marking spots where some indication of of his drowsiness are about to fall asleep or in there in the first few pages up to around page twelve there are you know four or five references but that this isn't an interview that's going on in the early afternoon right it's about one thirty two o'clock in the afternoon and i don't see any further indication after he gets going and the district court judge did have the opportunity to watch the interview and didn't seem to spot anything either so so why show that the statements were reliable but i'm just saying but when you look at the actual event which which because it was recorded is before the judge maybe at the beginning he is kind of sleepy but he seems to snap to it you know and there's no further complaint after around about the twelve page of the transcript and right around the twelve page of the transcript if memory serves as one he makes the incriminating statements  is compound and by the fact that we don't know what happened in the second interview where he allegedly initially made the statements fred this is the follow up this is really very interview of the day he explains that due to certain sleep  issues that he has he has trouble staying awake he's been falling asleep you know one point the agent even says now stay with me here don't fall asleep on me this is not just i'm a little bit tired he's clearly having trouble really staying awake and then he's being asked several leading questions about a legit prior statements he's made and so in terms of determining the amount of course of a fact that the interview the way the interview was conducted had on him because we are privy to what happened in the prior interview it's difficult on review or even for the sentencing court to determine really the the reliability of these statements given both his extreme fifty and and sort of the you know that and therefore which could make him much more success susceptible to more coercive interrogation he has also that would be harder to spot i think that judge miller watching the video i think would have talking to is about to drop off to sleep or not certainly the video trailer seems to be satisfied that it and actually we're not really talking about whether i mean i think we're on plan or review here we're not well you know that as a procedural matter i believe we're here reviewing the procedure of the of the court the court failed to actually conduct any analysis of whether or not the statements were would suggest to the court that when the defendant made you know in the sentencing memorandum now certainly it was probably not as artfully crafted as it may have been but in the sentencing memorandum the defendant first laid out why the statements were unreliable by highlighting the fact that this was the third interview of the day he was extremely tired and  they so that was put first and foremost and then they went into why you know these the statements themselves even didn't amount you know as a legal matter to pattern of activity well that's the question i mean it's one thing you say i was really drowsy but it's another thing to present to the district court the argument the fact that i was falling asleep means that you should not be lying on this  these statements i made because they are not reliable statements because they were made in hades in a dream or you know fairly or way whatever you want to say so it's of tying that together to a legal argument doesn't seem to have happened i certainly understand that position your honor i think that given that the court the defense counsel did highlight this the appropriate way to look at it would be that he took in the alternative and defense counsel is put into a difficult position typically in terms of trying to preserve acceptance of responsibility and still make the legal levy lies on his transcript in making arguments in a sense in memory and he cites it extensively in support of his arguments with the p s r in support of why deserves a lower sentence but you know it's not uncommon for there to be whether it's a transcript whether it's a wiretap it means seems to me i've seen a million cases where somebody relies on part of it but they don't rely on the other part there's no rule that you have to adopt the whole thing absolutely your honor but i believe his position is an all or nothing here that it's all inherently unreliable or it's reliable i don't think that the selecting its specific portions and saying well this part of libel this part isn't the argument as it was entirely subjective currish and i guess is what the argument is  the courts in the considered any statements he made in there he just didn't make that argument in the district court and if there's anyone who knows whether he's subject to sleep deprivation it's mr johnson himself and i would expect a defendant in that scenario like in some of the cases we said in our brief to be screaming jumping waving his hand saying your honor you can't rely on this it's unreliable and we just don't have that here so we are on a plane there and then the question becomes with remind me of me as i recall third interview starts in the early afternoon it's about one forty your honor right but when when did the whole thing start when when does he get taken over to this other words how long as you've been up and being  to your honor could answer that question it's not in the record i've looked at the first video of that day the first video starts at about ten twenty ten thirty eight i believe they executed the search warrants some time mid morning so a little before ten thirty so as i understand like you've been going since four am if we can get that it's my understanding that they do in the next year the search warrant at four am and that's when this all starts on that morning of december sixteenth  so because we are here on plane air the question is whether these this confession was so inherently unreliable the judge miller had an obligation without prompting to stop and conduct or a liability analysis this transcript just doesn't present that type of confession it's not lots of leading questions it's not the agent putting more it in the defendant's mouse they do recaps some of his statements from the second interview and asking which we don't have in the record correct we do not have a record your honor but after he affirms you i said that in the second interview trooper jones then comes in and just rehashes it all over again so mr johnson twice makes what i think are the key admissions to this pattern that he denies relevant he denies certain conduct he minimizes he justifies this just isn't the type of confession that jumps out at you as something the district court has to consider whether i can believe the defendant's own words he also says at some point that you know i'm a little bit tired but i'm telling you the truth he does say that in then the second argument is whether the discredit used his discretion on relying on this and hand this confession for the five levels for that's a lot for the five levels that's correct your honor and mr johnson argues first that it was the district court abused its discretion and this argument is for abuse of discretion because he did object to the enhancement mr johnson argues that the again that's just not this transcript it's not the agent's beating him words it's not them leading questions i mean a could be a case whether it's this case or not there surely sleep deprivation can be a very severe  condition absolutely on or in situations like that you would expect to see the agents planting ideas and the defendant you know yes yes no yes but here mr johnson's pushing back on some he says make sure you have that written down no no no no no hell no i never did that particular act he's reenacting scenes he's providing extensive detail you know this just isn't the case for the district court abuses discretion on the line on this transcript unless  more just a couple of really quick points in terms of the sentencing memorandum i feel that the only way they can make sense of the inclusion of this you know the mention of the fifty is the argument is as as  an argument in the alternative even if it wasn't it could have been more clearly stated and so that the court did have it was signals to this it did have prompting to address the  reliability of the statements and just as a second note in response to what counsel mentioned is that while it is certainly true that if defendants admissions are sufficient to be held