job just a little bit easier in regards to the appellants first brief point where we argue that the criminal history category was miscalculated upon further reading of the apple lease brief upon many readings of the united states sentencing guidelines it's not miscalculated it is a criminal history category four not a criminal history category three we're withdrawing that argument now that we still take steps into the four level enhancement we still take exception to the motion for upward v if you were to recalculate that with a criminal history category four as opposed to three and if you decided to get rid of the four level and hand spent i believe that we're looking at your honor for please the court what i'd like to do with the majority of my time is devote my oral argument to our second brief point death before level enhanced but it was an abuse of discretion and should not have been imposed and of course this is the information that goes to the minor child k g in this case where originally in muscatine county district court in the state of iowa my and that eventually k g himself was charged with false reports so we start off with this baseline if you will of a complaining individual who at least from the  findings were clearly erroneous yes your honor we are we are and the and the this panel can look at it in one of two ways you can look at it that the harboring charge was not proven or if you agree with judge darby that well we we do believe there was a harboring charge here that he could rely upon it really gets to what may very well be the meat of this issue did this weapon did this twenty two caliber rifle facilitate this charge in some way or have the potential to do so well let's take the harboring point i mean you do have just you know to get to get at it you've got the dog sitting and you get that's when you buy the dog sitting out of outside the room and have i mean i guess my point is how do we how do we concluded that the harboring of runaway here was clearly erroneous i think what you can look at your honor as this is you can look at the fact that once my client learned th then returned now you would think if if a person was being harbored once they had the opportunity to go to a girlfriend's house or or anyone else's house they wouldn't be coming back and so i think that contradicts this finding by the district court that sure we had a harboring of a runaway but it doesn't require it doesn't require him to have kidnapped the child that requires him to have for the child to have been a runaway and for him to have kept l and that would be a longer road for me to get down your honor i appreciate where the court's coming from that reevaluating his credibility might make my position even harder but i think what you're left with when you look at the totality of the facts that were brought out during the recent hearing is that this this young man's testimony just lacks a basic bottom line of credibility and it and it's enhanced by the fact that he was charged with filing false reports but that was my earlier point if you disagree with me and you judge drugs you may say ok mr well that there is harboring so now where do we go now it gets back to the interesting issue i know judgeable lawyer was the author in the smith case about does this weapon facilitate the crime or have the potential to facilitate the crime and there we believe the facts are absolutely lacking k g falsely allege that math is held in that gunpoint k g was only aware of the firearms presence but never aware of mathis handling firearm and anyway so what we seem to have is we seem to have a weapon present in the home with no purpose or no potential to facilitate know it knowing the gun is there in reacting to it your honor i think are two different two different steps and i'm not trying to slice the union too thinly with you but obviously he's aware of the firearms presence but how is how is the firearm utilized how does he react to the presence of the fire and if if the if the lower court district court believes that k g was telling the truth he says he was intimidated by factors that was discussed with law enforcement the intimidation part started when mr mathis realized keiji was a juvenile but law enforcement could not offer any idea as to the timeline of when this was so this concept of ok he's intimidated ok he's intimidated but when and in relation to what your honor even even if we accept well it was in relation to the weapons but with you to be quite honest if all we had here was the gun leaning up against the wall i guess it was in the kitchen or in another room wasn't exactly i can tell from the record exactly where it was but it was not used running up against the wall and i think i would be with you because i don't think merely having a gun in the home an open view necessarily gets you there but we have circumstantial evidence to get the judge just missed point we have circumstantial evidence that he was trying to intimidate the runaway and staying inside the home and that's why i mention the dogs earlier if you combine the dogs and you look at the dogs then maybe we say well the gun was just another thing just like the dogs to keep that keep the runaway intimidated in the home in your honor my response to that would be it appears that all of the intimidating factors and i'm you know i can't hard to put yourself in that position and there's dogs outside my room and i see a gun every time i leave the room that total picture would certainly be very intimidating if you were a normal fifteen or seventeen year old  we would argue that he's not because he's d c and that's what's shown throughout this he's completely deceitful if the court would allow i think i have fifteen seconds left for rebuttal better stop talking thank you  second factor first was i was focus of the questions of counsel's argument you believe that there was a preponderance of evidence to show that connection and judge judge darby did not air by finding that it did in fact have the ability  facilitated or potential to facilitate it was found i believe by the record in front of the entrance and firearm at him or he was not being held at gun point and some e mails cagey admits up front what he was untruthful about but also still notes the presence of the farm in the residence found at the front door where he describes where it sat and that that presence of that farm in conjunction with the other facts that he notes intimidated him to not leave the residence juanda got talks about that when the police officers come out and actually the muscatine county sheriff's office comes out on february twenty fifth at the two thousand and thirteen she knows already at that point in time on the dad k g is a missing person and fifteen years old to the control that mr mathis and want to got exercised over him while he was there you also know to mr mathis freely shared stories as in prison of his being profession at beating people up this farm at the front of the residence what do what do we make of the fact that he did leave the residence and spent the night with his girlfriend and then voluntarily came back if we were so wants to get it back as soon as possible so it's a lesser degree control i think consistent with the fact that they were trying to control he is movements and even when they granted him that one day of freedom they won him back as  begin looking for him and again as he has in the past he's going to be in trouble hiding out juveniles he knows because he had this testimony about in ninety nine as these two thirteen and fourteen year nails underneath his trailer while he's at the police department and i don't know whether at every turn so again his pattern of conduct is certainly also consistent with counsel i want to ask you a question about two to doubt one so use the word in connection is the firearm in connection with another felony offense here the firearms the rifle sitting against the wall and then i looked at harboring a runaway  iowa statute and in addition to the harboring part of it it also requires the commission of another felony offense and here the other felony offense is sexual acts the sexual acts that he committed with with the child now when the allegation or when the testimony was he pointed the gun at the child's head or pointed the gun to the child you might have had that but there's no connection now between there is a connection between intimidating the victim there's no connection now between the gun and the sexual acts that were the other felony offense under harboring a child is not a problem it's not the precise argument they're making but i'm a little worried that there's a there's a few different elements to harboring a child and it may have contributed to harboring but it might not have contributed to the underlying sexual acts but i don't know to ply the handsome and if we need both but i also think that the record  stablish is that mr math is goal in luring these young males to his trailer is for sexual purposes and while he admits later that mr math is wasn't pointing the gun at him it doesn't eliminate the fact that mr mathis is intimidating him to remain there and one of the primary motives i think from the record is that he wants to sexually molest him  sexually assault so i think there is sufficient evidence certainly respondants of the evidence defined that it would fit most with aspects of it i also believe most of the  questions about that prong that the judge jury was correct in varying upwards i think the record as noted by chief judge jury is strongly in support of what would have been a nine level upward variance from a seventy one to an eighty the seriousness of this offense which we've discussed is basically the presence of a weapon that mr mathur should not have had playing the part in intimidating a fifteen well even if i'm wrong about the four levels on the guy i would i would very upwards of eighty months anyway because of his horrible criminal history but he didn't make a he didn't make that type of five he did not he did not  noted the history of his inappropriate sexual activity which goes all the way back to the eighty's in one thousand nine hundred six nine hundred eighty eight while he's on parole status for a financial crime he's violated on two occasions both  discretion to use me in varying upward eighteen months thanks to what was the harboring charge dismissed is that what happened to it it was dismissed but i would note the timing of that he was arrested on federal charges on june eighteenth two