but had threatened to kill them as well as himself and given that sequence of events with any person in mr ried ols or riders position understand that the presence of guns in the truck represented a threat that mr krueger would harm him if he didn't continue to  and this court has recognized well it's lying that they're they're there they're lying on his lap so it isn't brandishing normally when i don't know too much about this stuff discharging is at the top too otherwise you use to brandishing to displaying and to possess and i think that's really meant to be a step system and by the time he gets in a car and puts that pistol in his lap i think that actually goes  the husband showed up he was in charge that weapon was certainly involved in making sure he was in church this getting in the truck was no horse in the husband's attempt to deescalate the situation piers i i tend to agree with you your honor and i think the legal problem we have is probably my guide and all of those factors that you just are saying all terrible facts for mr krueger terrible situation for the right dolls i'm sure they still haven't recovered but when we talk about the legal definition or the guidelines the question is whether that in here answered implies i think the district court could have taken all that into consideration everything he did with the gun between his uncle's house and when he was stopped on the highway as aggravating circumstances but when we're talking about it to street discrete guideline enhancement i think we do have to look at what the guidelines say legally and perhaps the falls to mean by a good lie  considerably below the statutory which it is which is the guidelines it's considerably below the guidelines any calculation we get to but this court has said before in your answers as love that even a blow guideline sentence of the guidelines are incorrectly calculated it can go back to resign saying for the district court to consider that lowering of the guidelines and yes if any way i calculate the guidelines in this priest seems like such a waste of t but going with this court's precedent that is one way that the district court makes a decision is considering the guidelines and if the guidelines are not correctly calculated reasons and is an order don't think that should be an automatic well distinct for all the case the all the different issues but i think harmless error doesn't necessarily can't come into play here because the judge did consider all of the guidelines significantly and then ultimately disagreed with them so i think of the guidelines change there's nothing in the record to show the district or would have been given the same sentence question well i think that isn't is speculation and we can guess but i don't go one to the as to whether she committed the ensign offense while still on probation from that disorderly conduct conviction yet didn't didn't he can see below that the two thousand and thirteen possession of the twenty two caliber rifle was properly treated as relevant conduct that's what is causing the objections to the pre sentence report stated i think you kind of a little bit judge robert but i think i understand your question and there is a concession on the record by my trial counsel about that i think i have a couple responses  jaime that when the just when they just record attorney makes that sort of error with no basis for making the error then that can be plainer so that's what we're relying on i think it was a concession perhaps that did not take into the into account how that sentence would interact with the operating while under the influence sentence because if as if we were just successful on the two point probation sentence being taken away that wouldn't change his criminal history category so at that point it makes sense to concede but if we're not and if then if we consider that operating under the influence then it does and i think that concession is no longer general didn't calculate the relevant conduct appropriately and when when including that probation sentence then didn't consider the effect it would have with operating under the influence because just two points down in criminal history and criminal history points didn't change the criminal what we have to change the change now is from category three to category two under our agreement on what is the change of the guidelines could be a more poignant use of a weapon then a kidnapping at gunpoint the right bells were cost at their farmhouse by the defendant who pulls out a gun pointed at and if there is ever going to be a use of a weapon i've got to believe this is it i don't think there's any any way that anybody outside the realm of a of an arcane legal opinion with think it was otherwise and the government believes that this just isn't isn't the issue or nor are these the facts that that would create an unarguable question here and certainly was not plain error for the court to make that sort of determination and as such you know i mean i agree i agree after much thought to be honest with you that this was a kidnapping but it's an krueger i'll go with he you you know normally we think about a kidnapping as someone saying no i do not want to go with you right but i do understand but and i think well your honor in any difficult to get the full import here but i think judge posner correctly characterize it you have a situation where walter comes up on the scene where his wife is having to join your dad or he knows he's going to have to you defuse it or else they're both dead i think that's i think that's reasonable he's holding a gun this guy is frantic he's know i don't think you're an average kidnapping no no no i agree but it's also not an act of free will in the sense of gee this gentleman has come up to visit our our farm why don't i go take a ride with him that is what's going on i think