district court failed to make it three express findings required under this court law this court's case law for a finding of perjury in particular that that testimony was false and it was material and it was willful and the c i think if i remember correctly castro ponce is subsequent to the cases relied on by the government and castro ponce relies on done that thompson followed ca well i think that the key difference is castro ponce has its roots in the supreme court case down again which which relied on the defendant's th amendment privilege against self incrimination and held that based on that that supreme court amendment privilege against self incrimination the concern that there could be a chilling effect like perhaps i misunderstand what i thought we were looking at here was our johnson case that indicated that we wanted the district judge to specify his or her reasoning so we could understand whether the proper determination was made of whoever data were considered but i guess my coll pointed out that there are some cases that suggest that's not an absolute rule let me ask you this in this case let's just say we were to agree it was that we were to send it back to the district court with the district court just automatically check the boxes and we'd be right back here in the district court certainly it's certainly possible that could happen i think it's an interesting question because it's far as i can tell from all the case law dealing with the obstruction of justice and hanssen that there's no inquiry into harmlessness it's just if those three not a is that because this was rooted in the th amendment privilege against self incrimination the constitutional right that it flows from and castro ponts noted that that it was relying on done again because there's a constitutional framework or basis that relies on it may be that that's why there's never been any sort of holding of a separate inquiry into harmlessness it's just simply just arguing the let's say that i don't buy your constitutional argument we're just dealing with our particular case law realistically if i recall your your client is due for release pretty soon right two years that's correct yes and so i guess i just wonder what what is gained here i just i mean we're talking about a very able district judge i think you've got to check those boxes that's exactly what's going to happen and nothing will have been achieved is that do we way that when we consider whether this is harmless air well i certainly understand your honour's owners point your honour's concern there wasn't really much of a chance though for mr nava i think to really get into that sort of details of the government's sentencing memorandum so it's accordingly well i think the one the one issue though i see with that is that the government specifically asked for an enhancement based on perjury and then the district court is saying i'm doing this because you violated my pretrial rule and i said don't the about the statement by the government that you obstructed justice and trying to give false testimony at the time of trial concerning the alleged at this unlawfulness of your deportations anything you would like to say about that and then mr nava says yes your honor i just wanted to establish the truth and i don't think i was lying and all i can say is all i have been trying to do is beat my case to be reviewed but i don't think by defending or putting in a defense on my behalf would be considered obstruction of justice your honor and the court says i disagree sir i rule pretrial no challenge the deportations i ruled them lawful and you want to have testified about it in any event so i think that to level hansen is appropriate and so the district court isn't actually really discussing at all the government sentencing memorandum and the government's claim that he committed perjury in this court's not even finding there's perjured testimony but there's willfully false testimony and so in essence what the district court is saying is i made this pretrial ruling and you didn't go along with my you know it's and then eliminate a ruling essentially and you didn't hear in my limited ruling and so i'm going to grant the government's request for a two level and hansen based on the structure of just even of the even of the district court had relied upon the government's memoranda he didn't say that's what he relied on right that's correct so wouldn't really help the government in that respect that's correct your honor although it might actually if this were a mandate it might allow for a further argument by the parties with respect to that sort of nuanced distinction that the district court came up with that it violated his pretrial ruling because the district court isn't quite on all fours or isn't quite completely parallel with the with the government sensing memorandum the district courts not actually finding the testimony is false is not actually finding that it's that it was will and i think the reason why this particular important here is sort of ties into the st issue that the speedy trial of playing in the competency issue right because here you have a criminal defendant who is actually found not competent to stand trial and he's not he's found not competent to stand trial by this district court judge so that same district court judge then when he takes the stand in testifies finds that he committed perjury and this is only seven hundred and eighty nine months after that same district court judge found that he wasn't competent to stand trial so because one of the findings that's required because you say well one point he was found not competent and how do you ever overcome that with the district court did later find he was go right it's true but it's possible this could fall in the sort of gray zone between a defendant who may be competent to testify or be  unlike a forced medication order and the exact quote it uses is that a competency evaluation order quote has no dispositive effect and is therefore not reserved for article three judges and so here and it builds off of armstrong and done again off from the supreme court so how do you reconcile that with cast reponse sure so i think cast reponse as you need explicit findings on the three elements of perjury i think thompson as well as done again explain what it means to be an explicit finding on those three elements and it doesn't mean that the court has to expressly say i find materiality i find willfulness if i understand our case to our correctly that is exactly what our court said we need to have these things spelled out because otherwise we really don't know what the district court did and