representing the defendant in the appellant in this case anthony brown and i are only issue on appeal is whether or not the court committed there when it enhanced his sentence by two levels for the obstruction of justice obstruction of justice is a very serious finding by a sentencing court and it requires under the law four dis finding the first finding is willfulness in the supreme court in turn again emphasized that we are not trying to give every defendant a finding of obstruction just to the office of conviction of facts in this case are entirely different from the cases cited by the government and the cases that this court has ruled on in the past and they differ in four distinct ways and four distinct ways that keep this court prevented from affirming the lower courts to first of all we have a decision a finding of obstruction by a judge who did not hear the testimony himself and a great deal of deference is given to the fact finder who personally observes the testimony and makes a call on who on which parties are credible the second important year's obstruction of justice the fact that nothing what else was adjudicated isn't isn't important so why is it important here it's important your honor because in this and then if you were ordered to testify by testifying truthfully but the supreme court has said probably more times than i can count the fact that you're compelled to testify doesn't authorize lying  investigation prosecution or since you've used to films of conviction i like to proceed to those two points you donna thank you this also says this case is also different from other cases because of his invocation of  didn't completely testify he was forced to answer for how pound questions regarding the events of that evening and those who are structured in a narrower format in order to prevent him from being exposed those limited yes or no answers in that situation could not possibly form the kind of willful intent and a clear finding of falsehoods as would be required to enhance somebody's sentence the other factor that the court did mention is that there is an access requirement we're supposed to have this testimony take place in the case of conviction and with that if that would have happened in this case which is the normal scenario where it usually does happen then the judge would have been the one who observed and there is some nexus and relevance to what his sentence for this conduct should be well let me just suggest that talking about what's usual and talking about  nexus is dangerous here because what we've got is a text of a dr line that eliminated the word during that an earlier version of that guideline included in substitute with respect to the investigation prosecution or sentencing of the ins to defense which i guess i'd like to understand from you what you think that requirement means with respect to the  prosecution or sentencing reinstitute friends of conviction i would like to say your honor that that means that exact plain language of the text that it has to be with respect to his case and this situation he did not testify his case it says with respect well it requires ups obstruction in the office of conviction so that requirement means it's got to be really obstructing your the conviction in your case basically so that that is a requirement that's written in there and that makes sense to require that because you're being sentenced for the conduct in your case in this testimony this testimony was compelled after he had pled guilty correct no you are saying we had not even pled guilty at that point you know sure the case had been pending for a long time and he he was in working on the negotiations so in in to be clear that was mentioned to the judge who had to hear this testimony that they're not just concerned with the fact that he's got his fifth amendment right but the fifth amendment right would apply as well to sentencing factors to the judge district judge here who s in this case there was a significant amount of post conduct rehabilitation which in and of itself seems inconsistent with the court's finding there was evidence that from that day were mr brown participated in the arrest of the other individual by leading them to him ever since that day he had not been involved in any crime or ever such a rest except when he was committing perjury you haven't committed any other crime well it wasn't it wasn't it wasn't his arrest at that moment in time he was just participating in cooperating and in his cooperation he led to the arrest of another individual all right  during the course of the guideline used to say during the commission remove that language in about two thousand and eight correct your honor but why is it still temporal with respect to an even in the two thousand and eight timeframe with respect to when the commission stated the reason for the amanat it references the fact that it is with a timing of that case and with respect to the timing of the defendant's proceedings which is different than  what that amendment was about was reaching pretty investigation obstruction correct correct but it still had to be with respect to the offense of conviction and i don't see how that satisfied here i think with respect to still questions and when if somebody says yes in response to a compound question they're buying into every element of it if they're saying no you don't know do i think that that's right runner except for in this case these facts are particularly straightforward this answers you said taylor in north avenue question yes the answer no now if he believed that he were who he was at a different intersection that's an honest answer ok so in what sense should we treat those as findings for a judge to steal first just because you actually did specifically say he's making a finding that these officers are credible and so if what were his exact there and judges here conflicting evidence and decide which is credible all the time without reaching a conclusion that somebody was lying certainly judge to steal never made any finding  mr brown was lying willfully that correct interpretation of what happened that day and based on the just report on experiences that's because that's how these things proceed that the defendant's position the defendant's testimony was the least probable interpretation and in fact was not consistent with how how those types of cooperation proceed which district judge judge guzman referred to quote his version of events mean the defendant which is based on his knowing answers to those three questions correct correct and we don't know there was no exploration was there there was not of the possibility of an honest mistake of what detail might have called for a no answer your federal prosecutors are trained not to ask questions like this aren't they certainly are and i just put a negative into my own question right but it's precisely because you can't draw you can't prosecute perjury effectively when the questions are there spare the russians were merely prescribed in the light of the eyes are enough that i know i know but the question has to do here with the consequences well i understand and i think again it comes back to the ultimate point which is in fact in a sense in hearing one of the defendants arguments was what if he was in a zone car he was in his own car when this happened which which judge his mind of the district or in this case down absurd on the facts because of course he was under arrest he was in custody he wouldn't be in his own car and i think what matters is the defendant knew exactly what the questions were going to be well in advance of the hearing even if you didn't know if you that he was going to be compelled to testify and splitting hairs of whether or not it was seven forty five or eight o'clock wasn't really the point the question was what were the what was the nature of his cooperation in that and i don't know right to the point where the ship when the questions are asked that way i think again it comes back to what that the officers testif have disagreed with or the whole thing let alone whether the disagreement was going astutely deliberately willfully deceptive again it's not it's not ambiguous in the context of this case because i just simple set of facts i mean it's really not were you want to car in the police officers card fine assassins apartment building did you make this phone call and did you identify and that's essentially what the facts were so letting answered and if we go back to a question that asks about time that asks about location that asks about with whom are you present and asks about the geographic placement on the corner you asked those four things in a single question and the defendant actually responds in a way that makes it seem as if he's wondering about one of those four questions when he says that you said taylor whatever and then the single answer is no any one of those four facts he could be week appreciate your willingness your time's expired we appreciate your willingness to accept the point in this case and your assistance to the court case is taking under advisement and