jury demonstrates that there could not be any reason to have struck her other than the fact that she was black the court in determining whether or not a crime of showing had been  so it's completely unclear whether the court was merely musing aloud it certainly was part of his thinking at the time and that's the only thinking that we have is an incorrect thought  blacks on the jury that stretch striking additional ones certainly means that it's possible that they weren't striking because there's no pattern because there's no pattern but of course pattern is not require exclusion of evidence of a stain complaint against officers here all parties weren't agreement that the credibility of the officers wasn't fact paramount to the was so important and was just going with two officers corroborating each other's testimony and their testimony fact was disputed by other witnesses it was essential to be able cross examined the officer on his credibility mind i defend that an opportunity to speak  his the district court had used all available discretion on the guideline range because he sentenced at the bottom where the defendant said he wanted the sentence the district court in mind the government's requested upward adjustment and that leaves be enhanced night for reckless endangerment which appears to be subject to an object  said that in a sort of most extreme way i can you know order to elicit from you where that's wrong i would appreciate your thoughts on the whole scenario first in this court real representation from history but but but that's not something that the defense is going to persuade the judge on that's just going to be a matter of the judge looking at the criminal history and saying well this was for diddly squat quantity and can speak and given the opportunity to address the court and i'd like to  please the court good morning your honor starr higher for the united states in this particular case and i'll start with that's an issue the court clearly understood the best frank capra i don't know how you can say that's clear i because that's not the beginning of it that was the end of the discussion like the court just gustus batson claims before any peremptory challenges were made to african americans verbs or orders of any race frankly the court said and successfully i don't think it's from the record you can draw anything other than that no crime of a showing was made because he never turns to the government and the government never offers a reason for explanation for the peremptory challenge challenge to the government's use of a peremptory against your small and instead of saying for example that you can't do that you haven't established a pattern of strikes or counsel you can't do that that's then doesn't apply unless there's a pattern that's not what occurred the court did listen to argument by the defense counsel sort of i mean the reading the call transfer if you were there i wasn't clear so you probably have a different feel but i must tell you that reading the call transcript it sounds like the judge was clearer and i would say that that applies to full well the first is did the court understand the framework the government argues as it does its free vet from the court on if you can tell that it did but even so there isn't based on the record you have here refer to the number of african american jurors in other words i'm not sure about one of them meaning i'm not sure what i may or may not be african african american but i would imagine so i believe that that person was and then i the court named the three african american had accepted twice the other two african american jurors so if i can unless there are further questions on that's an issue of move on to the issue of the complaint the issue of the complaint officers were doing a good job and frankly the government had the courts decided that this was going to come in and the government would have hotly contested the relevance of it the court in fact concluded that it wasn't relevant and even if it did have some honestly you know your honor think the defendant would have the explaining to this court how running away from police with a loaded firearm into an open apartment that's occupied by hiding in there in order to protect yourself and then running away she wanted to speak here the difficulty i have with saying that the defendant has some obligation to show what he would say at first i don't know how you do that on appeal i mean there's no mechanism for probably good reasons that we are very in this room can figure out but that's beside the point isn't when he hasn't been given a chance even to say i don't want i don't have anything you say i mean i have if this is an odd construct i mean you know there were hey b s review of some sort that might be very different i mean she'd have some kind of record of it but i don't know how you get a record of what the defendant  problem honestly with why lawyer can't speak for its client but we know the supreme court has said that's not correct ok so you've got to directly make sure yourself so his truth a lawyer can't speak for his client so i mean even though i personally would say it's either harmless or plainer and alice is available the question is does it hands on the availability of remaining discretion or does it hand on no no no no no about that many times ok so that's different because here the district court did not give the defendant didn't speak at all so it was a matter of cutting him off at the pas so the harmless error inquiry here may not have anything to do with what the defendant actually would have said had he started speaking and got stopped here the harm more and what this court leader said was she has identified anything more she would have said with respect to the acceptance of responsibility that one thing that you claim that's very different from not being given the opportunity to speak out all