directly think your honor and it was on me but i would like to try to reserve two minutes of time i'm your honor this court must or ban this matter for sentencing because the district court made the exact same mistake that this court warned about and united to be three point one b two e mr hall pled guilty to robbery on the day in question the video which is includes part of the record very clearly shows mr hall offend man walk into the bank with the shirt on t and beat and stand in line to wait for a stern to be called the front of his body is clear on the video there is no outline of a weapon there is no bolt which indicates that there was an object present from all accounts as he was before he was called with his phone simple for after he said keep calm give me the money and no one gets hurt well you can be seen sitting both you can be seen fidgeting prior to that when he's looking at his phone and then when he gets actually gets to the is kind of important i mean the does whatever is kind of important because we don't know i mean you can't tell from the video he definitely does reach down but there's it's definitely not clear to me that he's pulling up a stance or is reaching for his phone we don't really know but that certainly could support the teller statement that he reached down and in the teller said he saw a handgun but the point being he certainly did reach down in without can't see from the video what he was doing you're right and does reach down when you're injured your honour's reading is the same as the judges reading it in the case and the the judge specifically helped this a court that specifically helped but it wasn't dispositive or clear what he did and that's why maxwell tells us that we have to look at the entire context of the incident and the totality of circumstances and determine whether or not the enhancement should apply so when we talk about the congo this was an armed robbery conviction of bank robbery armed bank robbery conviction ok and so we're now at enhancement and you're saying i object to the enhancement that's correct and at that point what did the government put on the government  report writer which came from and there's been a teller called at the sentencing to provide testimony no to support the enhancement no not only was the teller not called but the f b i agent who spoke to the teller was not called arthur did you request or did the defense attorney request an evidentiary hearing on that issue at the beginning of the hearing form the judge that we had a witness to consider calling mr hall if the judge felt like he needed more information that issue was came back to towards you know the hearing the dead judge that he felt that he had enough information at that time and proceeded to make his rule but he had your objection he had your objection the government did not provide any evidence instead the court relied on the pre sentence report the principle because nobody objects it's perfectly proper for the government rely on or the court to rely on the p s r i understand that but you object i thought you also indicates that mr heartly mr hall indicated that he didn't have a gun so the fact that no evidence was taken in this case is the fact that the government more important on the evidence is more problematic and as it becomes even more problematic when we talk about the sufficiency and i want to circle back around the video that justice moritz referred to and the evidence or lack thereof in the government's brief they provided a picture of what they believe to be the key moment in the instance and that those of the african men as a good idea and i often do that myself but the pictures and brief but that picture is the exact opposite totality of the circumstances and that photograph is actually the exact opposite so we talk about the sufficiency of the evidence and also specifically i should say the court me two rulings two findings that are critically important one that the for the handsome application for the application of the enhanced the problem therein is that the court and when we talk about those fish we have and this is important the court never applied that objective standard to whether or not which can be considered as part of it but only talk about whether or not there was an object there has to be that that analysis has to be put forward government or i'm sorry the district court specifically said it was relying on the video and said it was can when combined with other evidence including the victim's statement so i don't know how you get out about that it was looking strictly subjectively at the at the teller's perceptions well he  said he was concerned with the the teller statement correct clearing the victim's statement yes that including and including the victim's statement is what's right i mean that's not saying i'm like had we know from the video we had a phone and he tucked it away somewhere we also know he could have used his hand honestly as the object or he could have used the phone as an object the the the comment note the note that we're relying on here basically says that he used the object that was the i d s he creates the impression that the object is capable of inflicting death or serious bodily injury could not even just be he used his hand as the object or he used his cell phone as the object starts to pull it out and indicates it's you know it might be a gun or the teller you know gives the impression might be again and the teller here said he saw the gun and when the judge said that the judge relied on the the teller statement as well as the videos i mean i think there's various objects here that could could have been used and a cell phone or a gun jack your question yes there could be you know it's appropriate to consider whether or not there's an object but what is the object in this case there does have to be an object it can be a kit it could be a hand it could be right whatever but in this case what the judge said was that it was clear that there was not an actual weapon which means to me that there was not an object it in the language there is important the judge didn't say it's clear to me that there wasn't a firearm that was in connection with the judge saying that what does of a void there in the from the defense perspective or i think we're left with the impression of the teller and the statement that the teller gave which is reported in the p s r but when you have an objection seems i think the burden goes back to the government to say well here's our basis for this unhandsome and we're calling the teller we're putting the teller honest they had to say what he said you know do you know tell the the problem and the teller when in statement was recorded in the p s r it's very specific about what he saw right and what's interesting about that though and what was kind of i had  almost a difficult time wrapping my head around is that he is very specific yeah i saw blacks in miami right right and then the judge turns around and said it's clear the judge says he says it is understated the defendants did not brandish or possession ak and that possess an actual weapon i don't know that was really an accurate statement as i doubt i don't think the government ever said we don't dispute that or we concede that he didn't have a weapon they just conceded they didn't have proof civically is not did not happen and so when you cut that out when you consider that its value was tremendously diminished and when we talk about the totality of the circumstances you're left with  when even when an individual does use their hand there is that lingering there is sometimes emotion that goes along with the gimme the money something like that or there's a box where the individuals as given the money i have a bomb and there's a box there in this case we don't have that same kind of evidence that there was in an actual object and unless your honor your honour's have any other questions i'd like to reserve the rest of my time thinking thank you very much had a dangerous weapon now that impression was created