sentence for aiding and abetting in witness tampering first the evidence was insufficient to prove beyond a reasonable doubt that mr fernandez aided in betting and witness tampering in the stevens in entre can ops he devised a plan to try and influence witness testimony the plan involves sending documents obtained by steve institute when you fire into prisoners at the green correctional facility where wagner was in carson rated to show that wagner was cooperated with the authorities when asked during a hampering charge the government was hard to show beyond a reasonable doubt that mr fernandez knowingly associated himself with the crime in that he participated in the crime to make it succeed but isn't  situation where he was asked to give a green light to a red light and he said to it yes he did but as we know from rosemont we need to show that he intended for this offense to take place and the offense that he wanted to take place involves sending the letters to the green correction facility this was actually not the plan it was undertaken the plan it was undertaken was one where stevens and mr fernandez is father met with wagner's mother and aunt to try and influence them there was no evidence introduced by the government that materials ever mailed to the green correctional facility the evidence does not completely in the defendant speak to mr wagner i think part even to the indictment and try to get him to adjust his story not to my knowledge  in rosemont the judgment was vacated because he did not know that his confederates were going to use a firearm here mr fernandez did not know that his sister and brother lee were going to approach wagner's aunt and mother very different plan for most undertaken lack of knowledge of this plan shows his lack of intent thus we believe that the conviction for the witness tampering should be vacated we also request that the tw that this is just an academic exercise which we disagree with as we know we see changes take place ins in the sentencing guidelines that are applied retroactively we see changes in the law they're applied retroactively amendment happen three years from now eight years from now twelve years from now over we don't act proactively we know that mr fernandez could be harmed if there are changes that benefit him so we need to address this now and look at this  issue because he can possibly benefit we're not saying that this is going to occur right now we don't know what the future may hold but we do need to do to act proactively on this  as far as the procedural reasonableness of the sentence the core is required to stay its reasons for imposing a particular sentence the same and must explain why the considerations use r justifications for the sentence are sufficiently compelling or present to the degree necessary to support the sentence imposed the court's explanation does not meet these requirements the court gave the following explanation for sentencing mr fernand hundred forty months in prison for witness tampering by saying the witness tampering that his conduct were you did as far as i'm concerned in gage and threaten behavior where you were at least complicit if not directly involved in threatening conduct threatening violence threatening the court's conclusion was that he was at least complicit that is he was involved in and if the court does not agree that he said the conviction should be vacated well he was involved in that but the evidence does not show him to be actively involved to be actively engaged in the conduct that was stevenson cannot speak they were the ones who devised the plan they were the ones who researched out wagner's involvement with the government they're the ones who changed the plan from what they originally told mr fernandez they wanted to do while the statement quote statement might be sufficient to explain why the court was sensing mr fernandez it's not sufficient explain why i gave two hundred  and for target shooting some time later that maybe it was occasioned by the inec he's reached there may be the argument yet that particular gun was not used just for sporting purposes but we do have evidence testimony in the case that shooting your honor i don't keep weapons myself other people have different ways that they do that they keep their weapons store their weapons use their weapons in his household he allowed his friends to come in take the weapons go in the back and skeet shoot go in the property and hunt and he was very free about that and people could come and go as they pleased and take those weapons there was questions about but they were the weapons in this household that's this is how he kept his weapons and he was he had freely a lot of people's use that he interesting thing is people were with weapons only one person testified to that other individuals who testified said they were never greeted at the door with it and in fact the informant who who went in the cooperate or who went in with a camera and who had spoken about the gun at the desk he entered the house on his own no one answered the door he walked through the house he could have gotten any weapons he wanted he was never threatened or approached with a weapon and the weapons were around for him to use if he so desired and that's one way things were done in this household monica richards and have the government in a subpoena the aspect of the case that was asked last about the guns and the forfeiture here i think it's sort of an academic discussion anyway because we do have somebody who's now convicted felon and so he wouldn't be entitled to those guns anyway if there was somebody who had a right fulcrum what's going to morrow he right which which if somebody had a rightful claim to the lawful claim to them then he could then they could make that claim in the forfeiture proceeding but here were the judge referred to the cash in its entirety the impressive the impressive array of guns as displayed in the bedroom plus the three that were in the garage setting aside the one that was found in the last day i think that was the easiest but with regard to the ones that were found in the bedroom it was the fact that they were displayed at you know behind the bed in the exact same room or he was manufacturing and selling that the judge focused on that it was the cash in its entirety somewhere loaded somewhere not loaded but nobody knew that walking into the room which ones were loaded and which ones were t so to that effect i would say two ways that that's academic and it's also the district court did the right thing here with regard to how it decided this the case for going aiding and abetting here we were also charged under sub section of under section two of the statute so that we also had an attempt whether or not the specific plan is what was carried out as they discussed on the phone is irrelevant to the discussion as far as the proof went in a trial there was definite conversations that were recorded the routes definite and intelligent responses in fact working around the defendant came up with an a way to work around the prisons mailing rules that they could mail things to him under as as lawyers  mail so here to say that the specific plan or whatever it was they tried to do in the end isn't exactly what they discussed on the phone doesn't matter the intention to interfere with the witness and his testimony was clear as your honor not that he was told that the defendant was going to say he was out of town and had rented the house to somebody else and then after that wagner was arrested and agreed to cooperate through contact with some named ears there was also that aspect of the test my office happened to find with the court what i thought the court was referring to were going magner but when it came down to the sentencing frankly that wasn't that wasn't part of the question of the sentencing or regretting eating abetting related to these phone calls specifically further with regard to the business of sentence i think the court has is properly focused on the fact that this wasn't an independent sentence with regard to the eating of betting that it was a it was a grouping it was a result of the grouping and the guidelines were two hundred forty for that specific count and i think my counsel might have misspoken if this case were to come back later for some problem with regard to the drug gun aspect with regard to the drug aspect of the case   for the first number of counts i had that number and then ten thank you then this whole calculus would be examined and then guideline range for the specific for the eating in a betting would necessarily likely be different where the first ten go calculation going for wife who was just reduced because of the statutory caps on the council conviction i'm not sure that's exactly right the judge calculated as one that we just think it was actually stacks that we ended up with something like one thousand one hundred forty months i think my co counsel and gives forty years which i didn't disagree with so that the sentencing calculus in order to reach that pursuant to the guideline the judge then looked at the statutory maximum the didn't impose that with regard to the with regard to the drug counts so that when it came down to the two forty it was a below guideline sentence and also below the stature maximum for the for the guns i'm sorry i'm so sorry for the drugs because arsenal fans were forty three and history a very briefly just as the as the court noted response of the government's view that this is an academic discussion regarding the the for the firms mr fernandez would like to have him given to his mother so that she can of the firearms in our products convictions doesn't apply to every one of the firearms as to the aiding and abetting charge rosemont should not be read so narrowly as to preclude its application in this case unless there's any further question i would like you or thank you both will lose their decision