fever's hearsay state instead of his sworn in court testimony to determine drug quantities at the sentencing hearing and  transaction for a total of ten ounces of methamphetamine and in the hearsay statement he said that we had had about ten transactions for a total of twenty ounces and there were really two transactions at the sentencing hearing that really were the focus of discussion and that was through transactions fo and i submit that it wasn't an abuse of discretion for the court to if you look at the entire record for the court to believe that hearsay over  can say that he didn't find him to be incredible at the sentencing hearing and from what i heard the judge say what appears on the record it would appear that what he's saying is that i find morally fever to be a resentencing he also makes a point of saying with regard to his earlier sentence i can't imagine myself lying on that so if he's accepted as credible in two thousand and five that includes being accepted as credible  saying well whatever i said in two thousand and one was was accurate it's closer to the time in question so on and so forth from the court in basis asian on that i don't know that at the at the time he made a statement which you want to rely not only couldn't i never i can't imagine that i ever would've made that i can't imagine that's what he said in court two th listened to all those testimony and then interceded forcefully and said well let's see if we can cut through this a little bit when you gave a statement that's recorded on this exhibit that you've been looking at the witness on the court your lawyer was there is that right the witness you know the court did you try to tell the truth then the witness yes sir  court and did you tell the truth as far as you know witness yes sir to the best of my knowledge everything i said i couldn't imagine that i would lie of cour do you believe that you told the truth that time the witness yes sir court all right i'm satisfied with that was no past recollection recorded plain and simple the witness at a time when you stated the truthfulness of the matter it was recorded or he presently has no recollection has recollection recorded and the story well except hearsay rule next i think that the court should look at the entire circumstances under which this no no no your point is that you can't rely on hearsay at the sentencing if it's past recollection recorded and is therefore an exception to that here says i i don't know that it would be except well that's part of the whole house recollection recorded is i don't remember the facts but i knew them then and they were recorded and i told the truth and i was accurate so i don't have a recollection of the facts right now i can't imagine why i would  but at that time i did and at that time this is the record of what i said sure he doesn't remember perhaps making this statement but the fact that he made the statement doesn't appear to be in at the circus and that's i guess my point is in making a determination about reliability look at the fact that he is you know sentencing but when we review the sentencing decision we review it as to whether there was any evidence upon which the court could have found truthfulness of a fever and my point is that looking at the record as a whole that that that statement of august two thousand and one is a statement that he couldn't even imagine making and because he it for a five ounces does a lot for him by way over what he would ordinarily do very appears to me to be a use of discretion to believe in por sworn testimony or arguably this guy had something to lose coming in testifying inconsistent  had previously said and he had a whole lot to gain by saying what he did back in august of two thousand war your point not only to the testimony but really the logic behind the testimony or his reasoning in two thousand five which is that is frankly strikes me as a little odd to believe the scenario offered in thousand and one and that combined with with everything else there's enough that you're arguing the package the transcript and it fits into this package deal which is where the judge on page seventy five says i take note that while i made these findings if i were to reduce the quantity of drugs attributable to transactions with mr le fever by a substantial margin or example to a total of twelve ounces i don't know where you got twelve each of the ten but instead of sixteen or excuse me and i think this guy and he says and i am convinced beyond a reasonable doubt that the quantity of drugs attributable to mr am a line exceeds in this instance five hundred grams so w that remark to me is troubling in the sense that he has a notion of what he is this fellow has done but it doesn't appear to be a notion that is based reliable facts the sworn testimony i mean and the other thing is that he carted the hearsay statements for everybody else who can hook or all the other hearsay statements which were found to be incredible by because testimony was brought in which contradicted it and to me it's he's working backwards instead of making a objective conscientious analysis of what was before that's my point and i believe that when the record but pardon me let me ask you one question if the level at which one hundred thirty five months is with something guideline level is five hundred grams of methamphetamine and we  and if you look at the totality of the circumstances of this sentencing which is what the defendant wants you to do there are some realities for friday on the lines that are good one of them being that he was the only witness court found who lied under oath to see freddy emmeline's the defendant in this case and so and he lied not only in contradicting his prior testimony contradicting the testimony of a witness to a transaction and this is only brought up because he's not challenging the gun enhanced those at this point which is what he did at the district court but that was part of the calculus that the district court used in trying to decide who to believe and loren lefebvre there's no doubt that he did not go down the line on his two thousand one statement to testify yes this is correct yes that's correct yes that's correct but there's another way to look at that he certainly wasn't coached by the government or threatened by the government he specifically said that what he did in the view of the district court was being entirely honest i said that i can't believe that i lied in fact i tried to tell the truth i can't recall it now it seems unbelievable that i would have transacted five ounces two times and to be clear what the testimony is that there were ten transactions about an ounce of peace or ten ounces and then there were two transactions  be clear he did not come in and say i did not transact two times five ounces with freddie he did not say that he didn't contradict himself what he said was i said that i believe i was telling the truth i just can't imagine that i would have done that and i don't recall saying so why would that statement be reliable well we presented the case agent one of the participants to that interview to talk about his meeting or at the time of the interview whether he was under the influence of methamphetamine was he answering questions appropriately and also another important factor to consider in the totality his sworn testimony was almost entirely the two thousand and one statement except for these two transactions i can't give you an explanation as to why he is now stepping backwards from those two transactions common sense doesn't seem to  because he was done with his sentence of that point but what the district court had to this was what testimony to believe and for some very good reasons he believed mr l own what i'm telling you i think was a follow up to your comment if doesn't seem logical that he would do that there doesn't seem to be an explanation like sometimes you get an explanation the person is lying to minimize their conduct or they're lying to get a better benefit from the government why did he do it except that he just couldn't recall and he was being completely candid with that this course what happened to the fever in two thousand and one he was of methamphetamine in order to sink his former supplier but now that he's pleaded or done his time or whatever he's done now he wants to tell the truth to say i can't imagine i bought five ounces because i was i was never just a one ounce gun and that's a logical following judge breyer except that he wasn't under a plea agreement at the time he gave that statement in two thousand and one so he was providing drug quantity that could be used against him and what that's what i'm saying it was it's illogical he went that's right and make yourself a against you want to know the truth as best as you can recall so it doesn't that line of thinking doesn't seem to follow but the only thing that the record tells us from lauren hadn't had was that the two thousand and one statement was temporarily more closer to the transactions in question the agent although he was a drug user at the time and was very much closer to having used drugs the agent was clear he wasn't under the influence of methamphetamine i had a lot of experience undercover narcotics dealing with people using methamphetamine that's not the way he was with the interview he was answering questions appropriately his attorney was high standard because we can't really we're not you're not a sentencing court the district court is in the position to weigh the staff and whether he abused his discretion in believing that th that that did not even come to me but in this case the district court another one final factor is that the district court is looking at a preponderance of evidence dander and you know how strongly he felt about it on the record he didn't find one fact in this sentencing under less than to a standard of clear and convincing evidence and even found beyond a reasonable