the welcome to the east courtroom pal i'm honored to be sitting this week with judge james dennis here in new warrants and with just come with us from austin we have quite a show more of a support for the week of cases from the criminal to all of the civil map and so forth so we start today with with with this group of cases you're veterans of this i will give you the long list of rules but the ammunition it seems least obeyed consistently is to speak up and to stay in the mix so even though we try to work hard to improve the sound system from time to time if you start speaking working on opinions we go back to listen to the tapes and so sometimes we found wording his tail off and it's difficult to hear so just you know just stay other than it that's the main thing don't steer from the mike so we can hear you history point for mr i'm on fifteen day sentence for failure to identify which rendered him ineligible for reduction under the safety valve is relevant here forty one point two c one instructs that a sentence for false information to a police officer and all sense is similar to it should be care only if there was imprisonment for at least three days or it is similar to the instant offense mr ali once failing to identify sentence should not  been counted because under this court's hardiman analysis it's similar to false statement to a police officer and the sentence was not at least thirty days the government's alternative argument fails because the prior offense is not similar to the instant offense first texas failure to identify as a class b misdemeanor for a person gives a false name to a police officer who lawfully detain so it's a class a misdemeanor if the person is a fugitive from justice which false information to a police officer the only question in this case with regard to the similarity therefore is whether the class a misdemeanor with an outstanding warrant is the same as false statement to a police officer this court held him in ray's mana and harden and that more important then the range of punishment is the punishment that was imposed in the prior case here only fifteen days in jail was and that is only half of the required thirty days for the often stupid made county under the hardiman factors therefore it should not be counted and also it's no different than other offenses that are not count forty one point two c one for example resisting arrest is not counted and that's a class a misdemeanor that has that has as elements preventing or obstructing a peace officer from affecting the rest and also can include is similar to the instant offense let me say first of all the government's argument that mr alim on fled i don't think is supported by the record the government's wrong about that the p s r says that the officers approached the river i'm sorry that he fled from the officers to avoid arrest is wrong the p s r says that the officers approached the river detonated in a flash bang advice and mr ali man drove away it also says that the officers failed to intercept then and he was subsequently arrested there is no finding that he fled to avoid arrest and as he explained after he was arrested he thought he heard a gunshot and that's why he drove away if the government so what we're left with is is the prior failure to identify offense similar to failure to appear and your honors i think it's not because number one thirty two identify under the heart of the factors the punishment is far far less than failure to appear and number two failure to appear has a much higher mens rea for example you have to willfully fail to appear at worst value to identify you just have to not or to give a false name and this court has held that that requires no fault for thought  appear in this case involved mr alim on who had colon cancer had had colon surgery had a cost me bag with schizophrenia and was bipolar and if you look at the sentencing in rearrangement in this case you'll see that the court in the attorney's discussed leaving him out and not executing the warrant for his health condition and the judge was upset because he didn't call up so given those a commonsense approach with all doubts resolved in favor of including the offense in the criminal history school or mr almonds prior conviction for failure to identify as a fugitive from justice was properly included among the hartman factors are the seriousness of the punishment of vailable for the offense and here mr all among was convicted of a class a misdemeanor the most serious of all possible misdemeanors punishable by up to a year in prison he actually received a sentence of fifteen days imprisonment which gets him halfway to the bright line rule under the guideline that would have had this prior conviction included without any further analysis the elements that you also compare in the heart of an analysis are more serious for the offense of failure to identify as a fugitive from justice than the simple offense of false information to a police officer and that's because of the additional element that you have to be a fugitive from justice there has to be a valid arrest warrant issued for you which means there's already a judicial officer somewhere who has found probable cause to believe that you know that the warrant had been issued a commonsense conclusion though from someone who has an outstanding warrant lying about their identity to the police makes it pretty easy to draw the conclusion that they do know that there's a war out there and that's why they're alive and this court recognised in re as maya in its very brief analysis of the simple offense of failure to identify to a police officer the classic being a misdemeanor that doesn't include an outstanding warrant for your arrest that those facts lying to a police officer seeking to avoid truthful participation in the justice system are both indicative of a higher level of culpability and a higher predictor of future crimes those factors are much higher here where you happiest sense of failure to identify as a fugitive because you have that existing arrest warrant out there and in mr owens case in particular this court has the benefit of hindsight you can look in see what he did in the later federal case and see what a clear predictor of his prior lies to the police were in terms of his flight from justice in this case that mr sokol suggestion that he has or doesn't include adequate proof that mr all men tried to flee at the time she was intercepted in this case when he was trying to smuggle three hundred pounds of marijuana over the border is not looking at the evidence appropriately agents moved in with the dog in a flash bang grenade to try to stop six people who were carrying large amounts of marijuana across the border to stash them in the truck that mr all of mom was driving when they moved in to make the arrest he left they tried to intercept him and were unable to it's pretty clear that he was fleeing from arrest putting all of that aside he observed on duty as the district court found and spoke about at sentencing for several months he absconded he failed to appear for his final pretrial conference and wasn't arrested until several months later when he was spotted by police at a spot known for drug sales in this case in particular looking at that part  sense analysis where one of the key factors is was the prior offense serious enough and predictive enough of a future criminal behavior in the district court properly included here that prior offense predicted with great accuracy the fact that mr all a man would seek to avoid justice in this case as he did by running at the time of his initial arrest and by jumping bail after he was arrest in light of that the district court didn't air properly included that prior conviction and mr all the months of criminal history category of the court doesn't have any further questions to rest on the