have obstructed justice and not he was not given points for acceptance or responsibility pursuant to the hopper decision which this court decided in one thousand nine hundred and four this is an extraordinary case and he should be  immunity and forced him to present testimony during his trial testimony he fully admitted his responsibility in fact the only thing i recall him ever disputing was he said i didn't zip tie both to both of the victims i only zip tied one of the victims he identifies himself on video but he refuses at any time to identify the codefendant every time that is asked of him on the witness stand he said i i'm not going to implicate he says implemented anybody which is implicate anybody else in doing so he had previously told the court that he was very worried that he would be labeled a snitch and he would be harmed physically harmed in prison he was scared of retaliation but he wanted to accept responsibility at sentencing he did the same thing  the hopper he he started out not accepting responsibility and had a change of heart whereas here misters acres misuse acres maintained his position i am not going required by the court and by the grant of immunity and so he never changes that you know decision on if he doesn't waiver you're correct your honor and so that deals with the obstruction portion but does that preclude this from being an extraordinary case where he doesn't shouldn't receive it except as a responsibility he bent over backwards to accept responsibility so i would think that it's completely different because the government really lies upon a co where the codefendant got up on the witness stand he did something different he agreed to testify and then he minimizes his own role and then tries to acquit the co defendants that's different than here and it is an extraordinary case where a defendant is truly saying i didn't agree to testify and now i'm going to get hurt in prison i'm going to be retaliated against so i'm not going to do that portion of it but how does that not satisfy stored narry part of his acceptance or response a matter whether he has a justification or a proposed justification for why he's not going to testify as a western i mean you mentioned that he was worried about being harmed in prison is that something that the district court must take into account and the fact that he did would make it clear air i think it makes it an extraordinary case and therefore clearer and i i would argue so i would argue that he's different than a person who's just trying to help the codefendant here what he's trying to do  save his own skin he's saying i said it before he was ordered to testify i'm not going to do this i'll get hurt i'm going to get hurt and his the court may recall from the facts i don't want to go too far into the fact he really was somebody brought in by the codefendant to just sort of be a heavy and come in and help out but i guess my question is the fact that he seems to have this justification is that what makes this clear error or is it always clear error when he when you refuse to do if you do your position if you accept your own responsibility but refused to testify against a codefendant i think i think it's case by case and that's why i wouldn't make a blanket rule i think this was a very unique situation where the code if it was articulating exactly what it was and that's what i thought was the  obstruction he's making it very clear that i'm i'm feel you're not you're not challenging the obstruction enhancement on appeal you're just saying that he should have gotten the reduction for exceptions responsibility i did initially ch obstruction but i recognize that i am on weaker ground on that than i am on the extraordinary part of the acceptance of responsibility and so that's what i think is really extraordinary is the very unique position that mr sakers found himself  violence i think it seems to me the supreme court's already addressed this question effectively in this school the stalking case just recently and i would argue that if this is already the residual clauses already being reckless use of force and what i one example that i thought that i think is perfect is when i see into my the court addressing different types of robbery one thing that i think is very interesting every one of us has probably experienced this that we go to the bank i ask to withdraw one thousand dollars they don't the teller doesn't have a one thousand dollars so she goes and produces five thousand one hundred dollars to put in her till i see it i reach under i grab it thinking this is my chance i grab it as i do she grabs my hand but i'm stronger than her and i pull away and rush away under that is a crime of violence under the elements clause it's de minimus it's a reckless and oak lang's common law a robbery law robbery in a socratic islands understood oakley i'm not free to make up our own rules we have to follow what the supreme court has told us yes i would agree but i think that under the under the way the law we're that's not reckless or negligent and query how you have a reckless or negligent property in any of an well i think it let's i'm misunderstanding the question i think under the elements clause you could find recklessness or and this court previously in its history found crimes that were not even intentional where a bank robber had a potential gun and people felt intimidated and so that's going to be considered under the elements cla interject one question for you do you have a particular case where our court has said that somebody could obstruct justice and get extra points for that but also accept responsibility and get a reduction for that thing i understand you you think you can accept responsibility here but that the case you're a lying on also involves obstruction i'm sorry what was the last thing you said you're on there the case that you're relying on also involve obstruction yes i believe it's hopper where he where the defendant burned evidence and try to purchase false alibis and he was found to have obstructed but later confessed to authorities and the court found acceptance of responsibility and so that's what i think i mean i recognize it's not exactly analogous but there is a case where the court has found acceptance of responsibility yet the defendant had obstructed justice you have a busy seconds left you want to say them i do ok thank you may please court we'll read for the united states by refusing to testify at a coconspirators trial after a grant of immunity in this case the defendant obstructed justice under binding th circuit precedent when a defendant refuses to testify at a coconspirators trial with a grant of immunity and after being so ordered about district court that constitutes