refusing to give him an adjustment for acceptance of responsibility the reason is that the district court specific findings are completely unsupported by the record the district court specific findings were made on pages one sixty three and one sixty four of the excerpts of the second finding made by the district court was that doctrine stated during his proffer that he thought that r w was trying to manipulate him and the third statement made by the district court is that doctorin did not believe that the amount of medication he prescribed was unreasonable now i would submit that when we look at each of those three findings that the district court made none of them are supported by the record and i apologize if i were them i'd point out they recommended he didn't say those things there's no evidence in the record that doctrine statements are incorrect untruthful or that he's frivolously contesting relevant conduct so keep in mind that this proffer statement is an f b i document that was written by a government agent it's not dr rand's own words and so on about the sentencing memorandum you seem to think that that's not on the table but i do believe that's not on the table your honor because when we look at the district court's findings the court never concluded that the sentencing bammer memorandum demonstrates failure to accept responsibility and so what i'm suggesting is that this court needs to look at the actual findings made by the district court and state whether i know whether or not those findings are and we can certainly look at it but what i'm saying is that the district court did not find that anything in the sentencing memorandum evidence failure to accept responsibility and so when this court is reviewing the district court the question is did the district court clearly air because its findings were not supported by evidence in the record so the district court says it's you in a unique position or it has to first determine whether or not there was an acceptance of responsibility and the district court did not make findings that anything in the sentencing memorandum showed a lack of acceptance of responsibility because the district court did not make those findings it would be inappropriate for this to court to make those findings in the first instance why is that because  memorandum correct correct but what we're viewing is the same exact thing as the district judge you are looking at the exact same thing as the district court judge but the case law places the district court gives the dischord discretion in the first instance to make those findings this court has said that the district court stands in that unique position to look at the record look at the record as a whole and determine is there an acceptance of responsibility but then you're saying that we'll look at the record as a decision on the judge made her decision based solely on the proffer statement that was explicit on pages one sixty three and one sixty four the record she articulated her reasons she stated the exact basis on why she believed that doctrine was not being truthful and well i'm encouraging this court to do is look at the exact bases that the district court found were not truthful those were factual findings made by the district court and so when you're looking at the clear error standard of review are those factual findings supported by actual evidence in the record and i would submit that they are not i did this even come up it came up your honor because one of the issues for sentencing was whether or not dr and satisfied the safety valve the two level reduction in the offense level fo sensually telling the government everything he knew about the offense going on which and that was one basis and so the government made the contention that based on the government summary of that interview dr ended up fully admit the offense conduct and then valve that he'd be eligible for the two level reduction in the offense level so in order to look at the district's findings the other point i wanted to emphasize is that we really need to look at the exact factual basis for his for his this is not a case where doctor and admitted that he prescribe too many pills that is not the factual basis in the plea agreement what is the fed the factual basis as i recall began with something like concluding i mean there was there was a  isn't why we're just looking at those four facts why are we looking at the general statement that he said he pledged to prescribing outside of legitimate medical care and now he's saying well i thought i was giving  medical care but these days people are manipulating me oh i would i would disagree with that statement or honor and you have to look what you're talking about prescribing outside the course of professional conduct you're looking at the standard of medical care doctrine and said i did not meet th standard medical care you me we're going to have somebody in jail for malpractise and that's not my understanding of what we're doing here what we're saying is he wasn't really practicing medicine he was giving out drugs a corrector honor and what i would recommend is reading this court decision finegold in two thousand and six and that articulate is the underlying offense and the underlying offense is when you have the intent to prescribe outside the course of a medical care not meaning ban medical care meaning it's not medical guarantees it's selling drugs right and there are numerous reasons you can prescribe outside the course of medical care if you're going to prescribe medications called schedule two substance substances such as opioids as a doctor you have to do certain things you have to do an examination and you have to do toxicology test you have to determine whether or not there's actually a source of that pain generator you can't simply have a patient come in not examine them and say here i'm going to prescribe you these these these drugs and that's what dr and admitted to he didn't say i prescribe too many he said i intentionally did not do the examination i intentionally did not do the things that i'm supposed to do as a doctor and without i'd like to reserve the remainder of my time for a bottle ok  peter levitt for the united states may please the court judge burrs on is precisely correct the three or four examples listed by the district court of defendant's inability record moreover we know from judge reimers opinion in carty that in imposing any sentence and reviewing for substantive reasonable miss or unreasonable in this the mere fact that the district court lists some examples does not give rise to any sort of inference suggestion at all that this court the dischord only consider those factors much less that this court is limited by those factors defense counsel mention exact factual basis about four times that i counted in his initial argument and there's no secret of why the defendant wants to narrowly and inappropriate curtail this scope the scope of this court's review and that reason is simple he killed the boy he's dead he was prescribing sixty eight pills a day he prescribed several hundred pills right before the boy died he doesn't want this court looking anywhere beyond the three or four representative examples that judge do cited and that's simply incorrect  that it should be enforced as to count two but the fact that they are all this wasn't the focus of the brain is our case law is perfectly clear that once the judge says you're going to be on my honor that's the end of it and he did i would argue your honor that even if your honor deems all waivers to be ineffective the district court still acted well within the broad range of reasonable this right but that then i get there that means we get to the  i believe all of the issues have been adequately covered in the parties briefs and would ask if the judges have any further questions for me how do you square the district judges finding on the safety valve with the district judges finding on the three you want to acceptance well two things your honor first of all safety valves as a lesser standard safety valve his basically an information top defendant has to give all tell me everything you know that's that's the long in the short of it if the defendant does that he should be entitled to the safety of the judge relies on what the government look you know what the government says that  should judge really ask the government did he make a full and complete or were you satisfied with what he did yes and i think in this case we were well within our right in saying no he should not qualify for the safety valve either the second point why was it w proffer incomplete for purposes the safety of heat he's prescribe being twenty three thousand pills to west and he's talking about the legitimacy of his court in applying what we've now realised to be incorrect burden of proof said the government has failed to do with evidence of the exact sequence of questions and answers at that proffer session eyes but it can also be demonstrated by an lack of contrition even asked for the truth so i mean it's a little peculiar but i guess if you go to the safety valve and make a bunch of statements that are inconsistent with doesn't much matter which one it is you are not accepting responsibility for what you pledged is that basically what you're what the what what the differences i concur completely your auditor said the key operative word false correct but it in this case despite receiving safety valve credit the defendant said that his result after he pled guilty and favorable please benefits that we offered it and then he started blaming others minimizing conduct not directly accepting responsibility and as judge rowland soon wrote not saying are such equivocal equivocal expressions of contrition to not meet defendant's burden of demonstrating genuine contrition for his acts that's what we have here in the district court acted well with theirs and it's a broad range of in the government's argument the one thing i still have not seen is any citation in the brief or anywhere in the record were any statement made by dr and is contradicted by something in the record what not be truthful or to contest relevant conduct as the government mentioned it could only do that if you said you pled to x and now you're saying you know x didn't really happen maybe x didn't really happen to the fourth specific examples but why your honor the district court found with respect to the safety valve that she had and i quote no evidence anything dr ann said was untruthful but then when you look at acceptance she said but i'm not going to give you credit for acceptance because it's not truthful so on the one hand she admitted there's no evidence but on the other hand she said it's not truthful thank you thank you thank you counsel the matter is