excuse me the struction of justice and for perjury to make that enhancement to impose a property there had to be false testimony materiality and will when attacked those are the things that are done again the supreme court case requires the district court to innocence seems to me of no moment whatever well the judge especially serves as a jury and so far she's making the finding of fact on this your honor so it is consequential that she said it's material because it's immaterial because it's immaterial then we're missing one and this is the problem in the case the problem is exacerbated that your honor by the failure to make the necessary findings about intent and if we're not satisfied about the statements the judge made appendix page thirty eight i can't improve on those but i can mention about intention and what the judge made by way of findings here and she said that it just didn't seem to her that it was faulty memory but that's not an adequate finding by her she sort of account of the fact that the statement was made two years after the event happens question hearing occurred two years later the impact of memory decreases over time geometrically that's this court's crisper says library decision so there is strong reason for the judge to address the passage of time she doesn't there's also the fact that the low anxiety level dress that is present in these sort of encounters through erast through question by the police needs to be accounted for when we're light two years ago versus a series of questions where he's giving declarative responses sure i mean we're not contesting the policy it's right that this is not the case then that it's like that still the case that says if the grand jury had believed this testimony the government may not have been able to obtain an indictment couldn't go forward on the prosecution this is about the waiver which the government sites are cited in the district court and will revisit now but under burka myrrh in those cases it doesn't special hearing it wants to bend it back and say that sentencing hearing this must be material but it's not in the proof that you citing the case isn't arguing as they get this case was never going to stop this case always have sufficient evidence to go forward to get prosecution be mistakes and documents are tendered to the court things that are prepared by official court reporters as we cited in this case the problem is go at a bottom line that the judge did not make the necessary findings to say that the district court's decision about whether this presents an exceptional case does not mean that it doesn't have to make the necessary time expired on again whether the enhancements appropriate in the first place that didn't happen here so when the district court is free to consider under the guidelines or for that matter thirty five fifty three whether this poses an exceptional case the district court cannot fail to make the necessary findings about materiality an intact we believe that she made a finding about materiality that should be lost the case here but never last there are inadequate findings the very least as to intention and willful excuse me intentionality willful intent so absent that the enhancement cannot properly be applied so far as related to the government has just done a fine job trying to shorthand fill in the gaps about the necessary information that could have been determined by the judge to say that this related to the offense for purposes of the drug proceeds that we had some of the same individuals common plan we don't know case they have other evidence that's fine but we cannot say because one person had money and gave it to you for this purpose and one occasion that therefore on another occasion where we don't even have the money that that money also is rated to this conviction this count this to your city it is