second whether the district court properly considered acquitted conduct as part of relevant conduct and then thirdly if that is whether the acquitted conduct was proven by preponderance of the evidence i'd like to focus on the acquitted conduct consideration first because the recent case law by the united states supreme court i would point out to the court that this was a trial and the jury's verdict found that  mr roman all over getting engaged in a conspiracy related to the distribution of cocaine and if the object of that conspiracy included less than five kilograms of cocaine and so that brings me to the i hope i'm pronouncing this correctly the alan case not sure it's a l l y any so i'll say alan if that's not right the alan case decided in two thousand and thirteen by the united states supreme court this court has held that the district court may consider acquitted conduct in determining relevant conduct for purposes of guidelines calculations as long as that acquitted conduct is to increased mandatory minimums and that's that's not what's at issue here i think your honor i think with respect i think that is the issue here in the case is that how you that's how my carried a firearm but did not brandish it the district court's probation department determined or recommended a determination that the district court find by a preponderance of the evidence that he did brandish the weapon and therefore establish the guidelines range of seven years instead of five years i think that's a direct parallel to what we have here what we have in this case is a jury verdict that says the relevant conduct or the object of the conspiracy was not more than five kilograms of cocaine which establishes a five to forty years sentencing range the district court accepted a probation officer recommendation and found one hundred fifty kilograms of relevant conduct which would have moved if that were in fact the jury's verdict would have moved him in to attend a life range so i think that the parallel is very almost exact in that in both instances the acquitted conduct is the equivalent of what's necessary for a jury finding to move the defendant into the next higher sentencing range and with respect i think the the argument that your question suggest is it was precisely the argument that the minority made in the allen iranian case and i'm in the majority respectfully decline to follow that argument so  i think that that that our fact pattern is precisely on with the allen case and logically i think it makes sense what we have here is a jury verdict that says not more than five that still leaves a pretty wide range for the judge to make determinations for a guideline determination because of the real the real issue from where you stand is that  right and part of the of the problem is that the way congress created the drug sentencing statutes is we have overlapping zero to twenty five to forty intent to life so there's there's some overlap in there but my suggestion to the court is that it makes a huge difference and i would ask you to just consider if i were standing in front of you sa over was sentenced forty months but low the lowest end of the applicable guidelines range how you might react if that's all you know about the case versus an argument where i say he was sentenced to fifteen months above the highest end  guidelines range and that gravitational pull of the guidelines is really critical and that's why i think that a lane was properly decided and should be applied in this case because then what we have is the district court make a guidelines determination and the guidelines determination establishes what is presumptively reasonable on appeal but the district court still can make determinations to vary and can explain that variance to this court so that this court can properly exercise its supervisory responsibility in sentencing cases so i'm not advocating a position that takes away a power from the district court what i am advocating is a situation that requires the district court to counsel at the guidelines consistent with the jury's verdict and then having done that the court is free to sentence wherever the court feels is sufficient but not district court to determine whether the acquitted conduct and any thirty five fifty three a factors create a circumstance where a variance above the of the five three guidelines range is warranted and my personal view would be my personal view is we should never consider acquitted conduct in sentencing but that's not the law to go i can't get to do that exactly so i don't i don't get to make that law so  but i think consistent with existing law the district court can say i'm going to use the jury's verdict and i'm going to establish a guidelines range consistent with the jury's verdict and then if the government proves to me by a preponderance of the evidence more relevant conduct that's an aggravating factor that i'll consider whether or not i'm going to go above the advisory guideline range in your view here is the acquitted on death even if the government calculating the gun that's correct that's my view your honor i believe that the case prohibits that because that's precisely what happened in that case the the as you know the guidelines range for brandishes it's not five at the bottom it's seven at the bottom which is an increase in the mandatory now which is an increase in the mandatory minimum but the district court in that case accepted the probation officers recommendation for the guidelines at seven rather than saying that's a mandatory minimum and i must impose that sentence that i think the district court properly found that the jury's verdict established a five to four or five to life in that case range but then said but for guidelines purposes i'm going to find that he brandished it by a preponderance and therefore i'm going to establish that as the as the guideline sentence identify any specific instances of the defendant's testimony that conflict with other evidence presented at trial then the district court must determine which part or parts of the defendant's testimony were intentionally perjurious and then third the district court must explain the materiality of that intentionally put your ears testimony and i don't believe that the record