in the teller right your honor the court based its findings on the facts that were set forth in the pre sentence investigation report  these facts the court expressly adopted the court also adopted or applied this made this finding based on the video and still photographs that were provided by the the defendant created the impression so that the teller would believe that so that he s r said that the teller had the impression that the defendant had a gun and then the defendant that fact conclusion impression correct your honor then who has the burden after there's an objection to the fact in the p s r well then your honor the government would have the burden to establish that there are facts and in this case the government relied on the videotape on the still photographs and also relied on the evidence that the findings that were articulated in the pre sentence investigation  t and as stated the court considered all of this evidence and the totality of the circumstances in finding that that the defendant did in fact create the impression that he had a dangerous weapon and  explained that he explained his findings he stated first of all that the teller made a statement to police that he saw the defendant approached the counter that the defendant presented him with a note that said stay calm give me your money and nobody gets hurt and that the defendant looked down towards his waist lifted his shirt and then pulled what appeared to be a black or using his hands to simulate a weapon your honor the that the video is below or was above the waist level was not your honor the video is coming kind of from behind the teller so you can see the victim teller told the police what do you see as far as that he what you have to show which is that he used an object to create that appearance that ironically the defendant statement is sufficient for that purpose emmeline did with also the one about actual weapon your honor that was conceded by the government because we had no evidence that what the teller saw was an actual weapon is it clear from the context though of the court statement that that was  t i mean it can't the court said it's undisputed the fenton did not brandish or possess an actual weapon and your meaning but now you're saying that we should rely on the fact that the victim said there there is an objection that squarely puts the facts in question is was there or was there not a weapon yes your honor that the court was permitted to rely on the out of court statement  in the case of united states the rupee this court held that out of court statements are sufficient for purposes for purposes of finding facts in a sentencing hearing after an objection i can't say you back to you does it not yes your honor and we did also rely on the corroborating evidence that was presented by the video i thought the objection was to the three level enhanced correct your honor it was not to the fact that i object to the challenge statement is not admissible correct your honor there was no specific objection to any of the facts that forth in the p s r the court expressly adopted all i don't want to speak for the defendant here but it sounds like he had a slightly different version of what he was doing is as as other evidence suggested but that's the role of the district court is to review all the evidence that's presented to it and then make factual findings and blue are not required to find that there was a gun you're only required to find that the defendant did something in a manner that created the impression absolutely object was an instrument capable inflicting absolutely your honor the government had a fairly low burden from an evidence jerry stamp point to establish application of this  and that burden was simply that the defendant created the impression that he had a dangerous weapon and under the totality of the circumstances him coming into the bank even acting in a nervous manner is a part of the  of the circumstances handing the teller a note that made a threat nobody gets hurt and then making a gesture towards his waist pulling up his shirt and looking down right after handing the teller that an object was an instrument capable inflicting death or serious bodily injury e g a defendant wrapped a hand in the towel during a bank robbery to create the appearance of a gun and that case the hand is sufficient that what you argued here then that is what we argued here on the hand was sufficient yes your honor that's what we argued is that the hand was sufficient and the video shows the motion with the hand towards his waist and we cited a number of cases to the court me refer to a hand wrapped in a towel and the hand is held to sort of look like a gun shaped like a gun or a bulge in a pocket sure looks like a gun i mean we're looking we're looking at something that is physical and that can be seen we don't have that here because we've all said painfully no video does not show anything below this d waist your honor it shows him removed towards his waist and pulling up his shirt right so where is the where is the use of the hand to make it look like a gun or to say i've got a gun in my pocket  can see that there is some kind of impression that looks like it could be a gun your honor they don't have that hearing those are the kinds of cases that you're citing well we do have that here your honor because he says give me the money and nobody gets hurt and then he looks down toward his waist and pulls up the shirt and places this hand down there and and those are very similar to the fact that we're in faro where the defendant held his hand inside a pocket was not also he appeared to have an object with a black handle that's correct your honor and there were a number of other cases from other circuits that we cited there was united there was united states versus davis the defendant told bank teller just give me the money while placing hand in the backpack as though he were going to pull something out and i states versus hopping from the third circuit defendant told the bank teller i i pull it out i'll use it while holding his hand in his pocket united states versus heart with defendant carried package wrapped in brown paper bag that's a little different i guess but there are there are numerous cases where just having your hand in a certain position in a pocket in your coat reaching towards a backpack that alone made up the walls or another object or a box we don't have any of those things here your honor we have a movement toward the waist your honor and there are cases where that has been held to be sufficient to support the enhanced but we all know we have more than that in this case anyway we do have the statement of the teller saying that he saw what he thought was a pistol and that statement was relied on by the court and it was appropriate it was perfectly proper for the court to realign that that statement in adopting the findings that the court did adopt in appl a correct finding there is no clear error in the court's finding and under the case law there is no clear error whether you believe there was sufficient evidence to support a finding that he had an actual object or not there is sufficient evidence under any variation that we've discussed that would support this finding an application of the enhancement the defendant clearly created the impression there is evidence that the defendant clearly created the impression that he had a dangerous weapon and for their those reasons your honor we ask that you uphold the district court judgment thank you and that's what created that impression but that's not what we have here especially when you watch the entire video my time is almost of i just want to say one other thing and the concern that the court and sarah had and i think is very important here is and i'm going to certain boundaries must be drawn to ensure that innocent conduct is not punished use always of the potentially unreasonable perceptions of particular victims and that is at the heart of the case and that's why the analysis that the district court unfortunately did