should be at least partially reversed and vacated and i think they all fit together and make a major you know i guess due process problem  vehicle they followed around for quite some time he wasn't even in the vehicle when they started finally they finally you know he does get in the vehicle they find it opportunity to  car length between himself in the first police carry wouldn't of been blocked right just common sense he might have been stopped but he wouldn't have been blocked well that's probably true but when the sirens go large extent i think you know he reacted he responded aggressively right after they had been following him for his car for quite some time but after they had they were clearly no longer following he may or may not have known that but well but i thought the first car pulled into a cross street and then pulled he still had the issue but i mean it's still the basic point though is that they followed him for quite a while until they had an opportunity i mean probably if he had you know run a red light or you know gone five miles over the speed limit but it ended up not being enough to get the guy subpoenaed and he ends up youk or you know gang a sentence that was more than four times what he had received for the underlying felony  requested you know you look at the transcript then it was you know the only thing was considered was while gee i don't have space on my schedule ok eventually the water bend space time schedule guy was out of state he comes back the lawyer contacts him over the weekend says we need you here monday morning and the guy has no other business to attend to you know when you give someone a few weeks say i need you here you know three weeks what was the court maybe any trouble adjusting its schedule i suppose that i mean judge that was the judge's reasoning but i think that kind of that know my predecessor told the judge that he had you know contacted the witness i think the day before the witness was willing to testify but was going to be out of state the week of the trial yeah but denying the continuance you have what a motion to continue are you referring to the motion to continue that was i believe was filed either the day before the  have that was the point of my question i thought that there was the first discussion of this before the weekend the judge said we'll put off until monday so you can get your witness who's out of town this week and then monday came and i didn't understand your client to have moved for a further continuing well i think was there a motion for a continuance on monday no there was not there later so you're saying it was air for the judge on the at the hearing before the weekend not to continue the trial until weeks or months later that's the argument right our understandings argument on this issue or that was the attorney that said yeah you tried did not raise objections to this a shoe by the client wasn't the client's objection just that he hadn't been convicted of a drug offense th for did the client object that the gun was not connect used in connection with the drug offense no you are all right so if there's no objection to the right to that point then how does the analysis work is it is it plain air reversible if the judge doesn't make the specific finding you're concerned about or well do we just look at whether the evidence supports the adjustment to reserve to dismiss isn't that the problem with no connection it is but then you've also got the wrong standard me you know not if the facts not if there is a preponderance which show it was trafficking defendant and what i say that has the roving surveillance rolling surveillance of his vehicle police officers the testimony at trial was that there were two females in the car that was associated to a different suspect that was involved in a homicide they had information that there was a retaliatory hit for that homicide the homicide was in retaliation for the shoot up of his house that was full of drugs and money so when the police officer followed the car they said testify that the fall of the car to a new location the house up in north county because he said we're looking at this guy we're checking this guy out now takes us to a whole new house for this further investigation and as the rolling surveillance went on for a period of time there's no violation of anyone defendant came up behind them drove next to them pointers handed thumb and the officer behind in the car behind said i didn't see what he had his hand but he lifted his hand and pointed at the officers he merely told the officer to disengage again they did so pulled in the parking lot that's when the defendant shot forward cut through traffic came in at different entrance to the parking lot and went toe to toe head to head of the car so the police car could not move that's when the follow police car came behind an approach we're dealing with a specific officer safety issue at this point because as the officer of the second car got close to the car he said defendant said i know you've been following my gal since the city i thought you were going to rob as he approached the car that's going through the window he saw the gun and and the dope on the ground so at that point the the whole rolling surveillance turned into an officer safety confronted by the defendant's actions by him confronting the police officers after they disengage twice factually that it's very important in what is the cherry stop at that point when the officer just approached the defendant who voluntarily stopped the car on his own want to move now to the can the record what about his argument that the police in effect generated the reasonable suspicion by following him around and causing him to fear for his safety and that's kind of throws into his argument that maybe i had the gun for my own didn't cause it when they disengage twice on the wrong surveillance he did it in a violent nature when he pulled the car up it was looking right at the police officer over the hood over their hood into their car to the continuance of i made the defendant in october asked for a continuance because a witness had surgery that was granted the friday before trial he filed this motion the pending by the matter of the motion in the summation under consideration rather than to continue because katie was going to be out of town he filed that on thursday on fair friday the court heard that hearing for that matter on friday on a monday morning of trial the defendant specifically stated i talked to katie on thursday and he said he'd be willing to come to court but he's leaving town today thursday friday saturday sunday monday he was nicer even though they were talking on the phone and supposedly he was willing to come in and testify fairly hard but he was not served on monday morning when he actually continuance what he asked for was i want this witness to be able to testify when he gets back in town what does he get back in