district court commit legal error in denying mr abuse on an acceptance credit the district court in ruling on this matter says that he was he was an eligible you want to address that as to whether he is eligible for consideration for acceptance of responsibility that said that if the defendant suborn perjury he cannot get acceptance regardless of all other factors there's no provision like that it is you know whether or not he was eligible though didn't the district court have discretion in this matter absolutely your honor but what the district court provided immediate confessions to both of the offenses that he entered extremely timely guilty pleas filed no motions with and it's a discretionary matter as it is absolutely discretionary and we do not concluding that mr tucson was quote unquote in eligible for an acceptance credit the other key factor here and to terminate one make an argument that you have harmless error here and let's let's assume it is  that he is eligible and you have to look to tell it the circumstances other than the fact that he accepted responsibility when you look at under the name he gets a huge benefit by virtue of grouping correct i mean committed a very significant drug crime afterwards and you look at all the other circumstances is there any way you think this court the district would even consider on the balancing act granting acceptance responsib factor here is that it was understood that mr hussein accepted responsibility for the must much more serious drug offense did to the extent that the committing an offense while on pretrial release is a factor a negative factor in determining whether or not he accepted responsibility for the count of finning offense it's not a negative factor with respect to the drug offense and it was on the spirit of that with respect to the drug offense he accepted responsibility that is the offens you what sentencing range it would get us seventy to eighty seven so i can make a very significant difference in this case and i think it should be the district court that in the first instance considers the totality of the situation an analysis that the district court did not get to hear if the district court followed the probation officer in finding that he was ineligible which i think we all can see everybody agrees now was was mistaken if you could you also address the  the third issue which is the consideration of the thirty five fifty three factors yes or on this record here did not address the thirty five fifty three factors whatsoever in explaining his sentiments and even more  fundamentally he didn't acknowledge and respond to the arguments that the defense counsel had made regarding the us factor defense counsel had asked for a below guideline sentence in part on the fact that mr dusan had tried to cooperate which i  say is also an extremely important consideration in terms of acceptance of responsibility he participated he tried to cooperate with the government he participated in monitored phone calls he tried to set up a controlled delivery of the drugs to the next purchaser along the line so that's an extremely important consideration in terms of the thirty five fifty three factors how this record never acknowledged and never responded to i agree that the after the court said that he wasn't sure that he was being told the whole truth he then went right to sentencing but when you look prior to that in the hearing can we glean from the many statements made by the sentencing judge or what his reasoning would be under thirty five fifty three i don't think so your honor and i think what your honor is referring to is the fact that the district court in responding to some of the family members when the family members were asking for for mercy and and for the possibility of house arrest the district court said this is too serious an offense for house rent arrest and the government seizes on to that and said well he did assess one of the factors under thirty five fifty three of the seriousness of the offense but it's a very different context it's one thing to say this is such a serious offense that he can't get house arrest it's another thing to explain your sentence and explain why this is the involvement in the crime and it was pretty clear from his analysis that he did not regard mr douce on as a minimal participant outlined several factors i think you're can take some remarks for this record and says there were any say that there were some explanation for the sentence that doesn't relieve him of the responsibility of responding to defense counsel's arguments as to why there should be a below guideline s whatever the district court may have said about his role does not relieve the district court of the obligation to respond to the argument about him cooperating has to do some cooperating with the government in being deserving of a lesser sentence doesn't but that can be obviously he thought that the subsequent crime trumped that that degree of cooperation but we don't know that all we know on the first issue is that he believed that mr vincent of you know an eligible we'll see if the government condition of his supervised release order drug treatment and testing did when he when he was interviewed in connection with the pre sentence report did he tell the probation officer that he had a drug problem not that i'm aware of your  know but yeah he might he obviously told defense counsel who made that known to the court and the court accepted it in ordering drug treatment and testing for his there's a possibility he what he didn't tell the pre sentence office or the probation officer excuse me but it also may be an indication the regular that he took the other tack that he didn't have a cocaine problem i'm factors and responding to the arguments of the defense attorney you know i'm just saying my point is that waiting to the sentencing hearing for counsel to make a statement without there being anything relating to cocaine use in the pre sentence report or elsewhere well that doesn't seem to get you very far counsel did make that representation in the sentencing memorandum as well but there was daily cocaine years and what that was the district court judge who looked at a defendant who after pleading guilty to counterfeiting charges you as you agree on the acceptance responsibility that he is eligible for considerations that absolutely are honor and think that the government's position is that while the district court judge also said at the sentencing hearing when in the colloquy with defense counsel that other judges have denied except to bill exceptions of responsibility for these reasons judge davis also said very clearly i think this is denying the acceptance of responsibility you know what judge davis did deflect i judge davis