a cross reference under guideline to k two point one c one the united states will use that cross reference should apply here because the defendant and his son possessed and use the three hundred and fifty seven revolver we know that in your view we know there's a shot at the roadside because somebody makes a phone call to that of several pieces of a plane trauner so st the victim himself reported to officers who responded to the that he had been brought to the roadside by the shot after having been beaten at their residence and according to the victim dylan which is the sun room moved him from the vehicle and in the victim perception actually shot him in the head so that proved to be an error he was severely it had a severe head injury but it wasn't from a gunshot but certainly the victim's perception and the seven side what would be the point of remaining it back if we were to do what you said in the nd part of what you said doesn't that then permit the answer here well at a minimum of course  that the record of the written opinion the six or so pages are very little more than that was on the application of a guideline but most of the discussion was on the district court skepticism  conduct just like our white decision on bombing decision if a court just as a matter of policy disagrees with the notion that it should be using judge found facts to increases so is all this for nothing because i factors are where the the united states would hesitate to jump too far ahead into that hypothetical but that is what your honor is describing is clearly not what the district court did here to the extent that it could have correctly applied calculated the guidelines and then for policy type reason and it's very down hard whatever the answer that question is on the united states reserves the right to necessary that's not what happened would you agree that the district court did not clearly hear when the court as a factual matter that the revolver was not  there really precludes a finding that the district court clearly year on that part of the factual analysis the united states is urging its court to find clear based on a pistol ninety minute interval between dropping off the victim and getting pulled over by the police this yes ok and in addition to the three statements the victim's statement the sultan it find a bullet in a fence your where this happened they did not find a bullet they found a hole a hole in the fence so that's part of the factual  differences do will depend on the nature of the question and in buford the court actually looked at you know is this the kind of thing where it district court would have expertise is does a district court see a lot of this kind of thank you you're from mr benton case says in all cases where the trial judge may certain factual findings those fascial findings are or must be accepted by this panel unless there is a finding of the that those findings were truly wrong is and had to certainly not the case here because factual findings also must be given due deference which is again what is appropriate in this particular matter the challenge that the government faces is that the government has positive these series of theories  regarding what supposedly happened on during that particular event their fears have consistently shifted even up to the point of their public briefings and i would suggest even in terms of their or presentation they st began with the thought with the claiming that my client and or his son was involved in the actual shooting death of jesse james well that was determined to be inaccurate the medical records in the coroner's report clearly establish injuries that this is not disputed then they moved on to say that the firearm was used in a pistol whipping inside of the residence and even presented various photographs of a very bloody scene but there was no evidence of that having taken place and in fact there was a bloody saying but the government later concedes that the fire was not used in that instance so now they shift to the location where the body was found totally inaccurate you find nothing in congress about suggesting that somebody that either gets pistol whipped in the back of the head or shot near the back of the head you draw conclusions that they should be able to tell what caused the injury in the back of their head was the difference between say and this is just my my my point is someone was shot at it seems to me they will say i was shot at as opposed to the fact that i was shot and again the medical evidence does not support that also to further the shot as filed is fired near the back of somebody's head and contemporaneous with that he gets whacked in the back of the head with a pistol you think we should draw significance from the fact that the person can't distinguish between those two i  was pistol whipped at the scene there was no evidence that he was shot and you started your argument up by referring to the well reasoned opinion of the district judge which you want to give full credit to he says he doesn't have any reason to doubt that james was pistol whipped that's what the judge  but that's that's a finding relative to what took place at the residence that's a job residence but the whole the whole argument here as i understood it so correct me if i don't understand this is if somebody was pistol whipped the residence and that was the injury that caused him to be bleeding on the side of the road that it's inconceivable that there would be no blood found in the car absolutely so if he concludes that he was pistol whipped but there was no blood in the car what would be the basis of a conclusion that that pistol whipping assuming that the judge is right didn't occur at the side of the road because he is that a lack of physical evidence that w support that and one of the emphasis that the government relied upon so so does this turn on then whether the whether there has to be physical evidence or or can we or the district judge be looking at  morally was troubled by the government is conclusions or requests to conclusions that invited the