willful obstruction of justice the district unequivocally told the court that he fully understood what those consequences were mr sakers also was did did the district court specifically kalam if you don't answer the questions you're to get a you're not going to be entitled to a two point reduction for acceptance of responsibility thank you i don't believe the court was that specific that the court was itself was unequivocal when it told  i'm paraphrasing look you're looking at enhanced punishment here you're looking for additional time additional points under the guidelines and he seemed to get that with the obstruction of justice claim obstruction of justice enhanced men and  that as i understand has been taken off the table but i think counsel has recognized that that their arguments are a little weaker i'd like to what more was expected of him or how do we decide this case do we say there's a  he seemed to accept everything is there something that the government is is the government's position that he didn't accept his responsibility in some way here yes your honor that that is the government's position he did not accept responsibility because in order to accept responsibility where you've obstructed justice under the guidelines and under this court's precedent didn't st of all a defendant is not entitled to acceptance of responsibility it's it's a defendant's burden in even in the ordinary case where where you don't have this type of scenario to establish that he or she is entitled to acceptance of responsibility but both the guidelines in this court's precedent recognize that when a defendant obstruct justice in the ordinary case that they are not entitled they're never entitled that acceptance is not is not allowed where they well i think that's a bit of an overstatement there you're right there seems to be a high prejudice presumption against it  but as councils argued there's an acceptance for extraordinary circumstances and so i guess part of my fundamental question is when we're deciding this do we just say this wasn't extraordinary circumstances do we say it's never extraordinary circumstances when you refuse a court order is that the rule what is it that you expected him to do as to his personal responsibility that gives us the hook to to tie that in if i could if i could answer that you a defendant ever get except in the responsibility with an extraordinary case in this situation i think my adversary just said a few minutes ago this is a unique case and i would submit that that lends itself even more to the abuse of discretion or the clear air standard that is that applies to the district court's discretion the abundance of discretion that god lines describe that applies to a unique situation here the district court that he did not help i think that this reports that he didn't help the criminal justice system much and that this report made an assessment that he that he was not entitled to acceptance responsibility and under a clear air standard this court must be must have a clear a firm and definite conviction that a mistake was made and i would submit that in this situation this unique situation is my adversaries described it and i concur the district court's discretion is what's paramount here well what's  of mr saker is claiming that he he's fearful of retribution in prison and in fear of his life and from what we've been told by department of justice and bureau of prisons this is a legitimate fear and that is incarcerated for all types of reasons that are perhaps reasons that they've made to be fearful of various things however the bureau of prisons and the courts have mechanisms in place to try to obviate as best they can the exposure to violence harm or retaliation there is no exception though i would submit and the district court was aware  of this underlying under lying theme to mr sakers claim that is that he made the claim there's no reason to the government's not trying to suggest that it wasn't a legitimate claim on his part of his of his subjective reasons for not obeying a lawful court order but there is no legal exception for him to there people have all types of idiosyncratic reasons for not wanting to obey  position for obstruction of justice understand it very clearly he's refusing to testify under a court order how do you tie that into his own acceptance of responsibility that's what i'm struggling with i mean i agree with you this it's a very deferential  standard of review here but every argument that you've made goes towards obstruction of justice as as far as i can tell you can't point to anything in the record this is he didn't accept his own responsibility ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct that's no four hundred and thirty one point one so just the guidelines themselves suggest that and then the hopper case which  think it seems to me that and i'm not i'm not convinced yet that this does fit within that the exception but there are exceptions and this comes close to it it seems to me because the quote you read i think is that in the ordinary course usually when you're hit with obstruction of justice it's because you're doing something to impede the investigation of you as a as a defendant as i understand it that's not what he did here he was held or found obstructing justice or held in contempt or didn't comply with a court order because he wasn't willing to testify against someone else and so i'm trying to figure out how to tie that refusal to testify against someone else into acceptance of his personal responsibility and here in this case if a defendant shows except that there are cases extraordinary the hopper case which is cited by my adversary i believe the says and those cases involve granting acceptance only if the defendant that's those are my words and these are the words from the case abandoned all attempts to obstruct justice from the here i was minute how can there there cannot be in a bit i'm banned a minute of all attempts to obstruct justice when a defendant is disobeying a lawful court order that he's been compelled to test when he's been compelled to testify at a in forty five seconds i have left i'd like to say the following things to make clear st of all the hopper decision they would not address the government didn't address in their briefs made it more difficult for me to reply to that because they just didn't want to talk about it which is what it's they did here they really struggle with   nd of all my client did testify in the trial against the codefendant he got up and said i did this i did that he did say i grew up with this man any time they said who's the other guy with you on that video i'm not going to implement anybody else so he did testify to his involvement