my name is robert boyle and i represent mr leon unless the court directs otherwise i would like to proceed in reverse order which is to direct address the sentencing issue that's raised and mr leon appeal in this case the sentence was procedurally on reasonable due to the trial court's iranis application of the vulnerable victim and handsome and set forth in three a one point one b under this court's decisions in both curley and mccall fully of hats meant to apply there has to be some nexus between the defendant's criminal activity and the harm caused caused to vulnerable victims this is a requirement that this court and actually other courts have led into that guideline and contrary to the government's argument read into the god line notwithstanding any guideline cross references which this case concededly did involve in this case the tragic fire that claimed the lives of four people and seriously injured a fifth occurred on may second twenty thirteen appellants grand jury testimony which is the criminal conduct which is at issue occurred seven months later on november yes and but for the following for the as we don't want i believe it was fairly presented to the district court which is all it has to be done in this case when the defendant objected to the enhancement the government comes back and argues a host of reasons walt why the enhancement should apply one of them being that mr leon should have notified the authorities when he was concededly present on ulit street that night when the court imposed the enhancement not only rejected the argument that was made by the defendant but says i am basing the imposition of the  enhancement on the ground set forth by the government and in the pre sentence report which also imposed the enhancement on that ground so i would respectfully submit that the issues were before the court the very issue  the court ruled that the enhancement should be applied for the reasons that we are challenging it on this appeal but should this court find that he wasn't properly preserved i would alternatively less rigorous than plain now the court below found and the government argues on this appeal that the vulnerable hit victim unhandsome and should be applied because  there was evidence that mr mr leon was present on the street and should have notified the authorities that that was sufficient but i would submit that that's insufficient the harm here was caused by the people who set that fire that was the harm that was caused there was no proof presented in this record that mr levy on set that fire that he knew that it was going to be set or that he send threatening messages that immediately preceded the fire and so he's there sending sending messages to someone who has some kind of filiation with his former girlfriend and then but but he he lies he lies about something that's stream lee relevant to the death of people and then he and then he acknowledges that you lies about it and so i ask you if you had also lied about not setting it and then acknowledged that he did said it but for some reason the government only prosecuted him for that lie would they have been relevant what they have been vulnerable victims and you said yes the government would just s p take just that lie out and lead the other lies is there not still enough of a nexus to show that i would i would submit your honor no there is not because the because the law is occurring months later the lies about the not having the cell phone and not being in schenectady that night months after the people were hurt and if there is no proof that he that he knew or should have known that the file is being s which is the definition of relevant conduct which under the guidelines is a requirement for the imposition of this enhanced pat and if there's no proof of that then the enhancement is not a plus though that he said he was threatened someone that the grim re was going to get them or something like that to me it was going to meet death or something doesn't that infer state of mind and then he suddenly miraculously shows up at the place and watches the place burn he didn't live next door he lived in albany didn't  it please the court my name is steven climber and represent united states of america and i will not take it personally that the court thinks an odd case i would i'll begin to with a sense an issue and i'll ask the court to affirm the sense as well as the convention on the sense an issue on plenty or you want to it is the case that below only the thirty year cap issue was raised by the defense i quite frankly don't understand the response to quite out here today but as far as i understand it it seems to be saying that if the government raises an issue that somehow preserves the claim for appeal that would read the content when you suggestion was completely out  level above thirty and so the courts given that song is in for this as this court said in their us raising one objection does not alert the court that you may have some other objections well no whole reason for the rule is to make sure that those things get litigated in the first instance in the district court and by complaining with special mention i mean each challenge to the vulnerable victim that what the cross references that we describe in the belief that this defendant leon was treated as an accessory after the fact to an arson and i'm like that's the way the guidelines to describe there were victims of that ar provision with respect to individuals specifically states that you take into account all acts in the world all as they're all acts omissions and harm resulting therefrom these people were victimized because of the fire as on the front porch a foot or two high as we know the fire got much bigger as time progressed had he alerted the people the house alerted the neighbor called nine one one yelled done something he may have saved the lives of some of the people in that house the fact that he didn't do so was an omission that is relevant conduct that relevant conduct victimized the sleeping people who by the fact that they are sleeping made them vulnerable under the guidelines that's all the next that's in answer to your question before judge most of the hypothetical you guys have clearly would be a better case for the government if the he had told a lie about setting a fire whether readers prosecute or not but the fact that he didn't do so under this guidelines analysis doesn't matter it might be a more attractive case but it's not legally a better case the guidelines themselves established in next year if you walk through them the way they're laid out says free after abbott absolutely and there's no dispute here your honor that that guideline applies and that starts to train rowing and when it gets to the terminal two is this recent supreme court decision in molina martinez which generally sad as a mistaken guideline calculation is error and so we understand that's the general rule but the court also said this and that decision there may be instances when despite application of an erroneous guidelines range a reasonable probability of prejudice does not exist the sentencing process is particular to each defendant of course and  consider the facts and circumstances of the case before the record in the case may show for example that the district court fought the sense it chose was appropriate irrespective of the guidelines run record reflects  no objection at that time no defense requests for them instruction that later in the trial the government asked for permission one by one to publish these to the jury by having the prosecutors read the questions and answers again no objection by the defense no request for a limited strike the first discussion about a limb instruction came up during the charge conference when government counsel suggested to the court that a limited instruction might be appropriate but didn't give the prosecutor in closing argument then discusses the grand jury to ask gibbs and clearly describes them as being offered solely for the purposes of material nothing else we then get to the judge's charge the judge give the charge no there's no question that this wasn't prejudicial to him nobody discussed these transcripts or any reason other than materiality but even had the jury somehow used them to prove the truth of the matter asserted there was nothing asserted in those transcripts that was even remotely prejudicial given the fact that he admitted himself he sent a threatening messages and he was there on the scene after he had originally lied i see my time is almost up you want to most of those questions i'll ask the court on the guidelines it is not the case that if someone is an accessory after the fact in terms of the guidelines that they are then accountable for all of the acts of the underlying offense in fact guideline one the one point five states that that is the case unless otherwise provide and if you go back to the vulnerable victim guideline and use it it puts a limitation on that so there is no requirement that mr leon knew or should have known i would submit that a fire was going to be set for the for the harm to be the result is relevant conduct less