the court counsel my name is daniel ellison with the federal public defender's office and i represent mr rangel he raises four issues on appeal first the district court miscalculated the guidelines inches by incorrectly finding  added amounts from three periods to get the two point zero seven kilograms happened spring of two thousand to two june two thousand for june twenty fourth two thousand and two which was seven hundred fifty grams had a full sixteen to june eleventh period which is another seven hundred fifty and then there was another third period february first march thirty first which is five hundred seven grams and district court excepted all those plans the problem is all three periods have overlapped the april sixteenth eleventh period is completely within the spring to june twenty fourth period and even the march period is part of the spring period also the february second through march second the march of two period was wrongly said consist of ninety six ninety used as a multiplier to determine the amount weekly deliveries to get to the five hundred seven gram total but that period is i'm only includes fifty nine days and so if you were to multiply fifty nine days by the ounce quantities you get four hundred sixty five point seven grams not five hundred seven for any of these reasons the district court's calculations are incorrect you don't get to two point zero seven kil grams of cocaine based on what i just laid out furthermore the quantities were based largely on the memory of the supplier one corral and he admitted he could not accurately recall how much he sold so there's manager enhanced minutes but with respect to the obstruction mr rangel fear to rast panicked and went to mexico he did not so eat up he didn't simply run away from the police in the street he made a calculated decision to flee the country and remain in mexico for almost ten years while the government you know the government's case we were not going to be appropriate to openly in mexico and i'm not certain that it did impact the government's case and the government's case largely relied on the title three and it was really important for the government to go forward on the timely prosecution w rangel they knew where he was they made no efforts i don't think that it impacted the investigation or the prosecution at all and to the effect that the poor memory is later asserted as a basis for memory relative to what the untested statements of an individual in front of a grand jury such as the case of mr rangel that hardly demonstrates an inability to recall information and furthermore i go back to the fact that their title three is your honor so i'm not certain that these facts square with t decided by the government relied upon by the district court in any bad also draw attention to the fact that there is no proof the expenditure of any resources by the government that something the district court will i know in the poor with the poor memory of the witnesses something i just touched on that was the only other factor as i remember the district court relying on to impose the enhancement surely my client went to mexico and he was there for ten years but those are not the necessary benchmarks to determine that the enhancement of are you saying it was is simply he left the country when he didn't stayed away for ten years no not at all he ipanema and he went to mexico but i'm saying the other facts are what distinguish this case from those that properly imposed the enhancement saying that a witness had poor memory and that the government has to expend resources those are the just patients the district court gave to impose the enhancement and i'm saying there's no proof of the expenditure of resources and the poor memory is relative again to what the inability to recall facts as well as one once testified that cross examination of the grand to be shown here even if there was some infirmity in the findings doesn't matter because he's a fugitive for many many years willfully yes and so that on its own even even you know without any actual but nevertheless i turned to the third argument if i may and that is about the unreliable evidence that was used as an aggravating factor to and here to impose sentence and that violated mr rangel's fifth amendment gun that was part of the charges that were tried to jury so the facts are introduced at trial by contra or by contrast we have here in one nine hundred ninety murder that the government devoted the bulk of its time at the sentencing hearing to prove up  at a different type of proceeding than there was in watts we don't have a circumstance like in williams the supreme court where the for the case where the defendant confessed burglaries and other witnesses disinterested witnesses gave statements about his participation we have here again twenty six year old mark the jury acquitted mr rangel the government often says about its respect for jury verdicts but this seems to be a different case there was approved at the sentencing and relied on it mr perjur before yes there seems to be a double standard if we were to bring those witnesses in and present them as defense witnesses i don't think they would be deemed credible by any court in this country but there's a different problems well judge and that is th disrespect i'm saying that there is often a bias that works against defense witnesses when they are presented in the same fashion their credibility their prior histories their cooperation agreements anything they can use to discredit them pits and if i may you are because i think this is an important point we have the judge in this case say that the witnesses had no incentive to lie but in fact we had cooperation agreements that require them to give testimony to support the government at the sentencing hearing so they had as a i think is a pittman matter that's problematic because we've got a judge making a statement about people who have no incentive to color their testimony when they have cooperation agreements that expressly require them i presume to continue to give statements of this type and they have lots of incentive because if they're in violation of cooperation agreement all the benefits get pulled and they are at risk of much more time in prison and the district court can we discounted that as if it didn't exist and yet that's prominent here cross examine mr quimby which again i find to be a problem of the fifth amendment because that's a difference this requirement even at sentencing fourth unless the course for the questions sorry for the judge gave this period supervised release of five years the guidelines required a period of three years so we have an upward variance and yet we don't have the necessary an attendant explanation for the upward variance as required by gall fairly tight only shown to be a violation of the procedural due process requirements well it was correctly correctly calculated as the guidelines matter in the pre sentence and the five years was part of the pre sentence recommended sentence and the judge accepted the pre sentence after confirming that the only challenges were to be obstruction and calculation and etc the ones that we've already talked about and