shows the district court did those three steps  it is true that the district court made comments that along the lines of his testimony is inconsistent with the jury verdict things like that but i don't think that the district court is going to fight any specific  the defendant's testimony and i don't think the district court discussed materiality at all and and for those reasons i think the district court process failed to comply with sas you're correct and even if we can imply that the materiality element i still think the district court failed to identify specific instances of testimony and determine which parts of the testimony were intentionally which are various and i think all mandatory statutory minimum seventy years for brandishing as opposed to errors for using and carrying using a critic's conduct to effect the advisory guideline range is a unpublished decisions so as to the obstruction issue the issue was not shall we say contested at the  that it's been my experience that anytime a defendant testifies in any kind of hearing suggesting that it's an automatic obstruction and it's minutes or a defendant testifies and is convicted the court address that point which is the one that defense counsel and grace made very clear that there are more times than you think people can testify as defendants have a verdict of guilty and not happy and smile upon the court then went on to identify the problematic testimony here as the denial of the drug trafficking now the court had sat through the trial if you look at a dentist on which money is viewed as perjury and and second saying something that adequately encompasses those elements of perjury so that it's clear that the court just think it's question of what denial and the drug trafficking represent now after the elements done again and this court have not required sort of a numeration and checking off of the elements of perjury but rather that it's clear from the record that what the court found encompassed those elements because after all the purpose done against requiring this was to make sure that it was just not automatically and he's convicted of a conspiracy to distribute cocaine so i think the substance of what was considered perjurious is clear enough the protection comes in making sure that the court did think it was not only false but willfully so that it was a serial asset that we think with the district court said to us adequately and compass those points the court said that the was not reconcilable with what the jury had found on key points what the did not add is exactly what the jury found and i find no reason trafficking case it's material and the court and boring in this court and boring was willing to infer that where spent did not automatically apply where there was testimony by the defendant a point which the court on at thirteen sixty nine might quite clear that it understood was not the jury but importantly the court says i find no reason to want to second guess the jury which i say submit at that point the court is considering do i find a reason guilty i don't i don't think that's the most natural interpretation here on air because the court has already been looking at what the jury found and goes on to consider whether or not he has reason to second guess a juror insist no i did not guess if you look at the context how the court starts off discussion is by saying if the court is of the view that someone has taken the stand about some essential facts in the case then the guidelines should apply and i think if you look at the entire context here it's clear that the judge understood its role and was finding that that is exactly what mr roman enhancement the weapon had to be simultaneously present with drugs as the united states grief points out several cases make clear that's not the case that the firearm has to be present during the commission during the offense which this is a conspiracy offense it was present there and offense firearms were found at the time of arrest the conspiracy was ongoing to that date the presumption that rose at that point under the guideline that the firearm was in connection with the offense there's an opportunity to rebut that it's been offered nothing other than his testimony that he persisted to protect his home which the court in other cases has not found persuasive or adequate and while there were no drugs in the home there were multiple cell phones that were i would like to let the court know i was not trial counsel so i don't know what trial counsel was thinking when he said i'm just putting this in there for the record so i can't comment on that i would like to talk a little bit about the lean case because the court in that case said because the fact of brandishing aggravates the legally prescribed range of allowable sentences it constitutes an element of a separate aggravated quantity of drugs found by the jury establishes one a political sentencing range quite statute the quantity of relevant conduct applied by the district court as under the acquitted conduct count so i think our fact kind of gave that actually mirrors the eileen fact pattern and so i would ask the court to give careful consideration to that finally the question that you raised judge made about the fire i think i'm hearing the government say that as long as we charge a conspiracy if a person touches the gun at any point during that time frame of the conspiracy if committed a nine twenty four c violation that can't be the case they cannot be th evidence of that the rest to be more than simply a temporal nexus it's not enough that just because the conspiracy went from january to december that at some point in that year this person held a firearm means that they held that firearm in connection with the conspiracy i mean if he went to a shooting range and fired a gun and that in connection with it can guarantee that it is it doesn't have to the in ation that it doesn't have to be in connection with the drug specific you don't find drugs with a gun rack but it has to be in connection with the conspiracy and there was no evidence to show that the firearms at issue  in fact connected to the conspiracy and that's why i think the district court found improperly thank you all human time to expire thinking thank you very much