a record about swiss on behalf of the appellant tory starr goners this should have been an easy case for the government they had the police officer they had the surveillance video they took all that to the sentencing hearing and the district court judge failed to make the findings that were necessary to support the cross reference that probation recommended i can't the findings be inferred by the record and we got the record here we have the video and then we say in united states versus daniels that if the court fails to make individual lines findings we're growing the scope of with the activities that's not ground from vacating a sentence of the record supports the determination with respect to the offense conduct going to gull versus united states says that the district court needs to correctly calculate the guidelines in the first instance even if the record supports the sentence the court needs to make the findings that support the cross reference we can go and look and see that the findings are inferred from the record we can do that no that doesn't our president say we can do that you want to i think that in this case if the court were to do that would be doing is making the findings in the first instance because the court the district court not making the findings in the first instance but the findings are  d the district court when the district court pronounced her reasons for imposing the cross reference the judge was clearly under the impression that a gun had been found and that mr starr was charged with possessing a gun and so when the p d mr the tally objected and said your honor there's no gun in this case the no gun was found the judge didn't go back and re examine the record and see whether the ammunition that mr starr was actually charged with possessing in fact was used in connection with as the law requires it's clear you possess the gun he possess one gun in possessed one count or caliber of possessed both of them at the same time and the cooler i think the surveillance video could be more clear and i think what i think doesn't matter because i'm not a federal district judge i think the district judge needed to make those and they're not in the record and i think for this court to make the findings while in this case might not make any difference if cases like mock where this court reminded for the exact same reason on a very similar record are necessary to ensure that in cases where the evidence is less clear the right standards are applied in other words even if this case is likely going to end up in the same result then began to say your honor we don't know if that ammunition is the same caliber ammunition and then she cut him off and said i think there's enough can we proceed now and so the record clearly shows that the district court didn't make the finding on it in connection with and debate with that was the objection the objection which is to paragraph to fourteen or something is that sort of shotgun objection to the wishes that is specific enough to put the district court on notice of what it was that was  put the government to notice when they could bring witnesses in your honor all the cases that the government cited for the idea that that's not enough in fact don't hold that all those cases say that it is enough for the defendant to identify the paragraphs of the p s i i you know but he didn't identify the paragraph  said all the paragraphs all the paragraphs about factual allegations which was only a handful it wasn't the entire p s i but your honor i would submit that even if the defendant did object to the entire p s i that's enough because the burden of proof in a criminal case is always on the government and it doesn't do anybody any good for the government to just count on probation to reciting legations and then force the defendant to make admissions your second question is isn't specific enough you want to that's a that's another way of asking shouldn't your client have to make the sort of admissions that a civil defendant makes in a civil case in other words in a civil case the defendant has to admit or deny the allegations of the complaint and it's considered bad faith if not borderline unethical to make frivolous denials in a civil case but in a criminal case there is no such obligation the defendant doesn't have to admit anything that if it has a fifth amendment right to deny everything blanket lee if he so chooses and to hold otherwise would be to unconstitutionally shift the burden of proof from the government to the defendant because then the government could do what they did in this case there's nothing in the factual proffer about all the facts on which that enhanced might realize if they wanted to make this case an open and shut case all they had to do was instead of the paragraph six they have  factual proffer which says and there are some other facts that we know about but we're not going to put them in the factual proffer they could have put all those facts in the factual proffer and then mr starr had pled guilty anyway he wouldn't have been surprised but he got the statutory max after waiving his right to trial and he might not have insisted on appealing this case but as it happened we don't know when the government turned over the video maybe it was before or maybe it was after the plea that's not in the record but what about the line of cases in the circuit clearly that if you identify the paragraph you object to that's enough i think that's the law and i think that's perfectly constitutional and i think going any further than that turns criminal cases into civil cases which they're not my time is up your honor thank you the court and you are set on half the united states judge or brando said it perfectly a shock and objection the paragraphs three through twelve were the entire factual conduct in the p s i i and in one sentence the defendant disputed their completeness and accuracy