with the united states christians michael  isn't it fair conclusion by us that what the district court head here in mind was the specific sentence he accounted for the craziness of this enhan so the law and this is clear and err in the calculation of the guideline range only in rare cases be shown to be harmless this is not one of those rare cases one guys because that on this record we cannot is here the issue here is that after he grants the four level variance she looks at a range and he starts from the top of that range and lisa tracks the amount of credit that he wants to give mr hester for his time and see custody on record we don't know what he has started at the top of the range would he have started somewhere else in the range which he had granted a different type of variance on different grounds if the starting point had been one hundred twenty months and that's just on this chords line of cases starting with fenton of course this court recognized in color that it's an open question as to whether or not those cases remain buyable outside of the context of burglary or drug trafficking what we have here is a case where the alleged other felony is evidence tampering this case doesn't satisfy the navarro test because the other felony in this case is based on possession of a firearm the district court correctly concluded you know this isn't what we usually think of when we think of a firearm in being used as an instrument of violence the purpose of this enhanced is to address situations where the presence of the firearm creates an increased risk of violence associated with another felony that's simply not what we have here and i think that the unfairness that the district court recognized in applying in the hands meant in this case is based on the fact that the government is unfairly taking advantage of the fact that the tampered evidence in this case is the firearm because let's say that the tampered evidence had been a knife or something else if mr hester would have been found in possession of the firearm there's reasonable suspicion here which of course our position is that the parking violation is not like a traffic violation where the officers probably would have the authority to order everybody out of the car so i think that procedure i don't think so and in the same way that mr lowe's you know failure to raise his hands or comply with the police command that didn't undermine the fact that he had submitted it i think the rules on this are fairly clear if an officer does not have zero reasonable justification for that seizure you know we don't look at whatever happens after we look at what is going on out of the moment  needing one officer could have gotten off the car knocked on the window and said good evening ma'am you're illegally parked i'm going to get your parking ticket so i think the question that's before this case is now whether there's enough for a terrorist that's there is the question the appears to go into a story that's open that both officers testified sell a judgment and she comes out the most natural understanding of the conduct is that she's just bought something if the officers had some suspicion based on the fact that they know this story to be the state of previous my contacts i read that suspicion is not reasonable because it cannot be the case that every single person that visits th that there were facts relative to the placement of this vehicle the street curb and the parking zone that the car was parked  and not just that the night he is arrested he is on the street attempting to cells that is what he tells his mother and his father and his girlfriend whoever it is and that's the jail cause so this is far more than merely possessing and the other example  time or conduct and the only conduct that we have here is possession of the firearm whether you call it taking the firearm hiding the firearm whatever whatever you want to say it is the end of the day if all he did was possess the firearm  court has always interpreted another felony offense to mean but there's a prohibition on double counting this is exactly what we have here this isn't a burglary this isn't an assault where there's a breaking and entering there's a threat there's something else that's done with the firearm here the crime of the new jersey as you to attempt to tamper with evidence it's not as we presented to the court  recognizes this was an on preserved argument but the government had not been able to present the court one case that shows that the new jersey evidence tampering sac should apply to the facts of this case the attempt to be attempted that's correct the new jersey supreme court case in mendez interprets the evidence tampering statute to apply to attempts to tamper with evidence were there some sort of permanent elements and permanent concealment permanent alteration something like that they say that statute doesn't apply to unsuccessful attempts to hide or discard contraband and you provide a part of the justification for one more point on the harmlessness issue when judge mcnulty declares this a hollow victory for the government he does not do this when he's pronouncing sentence it's during the sentencing arguments and right account at all this and hence it was front and center during the sentencing hearing judge mcnulty heard argument on int he discuss what part of the argument he found on persuasive which parts he did it and