court judge largely bases her assessment of relevant conduct on mr friess his own admissions to the two investigating officers as she does judge i think there's three sources of information that are relied upon  by the government by the district court there's two co conspirators or informants a mystery as in the mr lopez and then there is the purported statement given by mr frias to two federal agents in his basement during assess both the reliability and the credibility of the agents judge i think if we look at the reliability here these evidence has to have a sufficient condition of reliability and well they were reporting what he told them why wasn't that reliable especially when he doesn't testify and say i never said that he testifies in state and he doesn't testify he states and elocution that's right side but i don't agree with what the the with the statements of the agents attributed to me and i think the the best indication that that's kind of a weak denial i mean if the agents are giving this information about the fifteen to twenty kilograms of cocaine within the past half year multiple dishes all shipments of two to three or five i don't think it was based on the circumstances of this case mr frias had dual indictments he was indicted down here he was indicted up in michigan as well right on the day of sentencing he learned that the michigan indictment was going to go away or be dismissed after he was sentenced in this case i just recorded give him a little bit of time to discuss that with his attorney i believe it was a ninety minute break right but after that mr freeh is did decline to testify he just decided to address the court milk i think that was sufficient enough his statement in elocution combined with counsel's cross examination of the agents at sentencing counsel's arguments in the sentencing memorandum and coun destroyed their own credibility if you look at the advice of rights form which i believe is speech thirty eight of my appendix there's an invoice of rights form that lists every single right that supposedly was given to mr frias on the date that he allegedly made and they testified that they don't know how to fill out in a voice of rights form and i think the reliability of that testimony who's clearly called into question the judge have looked at the form see the signature line that's his name juan and say you know maybe the officers didn't bother to tick off every box that we do have their testimony that they informed him of his rights and we have at least that much confirmation and make a finding of fact that he was informed i think based upon the testimony of the agents themselves i don't think that would have been made in the credible determination to make two agents say they don't know how to fill out an invoice of rights for two agents who say they never take written statements from the defendants never record statements from a defendant i mean this the statement wasn't video recorded audio recorded and they were in the basement of the house right ok so mr prius that had mr freeh a spread out a statement and sign it show mr frias your notes and say these are the notes of what we just discussed you're agree with this do you have any corrections you have any additions you have in deletions i don't understand where in the law we got to the point that human memory is not competent evidence maybe it's better when you have the notes or when you've got a stenographer with you you know looking around in their i pad with other notes but surely it's competent evidence for the two agents to say we were standing there talking to him about this and this is what he said and how do we know that because we remember i think that if two agents say that he had this interview one of us took notes one of us didn't the the vigil that took those notes two or three weeks later typed them up into a a difference between disregarding and rejecting correct we we believe that they were unjustly disregarded now in addition to statements being reliable there must be a showing that these charges in the on charge conduct think the dischord so the conduct was the same the people involved were the same so the government has stepped wished the relevance here and i think that if you need to be an explicit mention of that on the record which i produced the record i don't find that or there needs to be a written statement of reasons that the unconvicted acts or the necessary relation to the offense of conviction and simply put there was there was no written statement  issued by the district court i think her statements on the record did not touch upon the sufficiently and because of that i don't think the relevant conduct was shown to the degree that government needed to do so i see them entering my time for rebuttal there's no you court my name is jessica romero and i represent the appellee the united states the district court struck quantity finding was is the court's already identified based on reliable credible and on rebut it evidence presented at the sentencing hearing the us direct your attention to the connection between this relevant conduct the alleged role the conduct and the offensive conviction that the court's very summary about that and seems to think that any time it's the same drug the same people automatically have relevant conduct and i think that's an overstatement based on the case law you could have you know one cocaine conspiracy and in some other area a completely different cocaine conspiracy even if it's the same people in part involved with it so why isn't that a problem well judge that the record in this particular case begins with the probation officers analysis of the relevant conduct factors under the application note and that specifically in pages seven through eight are getting a common scheme or plan or are you looking at same course of conduct the probation officer identified as both and i actually think that that's correct that the substance of the testimony of the officers was that the conduct involved the same supplier and the same customer mr ray is who he had supplied for approximately five to six months and there was no real distinction in terms of the locations that the distributions took place any other cope reported coconspirators methods of distribution so i think in this particular instance based on that testimony both it could be considered under either same course of conduct or it or the other for the other factors identified in the guideline and and i do think also that the district court  correctly identify some of the factors she didn't go through all of them as in detail as the probation officer did and that's correct but she also wasn't really in a position where she was challenge specifically on that either in the briefs or in the arguments at the time so i think her her comments appropriate in light of the way that the issue was presented address at the sentencing hearing itself but it's consistent with the record as a whole which is much more comprehensive in support of the finding of rolling conda so you would your basic position is that she isn't just relying on these two factors that there's more i think those are the two she cited verbally but certainly that the record supports that there were additional factors and the p s r specifically addresses that if there are no further questions for the reasons i just discuss a relates to the probation officer identifying some factors the record is not clear that the district court overstated i'm adopting the probation officers findings as relates to common scheme or plan or i'm adopting those findings as as to same course of conduct i think the record is silent on that and without the district court issuing a written statement in this case i think we are left wondering how the district court tied these t offenses together as relates to the acceptance of responsibility and i touched on it because the two arguments go hand in hand and we feel that mr frias by entering a plea decoration refusal to to acknowledge relevant conduct which if so it seems like that's a finding of fact which if so does not lead to acceptance of responsibility well he didn't commit obstruction of justice he found the pleader i mean he didn't really like to do other things i agree about a trial he did deny his involvement in the broader business so to speak he did and up until that day he was under the impression that he would face those charges at a later date up in michigan so based upon the statements that he made the comic that he undertook we feel that he sufficiently accept the responsibility and should receive those three points ok thank you