then at the hearing in spite of being offered numerous attempts to elaborate on those objections to say something further the only objection the only arguments made related to the in connection with enhanced ment which is a separate factual issue to the defendant fired the gun that he point the gun at the officer did he say he intended to kill the officer after his arrest did he intend to kill the officer when he fired that gun those facts weren't in dispute at the sentencing and so at this point to fault the district judge for making that for not what is the connection between the ammunition in the car and the gun in the store sure your honor well i think the connection is that it ha the potential of facilitating the effect we don't know even the caliber of the gun in the store your honor but we do know is that he had a gun in the store that's clear from the surveillance video that he fired that gun and that he was not i'm not sure it's clear that he fired the gun it's clear that there's a puff of smoke but it's not clear upon my review of it anyway where the puff comes from it's possible it could have come from his gun or could have come from the officers gun coming you know shooting  get too much into the details of the video which seems to me in the video around twenty seconds he points the gun and he recoils as the smoke is coming out it seems to me that's what happened but to find clear error here based on judge garzon plus a finding that he shot the gun is i think on reasonable you know clear our is her factual finding objectively and reasonable could no reasonable person determine that gun was fired based on the video it seems to me that the gun was fired at based on the what looks like smoke coming off the barrel and i think that's sufficient to support her finding which is implicit at her finding that he did attempt to kill the officer but i thought from reading required of the district judges on notice that the facts are in dispute otherwise it's reviewed for plain error in here with a video that again appears to show him pointing a gun at an officer in a convenience store full of small children people diving to the flo to the gun and what are the facts that would warrant a finding of intent to kill so first as to the facts that would warrant the connection of the ammunition to the gun so i think first is the fact that from the video it's clear it's a small revolver and that was also the testimony of the officer in court the factual proffer that was signed and agreed to by the parties makes clear that the defendant fled directly from the convenience store into his car he then was stopped a short time later is not exact in the factual progress made clear that's all a common course of conduct and again the two k two point one c cross reference directs you to relevant conduct to examine whether it is the same course of conduct so in that flight he enters the car and then ultimately in the car there's twenty two caliber ammunition found both and right near where he was sitting in plain view and also in the inference is and given the district court finding ultimately that there was enough so the court could have specifically made those findings but in this case well so i guess this is where i disagree with and i mean it's a strange because the officer originally said he phew he fired the gun at me then he changed his mind and he says i don't remember well your honor if you see the video it was a frantic situation i could imagine a twenty two revolver would not have been heard in that chaos why would the officer change his mind is that while i don't remember whether it far the gun or not and then the district court seemed to be a little confused because she says shots were fired and so she didn't say star fired the shots she said shots were fired i understand that it concerns me a little bit well judge i'm garro has been a district judge for i don't know how many years over twenty i can't imagine she would i mean i think we have to give her some common sense here she would not have found that he attempted to murder someone if she had if you that video is going to hire intro a long time she could have said star fired the shots she didn't say that you know she could've i think given what the video shows and i guess as rosenbaum and i are in a bit of a different view of that as i said i don't just to be clear i don't think it's clear to me that some shots were fired it's not clear to me where they come from that and it's clear to me that he had a gun i just can't tell from looking at the video and i watched it multiple times i stopped it trying to see where the smoke was coming from i don't think that it's possible to discern whether he actually fired shots clearly he had the gun well and i think it's part it's necessary to infer from judging darroze factual finding that there was enough to apply the attempted murder cross reference that the smoke was coming off of that barrel and again i think your honor as you said that you can't if you can't tell it can't be clearer i was judging i was impose a factual finding because no district judge of twenty years is going to find that he attempted to murder him without firing a shot but we don't i mean we don't decide whether to affirm or reverse or order the what the law is based on how long a judge has been on the bench i mean i understand it just to me it's she would not have applied the cross reference no judge would have because there would be no facts to support the attempted murder unless there was a shot fired because there is a substantial step requirement had the shot not been fired maybe there would have been a different cross efron's applicable but it wouldn't have been attempted murder so in this case by applying the cross reference with or without the p view the video she listened to the officer and the officer couldn't remember whether shots were fired but she appears she