what's not explained is whether this is like three thousand five hundred and fifty three a where you don't have to spell it out but we seem to be saying with the exception of the topsy case that you do how do we reconcile that so i think thompson is quoting directly from the duncan case from the supreme court and i'll give you the relevant quote done again says that while it is prefer for a district court to address each element of the alleged perjury in a separate and clear finding  that's not necessary the court says that as long as it quote in compass is all of the factual predicates for a finding of perjury then the enhancement is appropriate well that but that doesn't that suggest if there's other material that you cited like in this for example your opposing counsel referred to government memoranda it's on and yet the district judge didn't refer to that the district judges said i'm relying upon what the what the government said and tell it to a memorandum at page so and so no problem i don't think they would argue that either but in this case there was simply no explanation other than he was not amused that the defendant in this case disobeyed his pretrial order and that correct so i  think these are kind of para two separate arguments one would be if the district court relied on the government's sentencing memorandum but i think there's a nd argument which is that the government mean the court here actually did make all the necessary findings he didn't think he was lying so clearly found willfulness and then as to materiality the court identified what that false testimony related to it said it related to nablus status to enter the country and the  correct that would be your position but i don't even think the court needs to get that far because everything i've just referred you to is at page two hundred and ninety one and ninety two of the record which is the good the court's expressed discussion of the perjury unhandsome and again i think based on the donnegan case it wasn't necessary to lay them out that explicitly but the court here did so so under done again and under thompson i think that's more than sufficient i do think and you may disagree with me judgment but i do think there's a separate reason that those findings were appropriate and as i read the court at page two hundred and ninety one it is expressing its intent to adopt the sentencing memorandum it says these arguments are laid out in the government's brief then asks standby counsel to respond it then asked naveh to respond and then it rejects those responses and says that the enhanced one is appropriate and so i think that's intent to adopt what  the arguments in filings to support a sentencing finding and in fact the quince a case was dealing with a perjury and handsome and district judge did not explicitly say he's adopting that the position taken by the government he just simply said the government is urging you to level specific offense characteristic which they've laid out in their brief he didn't indicate whether or not he agreed with it explicitly with the reasoning behind it correct that's correct and again this is and that makes this case a bit on like lindsey where there was an express intent to adopt i think taken in context given that the court is saying here's what the gov it says counsel respond na respond i disagree i'm applying the enhancement i think it's clear that the court intends to rely on that memorandum again i don't think that the court has to rely on that rationale because what i've laid out shows that the court did in brief statement no reliance on anything else would you address the issue of potential harmless error in this context please sure so i do agree with opposing counsel that the standard is fairly strict when there's an error in the guidelines calculations for example the court and frey has even said that sometimes when a court says it would impose the same sentence regardless of the guidelines there might still be harmful error so admit this is a stringent standard but i also do agree with your suggestion that if this were remain and did the court is you know all likelihood simply going to say i find willfulness i find materiality i find falsity and so we're probably going to end sidebar for making these false statements despite the fact that court after court and jury after jury has found that he is in fact he deportable alien and that his two thousand and twelve deportation was lawful so if the court were to get that far then i do think there's grounds for finding harming sincere i see him running short on time i'll just briefly address the other arguments in the case as to imposing consecutive sentences this court case law is dispositive on that argument the wrangel case the stephan case the page real life case and all of the cases cited within that steffen case all say that under eighteen u and eighty four the district court has a discretion to impose consecutive sentences and the guidelines cannot take away that discretion so i think all of those cases are dispositive here and then finally as to the definition of felony it is not unconstitutionally vague it's defined a common law it's defined by statute it's defined by the guidelines and regardless of any of that naveh here concedes that his offense was in fact a felony and as the from this court and all of the supreme court case law that case collects all say if a defendant can't show on constitutional vagueness as to the application to him then his constitutional claim all right you have some rebuttal time it was clear to the court that you intended to obstruct or impede justice with your version of the facts your testimony was not the result of any confusion mistake or faulty memory but an attempt to willfully obstruct justice on counsel want as your position about opposing counsel to comment that the district judge did it various points in the sentencing record referred to each component that he didn't refer to in the close quarters if you will there was somewhere within that record he cited each of the things that would have been necessary under the color of ponce to be stated in a shorter time does it make any difference well i'm not really seeing it i mean it seems to me that his express express finance on all three willfulness falsity am materiality i don't know that he finished everything with a mention too if i recall correctly i think that might be the problem with it still be an issue and that was the what happened in  were partial findings and even though there were partial findings on two of the three factors this court still reversed in both those cases based on a failure to make the express