way that the acts that have been completed versus the acts that remain again we think that both quality and quantity of that phone call to take the ammunition to the water and for those reasons we think this case is distinguishable from sotto and that it was correct for the district court not to apply the three level reduction and if there's no other questions from the court  thank you and i sorta like to address the government's position that this had to have been a say a same day off that's why i would like to call your attention to the field interview where when he was asked  he said it that people always takes one or two days to call that's at rua to sixty nine dollars and wrote to sixty eight dollars he said he basically said that sometimes he'll call tomorrow so said the agent asked him is the goat waiting for you know so you can turn them in and mr mr rodriguez says no no well sometimes he calls me today calls me tomorrow or speaks to the past so we're not exactly certain here the government certainly hasn't shown that it's going to certainly going to happen on this exact day as it even though it may have happened on the same day in the past at least once we know that there was one day we don't know and the government certainly hasn't shown it the government says it doesn't know how long it would take mr rodriguez to go and pick up the ammunition from the friend's house well it's their burden again to show that the what they correct the one that this decrease should not apply and they could have presented evidence of that in the district court but they didn't this letter to the district court that mister rodriguez wrote where he said that he was supposed to receive a call after you know at academy well if you look at the letter mr rodriguez is not the most articulate man and of course he was expecting a call at some point but  again he was waiting for the call from the moment he picked it up but it might be tomorrow he doesn't know and as he said in other places in the field interview it could be tomorrow and lastly i'd like to point out on the preservation preservation issue  the government says that defense count is retained defense counsel probably should have said something at sentencing been a little more persistent about this part of the written objection well a similar thing happen neal which side and i was are brief and neal the issue was whether simple possession of drugs was a controlled substance offense for purposes of the guideline enhanced meant for armed career criminals the disc or construed kneels written responses objecting to the proximity of the drugs which is whether the firearms found in the bedroom were possessed in connection with the drugs that were found elsewhere in the apartment but the court nonetheless found that the air was preserved by the written objection steele certainly could have been more clear and more persistent in raising objections based on the dinette definition of controlled substances offense his actions were sufficient to preserve the error and you also said that for present preservation purpose we have never required a defendant to reiterate an objection simply because the trial court misconstrues or fails to respond to the original the central inquiry is the specificity and clarity of the initial objection not the defendant's