seeking conviction on a lesser included offense can be a basis for denying except this responsibility if it's alright with the court i'll address the first question first but i'd like to note that the nature of the argument on that question really illustrates how and why it shouldn't be a bar to credit for acceptance of responsibility the issue is about the meaning of the word quote weapon unquote in section seven hundred ninety one this statute applies to three things that matter for our purposes here one is a quote unquote the other is there are objects quote designed to be used as a weapon unquote the third is objects that are quote intended to be used unquote as a weapon it doesn't matter which of those provisions the particular object comes under the specific intent to use the object is a weapon if you're fired for the second and third provisions but not in one thing that's wrong rational line that's you know objectively imply a bill in the context of a jury instruction right in this kind of case i don't think manufacturing saying well i guess i think the word manufacturing would apply to the courts example of course just gave frankly it was and you have to define manufacturing correct yes it is and maybe a better word with made from raw materials or something like that but i think once he gets it gets a shank it's wrapped in the handles wrap the blade is sharp and it's got a sharp point the differences wife well the difference your honor is i think i think the line should be and i think the reason it makes it makes sense to draw the line as weapons being things that were originally made from raw materials but had nobody to use to be something you're you're in a quick sand there because i'm in a life drawing situation with no words and if you start saying materials that have no other use because in fact you know metal wasn't produced out of nothingness you know a blade doesn't just show up in a knife makers the  running out i do want to see if i can get a clearer let's suppose that the statute is intended to mean that if you've got in your possession something that's obviously a weapon with a weapon but if it's not clear and we have the example  that was jiggled around and really converted that that's what the statute was intended to pick up not just weapons but anything else that may be couldn't be called a weapon obviously but clearly if you could prove the in town of the of matter because we draw that line is going to affect whether or not specific content needs to be proven and if you make those weapon and designed to be used as a weapon completely overlapping you're basically letting the government eliminate an element by saying we're going to charge it one way instead of the other so i think you have to draw a weapon a little more narrowly than you perhaps could drive in order to make the design to be law not purple isn't it fact i think that that was the together but i don't think five temple bound together have any alternative views they're just as obviously a weapon addicts are pieces of metal same with a rock or tennis edge sharp and there is a legislative history i point to it's not the most extensive legislative history in the second it's not crystal clear to me from the facts but it appears that the defendant in that case testify second it appears that the jury made a closing argument to the jury i'm sorry the attorney applicability of a particular statutory language to the facts of the case that is precisely what was done here i mean if you look at my arguments that i just went through with you what i argue classic principles of statutory interpretation about looking at the elements of the of the objects correct around a part of the application there's nothing required to defend itself from and of that stipulates every element the real question is whether the senate is challenging those elements and if you look at the record of this trial there is no where at any the know the bottom line reason the district court did not credit for acceptance responsibility with the us he said that he had to quote go through the record and make a finding that this object was it wasn't a rubber gasket it was dark going to dodge it that was heavy and long that was the fundamental reason he denied acceptance of responsibility the problem is that begs the question this is whether my defense about it not being a weapon was based on arguing was a rubber gasket or whether it was based on arguing that yes the start metalogic was heavy and long but that's not a weapon under the statutory meaning and if you look at my argument it was the latter that the judge did mention my cross examination your honor and i wanted some links into how and why i don't think you can infer a defense from open ended questions like cross examination but frankly if you look at excerpts he did that really your honor after i addressed that with him if you look at the excerpt pages one fifty eight to fifty nine steve basically asked well what was the purpose of your cross examination and i tried as best i could frankly with getting out into a lot of attorneys but product and work product what the purpose of it was which said which was not knowledge and at the end of that he didn't say i don't believe you or i find you're not telling me the truth or i find that's not really have to what he did w denied it and were concerned that it might have had something to do with the defendant raising what was really a legal defense certainly the case mckitrick and the me therefore are going to remand it for reconsideration i think that's the very least you need to do here in light of the fact that he did not clearly reject what i said about the cross examination analyzing the fact that his point was that he had to go through the record and make a finding that it wasn't a rubber gasket it was heavy heavy metal object all right but there was no explanation of the record because it wasn't race below about why the government made that decision i can't see the explanation if you have a lesser burden of proof you don't have to relates to the purpose of the statute as we know that our brief this is the prison stash and limiting the term of lap and to professionally manufactured originally manufactured items means that applies to just those types of items that  something that he did not intend to use as a weapon or for purposes of escape from the last it was clear that it could be therefore and and it wasn't inherently a  object it wasn't a knife or a gun but it was like the new brace in madrid gives and the government justified its prosecution on the ground it will even if he didn't intend to use it it was designed whoever shaped it before he came into position possession of it have it and therefore that's the kind of object we don't want prisoners having having would you then say that the line we should be drawing between the first cla my cell and one of them has a very pointy and i didn't i didn't design i've picked it up well i thought you could prove i intended to use it that would pick up the intent clause but now you're saying it's not my intent as a prisoner all that the government has to prove is that someone designed it for use as a weapon or for purposes that was good i think that's right and i think although it may not apply in every particular case all the prongs of the statute are point is that there can't be a rock that is designed to be used as a weapon which you look at it and can't be sure it's not a dagger like i don't know i mean it's not it's not like the items in this is a rocket's picked up and it's unclear whether the defendant himself or herself or somebody else had sharpened it i think in that circumstance obviously we the government could prove that it was intended to be used as a weapon but if the government  a park and have to charge the whole thing against his one charge another words like that a defendant to private object namely a weapon or not get designed to be used as a weapon and leave it to the  hole would make it function as a machine gun he wasn't disputing that if you lost on that then it would be a machine gun in this case you saying look i've got this shank but it isn't a weapon it doesn't meet the legal question and we're bouncing back and forth here trying to figure out which clause the government charges under one to begin with for whatever reason and square itself the statute i mean i think we've been gauged all of us in a good faith intellectual cracker exercise trying to figure out if welcome intended or designed to be a weapon are legally different and if so how and why isn't this why and how else would  reasonable doubt whether what you say was reasonable doubt that these items had been made into a weapon and this was during the rule twenty nine discussion in this case so i don't think it's actually factually correct up to to say that  court was relying on some idea that i had argued knowledge and frankly i don't think the court could have done that i don't think the court can take open ended cross examination questions to go after and call those call that a factual it i believe it occurred to record one fifty one i pointed out that it was totally irrelevant whether it'd been affirmatively sharpened in the institution and the district court responded by saying that's true but other bottom line is neither of those were reasons the district