town initially defense attorney said thursday then he said friday and then on monday the following monday which was december ten schedule the court then because it's discussed on page two seventy one to seventy two of the transcript for the court i was arguing we're going to stop this trial on tuesday wait do nothing wednesday nothing thursday nothing friday and come back for this one witness on the on the following monday and the court said yes on page two seventy two of the transcript the court said the only reason i'm carrying this over to monday is to accommodate mr tyler mr to chile then says right that's all i asked so all he wanted was tell him what he just said this morning there was no second rule there in the second ruling being challenged earlier he only challenge on appeal the only issue on appeal is the initial ruling yes which as the court asked is it really all the best to which whatever happened thereafter is essentially irrelevant if not completely your own right after the jury went out to deliberate death of the court after mr so tilly and he responded and told the court your honor i spoke with him by phone over the weekend investigators spoke with him over the weekend he indicated he did not one to come in it's all i'm saying is that he accepted the fact that the court gave him what he wanted was the opportunity for the monday when the guy was back in town but it's the one coming court justif to the the lack of findings on the what was the speedy trial act situation as of when the record continuance was requested i don't have the calculation on how many days had run judge concerned about speedy trials just in general right in that's wife in october when the court granted the first continuance when the witness had surgery who never short of the court anyone can subpoena her anyway either rather and that's why th was most of this was all the defense request because he asked for a new lawyer and i had a hit of hell defender that he got mr issa telly and then the requests for continuances and the second request the court was concerned that we had it was time to move the case along what do you want i want to  monday so the witness can show up will be back in town will be served and then we can go to trial as to the four loved one half but i think the court has the right ruling because there was no objection to the issues at hand so the trial moved on but if the government's position that there's enough from the record to show that this defendant on his lap had a gun in the bag that had fourteen individual bags of crack cocaine by two hundred two point four one grams of crack cocaine of the stipulation was during the trial that's two hundred forty hits of crack cocaine it's usually about ten that per gram this was the distribution out by history of base that you can take into consideration the fed it past conviction for distributing distributing a user quantity of as evidence of motive intent or knowledge as to what he planned to do with the drugs so well let me ask you this though as i understood the argument from the appellant here he's focused on what judge jackson said when she explained why she was applying the four level adjustment and when she did that she said the other felony offense had to do with the possession of cocaine base so i think the submission is she based it on a simple possession felony offense although maybe you're right that the evidence could have supported the other inference she didn't make that inference she on page seven line eighteen was referring to possession of cocaine base and he saying in if that's the other offense then our cases require the specific finding a facilitation which wasn't made what do you say to that well judge jackson used the word possession didn't use or distribution because by no objection that was not a dispute the defendant what was not in dispute the fact of whether was whether the four level should be included for the distribution for the facilitation of the distribution when it was included whethe said was is that a distribution mount yes objection two hundred forty kids fourteen individual packages is pryor was for the distribution of twenty dollars of marijuana you can distribute the user amount to a very small amount he had a very large amount of cocaine based crap so since that the defendant did say four verses to the court responded his only objection was i wasn't the question is a part the sentencing transcript not the trial transcript was said that the question is what information did the court have to the object in to be able to make that finding the court didn't have an objection that it doesn't apply because it's not a distribution amount that isn't judge separated that out in specific was that i'm giving you four points but i'm saying it's want to different cases the courts terminology judge with just such that it's the possess she didn't add the words with intent to distribute because that was assumed in the four level  page five also refers to possession now you might argue the p s r says the firearm facilitated the possession and there was no objection to that so that's the equivalent of a finding of don't understand that argument but the p s r doesn't say distribution but of course you're right it did not but why is it that you say there was no objection so she didn't have to saying about distribution it's not in the p s r to which there was no objection the p s are paid by her eighteen were forced to the specific section of the guidelines that gives the four level increase and explains why the probation officer is recommending the for love right and therefore what i'm saying is that when the court had no objection to the four level increase it did make a specific finding because there was no objection so now we look at what the court did maybe should have used the word the judgment doesn't separate out that that my understanding of the judgment just says ninety two months and b o b it doesn't make that specific findings because the court adopted the p s r which gave four bottles for the distribution without paragraph eighteen or fifteen i think it sufficient because there's four levels attending to that not two levels for possession therefore levels it's the chili did not object to that we did have a any evidence no one asked presenting the evidence on the issue of whether was a distribution  all it says is if the defendant user possessed any farmer ammunition in connection with another felony offense which is the wording from the guidelines section on time at the parent that a call after that the farm facilitated or had the potential to facilitate the possession of cocaine base yeah it was the judge the rock and roll on that issue but we didn't because there was no objection to that know i think would have been rather pointless of the time the problem was that it was set up you know really to fail because it gave a very narrow window for them i think you're right so