court's attention that counsel for the government this morning has provided us with documentation that is not part of the record in this case and has indicated that they will be referring to this documentation in their argument however they are declining to formally move to introduce this document document prior to referencing it so at this point i'm placing the unfortunate position i certainly don't want to interrupt opposing counsel as argument however we strenuously object to the admission of a document which is not part of the record in this case so i will defer to the court however the court wishes to address that but again we are moving to preclude the document both as it being not part of the record and therefore unfair surprise to us as well as the substance of the document itself yes your honor in this at issue in this case is whether the special skills enhanced mint can apply to mr calibers who was a registered loan officer at the time of the subject offends now the issue is more nuanced than the government would have you believe which is not whether a loan officer can be considered to possess a special skill but whether mr caliber east himself possessed a special skill that significantly facilitated the commission of the fence and certainly that the government's g special special skill your honor i think is important to point to a very important distinction that we make even between bank tellers and people with managerial or supervisory discretion when we discuss the second part of the unhandsome an abusive trust and the question is not whether there's a skill involved because that would read them in hansen to the point of meaningless but whether there is a special skill that relies on substantial education and training on par with doctors on par with loan officer which means he takes the information he said mitts it to the bank who then approves or disapproves the loan based on their own internal formulas so certainly out ability to perform what the district court called the rough calculation might be a skill it's not a special skill within the meaning of the enhancement and certainly there's no evidence on the record as to what sort of education or training would be necessary to perform that calculation again what we see through the circuits income was what his employment was and it was just based on the statement and it would go off to the bank there was no independent verification or due diligence by mr calibers or anybody else i mean it sounds like i don't know independent verification with mr getty's company and someone at the company provided verification of the employment and of the income so there was no expectation by the bank that mr calibers was even passing along information that was intrinsically accurate he was merely recording what mr province i know said in submitting the application to the bank and that goes to of course the second prong of the test the significant facilitation as well a special skill i believe is the ninth circuit that says almost every defendant that stands before the court is going to possess a skill that the judges themselves might be unable to perform but it would read the subsection to the point of meaningless to say just because it could not necessarily have been done by someone else does not make it special within the meaning of the enhancemen those decisions it refers to those mortgage brokers as being licensed and have had substantial education factors that we now know at the time mr calibers was not in fact licensed and even the probation officer herself in the  says she cannot speak to what training or experience would have been required to be registered at the time so that distinction is correct and that is the distinction that were asked to be drawn in this case knowledge of how to calculate minimum income and the approval process is very slow products how how this is doesn't exceed the knowledge of the average person requires special  and all you're saying to me is east not licensed and that somehow this is not the kind of training or skill that that warrants it and i don't see what you're relying on that the district court in its decision relied repeatedly on the simple status of license possession which we know now have a life which we know he did not have at the time and beyond that assertion that he was license and that's the language that used again and again the the license the importance of upholding the regulations of the license that's the language the district court used on one imposing the enhanced and we know now from the record that that's simply not the case so in the absence of evidence beyond the likes ensure that in his mind cannot stand of course the perp ponder in standard is used because it protects defendants due process rights against the unjustified application of the enhancement and when you exercise the licensure which is the only consistent basis for the application of the enhanced meant there's simply no justification for the enhancement to apply to mr cal disputing the licenses much as disputing whether he had the skill certainly defense counsel in his written objections to the p s r advised the court that mr calories do not receive his license and told twenty ten and we know the simple development of the law there was no licensing scheme and defense counsel obviously chose to focus entire discussion with the district court unless i'm missing something focuses on whether or not his skill were ones that should be viewed as special skills whether they were licensed or on license doesn't seem to have ventured into the into the discussion did i miss something no and in fact i use the argument to the district court was not a judge he's not licensed the argument was licensed or not skills that was certainly part of countdown the district court rejected that it thought that what he knew and how he knew how to do it was a special skill but the district courts rationale was again the license that we didn't know and that's articulated consistently throughout the sentencing she says because of your license because of the imprimatur and integrity that you're in licensing hers that's why there's no there's no evidence even on the record that other than the no indication of any sort of qualifications as you can see again the fourth circuit says we can't take that a face value that could be a perfunctory you pay a fee and you're registered as a loan officer that doesn't mean you've received a substantial education  training that we expect to hold someone to the standard of possessing a special skill in order to facilitate the offense i don't know he was registered as a loan officer in fact full time profession was a firefighter so again other than i can't speak to that your honor it was a registration but it certainly wasn't a licensing there was no licensing scheme until the passage of the  mortgage act and again other than the loans that issue in the indictment there's no evidence put forth of how experience he even was as we stated he was a full time firefighter so to rely solely on a license that we now know does not exist to applying the special skills adjustment specifically because mr calibrates was this record shows had an indispensable role in the bank fraud conspiracy to which he entered a guilty plea based on and this is where i emphasize his calories alone knew what kind of loan was not subject to independently confirm vacation by the lending bank which point needs to be clarified and i will in a few moments with the court's permission  yes your honor the government would phrase that given the to tell me the record as a credentialing issue it's true mr calibration did not have a license according to the undisputed items  broker license is a special skill i agree with any she's using terms like the mortgage broker license that's not the only time she has said that is correct your honor and that was a mistake of description we agree and that's correct i think it was what's problematic about that and the reason i would defend the judge's decision is that first of all as the defen point out no one in connecticut could be a licensed broker as of the time of the offense two thousand and five through two thousand and six mr calibrates had all the credentialing all the imprimatur that one could have had in that situation at the time that's correct your honor and here's where i think there is an argument that while formally speaking defendant did preserve the issue under our circuit law under diaz that says if you object in your note to the probation officer on the pre sentence report you preserve the issue which some circuits take that definitely the second circuit says that's enough i think if i make her community use the phrase there was almost a quasi i have been