concluded necessarily that shots were fired and that's a very reasonable determination based on the curious now he was charged he was just charged with the killing of a state law enforcement officer so it made sense and i'm really answer is no i don't believe the federal government could have the state kind of and i don't know if the state did or not i will know just for clarity the reason the gun wasn't charged and the reason we could not charge a gun in this case is because without recovering the firearm there's no interstate we can prove the gun traveled interstate commerce because there are some brands of guns manufactured in florida we don't know from what we have in this case in the record whether or not the state charged him with  tempted murder it's it's not in the record and i personally don't know judge able to get a second part of your question that i answered about the facts showing intent to kill will true connection between the ammunition and the gun connection between the ammunition the gun so again there was as judge said and i don't believe it was a misstatement she said there's only one gun in this case that's the gun that's in the video it's not recovered and she never said it was recovered i don't believe she was under the misimpression that it was recovered and so when there's no gun recovered but there's a small caliber  it's a small gun and there's only a single count caliber of ammunition that's in the car that the defendant fled in that's in plain view and in the passenger side next to where he was seated and then the only other caliber ammunition in the trunk also is twenty two caliber there's it's clear that it was possessing connection i should say it's clear i think it's very reasonable to find that it will an inference would have to be drawn because he was arrested shortly after the incident and they were ammunition in the car you would inferred that ammunition was then connected to the usual the gun inside the store i don't know if there's a bridge too far he was arrested it was the same car that he used to flee from the store and i think that's important and then i think you take the statement so were the p s eyes out granting your assumption we take the statement that was played in court the statement that was played in court as clip five shows that he's talking about possessing that ammunition he's going up purchasing it and then he goes into talking how all he did was defend himself so he's explained he's got that ammunition he purchased it and he's got a right to defend himself to me it's clear in his mind he had that gu bought that ammunition to defend himself from what he perceived as harassment by hispanic officers and as he says any officer he says you know anything you want to say that i did you can have a million witnesses all i did was defend myself  that's in the scene of arrest that he's talking about purchasing the ammunition that was found in the car when the officer approached him outside of the store before he ran into the store was he committing a crime you know not that i'm minding his own business and i was working that ten years in prison you're either with respect i mean an officer approaching someone legitimately or not in the facts of this case as the officer testified it was a narcotics trafficking area and the approach someone who was loitering in front of the was not licensed to shoot at the officer it's you know you can you can walk away you can do all that but once you pull a gun off but he was charged with possession of ammunition convicted f rk is an arson case it was a case where someone lit a large fire and the district judge with no evidence of any no evidence presented of any possible risk of harm or anything like that concluded presumably based solely on the fact that it was a large fire that he should that happen here maybe send it back and the judge would would make their own findings and then the record would be clear for for appellate purposes you know we don't really know what was in your mind well your honor i think as judge wilson said we have the video that's what's very different here is there was evidence presented and that evidence if not clearly at least reasonably shows this man pointing a gun from across a convenience store then clearly show that he fired the gun in saying fact in fact this seems to me like the district court is even unclear as to whether or not he fire the gun otherwise she would not have said in order shots were fired and rather than he fired he fired the gun if she had said that in order then that would be a finding of fact i think that we would apply a clearly erroneous standard of review because we can look at the video and see the gun and he and he was pointing it and all that but she was a little unclear because she said shots were fired she didn't say starr fired the gun number one and number two the officer changed his mind and he says he fired at me then later he says i don't remember whe fired at me or not you know yes this is another strike against the passive voice it's not yeah i agree she should have said starr fired shots at me but again i don't think there's any question that that's what the finding was because the guideline was not pointing a gun at someone a guy and i was the attempted murder guideline and that required a substantial step and it's it's plain that that had to be the implicit finding that the gun was fired and it was and again i mean i don't know that the court's view on the waivers argument to me if this was a sufficient objection to put the court in the united states on notice to bring the witness who heard the spontaneous statement in the car that i was intending to kill the officer when i fired those shots to bring in other officers who arrested the defendant to testify about the time that it took to let the court know to schedule an hour two hours for this hearing then there is no burden on the