please the court this is a situation where mr golan was between a rock and a hard place if he did not put in an affidavit or sworn statement he would not be entitled to a suppression hearing he did put in an affidavit and was punished for doing so because it was different than the testimony of the agent who testified let me ask a question you say he wouldn't have been entitled to a suppression hearing but he would have been entitled still to have his motion for suppression considered wouldn't he have well the argument is in a motion to suppress is standing require and the government opposed the motion claiming that mr golan had not established standing that the standing was to require a hearing right not to have the motion considered that's how i read the government's position is that wrong well that's not my understanding my understanding having practiced for a long time as many of you have is that to make a suppression motion it is a requirement that an affidavit be put in to establish standing when it was initially made the affidavit was not put in when the government opposed an affidavit was put in purely to establish standing so is it your position that the defendant is entitled to make detail the allegations of fact that are without regard to their truth in order to obtain a hearing on a suppression motion first of all in this situation i don't think characterizing it that way is accurate in the sense that it was his version of what happened that's another that's another issue i find your argument astonishing i mean essentially what you're saying is  in order to obtain the relief you must allege certain facts then it's permissible to make those allegations and they can false statements because otherwise you wouldn't get the relief that you want  that's one of the most remarkable arguments that i've heard in my years as a judge i do not think it is that remarkable from the point of view of defense attorney but i credit your be making the argument lawyer you have little hope to succeed in this case unless you get on the stand and testify that you didn't do it at that you were at your aunt's house in new rochelle ok so i have to testify to a false alibi in order to have a hope of being acquitted that's not perjury that's not something that's not something for which the sentencing judge can take account and and give you a longer sentence because you've testified falsely i did it because i had of the police that is the only statement that is at issue here and the purpose was not to obstruct justice in fact if every time a defendant is going to contradict or in any way suggest that the tech the the observations of the police officer a different no there is such a thing as as an honest contradiction or honest claim of a of a of a different shading and lying now you argue that he wasn't lying and that's perfectly good argument to make the more important person to make it to was was that the judge by law but you're saying essentially it's ok to you can have bad consequences if you do it in order to gain an advantage in litigation that you otherwise wouldn't have i'm not saying that judge i am saying that an individual should be entitled to state their view of a situation even if it is contrary to dispute but that's the only issue here that well that is the issue here a lesser or a less detailed affidavit that he could have submitted for example could he have said i am advised i have read the complaint and i see complaining officer says that this this and this happened that is not my recollection of what happened and i therefore put those events in controversy and will make the government satisfy its burden of demonstrating that there was a basis to obtain this material could have done it that way without getting into the details of what he saw your honor that would be an suggestion that in light of circumstances like this one should make but i could also see judges stating that that is not sufficient i did not represent him below so i understand that am responding to the strategy or advice given by his counsel i only say in so far as the intention was not to obstruct justice the intention was to have standing so that the motion could go forward but what you want to do in the motional to what your client wanted excuse me ultimately in the motion was for the gun to be suppressed so it wasn't just i wish to have standing so that i may appear in court and have a hearing it was all to mclean my hope is to get this evidence suppressed so i think i can go with you part of the way but not all the way i understand that judge and all i would say is had this escalated into a situation where he testified and was cross examined i think the analysis may have been different but that was not the purpose here and i think that isn't very important distinction people go to trial every day with the hopes that they will prevail they should not be denied that opportunity nor do i think that someone should be denied the opportunity to press for a suppression hearing on a motion this was a strange situation there were the defense was what limits would you espouse them is the defendant free to make whatever allegation of affirmation of fact he wishes in order to obtain a hearing i do not say that at all when my reading of the cases we've looked not just general protestations of innocence when those aren't a basis for a perjury charge for example but specific detailed allegations of fact that are meet under oath and that's what i saw here and so i wonder what limits  you would offer certainly judge if somebody is going to say they were somewhere else where it is a false alibi or something else that happened here he basically said i did not do what they said i did i did not take a gun out of my waistband and put it on a tire he just refuted what the testimony was going to be and in this situation the fact that there was a hearing disclosed the fact that there was a third officer who the two officers who testified to making the observation didn't even recall the did you do your position require us to reject the district court's preponderance finding that  fact the defendant did bend over