and we know that because the government concedes that the definition of reckless can be found that to a one point four comment no one as quote in this is part of the definition a situation in which to defend it was aware of the risk cr blow the government maintain that mr rogers awareness of the risk could be just generally to using a laser beam but i think that's insufficient as a matter of law because i could understand that it's reckless china l beam at someone right in front of me at their eye but i think it's a different thing altogether when you have a helicopter that's flying thousands of feet in the air and the problem here is that's what that's the type of leap i think the district court made here there was an mr rogers could see the inside of the car you can see that it was distracting the driver but it's a much different thing to shine a laser beam in a helicopter isn't it when that helicopters up in the air and and the government didn't show any evidence that we shine a laser time i've ever seen a helicopter it's way up there and i can't see what's going on inside the helicopter it's too far up  it's fair enough your honor i mean i don't think you you have to that's one way you could bear it out in what here the district i think one of the conclusions that you can see in the airplane and and therefore you can pute in the car of that crime of course we're not disputing that but when you look at the coup findings they don't help the recklessness for example the district court found that he knew is illegal he did it on purpose he followed the aircraft with this laser beam he concealed themself after doing it that's all true but that's just evidence that he pled guilty to the crime and i think to conclude otherwise is that it becomes an un american hansard right the base level fences nine and when you apply the enhancement becomes  exactly exactly that recklessness enhanced meant you have to show that conduct and here i don't think we're asking too much of the government for a couple reasons one i think that's congress's an intent we cite to the house report  it's called securing aircrafts against lasers that demonstrates that many people point lasers of planes without knowing the dangers that report states quote while the burden may be easily established when a person attempts to detonate a bomb or a of the flight crew is difficult to establish the same type of intent for a laser incident even if the effect is actually into endanger the pilots so i think we need to to read the guidelines in harmony with this the statute because congress did it your i'm sorry it's called the house report it's a house report and it's called securing aircrafts against lasers site in my brief i think the other important factor here demonstrates that the government could have made that demonstration that that proof but it just failed to because it didn't have competent evidence there was an allegation that mr rogers in a good this wasn't proven by co evidence that mr rogers was outside his apartment on another occasion and he was playing with some kids and those children ask where can we take your laser beam a plate of that and he said no allegedly this is all allegations no you can't do it because if you shine it up in the air the thing that you can have an airplane and that airplane will think that they are being attacked by terrorists i think the important thing by that and they just weren't properly executed that evidence i think  important thing about that is that it shows that the government can make this proven that the showing him because it failed to do so it shouldn't be entitled to the in the hands matter as a matter of law i think the other big factor here is is the relevant case law circuit court case law is in our favor and it's on all fours there's the gardenhire case in the rodriguez case i think both those cases are very well reasoned cases i don't think they're  e in this circumstance i think what the government is relying on is to reach a contrary position is really distinguishable case while you have the geneva case that they cite to and that's a totally different circumstance we have someone that's in an airplane who is hitting on a stewardess being abusive to the pilot so you're aware of that conduct because you're inside the plane and you're doing all that conduct here it's just not so intuitive when you're in your partner and you have technology that's beaming something up from your partner and thousands of feet in the air and so i think it's not an apples and to apple so narry of the final  for couple reasons the district court concluded that is guidelines range was forty one to fifty one months and ultimately downward varied to synths him to thirty six months without enhanced meant his guidelines range goes down to fifteen to twenty one months so that's a significant drop and brings him down below his sentence and i think that we have a credible basis to argue that the court would not only sentence him within fifteen to twenty one months maybe even lower since it originally police court braincase appearing on behalf united states in this matter the issue to be cited by the district court was whether the enhanced base offense level of eighteen applied because the defendant acted w with recklessly endangered the safety of an aircraft when he pointed a laser at the district court viewed it through the issue of whether to defend it was a aware knew the risk of the harm that their conduct would cause i think there is some suggestion in the briefs that that wasn't the legal standard that was being applied i think the record below shows that i mean that's what the parties were discussing was what what level of harm did the government need to say need what he was doing was dangerous well i think you go to thing that you produced prior to making that final distributed also pointed out don't we generally know that point seen a laser someone's eyes dangers that no i don't think so your honor because what we're looking at is what is going to next with the fact of this cases the fact that this case is that he pointed it at the cockpit of a police helicopter and now that's a diff that's different were something like the person intentionally was hitting the tail of an aircraft such that they were avoiding the cockpit that could be a different back pattern  laser someone can distract them and i think you go from there you have the explicit instance where this defendant was was pointed at this case not immobile but a motor vehicle he was pointing at the side of a car when the car turns he turns it away so it's clear that he wasn't there point into the windshield into that guy's eyes he knew that that would be something distracting i mean i think i think it shows i think there is direct evidence there the person is aware the point it into your windshield to someone operating a motor vehicle is something that you can do is something that would cost them harm i mean i think just knowing that it's going to be distracting to someone does create a r but there's no i mean i think besides the conduct itself your honor that's what we have we have mr chicago we don't have we don't have him making a further statement that he knew is dangerous what we do have is him making a statement  we actually gave the court the exhibits that we relied on at the testimony we we had needed that police report into the record so you can read the full report  it actually comes with an interview with a person driving the car they found a person who lived in the apartment building and said well i was driving a car i saw him point a laser at my car when i turned it to face him he pulled it  with what is wrong with decided but in addition i don't think it's applicable to this case there are certain ways that it can be pretty clearly distinguished i think the first one is on the evidence the evidence and gardenhire involved evidence about the long distance between this defendant pointing a laser at a private jet and gardenhire there's no evidence of the fin and knew he hit the jet in our in our case there is evidence that he knew he hit the helicopter in gardenhire there's no evidence about how the laser struck where the laser struck what the exact effect was in our case it's that he pointed it at the helicopter that he struck the cockpit and that he did so and the fall of the aircraft was doing so intentionally and he even admits he was doing so intentionally in gardenhire the evidence was over great distances lasers present kind of unique  unique and maybe even unexpected dangers to aircraft flight experience laser could hit cockpits and refract in our case we didn't have that incur case the evidence is the agent explicitly testified that over the the distance involved there was no risk of refraction that that's just wasn't it was too close of a distance in addition while the laser hit the cockpit three times the first time it did refract in light of the cockpit the other two times it hit the pilot directly in his right eye so that's pretty good evidence is this small is your beam is helium directly in a single eye and the pilot said in my experience i've been struck by a laser before in the way that it followed us was intentional and i think the district could further say that could further and further make the inference that hitting the cockpit and hitting that pilot was intentional so i think that that is what the district court could have concluded on these facts that further  justice the shot is case from this court you have people doing conduct and that's reviewed the novo i see similarities here but even let's just assume that it's for thousands of feet in the air and i think the gardenhire really elaborates on that how laser beams are unique powerful and people don't understand thank you for your time