denying the third level therefore the district court erred in overruling mr it go into those objection and not granting him third level reduction is that the only reason i mean are there other reasons we can consider no your honor you would i assume would take the prosecutor as an officer of the court of his or her word well i'm not saying the prosecutor was lying but you know we have in some areas of the law we have case law so for jury selection for example if we're doing an analysis where there's been discrimination whatever the prosecutor says at the time a trial is the end of it other circumstances you know oral argument is only part of the picture and it seems to me the government's brief did offer us other justifications you can you can question those factually just whether they're after the fact rationalizations but is there any law that prevents the government for offering other reasons for us to consider now it's almost the analogy to the firm for any reason that appears in the record is what comes to my mind and i don't think i've seen that in suppression issues but i don't think that would apply in this context where specific to a specific reason that the government needs to be says decision on so perhaps if there was overwhelming evidence that it was trial related it just somehow didn't appear in the record that would be one circumstance but where you have the affirmative statement that's the reason that it is i would suggest what the court should be reviewing that is the reason that the now they're arguing that there were also delays from your client that caused trial preparation and are there fact disputes a further hearing would be appropriate we would certainly welcome that but if i could suggest why that is not accurate on this record as the court has it first and foremost if it's something as simple as trial preparation which is the standard the government would just simply say we prepared for trial that's the reason on this point the silence is telling but there's more there's more of the government affirmative submission with the district court saying we're going to need a continuance because we're not prepared for trial so we have the stated reason and then we have the flip side of the coin the government affirmatively stating we're not prepare for trial so yes honor if there is a factual dispute that the court believes needs further resolution a remand is appropriate if as we have submitted there is not a factual dispute on this record because of both both the firman of statements than simply  for the correct calculated guidelines and then the district court can go from there we've also it was the court has further questions on that issue i'm prepared to move on to the last calculation issue i don't intend to address honorable victims unless the court has specific questions boss calculation the major problem here is that the scuse me while i transfer on to a differen determine it on this record because as the p s r specifically said and as the government can see did accurately in its brief that included the losses from both schemes the secret shopper scheme to which my client pleaded guilty and the lottery scheme it says that's what it did now we know that mr igbo knew go went way out of his way to say i did not to participate in this lottery scheme is a district court required to believe that no but the district court didn't believe it because the district court let me quote and that way you don't have to take my word for it first i'll quote the government and then i'll quote the district court this is what the government said to the district court in right before the plea the indictment alleges a scheme with two prongs to it a lottery prong a mystery shopper problem the defendant has maintained that the scope of his participation and the scope of the scheme in which he was involved was only the mystery shopper scope not the lottery scope and the factual basis that is the factual basis the government drafted does not reference the lottery portion of the scheme at all the government is telling the district court we're not going on the lottery scheme the district court and then it are two zero nine to ten says when he entered the were relevant conduct i'd have a much harder argument before the court certainly there was no finding and everything in the record suggests to the contrary it's at the now come in after the fact after you've stood up and said to the district court we're not beyond any doubt that the last calculation was based on both schemes it's simply we can't determine if it's reasonable that your honor goes back to your question where there's a factual dispute perhaps we go back and the postal inspector testifies you know what ninety nine percent of that seat is secret shopper and then ok well that's reasonable but what if she says the opposite where she says you know what ninety percent of that last calculation is a lottery then my client is not a fourteen level increase his liberty has been taken away based on fact that simply do not apply to him that he is beyond unfair i mean not that's just not justice there's anything preclude the district that the government filed something saying we're not ready for trial we have a attorney out for emergency reasons there was that filing but the fact remains that on the day set for trial december second two thousand which was the second continued trial date made by the court one year after the defendant had made his initial appearance the court said to the defendant you have three choices today plead guilty continue the trial or go to trial there was a jury waiting in the wings if the defendant had said you know what i want to go to trial the government would have had to go to trial it's not the government's right to wait wait speedy trial so the government didn't make this argument below that the government actually did it was the official position given in the sentencing position by the prosecuting attorney where i start because i thought i thought the argument was that he didn't agree to the sentence in the government's and sing position she explicitly states that the third point is being withheld because the defendant did not timely cleaved and the record is clear that he did not and we we should presume that the district court was taking all this into account especially when this judge had class and in fact warned this defendant that one of us here in ca actually came into court twice stated that he wanted to plead guilty and then both in the court records and that he was starting to create the impression that he was manipulating the system and that if you came in on the simmer seconds the day set for trial and entered a plea at that late date the court could conclude that he would not be entitled to any adjustment for acceptance of responsibility all that is true but didn't i don't know how you get around the fact that the government filed something on nov twenty sixth just a few days before that saying we're going to need a continuance if he tries to go to trial because we're not ready for trial i don't know how that can be reconciled with saying the government had prepared for trial what the government had or hadn't done at that point is not in the record but presumably the government is always required to stand ready to be what they said that they weren't ready i don't know if that would have made a difference when the court says to the defendant i have a jury waiting in the wings do you want to go to trial or do you want to but ok so say you have a scenario where the government isn't ready for trial but they have to go anyway at that point have they prepared for trial i mean it's this the sentencing reduction is about forcing the government to prepare for trial so that on that hypothetical i don't know whether it applies presumably if a week before trial the prosecuting attorney is scrambling to file something like this presumably she's thinking of an alternative alternative you know situation where they need to scramble to go to trial so intil that conviction happens witnesses cannot stand down the government cannot rest but wouldn't we at least need to remount on this issue i mean we don't have a declaration from that attorney saying i spent thanksgiving preparing for trial and without that then how do we have how do we know that they've prepared for trial i think that the application  for trial and the court may schedule its calendar officially at this point one year after he made his initial appearance he's attempting to plead guilty so i don't think that there's anything in