remove something from his waistband and place it on the end that the affirmation was there for a false idol the issue is can somebody put in and sworn statement that is different than what is the basis for the motion and be held responsible for having obstructed justice you don't claim that t confusion or following by mistake the advice of counsel so i'm not in a position to state that but nobody disputes that anybody that a person can do what you said the way you framed your question can a person can a person put in an affidavit that differs from the accusations of the police officers and ice and escape liability risk adverse consequences of course  can it's a question of whether you're lying or not it's a question of deliberate falsity of course you can put in a on a staff today that says something different from what the police officer that's nobody disputes that judge the falsity or alleged falsity was that a defendant charged with a gun possession claims that what the police officer saw is not what he did this is not a major situation where some other story was concocted he basically said they say i removed it from my waistband i say i did not it doesn't go beyond the four corners of this affidavit and he shouldn't have been more punished because of the thank you very much i think we have the argument we'll hear from  it was in direct contravention to the office testimony why is it different from just pleading guilty and yet he should be a kind of general denial i didn't do it and isn't he entitled to do that and put the government to its proof issue and i think the issue here is that  a defendant is entitled to submit a now for a affirmation but it has to be truthful it can't simply be a series of lies in order to get a hearing to suppress evidence in the case if that happens under the law under the sea come in also underdone again it's clear that that's allowed for and persistent enhancement of the guidelines and so there are instances where defendants have submitted the street corner of the address i was held in and i was told to come over here by the police officer while i was being held you know i was searched i never took anything out of my waistband  attire this was a central issue in the case this is the number one issue a trial that you would agree that differences of recollection defendant and an officer present in his or her arrest do not  defendant had stated that he had requested an attorney and was told that he was going to get one and on cross examination the trial aides testified that in fact they had told him that he would get and turning in at a later date and there the second circuit found that was enough to show obstruction that's not the case here this is very detailed very specific facts and from this court noted that mr gone's affirmation quote paints a very specific recollection of the events of that night and later states it's very hard to miss remember whether or not you had a gun and were trying to get rid of it he saw the poor yes and so to what extent are we entitled to review the district court's determination that this was a i think to the affidavit because he had been subject to cross examination is that right that's correct your honor that's correct the the point being is that the the judge able to determine based on the office testimony that been similarly here at the suppression hearing he submitted an affirmation that the court found the hondurans false and given the fact that you know the laws clear that one cannot provide a false because he was getting obstruction anyway and i suppose the could have been a further adjustment or or an upward enhanced because of perjury twice at the trial and discretion hearing stage but my concern is having submitted that af t he he had he was behind the eight ball however he proceeded after that hearing i think the the obstruction hanssen was only a kid at sentencing that was after trial so to be unclear as to what the  twenty months or so the maximum stash for a maximum mr gone has in the very lengthy history of criminal convictions in fact over the course of thirty years he has fifteen convictions and that includes the fact that he was in jail for twelve of those years that includes  now five felony convictions including shooting someone on a public street robbing a grocery store threatening a young woman at the grocery store with violence in fact i was in prison for twelve years he had fifteen  infractions including assault with a serious injury because of a dangerous weapon there are a number of factors here that the court considered and in fact mitigated against by noting that mr go on was someone who and so clearly he had not changed his life around completely even at the age of forty nine and so i think the court did actually consider all of those factors and said he was to go on to eighty four months a strict liability and handsome and he would have been facing thirty seven to forty six months without the obstruction he was sentenced to eighty four months and the judge the sufficiently said the guidelines do not take into was unduly harsh given the nature of the crime itself his past is his past and he was punished for that but he shouldn't have been overly sentenced in this case just because of that that's why we have criminal history categories which elevate a sentence for an individual who has prior convictions i didn't understand the judge to say that the guidelines don't take those things into  account i understood her to say i don't have the exact words in front of you and perhaps you can correct me but i understood her to be saying that in this case in this case the criminal history category of two i think it does not adequately take does not adequately reflect the extent to which he remains a danger to the public i don't think she was saying categorically that this is something the guidelines don't address well your honor i don't have the appendix here so i don't want to paraphrase i just have the quote that i have in my notes but perhaps that should be an issue for remand thank you thank you very much i think we have the arguments will take the matter under advi