intimate of that issue when you walk through the wreckage and i'd like to just briefly do that memo there was no mention of hey we'd still disagree with the pre sentence report who concluded there was a license based on their check of a database that was no objection in the priest in the court and then we come to court the sentencing and page one thirty three through one thirty four of the appendix of the court says are there any fact disputes and the license issue was not touched on and off then as the court noted in the earlier colloquy today the judge actually said to page one thirty nine and we have this issue of the broker's license and there was still no objection by the defense and admittedly the government was unaware that it wasn't a license at this point and that was our omission and then there was the allocution by the defense who initially raised that way before in the letter of the probation office pages one forty three one forty one no mention of a license or a mistake and finally mr calibrations own allocution at one eighty nine through ninety two no mention of the license so i think the judge was placed on a rather hard position on that one and i go back to the house and if in that there was given that there was an hour what what do we do now i suppose your honor it comes down to how much weight to assign the error of fact it's the government's status in the eyes of the lending bank matter and other facts i think could dominate other than the fact or not fact of a license first and registration namely this was a stated income on and i want to get to that in a moment because back to the why is the registration so challenge factual matters contained in the pre sentence report at sentencing he waives the right past them on appeal right saying you're looking for a waiver i might be overstating it if i actually asked for a waiver your honor i'm more putting in the context of the question did the judge commit clear error which is the standard because here the lay of the record made it rather difficult for the judge to rephrase as a registration rather than a license and as i say go back to how significant happened the pro the defendant objected to the pre sentence report in correspondence to the probation office and received a response that the probation officer had learned from the national or gets licensing system that mr caliber e c had been licensed as of october first two thousand and two and then there was never any finding of fact so i understood you to be relying on that that having gotten their answer from the probation department that they didn't think there was a problem and not having raised it with the district court the district court was entitle to rely on  object in the letter to the probation office you preserve use for appeal but i also think there's a context in which each of these situations has to be evaluated in this context is as close to forfeiture as you could get even if it's not forfeiture because of the many times it was was not objected to was that correct and yes the defense did send in their comments to the probation office saying he was not a licensed mortgage broker and thereafter it was never mentioned again even when the probation office came back in its final and done them with a final p s r and said yes he is we've checked this database and hence and that's where the government argues there's a context of cause i forfeiture going on certainly made it harder for the judge to go back to that issue tomorrow with a formal motion of the court wishes namely two documents produced a year and a half ago in discovery to defense counsel long before the made to the twenty fifteen guilty plea of mr calories that show all that was verified by the bank was the nature of the job and not the income because that's what happens in a stated income loans we have those documents here is the term are stated income we're trying to figure out what was  yes and in the us ours is this i suggested to be a stated income application that means something it does so what does it mean it means it's alone in which the income of the applicant is not verified the employment and its nature maybe but not the income and that's exactly what happened in this case those two documents show that the want the first one from two thousand and five the second of two thousand and six the initial loan of the and that's why the cases we cited in our reply brief say this is a stated income loan this is what they're about then defense reply brief came back and said but in this case it didn't happen that way we are saying yes it did in these documents show it of an even license to go thank your honor i'd like to begin by trying the court's attention to the fact that the district court stated that she was adopting the disputed factual findings that were contained in the p s r so at no point did mr calibers concede that he was in fact licensed at the time of the offense i would also the probation report responds to you say no no we've checked this indices and he's licensed as of october first and you don't tell anybody that you disagree with that so i don't understand how a district court would think ok you got your answer from the probation department you're raising no objection to it be the probation department report of his it's october first two thousand and two you don't say to the district court it's still disputed judge what is the district court supposed to do with that rotation department it's an arm of the district court i would disagree that it was not reiterated your honor mr cowdery says at the point of the sentencing he says that i would there were no other issues than the evaluation other than what was raised in our briefing so that was the sentencing transcript at five to six which is the joint appendix that one thirty four to one thirty five what is what is what's happening it's it's patient department has checked with the national mortgage licensing system and learned something contrary to what you said and at the same time it also has mr calorie sees written objection that no the date i received my license was march thirty first and that is why the court it's i mean the probation department says it checked with the national mortgage licensing system your client says the letter b august fifth letter says we understand that mr caliber e c first received his license on or about march thirty first two cows so your understanding appears to be wrong in light of the probation department saying you were entitle to waiting or even probation department looked into where it was and found something contrary and you never said anything after well again i would disagree with that characterization because he said all in except for what has already been included in our briefing meaning we don't concede that what we raised in the briefing thirty five i'm sorry the last sentence of his answer so i guess my long roundabout answer to the court's question is no other than what has already been included in our briefing with you she's talking the last information  you read the whole one thirty four one three five views there is a substantial disagreement about the last calculation timelines but that's always kind of carving off you're right i would respectfully disagree with your honor and again that brings me to my second which is what standard this court uses when it examines what constitutes a special skill which is not clear error that's for the second part of the promise did novell and we know now from the filings that were made to the district court in the rule thirty five motion that mr did not actually possess a license at the time so the question before the court that subject to do novo review is exercising license did he possessed that special skill district judge would suggest that the probation department maybe you got a license and that's where we are i would disagree i'm sorry i actually would agree with that your honor whoa ever that's not the question that's before this court could it have been articulated more fully and completely definitely is it preserved for appeal with the record the court has now before it definitely and we know that through the finding of the the objection through the filing of the documentation for the rule thirty five motion so thing that's on the record is the licensure and again this rough calculation that we don't even know what goes into the rough calculation they're simply these conclusory assertions that because he was a loan officer he must have had a special skill when at a basic level perhaps we're talking about a thing man formulation that certainly would not rise to the substantial education and training that we would take for the special skills and hansen so your point is certainly well taken with the