destroyed evidence rather a court must make specific factual findings to support specific legal standards are set forth in the guidelines and the accompanying application notes in this case the district  standards are fine for each type of conduct because we actually notice if you look through them they're very very specific about what standards of fines depending on what the defendant did destruction of the destruction of evidence i'd be happy  constitutes obstruction of justice but it has two specific exceptions and the first is the destruction that's contemporaneous with the rats that's additional situation where you know knock your door close your eyes you actually need more than materiality you need to prove start of the investigation may only be covered if it was purposefully calculated and likely to have thwarted the investigation or prosecution in this case so those were the findings that this report had to make in  exceptions why does it apply here well first of all i think that the evidence in this case is basically silent as to when the check reassurance paperwork which is that the evidence at issue here was removed or do and there's absolutely no evidence that was removed or destroyed as the investigation was starting or afterwards and so i think the only factual finding that would not be clearly erroneous is that it was removed before the i think you like i don't like representing someone in that situation and i think it actually is highly i mean in the sense of making or well in the sense of having to mitigate bad behavior no i want to get the story it incidents of obstructive behavior and see where it fits in the guy learning that name when you feel well it's harder because it's a larger task but it's certainly feasible and i think in this case it is because i think that we can challenge each of these obstructive acts because neither none of the acts actually meet the legal requirements that are set forth here and as i started with the court did not make the findings necessary for this court to even  court still has to actually meet i mean your honor when that is that when someone raises and issue at sentencing and someone is a defendant argues that a certain guideline does not apply the court does not meet its responsibilities in sentencing by saying i is that it is not obvious and apparent or direct think is the strongest claim of such although you don't think it makes the case which do you think is stronger this is a question of evidence is the strongest claim because if you could lies hindered this investigation the officer in this case isn't trying to lead the inspector did not relying to his detriment where the detriment of this investigation in any way on the statements and in fact on stevens actually cast greater suspicion is that after the initial investigation had been initiated after agent connally himself to try to call the check pains and couldn't because the government system that has the concept of our nation was down ms hill called him and also that bank investigator is being proactive in the fact and said i called them and they said yes these are people who don't even live in baltimore anymore who don't work for baltimore they both know robert johnson and said that they that it actually made him suspicious that he was not the same thing as saying that well let's look he said nothing about how into this investigation he went on with his investigation as he would have if she had never picked up the phone a and then it is a specific for g e is that specific exception when you can buy statement to law enforcement and that it has to be materially false to a law enforcement officers or not a bank impressive year and it has to have significantly there is no evidence the record of how her statement that she reached out to the pays origen i know that she knew her codefendant significantly hindered this investigation in every single check fraud case and maybe you want to punish her through an upward variance or through there's actually an application no no three that says that if there is obstructive conduct that does not rise to the level of this enhanced myth that can be addressed by giving an appropriate sentence within the  so the application notes themselves actually contemplate that there are situations in which a defendant is going to engage in fact on harm that we don't like it seems obstructive but it's not what we intended when we created this act this guy range is that it really in the midst of this argument arguments like this or yes let the offender win on every objection but then just sentence what you think is sentence and you can do that by doing thirty five fifty three eighty and then eliminating other arguments about a bell technical arguments about you know the equally but let me finish and that way were other ways to find these people and the investigator if he had not been told that everything was fine the checks were fine he might well have instead of diverting his attention to finding the people who were in focusing on that focus not going to the location where that person had worked and finding out that that that the in fact they had they not ever questioned the check and had not received a check and certainly had signed you mentioned professional accounts the agent spent a lot of time there were seven hundred text messages between the two of them over seven hundred telephone calls between the two of them and you have to chart that on our show on the foster activity that happen matter when those documents were destroyed and it is absolutely true that we don't know when they were to strike we never found them and we never found any evidence of them except for the fact that they had been held out at some point in time in order for a check to and spoke with her and then she went back and almost immediately they were all looking for paperwork so the paperwork would have been there and or been there or in her to buckle with which people also helped her search if she had taken at that instant when she found out about the investigation so the court found that it was the time that she learned of the investigation and i think she reached that simply because the last check was issued on and so again it is very important if you read the text of the guidelines that the court needed to find not just that she intended to thwart the investigation but that the removal of the paperwork was likely to thwart the investigation not hinder the investigation not make it more difficult for the prosecution to put on its case not cause the prosecution which it did to have to call more witnesses to prove that she in fact was the only person who could have created that paperwork that's not forte's more is much more than that and you have to again flying cans of statutory construction construction for is greater than hinder or means to stop to undermine and the court did not make a finding of her conduct was likely to have done that and it wasn't your honor i want to address it so easy and for the government to say that because she was acquitted of the two substantive counts wire fraud that that was the wording that has nothing to do the removal of the piece of work there is no way that the jury could have convicted her of the conspiracy to commit wire fraud had they not concluded that she was the one with in that office who caused the checks to be issued there were no other unindicted coconspirators there was nobody else unless you have been working with her who have could have created the check visions paperwork so the fact that they acquitted her of those two substantive counts has nothing to do with the fact that the paperwork was missing what's more likely is that there was actually significant evidence of the fact that even though she filled out the paperwork or she's not in fact the person who takes the paperwork and goes onto the computer and accesses the database in another state which causes the interstate commerce nexus and prints that she doesn't do that and so it may have been because of that fact that they don't confuse and acquitted her on those counts i want to go back to your honor to what you were discussing before about a free fall five three even if you say let's just do three five five three and that one of the factors you have to consider read you can seven so you can have the guidelines wrong and you can still have time too much time ok i guess because what i would urge you to do is to go back and carefully read my race because again i really encourage you to not fall prey to this general this desire which is really appealing to just overall say