an obstruction enhancement was clearly justified whether the district court erred in refusing to grant an acceptance of responsibility adjustment as well and we challenge the court's actions on several levels we say that he the district court misconstrued the statute and also made factual errors so the statute itself the acceptance of responsibility statute has a number of application notes the district court seized on language in the application note for which claims that or which is which advises that only in an extraordinary case should acceptance of responsibility be granted where obstruction itself i mean it's obstruction has also been impose so but application note three states that there should be a balancing test where evidence of acceptance of responsibility outweighs evidence of obstruction th everything and judge what i don't understand well i think that there is i think he discounted your honor excuse me i think he discounted the actual acceptance of responsibility i mean there was no question that  himself has said the paramount concern in determining whether acceptance of responsibility is warranted is has he as somebody clearly except somebody pled guilty and expressed contrition and that whenever anybody pleads guilty after an obstruction act which is the facts that they are entitled to acceptance or we're not alleging entitle me your honor what i'm saying is that application no three which talks about weighing the different factors should be elevated or at least read in conjunction with extraordinary here the judge got fixated on extraordinary extraordinary to me is a very subjective experience will standard i mean the purpose of the guidelines is to inject uniformity into sentencing so one judge is extraordinary experience maybe another one of the mill so what we would like to supplant the extraordinary standard with or at least read these two notes in conjunction of say it should be really about a balancing a factor it's now application no fo justice but there will be exceptions i wouldn't even completely agree with what the court said right there what what i believe first of all i think that there was a mistake in methodology to focus on extraordinary to the exclusion of weighing factors was a clear mistake given i don't see any reason why you would elevate guideline for over a guideline three so to me that is a mistake now to get into guideline for  ordinarily where there has been an obstruction enhancement applied that would indicate that the defendant has not accepted responsibility for his criminal conduct ordinarily so there's a broad spectrum of conduct that's covered by the obstruction and enhancement most of it none of i would say here what the defendant did was the least serious and the most ambiguous i don't think you can equate obstruction with failure to accept responsibility failure to accept responsibility if somebody suborn perjury or intimidates a witness or counterfeits documents or lies to the court or even flees to the dominican republic the day he gets bail that's all you can misconstrue that certainly the defendant can it can be construed as listen he's trying to avoid responsibility on the scale of on the spectrum of what's of voiding except or what's refusing to accept responsibility i don't think this you know this is least serious behavior that's covered by the that doesn't make this error that i judge well i don't think that people would disagree well i don't think he even performed the way i don't believe he just considered consistently said i don't find this to be an extraordinary no way this court's precedent united states receiver gero recognize well it's not expect explicitly adopting the methodology recognized that the application note says there should be a wait there lot of money i mean all those things are covered by all right but in ultimately refusing i mean his actual the judge's actual statement in refusing to impose the acceptance of responsibility ok well as i pointed out in the brief i believe when when the defendant absconded he was aware that this was going to be a result so i mean he signed papers in order to get his surety bond that you know recognize said listen if i if i leave my father is going to be first of all the factual statement is about timing now we're arguing about what is known in logic as post hoc ergo propter hoc which is a fallacy but it's a fallacy as a logical conclusion it's an inference that can be drawn it seems to me from this record that when it was brought home to him that this was actually going to happen not just that the father signed a paper that said he's going to be responsible but that the judge is actually going to enforce that and makes this this threat directly i think it's pretty logical inference it's not a logical necessity it doesn't follow as the night the day but it's certainly reasonable isn't it for the judge to think that it had something particularly comes back the very day that the threat of a day before the president to be executed seems that's an unreasonable no i'm not your honor and indicates that the defendant has not accepted responsibility there may be extraordinary cases so ordinarily you're going to lose it but it's up to the judge maybe there's something that the judge will fin and that will by definition be ex ordinary because it's not the ordinary thing and now the judge made a determination and said repeatedly it's a discretionary fact finding by the judge ok well a i believe that you can't automatically equate in this particular instance disappearing when he's a drug addicted new father for him to disappear for twenty two days and then return of his own volition i mean he always intended to plea i mean there was there's not there's never been any question that he was always going to play he signed the judge's actual i think it's the district court's own acknowledgment of rights he signed that back in december before he left and that's what was used ultimate plea in january so i just don't see how you can equate you know something where you're intimidating a witness or you know you don't come back then obviously that is refusal to accept responsibility but i don't think it's such an easy call to make right here and further i mean i'll move on i don't want to belabor the point two minutes ok you're i'll sit down and laroche i represent the government on this appeal and i represented the government below the law in facts necessary to resolve this appeal or straightforward and simple ordinarily if a defendant obstructs justice by fleeing from prosecution he is not titled to acceptance responsibility points here the facts are the defendant fled pending trial and then returned twenty two days later judge sullivan applied these laws to these very simple facts and correctly determine that this defendant was not entitled to acceptance of with the obstructive conduct took place before the change to plea yes your honor i believe the case we also cited was champion that is not a flight case but it's a case where the defendant at a suppression motion admitted to submitting a false affidavits that was before his plea and that and the core again affirmed there that the denial of acceptance points was appropriate and i think it's there's not a hard and fast rule and there shouldn't be there are circumstances where the application notes hold that even if you go to trial you might be entitled to acceptance points the applications no notes also say that just because you plead guilty you're not necessarily automatically entitled to acceptance points judge sullivan understood this he discussed the law he discussed the facts including all of the reasons laid out by defense counsel as reasons to award acceptance of responsibility points his ultimate decision was sound it was within his discretion and as a title to great deference by th you what i knew collected to point out to originally your honor was that the probation department here in its broad experience also recommended that the acceptance of responsibility reduction be granted right another point that i would like to make is that there is precedent of this court where  in the united states and wreak as the court said that these are precisely the circumstances in which a district court should grant acceptance of responsibility despite the application of obstruction and handsome and so over two dictum where a court just makes unnecessary comments and there's judicial dictum where a court goes out of its way to provide a construction of a statute to guide the future conduct of inferior courts while the such for his underlying conduct he thanked the court as he walked out of the court room with a seventy eight month sentence for putting him in prison because it gave him the opportunity to testify to his fellow cohabitants about the evils of drugs he thought prison was a good place for him so i mean perhaps not for that length of time but i think you know he was completely sincere so i mean in conclusion i will say that you know i believe that objectively that he