court to engage in a leap of faith as to adopting certain positions that they sought to advance but what do you do with your coins o have a number of inconsistency in the record i could see that it's a credibility question about whether you whether your current actually said he thinks to be individuals but i don't see anywhere in the record and correct me if i'm wrong where the district judge actually made a credibility is we just assume that he that he made a credibility determination that these individuals were not credible yes because of the fact that again if you look through the transcript of that hearing because if you actually with but when the government sought to direct the course focus on those particular statements particularly the statement as relates to my client the judge found that the statement that suppose he mr spragg had made as to my client saying that he had a gun and he took care of it as the gun in question and said we took care of it so now we've got now we have the gun that gun in his hand not very long after the incident what the judge seemed to be saying well let me s after discounting the lack of a nexus between the gun and the pistol whipping or the shot behind the head he then goes on to say that mere possession of the gun enabling him to participate is even less  the weapon was in the vehicle during the time of the kidnapping the weapon was found in the vehicle at the time of the stop that doesn't mind are you disputing know that at the time they're driving into the road and put them out on the road the kidnapping is ongoing at that time ninety minutes before the time you just mentioned that the weapon is in the  it was within about i believe most likely minutes that the police ended up stopping the vehicle and the weapon was was recovered ok so you're i mean but the weapon is found in the vehicle this was there's no testimony or evidence that your client went back to his house or something i mean it just appears they were driving around is that fair there's no evidence that a wrecker as to what took place the one of several hour time period  let the weapon could have already been in a vehicle or it could have been placed in the vehicle at a later time the record is devoid of that and is that the government didn't establish that this firearm facilitated or had the potential of a more thin ice i mean would you agree that the district court's on thinner ice and saying if it did that the view that the weapon is not in the vehicle during the time that the victims in the vehicle as opposed to the weapon was not used provided a response as to my conclusions right my assessment not as to what the district court found though i know it was my it would be my understanding that district court in making his findings concluded that the weapon was in fact the of the  that so but if if the if the did if the weapon is in the vehicle i mean doesn't that doesn't the presence of the weapon let's just set aside the fortress theory and you know just as a practical matter doesn't having a weapon in a vehicle facilitate retaining custody so to speak of somebody who doesn't want to be there i understand the argument your honor but i was in just on the evidence was at the at the time that the police stopped a vehicle that the weapon was retrieved from the box or an external console of the vehicle off and there you also you also have  focuses upon this particular roadside event but with that having the said there was no other evidence other than the mere presence of their firearm inside that console that it was displayed or otherwise use other than the allegations of a shot being fired which is not supported by the f b i i mean the government doesn't have to show just use possession in connection with there's enough i mean i understand it argument and you know and that's just this was facilitation business and you know if you're if you're trying to hold somebody against their well off things being equal it's easier to do if you have a gun i would assume i would concede that i would concede though i mean if it's in the vehicle why doesn't why isn't it priscilla taking well again i would conten that due diligence deafens a citizen find that that the weapon wasn't in the car but i consider his his opinion a silent about what he might have thought about that he goes on to basically say that doesn't matter because the fortress theory is limited to drug related offense but that's not what you do you can see that that he's that he it least is an error there well i was a cases where we apply that theory when it doesn't  valtrex i would agree with that but i would also suggest this to the court just morally he did not make his decision based upon a conclusion that before his theory did not apply he made that statement but he also went on to say that the government still home different questions different standards of review there so certainly no concession on that point and the united states does not perceive anything the district court to be based on in any adverse credibility determination and fact the district court seem to credit at least by pathetically credit the united states of finance and find it an adequate the cross reference so on the contrary we certainly don't think that there's any adverse credibility determination on this record  want to reflect on the factual summary that would be necessary under my friends understanding we have strong evidence of a gunshot on it we clear air what evidence do you point to for the gun being in the vehicle at the time of the you know the driving to the road as opposed to when he's later picked up by the police than ninety minutes he gave no no no weight whatsoever to the additional evidence you what you really want us to do is to remain added back say that he's got at least consider the other evidence and that he's wrong about the fortress out it's not clear because of this mistake on the legal nexus question did the court make a finding that it wasn't in the car or was it not even thinking about the question of whether it was in the car because it was confused