regard to the time for arguments today i'd like to spend ten minutes of my time dealing with the issue we've raised on appeal and reserve the remaining time to heal with the government's issues any cases that really even deal with anger in the u s rats they all seem to be in particular direct threats but i don't believe that you can or the notion of intimidation so consequently i think that we need not dwell on whether this is an in the right or a direct threat we only need to decide whether we do in fact have threatening  so i think we have the september november timeframe which will become important based on some something that was asked of the court did it happen before she pled guilty well i can tell you that if she pled guilty about the time  that had gone against her should have their faces crossed should have been defaced should be taken care of now i really don't see how anyone can those kind of comments are not threatening in nature and how they can not be intimidating because anyone that would hurt fear those comments prevent testimony keep her from testifying and he's not talking about anybody if law enforcement comes around not talk about anybody he's talking about anything that rolls on kathy the logical inference to be drawn from this is that he was twenty seven months for the drug count but somehow as for that here the total was seventy miles because of the drug can count and there the thirty three heartland of the guidelines reflects both situations and therefore reliance on the five point two zero the policy statement and current which allows discretion standard reviewing that a new oh looking at that guideline i believe you've got to find the departure inappropriate if you want to talk about the prophet or if that was the first post guilty verdict on count five and dismissing that under rule twenty nine because we believe that there was evidence that the jury relied on and that the jury's efforts were sound and appropriate and based on reasonable judgment and reasonable inf drugs within the first year of her heavy usage now if you reconstruct this record that is approximately one to two years before this of him he can ask him her if he were using the logical about it he continues to ask her about her used she denies it and by everybody's testimony he doesn't believe it then he gets charged with the drug trafficking continue with the flow here he knows that she's been accused of a trafficking crime and already knowing that she's never been a trafficker then what does he do he goes to the very person and behold two of her customers and he threatens clearly by a jury verdict one of them and our position trying another but at least contacted  indictment she pleads for something else which she has no control of no holly and could not interfere with and then the consequences of what she pleads to directly impact the guideline range will apply to him well i think it does matter because the court did not apply the cross reference because the court by my legal argument the back cross reference should not be applied because of the fact that there were these two different dates the government is not though is that the government itself conceded at sentencing that there there may be sentenced disparity here and then not make the argument they now try to make an appeal that the court could not look at in this particular case the court did not apply that i mean i just took the the the level twelve which is the starting a level and then did the eight level enhancement for the fact that there was own interest in some drug dealing or something that he was never involved in that and the court discussed that yes you can have witness tampering by people there that are not directly charged with the offense but it there was nothing that mr gambling the game here generally is what you're looking at in the heartland cases or someone is doing tampering because they somehow are connected say in a conspiracy or something yeah well because i think the commentary is discussing that particular cross reference i mean it's saying that that's that's how we deal with these situations where it's a very serious could consider all these other factors that take it outside of the heartland in particular the court was talking about how mr gamble seems to be motivated to try to help people