condition even though diminished capacity was mr gonzales his sole defense in this case the only thing at issue second this question reversed because the district court took it one step further by concluding the lay witness testimony of his sister on the same issue the issue of his mental condition these were the two witnesses that mr gonzales presented in his defense both witnesses were shut down on the only issue that mattered in this case the issue of  point out that this evident the expert testimony was precluded prior to the defense was putting on its case which i think is very important because we can't really tell now how the trial would have been different had the expert testimony not been concluded before th that's correct your honor and again the problem in this case is that the expert testimony was precluded before the defense put on its case so we can't really predict how the case would have been different had this key testimony not been precluded in any event defense counsel did put on the coral cerrato the sister of mr gonzales to testify regarding her brother's longstanding addiction to drugs and alcohol and tries to lay the foundation to get in testimony regarding his use of drugs and found incredibly important in family and it's also important here it shouldn't be overlooked that dr mcclelland did his residency in neurosurgery he was a medical doctor who'd been practicing addiction medicine for twenty years he was on th while he did what he did say that the defendant wasn't an accurate historian if you didn't say that his cognitive tests that he performed were in any way flawed furthermore that would have gone to the weight of the evidence not to its admissibility these were certainly things that government present it i see that i'm down to a minute and thirty six members or think you the issue that the judge excluded the testimony on was very much the fact that this particular witness did not have the proper expertise for the opinion which the defense thought to elicit from him as defense counsel just indicated he would have testified to to psychological diagnoses he is not a psychologist he's a medical doctor feet from the record we know that he specialized in surgery that is an addiction medicine certified in addiction medicine which was only defined by the doctor as him treating people with drug and alcohol problems there's absolutely nothing in the record that indicates that he has ever diagnosed a mental illness and that clearly is just a webster's dictionary that's what the field of psychology is someone who diagnosis and treats mental illnesses and this particular doctor although they're really impressive and qualified and in other areas of medicine was not a psychologist it's as if they asked a podiatrist to treat a kidney ailment it just wasn't appropriate and judge jones the district court could not have been any clearer on that matter it's very similar to martinez martinez a case in which judge jones again had dr mcfarlane proffered as a witness by federal defenders and  that case dr macfarlane was allowed to testify in his area of expertise which was let me tell you what happens to the body when these types of drugs are taken well what about the threshold question as to whether or not there was any evidence that he was under the influence of drugs at the time of the entry i respectfully disagree with counsel indicating that there was evidence that he was on drugs there was evidence from officer mcfarland that there was the odor of liquor on breath that's it that is the sole evidence that he was under the influence of alcohol there was no evidence presented at trial that he was under the influence of any type of drug whatsoever to justify  opinion whose lay opinion was excluded on the basis that there was no foundation given that she had any information about his mr gonzales his drug use any time close in time to the offense which to is that back when when mr gonzalez was twelve they lived together for a while and then over the following twenty two years they lived together on and off five times the longest time for a year defense counsel never sought to determine from this witness whether the mr otto had last seen mr gonzalez ten minutes before the offense or ten years before the offense they simply did not lay the proper foundation and  else in your family have a problem with drugs and alcohol really not relevant to whether or not this witness has rationally based perceptions of whether this particular individual m a problem with drug and alcohol and what effect she has seen personally seen in any time relevant to this offense how would it affected his mental abilities so it is simply a failure of of following the rules of evidence rather than any erroneous decision by the district court that kept that particular opinion from being presented to the judge or to the  counsel just did not ask appropriate questions and that's that is no fault of the judge that she failed to lay the proper foundation which would have allowed such testimony had the proper foundations and was no evidence that this particular witness had any rational perception of mr gonzales and any current drug or alcohol addiction that he might have in terms of the expert opinion i would note that the clear basis of the judge's ruling was that under seven o two this particular witness did not have the expertise for this particular opinion not that it wasn't relevant that this witness was not the person qualified to render such an opinion but it definitely i think it is clear that the the district court had some real concerns about the methodology that was used but he was very concerned  was clearly a cause of concern for the judge and then secondarily he didn't know that he inquired that the district court inquired of the doctor what objective tests did you perform and the doctor responded he didn't perform any so clearly these were issues of concern in addition to the seven of two faces of exclusion why that this doctor's testimony was excluded would you address  entitled to a limited free man however i truly believe that there is no showing that the and no reason to believe that the sentence would be any difference henri man this is not a case in which  we don't require that kind of showing do we don't we just simply assume that so long as the trial judge could not have known at the time that the guidelines were mandatory  the defendant should be given a chance to be reviewed in the context that the judge might have done something differently if they were discretionary that's correct you're right i would note that this was a mid range sentence that  every every fact regarding any alleged mental disability was already presented before the judge and there's absolutely no reason to believe any different sentence would occur on remembers if we have it is not up to us to the son of god we have to allow the few months post booker which confirms that the type of fact finding the type of increase that occurred in this case is absolutely appropriate and we talk about the fact of conviction or something different we are twenty and i believe there was a letter brief twenty eight j letter filed by defense in which they specifically point to the fact that the judge would have to know the date of deportation in response i would note that this is relationship between the deportation and the prior conviction on which an increase was was to arrest was in fact within the purview of the tours the against qualifications i just want to point out one more time that he would have testified to the effects of drugs and addiction on mr gonzales he was certified to testify to that regard to people in general certainly if he was qualified to testify to people in general he was qualif what extent are we talking about an issue over the fact of a prior conviction your honor that is an issue as well however our objections to the pre sentence report and objections of sentencing were quite broad and some of what his mental health his addictions were at stake under the guidelines these couldn't be considered by the district court they can be considered now and we can't be sure