had a colloquy with defense counsel on this issue and in this issue defense counsel admitted that the court had the discretion court is going to look at this as a legal error that judge davis legally did not understand its obligation this should be reviewed under a plane or standard it was not clear and appellants opening brief what standard we should be looking at it as the government believes that this is a factual question and the judge exercised properly his discretion to deny acceptance of responsibility that's reviewed under a clearly erroneous standard but in looking at the record very clearly at page one ten of the of historically other judges deny acceptance of responsibility when there is a later crime would seem to ignore that you must follow a  circumstances analysis that is you have to balance the good and the bad where the balancing take place here your honor believe that it's inherent in the record i'm looking to judge davis did do the balancing by recognizing the on this when you've got the counterfeiting climb the person admitted that he had done very quickly you have a drug crime the person admitted accepting responsibility very quickly  fact cooperated and so it was not something that was you know drug out of him he he fessed up and normally one gets a two level now you go down two levels and in order not to do that you need to do some balancing and the only thing i can find the record is the court seemed to think that he was an eligible for that because he committed a second true crime after he was out on bail for sentencing relating to the first crime your honor that is certainly one interpretation of the district courts that the government's position is that is not with the district court meant in its in its statement that recognizing that other judges have rejected exceptions or responsibility also recognizing that he believed not allowing exceptions in this case with a fair treatment and looking at the totality of it we also have to recognize that if we gave acceptance of that's what happens with grouping here but when you look at the application though to three a one point one it lists a host of factors for two three four looks like six or seven and i don't see any any discussion of any you're out of the factors of the relevant in this case would be mr tucson's truthfully have met in the conduct that he had committed at another factor would be his voluntary withdrawal or terminations criminal activities the judge certainly looked at both of those the judge in his discretion was certainly entitled to determine that he believed a lock a voluntary withdrawal from criminal activity elp weighed his ex admitting what he had done one of the other considerations as  said he wanted to cooperate with respect to the drug trafficking but was unable to do anything mr tucson after he was arrested tried to run a red light tried to escape and after he was caught by authorities he was detained mr dusan therefore was the provisional officer says he's ineligible for probation because of his continuing criminal conduct and how do we know from this record that district court was convince fact the district court judge that other judges had denied this shows that the judge was making a choice he didn't say i am forbidden from giving acceptance of responsibility he didn't say the law does not allow me to give acceptance of responsibility the other thing we do  also have to look at is that looking at the totality of the circumstances here and in any event when you look at what happened later on there is no question as to what the just record would do in this case specifically giving the litany that he did and this colloquy with the defendants certainly at the end of the thunder thing hearing remember the defendant did not ask in defense counsel did not ask when the judge was discussing acceptance for a chance for the defendant to speak at that time defense counsel did not raise at the time that the defense counsel believed that this was a legal or of of the judge was making and said defense counsel also view this as the judge exercising his discretion of that time clearly and the colic way that judge davis had with mr tucson later it was very obvious that the judge did not believe what  as your honor recognized there is no mention anywhere in the record with the exception of defense counsel making a representation that mr dusan suffered from cocaine abuse mr dusan himself in the colloquy never mentioned cocaine abuse in fact he said he got involved with the cocaine and heroin trafficking because he didn't have enough money for his rent there is however mention in the pre sentence report that mr tucson did have some drug issues he told the probation officer that he had a problem with alcohol and that he had a problem with marijuana as a result of those the judge did order drug treatment for mr tucson as part of his sentence but the fact that defense counsel didn't stand and say with no basis on the record that mr tucson suffered from relevant and where he addressed them in the record your honor certainly the judge addressed the seriousness of the offenses by mr dusan one with respect to the high quality of the counterfeiting that was done second with respect to the seriousness of the drug trafficking that was done the judge was very careful and discussed almost two kilograms of heroin that mr dusan was involved with and more than one kilogram of cocaine that mr tucson was involved with the judge also discussed mr tucson's view of what he had done whether hit him in looking at his remorse or his view or deter or essentially the deterrence factors when he said that he did not believe that mr tucson was still telling the truth that he had trouble that he thinks he got some version of telling the truth but it wasn't the entire truth the judge also looked at the need for rehabilitation for mr tucson to looking at the fact that he did suffer from some drug abuse with respect to marijuana and alcohol and respect that he did then look at what should be done to help determination of within guidelines sentence is also looking at or taking into consideration all the factors that the center think commission had already laid out there but it just recording going through very carefully and a very detailed matter with mr tucson what he believed was important the judge went through the guideline range the judge also guessed it discussed that guideline range at the end of a colloquy with mr tucson so specifically the range was discussed and there were no objections with the exception of the three levels that put that on the record and some here are this court has stated that there is nothing to be gained by or e mail and when they just district court would only articulate again what it was already made a