and a divorce the presence of the gun would be suitable ought to totally eviscerate the facts here the gun is is everything in and it and it just wasn't an ornament and it wasn't just merely possess wasn't merely displays and it just wasn't merely brandished it was used on the other two errors dealing with the criminal history point as the court has correctly pointed out are become rather it only from the standpoint that if big if they're granted this downward sort of adjustment from a level six to level a for they're still they're still in a category that gives them two hundred sixty two to three hundred twenty seven months that's above the max you know i do want to ask you something why do you view  argument in favor of a category three criminal history below is a waiver of the arguments that he's now making because his position below was bas ed on one particular error now he is pursuing two other up purported errors that he believes his counsel below over looked what so why isn't that properly treated as a forfeiture rather than a waiver well i think only from the standpoint of the of the question while serving or while under criminal justice sense and i think that's where the waiver comes in because the waiver is he's considered it he's making an argument but he's conceding that that portion it was dismissed at sentencing your honor but it's still relevant conduct so what he's saying is is he saying the probation if he was under term or probation it had to do with the relevant conduct and even cites the the provision of the guidelines that talk about  emphasize the fact that he he didn't plead guilty to that obviously cites it as such and so i think i think what i'm trying to discern from the the argument from the counsel below is that what mr the what the defense counsel was doing was trying to emphasize that yes that that count had been dismissed his baby daughter current did make a very clear to read it didn't make it clear in the sense of doing it because again what what happened was at at the best in the best was purchased and it was in all the way till august twenty eighth there's no evidence that anybody was taking possession of that mr krueger or emphasized that you know he had possession constructive or otherwise the ammunition you know during that time period that's not really an issue per se so as a practical matter that same ammunition and weapons whether it's the june seventh or the august fourteenth spans the time period of the of the crime because his probationary term was from february twenty ninth it was twenty twelfth to august of two thousand and sixteen august sixth sixteen to twenty sixty and his conduct would have spanned that time period and he would have been thirteen he was always intending to retake possession of the rifle from his father see i'm a little uncertain what you think links from the june possession with iraq  question other than the fact that they involve the same rifle well your honor they're all we know is the claim by mr paula kruger and and his father that this was going to be  towards his father what we do know is that not only the firearm but the ammunition as far as we know never left mr krueger's possession nobody mr krueger it nor his father ever claim that somehow the the ammunition was out of their possession and mr krueger admitted in the change of plea scenario rather cloak colloquy that he was in fact in constructive possession because he was directing people what to do with the gun and what to do at certain points in then f various points he possessed it if if you don't have the initial purchase of the firearm and began the mission on june seventh that really is the genesis of  the the possession all the way to august twenty eighth and mr cruise control of both the ammunition and the weapon so the connection is it's the same weapon it's the same ammunition it's the same crime separated by relatively short amount of time of two months and as a result i think it's it's relevant conduct as as quite frankly conceded down below that it was relevant kata and more important not to belie it but again that to level decrease from a levels or read the two point decrease from a six to a four will still end him up in a category three and a category three would be exactly what he was looking out on the guidelines level to ninety two to three sixty five and more important it would still be the two hundred forty month guideline sentence that the court considered and talked about i see my time is up if anybody nobody has any questions  specifically respond to that constructive possession admission to the government saying mr krueger said that the change of plea hearing when the district are ass and you agree with what the government says in a factual basis and the government's factual basis covered on august twenty sixth to august thirtieth and that is it and you said during that time i was in constructive possession of the ammunition and the firearm that's it there's no time period before there's no evidence before that the only evidence is the father had the rifle after june seventh sometime and that mr kerr came to pick it up on august twenty sixth so as far as the ammunition there's no evidence the government's presented that it was anywhere but with the rifle because it was ammunition that went to that rifle it was matching ammunition so i do also want to talk a little bit about that have to do with the kidnappings the other the next thing i'm going to talk about the kidnapping is actually count three relates to count three and i see i'm out of time i will say that there these are terrible facts you know i don't control the facts as the cases come to me but we often make terrible into legal arguments that just a court can consider terrible facts and make a higher sentence my legal argument is that the enhancement doesn't apply thank you ok well