confirming over and over that there were no other objections son why isn't the burden on the defense if there's an objection to the recommended calculation first of all in the tree sentence which was accurate and i take it you agree that it was accurately calculate it in the pre sent asking for objections and then in the absence of any objections accepting what's being given in the pre sentence why isn't that enough to satisfy the application to actually do the calculation it would still be an upward variance rahner even accepting that premise we have been unexplained to add it to your additional period that should have been justified in court with you have supported by reasons that didn't happen so i think that that demonstrates wants may be three times so with the district her truly being conservative you want to assume there were three such transactions rather than just and two and the frequency of the calls and the calls that are corroborated i believe if you is in fact conservative based on the total evidence before the district court and in terms of the periods of time your honor the time period that corral sold to rangel in the it's entirety was february first to june twenty fourth until the day that he was arrested the government calculated seventy five about over seventy five calls that were played during the trial that were included in our sentencing memorandum which showed the frequency of the drug transactions that just reports calculation was conservative and it even noted that it was conservative it by stating that there was reliable evidence that he also was supplied and sold marijuana the defendant even admitted that at the sentencing hearing and that he had other suppliers so the district court did what it was supposed to do it took all the information in may to struck quantity calculation based and reliable evidence that was corroborated by not only the calls but by the calls and the defendant or cross testimony and made a conservative estimate of the drug calculation with regarding the obstruction and handsome and the poor correctly applied the obstruction enhanced matter in this case now counsel argues that that you know he didn't use false identification and that and all these other things that are details of wiggler cases but that's not required what's required is that the court make a finding that he  charges right before the arrest and that he was going to mexico he stayed there for ten years when he turned him in south and there was testimony at trial that he told the agent at the u s embassy in mexico stating that he was on the run from the arrest now as to the question about whether or not you know if this was really important to the government why didn't they seek to extradite him and to say that you know the government know where he was just because in mexico does not it's own records and he was unable to that's neither here nor there that's not a requirement for this court to apply the obstruction the all the judge needs to see all the district court needs to find is based on the defendant's conduct was this calculated of age and the evidence supported that and that's the time the court made regarding the evidence that was presented at the sentencing regarding the murder argument your honor if your honour's the the evidence that was presented on its face supported his involvement all of the back and to the witnesses including perjury convictions criminal history prior lies were exposed to the court they were crossed by the cross by the defense and the court acknowledged when the counsel said that you know he completely discounted this report mentioned it twice the court stated all three witnesses are convicted felons all told lies at times to the government officials police officers and others all eventually cooperated with the government and received reduced sentences based on that whopper ration and agreed to cooperate in the future relating to certain cases and then making his finding again to just record stated when taking the witnesses backgrounds in history their prior life their convictions their activities that as gang members into consideration it was clear to the court that their testimony here today was credible so it couldn't be more clear that the judge did not discount that took it into to acknowledge it and then still found out about these witnesses cred and then regarding the i supervised release issue as the court in his questions to counsel noted the judge did calculate the supervisory these ranged in that it was in the p s r and here is we know that the court knew that the supervised release range was three years because it was included in the p s r it was included in the sentencing recommendation which was a test that p s r and the court adopted the p is that that is how we distinguish the downs case because there is no mystery here it's not like and downs where the courts at how do we know what he thought here we know it's because he was in the p s r it was correctly calculated and the court adopted it so that's and with respect to the two years above the supervised release the judge made extensive findings on the thirty five fifty three of factors prior to imposing the sentence and then the supervised release i think under the current case of the  over to your question i think it's absolutely correct about how can you assume somebody is making conservative calculation when they say there could have been a skew as one but as many as three one of these of this type it's not a conservative when you choose three instead of one one is the conservative number there's also a problem the just court didn't rely on any of the recordings the government just did as cooperation of the sentencing hearing so if it's there that's not what the district court relied upon as far as the marijuana that wasn't part of the two point zero seven grams of kilograms of cocaine that was calculated by the district court the amount of marijuana was unproven and that's a problem with again figuring out how we got to two point zero seven kilograms irrespective of everything else that he said about overlapping drug quantities and he's begun to find periods of what is the spring and so forth and then finally finding that the witnesses are credible is one thing but wrongly finding that they know had no incentive to lie despite the apparent importance of these pleas greenland's is a fifth amendment issue that is something that would be a problem under krone gonzalez or any of the case law that we cite about the judge relying an impermissible excuse me on an incorrect fact that is an incorrect fact these people had lots of incentive to give statements that they did in the district court discounted those and spoke only of credibility i think that's a problem as well  you know and basing this credibility finding based on all the evidence of their backgrounds and and involvement in the activities and you know basically in a generic way cited all the lives of the witnesses why isn't that good enough because there are two different things i can take issue with the credibility termination and i'm not i'm stead taking issue about the accuracy of the information is that is the fifth amendment due process