the record that shows he was entitled to that point now you know the government have used it as a carrot you know we can't move government cannot use it as a stick to say you know you didn't waive your your appellate rights and you can't have this but if they wanted to entice him with that third point even though he was clearly not entitled to it i think that that is up to the government's discretion but it's clear here and it's also clear by the cases cited by the defendant in his opening in his reply brief all of these out of circuit cases that where the court found that that is and it wasn't title to the third point it is  states versus leave the court is clear that it was undisputed that the guilty plea was timely united states versus evans the tenth circuit case the defendant pled guilty to and from asia and that was before he was even indicted so clearly the defendants in those cases were intitled to third point because they did what the third point is expected to do entice the defendant to assist the government in their prosecution and investigation of that case and you know even if the defendant were entitled the reason the extraneous comment provided by the government at the sentencing hearing would not be a reason that the government could not withhold that third point because the allegations are clear the government can withhold that their point for any interest identified in three a one point one and here the defendant as counsel has stated was refusing to plead to the relevant conduct of the lottery scheme and under three one point one that is a sufficient basis for denying that acceptance of responsibility point because i don't really follow that why well it does say in the seven seven five what was amended was that in johnson for example the ninth circuit the court had said that the government could withhold that third point for any reason including failure to waive a public rights but the amendment what it did was it clarified the the divide between the circuits were some circuits like and the fourth and the second had said you know that's not ok we can't withhold the third point is for failure to waive so the amendment clarified and it said the government should not withhold that third point poor failure to waive the pellet for anything not identified in section three point one including agreeing with lee from the second circuit that was about sentencing factors so why isn't that exactly what we have here i believe if you the commentary to that amendment actually describes lee but it doesn't go that far it recognizes that there is the circuit split where we can in divisions and evans they had the other circuits had but the amendment doesn't go that far all it states is that the government may not withhold it for any reason not identifying three point one so here if we look at the extreme his comment at this ins and hearing given by the prosecutor what she's saying is your honor please don't take this into it please don't take a third point into account under the thirty five fifty three factors because this defendant is distinct from his codefendant cyril who agreed to the sentencing factors and he also agreed to both schemes use involvement in those and i believe that's what she's trying to say there however in our full it came out that the defendant here only agreed to his participation in the speaker's opera scheme where his codefendant agreed to these proceedings and both of but i don't understand i guess acceptance of responsibility for his offense the offense of conviction is something completely accepted responsibility for and as their authority then says if he doesn't agreed to a play or acknowledge behavior which the government is no longer pursuing that point can be responsibility point because you haven't acknowledged all these other things even though we haven't acquired you'd have to plead guilty to that and i look at the guidelines excess acceptance of responsibility for his a fan since not acceptance of responsibility for his offense and also the r contact conduct that the government's not requiring him to play do well defendant agrees to waive his or her way to appeal but in that sense it's clear that the government can withhold it for any interest i didn't buy the sun look at the language of of three one point one yes and the application kno i understand the reasoning but i don't see a say if i said i don't see anything actually said by the district court to that effect it may be if we have a rematch and that that can be something the district court speaks to but i haven't seen it yet that all two hundred seven victims and all six hundred and sixty three thousand five hundred fifty seven dollars lawsuit if and when we look at what was provided to the court the spreadsheet the declaration that supported the spread sheet the victim directly from the consumer since you know which describe both schemes so maybe the judge just made a mistake well his president he's the president he said was made clear to the court and we should presume that you took all of this into account that he read the filings and he saw the complaints from both the secret shopper and the lottery seems they were quite clear that in some instances the victims were solicited to send taxes because they had won a lottery winning in other they were solicited to be secret shoppers and  these are clearly described clearly depicted in the government's filings so the court must have known that these laws amounts where were the aggregate of of the books schemes so it was not clear error for the court to conclude absolute fact that there was no improper denial of relevant conduct yes we do the government moved further to level reduction for acceptance responsibility at the district court granted it the quote that my friend just read you has to do with that t level so comment no one says to qualify for the true level the defendant must and i'll just quote so you don't take my word for it defend it must admit the conduct comprising the offenses of conviction and truthfully admit or not not falsely deny any additional relevant conduct for which the defendant is accountable you can't get the two levels unless you've admitted all of the relevant conduct to which you are accountable that's the district court's finding that's the government saying yes you have admitted what we need you to admit for relevant conduct in the government say ok close enough we'll give you two points we didn't actually have to go to trial and everything but that third point you don't deserve that why can't they say that because that's not the standard in this case that it's the third point has evolved over the years it has the but the guideline still puts the ball in the government's court and it it's no longer quite the case that have the government decides not to serve the ball that's there's no game but the guidelines still gives the government the the first chance to speak to that and there are times when you say well that's close but not quite enough so we'll give you two but not give you the third well let's talk about what the government actually spoke to so again this is the government's brief thirty's there are excerpts that she thirty six the government expects the defendant will enter a guilty plea under some or second or third quarter life grant the defendant's request for the hearing to enter his plea on december first the day before accordingly the government has not assigned another prosecutor prepare this case for trial in  and read the declaration and so forth and yet it's and it's not the case that all trial preparation work gets put on hold until you're right up against the date a lot of it does probably most of it does but there has been work presumably done in the preceding year is not something the government can decide look putting us in this position that's enough to deny you the third point and i think this now brings us back to full circle i think what was judge freeland's initial question which was do we need you know is it possible that they could come back and we could have a factual hearing and that my answer was and remains absolutely yes i don't think it's necessary on this record but i'm certainly not suggesting to the court that absolutely not if the court that there is backs that need to be fully determined in order to get this one hundred percent right then the proper course the simple course the most direct and fairest course it will remain and for the court to get it right and i'm sure when that if and when that this very well argued case case just argued is submitted