some of the sentencing issues which in light of the i am going on van praagh argument that will be heard are are going to be someone they and and i want to talk about however some of the sentencing issues in this case i would of course entertain questions on any of the other issues that the court may have with respect to the motion for new trial i submit to you that the district court judge ignored the testimony of mr have a town at the motion for new trial when she issued her order denying the motion from the trial what was important there were a couple of conversations between tagged on to the defense theory that the defendant was actually doing this for the benefit of law enforcement i have that right if they call it a public authority defen had with agent coleman in december of one thousand nine hundred seven and it's that mr vasquez asserts that it was during that conversation that they had this discussion about saving images for from the drug dealer and loser has a heavy involvement in drug use and drug dealing before he becomes an informant so the fact that he previously had an interest  left child pornography does not detract from the public authority depends in fact those are the kind of people that you want to be helping law enforcement because they know how to do what needs to get done to catch the bad guys he said there were tactical reasons he didn't you can't just say that without having a foundation work and quite frankly i have that he thought it would be more harm case the naked testimony of the defendant against the rest of the evidence here we have the naked testimony of a three time convicted felon against special agent randall coleman and you need wasn't and the lawyer goes through each of these reasons now a different lawyer might conclude otherwise but it seems to me that that distinguishes this case from a lot of the other ineffect counsel and failure to call the witness cases because this lawyer gave us quite a recitation in the record of why he didn't call him and all we could say isn't that it seemed like faulty unfortunate that the government did not call the defense attorney to testify but when mr have a time testified at the motion for new trial hearing his record his memory was not bot and you know none of these other reasons that mean a body there was no impeachment of mr have a tone except really with respect to this alleged are computer parts fraud that mr record that counsel have a full and fair opportunity to examine have atoned to present him and to present the information that related to the effort to obtain in the intro there's nothing that i'm aware of that suggests otherwise argument and i'll quote this is a man with three parter felony convictions and he is telling you that you should believe him over agent coleman and then she mentions the other witnesses as well the only evidence and quoting again the only evidence at all regarding the all these other people he's told all the other people about this law enforcement defense information his wife but none of these people have ever objection and then it moved on so the government  history when it was determined to be four so that rather than looking at if you are that level seventeen these looking at thirty seven to forty six months he was up to and that's at a level our criminal history o under twelve that was never determined by the jury or admitted by the defendant there's two points for obstruction i was never admitted or found by the juror and maybe by the defendant there's two points for computer transmission again not found by the jury and not admitted by the defendant and then the five points for grouping and quite frankly we don't have enough time to discuss them grouping things into all of the stuff so i do just agree with you  statement that i heard agent coleman tell vasquez yes i directed you to save this that statement only comes after trial and it is in fact in the record those four separate statements that would have led to devastating impeachment the first time we hear the quote that have a tone is willing to say that agent called me and said to the defendant do you have something for me that i asked you to say for me is march thirteenth after the franken has been concluded so there were four separate statements that would have been used to totally destroy have a chance testimony if indeed that's what he was going to say on the day of trial furthermore the to devastating cross examination on prior inconsistent statements and who would have had to it admitted to having been involved and he did admit at the motion for new trial in picking up materials for the defendant computer equipment using names that were not his own and so this court looks at this with a deferential standard and from the perspective of the time and that's why mr park made a reasonable decision as the just the court found not to call this witness but even if this court contradicted by other evidence the defense that i was stating this because the f b i told me to was completely undermined by the fact and this charge and counts one two and three that the defendant provided a desk of child porn  the fourteen year old brother of one of his girlfriends that's not consistent with saving it for law enforcement another one of the defendant's right friends testified that he told her i'm going to market and sell my desk of interviewed by the defense attorney it's the substance of that is in his affidavit and how it was in fact there on the day of trial and could have been called if he would have been useful so we don't have a diligence problem the bedsteads though we have a confusion problem that mr parker just didn't understand what the testimony would have gone and that's contradicted by the record if this court looks at the affidavit that mr parker filed he says quite clearly i talked to have a town about the december one thousand nine hundred seven issue when it also would have been heard and and it just that's not what haven't that's not what have it sounds that at that time so we don't have an issue where the defense attorney was confused as to whether or not this testimony would have been helpful it just simply course order of course rested on both these grounds that it was neither deficient performance and that nor that that there was any prejudice to the defendant this court on this record has no basis what do you do if a defendant was given a sentence under a mandatory guidelines system is that necessarily something that has to be remanded and the government's argue is argument is under factors three and four of the clean defendant won't be able to show that he would have been sentenced more leniently under advisory guidelines furthermore the government's argument is on problem for that the the mandatory rest of ice free but what about the booker issue going back to a printing of the enhancement based on findings particularly with respect to the obstruction and the age of the briefly the are the confusion and with mr parker the trial lawyer is found in paragraph five of his affidavit because he is trying to determine whether or not mr a town remembered agent holeman talking about saving future image used during the conversation in one thousand nine hundred seventy in december of ninety seven when the fact of the matter is according to the testimony at trial that conversation the acknowledgement by agent coleman was in april of one thousand nine hundred eight with respect to the sentencing i tend to agree with the government that we're going to have to