when you're right man please of course my name is david smell like i represent damon montana st the sentencing court committed significant procedural error in sentencing the defendant to forty eight months for prohibited possession by applying three c one dollar for perjury a substraction and failing to apply three e one point one for acceptance with regard to three c one point one the government did not prove the court did not examine and the record did not support willfulness materiality nor jurisdiction the court merely disbelieved defendant self defense claim as the government on forty seven  its brief acknowledges the defendant essentially argued he was not the attacker or primary physical aggressor and that he therefore merely conflated a general denial with  justification second materiality is allusive because the court failed to specify exactly what assault to which it was referring when it vaguely referenced the defendant lying quote about having never attacked his wife or hundred and forty one of the sentencing transcript the defendant admitted to biting his wife page thirty nine that having a violent relationship with his wife and page twenty seven and to virtually assaulting his wife in an unreasonable manner at i will also note that the government does not seem to be as concerned that the defendant is lying about being able to see into the future to be telepathic with the family dog or otherwise cleric warrant all of these facts are facts that were brought out by the government during the cross examination of the defendant if we're worried about whether or not he's telling the truth we need to also be worried about whether or not he can perceive reality so there is circuit luring in direct supervisor to nebraska solely to indict him by using his purportedly perjured testimony during a grand jury proceeding was not considered to be perjury because jurisdiction is an element of the offense now in this particular case the unique procedural posture is that the government when the defendant notified the court that it was going to plead guilty to possession of firearms as a prohibited possessor but proceed to trial on the on the choking case on the impeding airflow blood flow case the government conceded it did not have jurisdiction to prosecute that case  so if the defendant then is accused of lying about the assault that the government acknowledged it had no jurisdiction to prosecute then we have to ask whether or not this is really perjury under three c one point one and you say it wasn't material to the guideline range either the judge ended up saying that he couldn't forget how he phrased it but the two were not related enough to where he was going oh that outlines i believe that the court said that it was not relevant conduct but then nevertheless it considered that he was lying in court about that various oh so we believe that it's not material and it's not relevant conduct and you don't lie about any additional relevant then that is significant evidence of except of the acceptance of responsibility could have been material just to the th fifty three and whether he assaulted the wife of the girlfriend i don't believe so not with a finding of it of irrelevant conduct because we're talking about the offense of we're talking about the offense of conviction don't believe the court i don't believe the government proved it by products which i believe this creek wired the about the departure the giver of the departure request based on  we know now from the proceeding that the the government was wrong about that that the court found that it was not it was denied it was rejected and so it wasn't material to that and it wasn't it was material to the assault and it couldn't be the lied about conduct was about the assault that it could not that the government had no jurisdiction to prosecute any could not be material to the five k one hundred and twenty one dollars request because the court found that source for the i do not your honor i know that the government quoted the cited the papist decision which i was involved in and i know that there was a similar statement in pappas and pappas cited to the milo davis decision and i was involved in that  district court and there was what you think should be required for a judge to to be affirmed on this theory if i look to the female decision there has to be there has to be something that it was going to sensitive because of jay's basically the generalized dislike for his political views which we haven't had had an opportunity to talk about here but with regard to there are some errors that cannot be harmless even if there is an attempt to insulate them with this prophylactic statement and i think we have that here with the defendant's political views and with an o of remaining time discuss that the substantively it was error the court to proxy for danger the defendants traditional views on marriage and women the court predicted that the defendant was dangerous because it argued exhibit five showed he was dangerous and that the defendant's testimony demonstrated the defendant blamed others for his problems particularly women the court made clear that protection of the community was a driving force in varying upward from its own calculation and one need only look to the defendant's cross examination at sentencing transcripts forty four to forty five where the government drove home the point repeatedly that quote you were the one that told her she was not allowed to work and quote you were the one that told her she was not allowed that you were going to divorce her and leave her if she worked and she could quit her job and you would stay with her and none of this had anything to do with the merits of a parade of possession firearms  and the court took it all into consideration by accepting that it that it was that he was dangerous as a result of these exhibits in this testimony thank you i see my time is very well thank you for your argument your honour's lisa williams here on behalf of the united states i want to start where we ended and pick up on the argument that the district court erred in varying upwards because it predicted that th defendant would be dangerous absolutely nothing could be further from the truth this defendant had an incredible documented history beginning with the incident if his grandparents i believe it was in two thousand six where he threatened to burn the house down break everything get even with them he ripped the phone court out of their house so that they could not call for help and as his grandmother  pulled out her supplemental oxygen and enough factual i don't know maybe kill her when he has been voluntarily committed by his grandparents as a result of this episode he is violent with treatment staff he is jumping on tables he is non compliant he then enters a relationship with ramona pruitt in wyoming the police are called out to his house in pruitt when he takes a shower she has to flee with her children because she is worried that he is going to physically assault her police show up she's in a field running away from their house and he her from the front door a few months later police respond to the pruitt household where they have an incredible amount of damage done to her car hood and windshield i believe at the sentencing hearing him that he took a baseball bat or something he couldn't remember what and pounded on the car because he was upset with mr pruitt a few months after that during an pruitt that he chased her down in his car got out approached her vehicle her window was raised and he took his hands and pounded with his bar three times and on the rd time he used so much force that he broke the glass and it shattered inwards with another force that she began believing from  and that there were large chunks of glass on the car seat so i would submit that nothing could be further from the truth that the district court or predicted that someday this defendant would be dangerous this defendant has a documented history of violent and dangerous and that is in large part what the district court based its decision t but she didn't say and but that's that goes to my point judge is she didn't say i find this defendant why i think that would be a more problematic red eye from the defendant committed perjury before me when he lied and because he said committed perjury i down again and i wonder if we've structured about as far as its goal what about materiality here so how is this material if if the judge wasn't going to part anyway because the the matters were not related so it's material for two reasons st it is material to the departure because until the bench rolls on the departure motion the parties don't know what's going to happen and there's two steps in the departure  place you don't need the nd element which is what he said here the nd almost and until he ruled that the parties didn't know and in fact i argued and told mr montana's defense attorney and this is in the record that had he admitted i just altered my wife and then wanted to proceed to the legal argument that that assault was not closely connected enough with the relevant conduct warna departure she still would be entitled to acceptance i do i do believe that but she did not admit to the assault and so the government had to whether he got the departure because the departure wasn't going to be granted even if he admitted it and the trans out is yes as it turns out you're absolutely right so you still think it's  we get to harmless error and i disagree in this case that and again if you listen to what counsel is asking this court to do he's quote asking you to reexamine and with all due respect this panel does not have the authority upward from twenty one months to forty eight months rather than thirty three to forty eight to do it should we require that you explain why that degree of variance was warranted in order to the circuit would need more of an explanation from the district court but it is not the case this judge provided a very thorough explanation for the basis of his sentence and why he would still impose the forty eight month conduct and that was a written variance and we argued it at the sentencing hearing and so if it's not relevant to the departure because we ultimately lose that it was relevant to the government's motion for a variance that was in what the motion was based on and it's because it's relevant to that then we get into the materiality analysis and i see that i am out of time all right so you know for the questions we thank you for your argument