to make an attempt or even challenge any part of the scoring guidelines let me ask you a question before you get started on that for some reason you're going to concentrate on an ineffective us systems of counsel claim as you know we hardly ever reach these claims unless the record is sufficiently developed and while i would agree with you that if there was a legitimate argument that could be made about what was the value that had been received here absent the kickbacks then presumably that's something that that counsel would have done but we don't have any idea why he didn't do that for example he might have said to his client here's how we can knock down this amount of the loss you have to provide me this information and then i'll make this argument and she said no i am guilty i should i should go to jail for the longest possible time i realize this may be fanciful but how do we know whether any of that happened more more plausibly how do we know that the defense attorney and and the assistant u s attorney didn't discuss this ahead of time the government was willing to concede that i can't tell us in person and you can't tell us anything you know from right it has to be in the record exactly that's the point we don't have a record this is how can we determine first of all we can't determine whether the performance was deficient because we don't know why he did or didn't do would you're claiming and second of all we can't determine what the prejudice is because we don't know what would have been the outcome had he done that so seems to me this is absolutely a classic case as to why we don't do these things in the direct appeal the the best answer i can give in regards to that is that this court has the authority to remand for an evident your hearing should it desire the need to do so why would we remain an for an evidentiary hearing and i see in a direct appeal that's exactly the point of what happens in a collateral attack you make your case if there needs to be an evidentiary hearing and it's not it's not prohibited by penn hoster then you do it we're very well aware the typically the proper time to do this is the collateral tacked up in the twenty two fifty two why is this the unusual case refill there because i mean it's clear yes we don't know the reasons why he didn't do it but it's clear and glaring that he didn't do it and that there very well could have been a major difference in terms of her scoring and therefore she could have had a major difference in terms of the amount of time which she is but if that isn't the going back to the appropriate case to look at this issue on direct appeal in terms of the ineffective assistance i mean it would be better you know obviously the court is in the of the opinion that and i've learned a long time ago of counsel claim is that it can't be renewed and i am in the business often of suggesting when ineffective assistance of counsel is brought up on direct appeal that this may not be your client's only gripe about what happened with the attorney but if we decide the ineffective assistance of counsel claim now really isn't until you lose the ability to ever raise anything else so it really doesn't  doesn't help to bring it up now and get it crippled and then and then find out that there might be something even stronger i mean in this in this case all three issues kind of center   in fact say it was ineffective not to raise the batson question at trial and during the jury selection she might want to argue that if we go now with the sentence she's not going to be able to do that later on she might want to say why wasn't there any objection raised on the miranda question for example i'm forgetting now whether there was or not but it wasn't but yeah  so don't you know you don't want to put her in a position where she can't later on perhaps bring i'm not trying to foster litigation here i'm just trying to i know exactly what you're trying to get around and i appreciate that and you know we have to go by what are also we and we absolutely know that so the only thing i was a little curious about is whether you had some sort of a theory by which you had a greater likelihood of giving getting an evidentiary hearing during the direct appeal than you would during a twenty two fifty five given the uncertainty in the supreme court jurisprudence as to when an evidentiary hearing is ever going to be permitted anymore and collateral review is that part of the problem here a guy can get an evidentiary hearing if you're if your intention is to use it to impeach the merits decision of a trial court roughly speaking and then in a footnote they said and we're not we're not going to tell you yet what other in terms of the last calculation the losses through reduced by the coroner so are the fair market value of the services rendered to the victim it is our contention that and the judge freeman even backs it up to an extent and page eleven of the sensing transcripts that services were provided it wasn't as if this was a sham is was a case and in washington where the whole three point two million dollars was just to everybody everybody knew that there was a problem with pre sentence report i mean the government informed the court that the last calculation was overstated i mean the clothes on a silver platter mr clothier didn't do anything well but you can see that it's the go but the court went very downward from a ninety seven to one twenty one range to sixty months right saying i'm taking that into consideration in our contention with that is had it gone down to zero the the sensing range would have been thirty three forty one so what i really feasible had gone down to zero had the on the point values assessed for the the the specific offense characteristics from the section two b one b one after the increment so you know our contention is that they got the services provided so it should be zero as opposed to the hundred sixty five thousand dollars and upon which they base the ten point variance in terms of the sensing guidelines which then raised it to the ninety seven to one twenty one and had judge freeman obviously took things into consideration when he only gave misread six months perhaps six five years but our  it been thirty three forty one it's very well likely based on judge friedman's sense that it could have been even less than thirty three to forty one which the guidelines suggested so it's just as likely the judge friedman would have said even though there wasn't a loss we can it people cheating and he did all the system and so i'm going to very upward to sixty months there is a possibility also absolutely dead in the water because it was waived so how do you get over not having brought the bats in challenge on a timely basis in other words when the jury was still there the venue was still there and the judge could have done some about it general goes back to the ineffective assistance of counsel especially in light of the one lone remaining african american juror doesn't show up the first day of trial and it's clear doesn't do anything doesn't object it's just completely unreasonable not to do so in light of the questions presented regarding the prayer journal and and what we feel was racially motivated in all due respect you're not answering the waiver question so your only response to waiver is the united states you know dealing with the sentencing claim that the defendant has raised i think it at one point during his argument he said that setting the ineffective assistance of counsel claim aside he wanted to talk about the sentencing issue and i think the court's aware that the claim on appeal is only that there was ineffective assistance of counsel there's no challenge to the district court's guideline calculation and if we look we're happy to hear from you because you came all the way down here but in light of the proceeding so far is are really much more that you want to say no not really your honor so if you have any questions for you maybe judge donald all right then i'll just rest on the  that's all right ok all right donald any questions for government counsel no i haven't heard no questions in light of the previous thread discussion thank you aright mr risk