motion by the government but the court addressed not at all your honor the court heard what defense counsel said the party did not make any other specific comment with respect to the fact that mr tucson had tried to make some phone calls and as the crow recognized the government most certainly did not mak motion because mr tucson had not provided substantial assistance to the government this respect but how are we to take this into account in terms of weighing reasonable most realizing that there's this you know a significant difference given to the sentencing judge when we don't know a whole lot of what went through the judge's mind when we were trying to use my words with regard to mr epstein we're trying to glean from statements he made during the course of the sentencing hearing but when the actual sentence was was given it was there was literally next to nothing other than i'm not sure i'm getting the whole truth you are that is that is correct with the very last statement the judge made that's what he said but the court isn't required and should look just at that last statement simply by giving a litany at the end doesn't mean the judge took any more care but i think the court does need to take a look at everything that they've just recorded dressed in the district court side of the district court looked at throughout the course of the of a of a lengthy sentencing hearing and when baddest on the government believes that it is clear that the judge was very careful in his determination as to a guideline look at this sentencing transcript and make the blink response in reviewing it that what really happened here was the judge perceived that this person either wasn't being completely serious with him or wasn't giving him the whole truth and got a little upset and as a result just went straight to the sentence didn't pass through any of the hoops and question then becomes is that enough but isn't that a possible reading of this transcript the judge was getting a little irked at what he perceived to be a person of for a second  crime much as i can a crime together and the he didn't think that this person was necessarily being straight with your art certainly as a possible rating the government does not believe that that is the most likely or the correct reading of the transcript and you need again to go back and look at precisely what judge davis was asking mr dusan throughout the colloquy that he did and the judge was very very careful that he'd even discussed with mr dusan for example that of there is no there is no requirement that the judge davis had given any specific emphasis or structural emphasis to any of the factors that the judge looked at this is this a court should give deference to what judge davis saw in terms of the factors that he believes are most important in terms of the sentencing and the governments of best set the record is clear that the judge did not simply get irked with someone he did not believe was telling the truth instead he took a great deal of care both unless listening to the witnesses that were presented on ha corsan and listening to mr gibson's defense counsel and listening to mr tucson's himself at the end of hearing all of that the judge made that determination that considering he did not believe he had gotten the whole truth and and as a whole after the sentencing hearing still gave him a guideline sentence the fact that he did still give him a lower end of the guideline sentence would seem to be clearly indicate if you if you take the accept his responsibility as you have ninety seven to one twenty one but mr epstein said under the other if you include that it would be seventy to eighty seven months correct your honor i believe if it wasn't close it was included at a level twenty eight that would actually be seventy eight to ninety seven months actually that makes more sense to me but on and your i we also do have to consider about defense counsel mr sawyer himself had asked for the sentencing hearing to be consolidated this was his decision to make and in taking that decision he has to bear some responsibility for the fact that the court is going to look at the entire totality of the circumstances he could have chosen to be sentenced on the counterfeiting case first if you get done that he then put faces a higher criminal history category and and  even if he might have been given and that's a question of might have been given acceptance of responsibility just looking at the drug offense he's an entirely different posture of that point but here this is a decision he made the government believes the record is clear that the judge did look appropriately point but it was my mistake when i figure that out it was with the third point mr decided asterix holidays and i certainly didn't relieve the district court judge of the obligation to assess the fatality of the situation and the signing acceptance or somehow waive an error by the district court two in finding that he was ineligible for acceptance now even as to the judge's remark at the conclusion of sentencing that he got a version of  truth it's hard to understand what the judgment by that exactly because the judge to give the minor role adjustment and he said absolutely mr dusan was entitled to a minor role adjustment of course one of the requirements for minor role as a defendant truthfully provide all information that he has about the case and the judge's final remark in that regard about getting a version of the truth he didn't point to anything in particular i thought mr druce i was being untruthful about it may simply be that this mr dusan had limited information to provide about nice cases practical problem you have looking at this case is that even if this were to go back and it were to be made clear that this person is eligible for acceptance of responsibility i would lay a pretty serious bet that he's not going to get it and we're going to stay with the same offense level and criminal history category thirty and one which is ninety seven one hundred twenty one and then the court is then going to go through and lay out nauseum the thirty five fifty three a factors and the sentence is still going to be at the low end of the range one hundred months that may be but i don't truthfully or are i'd like to take that shot with the district court i would like to be in the position of being able to argue all that mr dusan did here to deserve an acceptance credit you know it's the same situation situation and consider the fact that he went to trial on twenty five out of the twenty eight counts now there's no doubt the government made that argument to the district court and call and there's no doubt that the court heard that argument but the court and there's no doubt the court thought it was fair to give