defense to state with specificity and clarity and defend will take two bites at the apple they'll go in once see what sentence they get and they'll come up here and we litigate factual issues where he admitted the facts in the pre sentence investigation report but he clearly and specifically object to his his  buswell so i think that i want to take the focus off of judge and go whoa because i don't think that's the issue i think i think what happened here and why this case is important is that the u s attorney's office in their response to the objections to the i failed to lay out the elements for the judge of the findings the judge was required to make if they wanted this enhanced but if they wanted this cross reference it was their burden to help the judge by laying out you have to find connection you have to find specific intent you have to find all these things that he attempted to kill the officer in and they didn't do that so judge and borrow did what she thought she needed to do but that was error and it was clear error so it isn't because of judging it's because the government did not meet its burden that's what this case is about the government could have easily easily made this case open and shut by just putting the required information in the factual proffer and explaining to mr starr your exposure is to these facts and then mr starr most likely would have invoked his right to trial because he would know he's looking at the statutory maximum and then yes the government has to bring witnesses to court and prove its case because that's our system it is not some crime against the republic for a defendant to insist that the government meet its birds and so unfortunately even though we also suspect that but he didn't i mean the government did not have to put in all of the facts that supported the enhancements in the factual proffer the plea i mean they didn't have to do that they did have to prove it at the sentencing hearing that yes your honor they didn't have to do it but if they had this case would be much easier because then mr spight but why why should we argue about that because because you know that because we're in agreement are we not that it was perfectly legal for the government not to put those facts in so long as it proved it at the sentencing hearing only because it explains what likely happened in this case that's the only reason it's relevant and why why the government's contention that this somehow gives defendants two bites at the apple is wrong mr starr insists on appealing because he was surprised that he got the statutory max if he hadn't been surprised by that if he had been if he knew at the change of plea then you go to trial whatever happens happens and you know you take your lumps but in this case he pled guilty we don't know what he knew at the time because the factual proffer doesn't include any of that i'm just not i mean i understand you're making a fairness argument but i'm just not going to it's there's not to buy to the op here is all i'm saying this was mr starr pled guilty as as the court mentioned to possession of ammunition and he expected certain guidelines i assume since we're here because mr starr insisted appealing so we're all here he expected something and he got much more the government could have managed those expectations if it  to that's all i'm saying and if it didn't then yes they needed to bring witnesses to the sentencing hearing and prove up the enhancement there but this is not judging carl's fault judge and guard did what the government asked her to do and made the dream in what directions  and if there is a second review which if the findings are made then i'm not sure that there will be but the point is that even though we're all and certainly judge for us to publish she's watched the video play times as she has  we all know that judging garro will likely make the same findings again and the but the reason this case is important anyway is because this case is has a ton of evidence that was not properly presented and could create very bad law for cases where there's less evidence and so we have to up hold mock up hold that correct findings have to be made in every case so that things like this don't happen and defendants aren't unfairly surprised when they get a statutory max is a good case the problem is whether or not the government was on notice that he should have done all those things well your honor the government was asking for the enhance submit that if if a judge on the court of appeals needs to watch the video over and over again to figure out what happened then this isn't the clear case that the government contends it is and we do need findings and we do need a intent finding as for the the confession if the government well if the government wanted to rely on that they could have put all of that information from the videotaped confession in the factual pro in other words this is a case where the government failed to meet its burden even though it was not difficult for it to do so they had the police officer there they had the videotape ready to go they knew the facts were contested this is not a pla error case and they didn't show up to court surprised that there was going to be a factual dispute they knew they were prepared and they brought when they thought they need it but they failed to put on the record the facts and the findings that would support their  that is on them as much as on the district court judge so i don't think it's it's i don't think it's a rule of decision that we take a look at a record that doesn't have any of the requisite findings and say well judge and carl has been a judge for a long time and she must have thought the right things even if they're not on paper i think the burden was on the government to do whatever it thought it needed to do to get whatever sentence it thought justice required and they have failed to do that in this case