mr johns has never denied that he committed the crime he has never denied that and so you know when he went in and he entered you know i almost unheard of that he went in and entered a plea straight out so you know i'm not running problem was the identification of the injuries in this case as serious bodily injury now i am aware that this court has already reviewed the co defendants case in which the the same kind of issue w but the argument here is that whether or not this was a serious bodily injury and it's important to look at the facts i don't i'm not trying to minimize that all the what happened to the  certainly was a terrifying of them for him but he came out of that with the only injury that remains is his vision is unchanged he has some sensitivity to very bright light which he turns puts on a person glasses he's fine does that meet the definition of syria yes bodily injury i don't think it does i think what happened in this case because there were injuries and serious bodily injury was the lowest level that could have been enhanced that they did the significant serious bodily injury and handelman his left eye the people in his left eye doesn't operate like it used to it's damage and all that's required for serious bodily injury is present on a bright sunny day you know the thirty that's like saying someone's leg injury only is present when they're walking well i mean it does it does it compare to  think that i still think that you know if you have there should be this like almost a continuum of where the injury does fall and in this case the injury falls way off on the bottom of the i don't know your honor i mean it's just you know because that if you look at the guidelines and some of their three definitions that deal with injury does bodily injury serious bodily injury and then permanent  some other physical injury to the body i'm not sure i'm allies in your honor i i you know and maybe maybe if it's a personal kind of looking at it because i know i myself have a very high high sensitivity to li balancing of obstruction of justice and acceptance of responsibility and i think that and more when we're looking at that issue the timeline is very important mr jones and i explained this pretty fully  occurred two months prior to that but he's already going to get punished for that by virtue of the obstruction of justice and handsome and that doesn't diminish the fact that he could still get acceptance of responsibility for walking in the courtroom and saying yes so i  and so it's certainly the argument can be made that at that point he had accepted responsibility and it's interesting i was at a sensing guideline seminar and i was talking to the speaker and they were they were doing this you can obstruct justice yes and you're going to be accountable for that but when we address acceptance of responsibility it doesn't isn't precluded by bad things you've done before was obviously the worst thing you did before was the crime of charge within the first place correct and if that would prevent you from accepting responsibility you never get it so you're saying that temporarily is important at the time of your plea are you remorseful for all that you've responsibility he was not ever charged not really probably the appropriate word but but his offense was not enhanced for the a legit santa fe escape attempt with the disorder to take that into consideration going to help you here i again i go back to whether or not the the the state in the well of the state or the court because the court of one who actually does investigation in this case that determined or finally obtained records concerning the santa fe allege of this case that sounds and i don't my concern is that i just don't think it reached that level of a preponderance of the evidence and i think when this court is looking at that you know what th just if i were to give each of you a piece of paper and have you come in and say what's on the piece of paper that says that make the fact any stronger because all three of you sat and that's what's happened in this case is that you know one marshal says i think there was a you know when when some are not you know just plenary cases are constrained just as a confined to cases when people are going to bring a charge against somebody for having committed some sort of an offense and presence they usually have enough evidence to meet the preponderance standard they can bring any disciplinary charges in this case they never pursued it so he was mr jones was never given the opportunity to come in front of a disciplinary board and say you know that you know  question why would someone do that and one reason would be to avoid serious charges on top i don't know if that's the case here are you contending that the guideline is miscalculated early it's almost sounds to me like you're making a thirty five fifty three the court my name is almost would be if i represent united in this matter the district court correctly found all of the fact that he used both to determine that the victim in this carjacking suffered seri bodily injury including but not limited to protracted loss of function of the left eye and the fuel area dysfunction and also the external pain that he suffered during the beating  one need not have permanent injury to have suffered a serious injury i have a broken finger right now i'm confident it's going to feel great but it's serious right now so one  the dropping out of the word seriousness intentional yes or and through the canons of construction we we don't assume that the people who wrote the rules that we followed didn't know what they were talking about and we couldn't assume that the dropping out of the seriousness in the protracted requirement was an accident as a party might wish that you would do but even that the court made clear the district court made clear even if the wasn't relying on  dysfunction that was protracted the the the severe pain that the district court found the crediting the victim's statement at the original sentencing would have been enough to support the enhancement and the the words that the victim used were with it sorry was that it was a very painful injury and he described looking at a result in the mirror and think you look like rocky from the end of the movie which the united states contend is it not only an independent ground serious the district court made no error in that regard so then we move on to the complaint of procedural error in the finding of obstruction and the not granting acceptance for the to escape  the defendant i'm sorry mr jones did not contest the torrent county escape attempt before the guilty plea and we see from the guidelines that that is ordinarily exactly the kind of thing for which one get an increase of two levels for obstruction of justice so moving on to acceptance what about that yes it is possible as i noted in my brief and as counsel brief that the district court could grant someone acceptance of responsibility credit even if upgrading their offense level for obstruction that is legally possible the district judge had that power but what mr jones needs to win here is for it to be improper not to grant acceptance when giving an upgrade for obstruction of justice and that's simply not the law mr jones tried to break out of county before pleading guilty and then pled guilty and then after pleading guilty tried to break out of santa fe county different facility qually attempt to escape and the district court here ruled that because of the torrance county escape attempt mr jones had not clearly accepted responsibility as the guidelines contemplate for that credit to one defense level but that as an independent as an independent justification even if the court had disregarded the torrent county escape attempts before the  but you got your second attempt what i what i remember her saying is that mr jones was offense level was not enhanced for the santa fe escape attempts by which i i i heard  to mean was not enhanced for the santa fe as good attempt beyond where it was and have to by the nine finding of acceptance of responsibility based on the torrent county escape attempts that is factually true but not the point  what mr jones needs to win on acceptance of responsibility is for this court to rule that if a defendant does act conduct is inconsistent with acceptance of responsibility before pleading guilty he can't be penalized for that if he pleads guilty even if he does the same thing inconsistent with acceptance of responsibility after telling a magistrate that he plead by the district court absolutely would have the power to determine that because of his acceptance of responsibility after the failed of gave attempt from torrance county a district court would have had the discretion to find that he had accepted responsibility for all the relevant conduct up until that that is not what happened and the law is not that the district court is required to find that one has accepted responsibility for all relevant conduct indeed counsel correctly argued in her grief that one can gain acceptance of responsibility credit when one sees guilty only to the elements of the charges and not all relevant conduct so it would be the current law correctly cited by counsel if the rule were that by pleading straight out one accept responsibility necessarily for every piece of relevant conduct if that were true ms mcgarry could not have argued all of the adjustments to the p s r as view of the sentencing enhancements that should have applied at the sentencing stage which you vigorously argued so that the rule is that when when a defendant pleads guilty they plead guilty to the crime but not to everything that could enhance the penalty of a crime and that's one of the reasons that the current rule is the correct rule which is that the district court has to determine when any given defend might have accepted responsibility effectively even though he has obstructed the prosecution of his conduct thank you so very briefly other than the