the next case is united states v smith mourning or honors i mean please the court your honors i'd like to address the waiver of appeal and the obstruction of justice and hands issues if i may the beginning and i'll answer any other questions that the court has  dollars of the record you'll see pay paragraph eighteen dollars of the plea agreement and it indicates the defendant and substance knowingly waives the right to appeal and collaterally attack any component of a sentence provision has been discarded by the government through a position that they've taken it you say was discarded but the government agreed to something to the benefit of your client the only thing that we would be that i think would be placed on the government's shoulders here in this type of situation was to reaffirm for instance when they're replying on page sixteen million four hundred and sixteen thousand five hundred and twenty eight motion reaffirm that paragraph eighteen is still in effect the very sentence itself that this provision is has been they're consenting to it's within the same exact sentence as the appeal waiver so if they say that one part of it doesn't apply to the circumvent the circumstances have changed to the benefit of your client a check for me to understand why suddenly the waiver is is is gone is simply because the government because the government consent d to that recap elating the guideline range because one of the convictions was was had been vacated i mean if that's the case to government your suggestion the government shouldn't consent to these things now that  and i don't mean to talk of you judge no what i'm saying is that the government needs to be clear when it's addressing the very same sentence keep in mind that this this motion we believe we likely would have won even without the government's consent this was and this is a very clear error we do recognise that the government would really have had no position in opposition but five years had passed a defendant under these circumstances we believe would not believe that the the appeal ever was still in effect we  but judge if your focus in on this and this new proceeding in order to have the reset and saying this was a unilateral decision to consent there was not a quid quo pro waive your right to appeal the  issues i just want to point out with regards to the sensing enhancement on the obstruction of justice district court below made no finding at all with regards to the mens rea element the court did not adopt the probation reports finding i think the case was clear that it has to be remanded should the court reach reach and we believe the court should reach that issue here there was a great deal of talk below about items being sent to  e jail and i think that needs to be fleshed out more if you look carefully at the exhibit which addresses the conversation with regards to something reportedly going to a jail the court made no findings in that regard these were comments made late at night this is these are facts that just when i fleshed out by the court below consistent with the court not making any finding with regards to the mens rea element and with that i believe i have two minutes judge for  and ambiguously waived his right to appeal the sentence pursuant to the waiver provision of the plea agreement now we were unable to address most of these attacks on the waiver because unfortunately he waited until the reply brief to raise sixteen pages of new argument basically a you know refers that being recent times pursuant to the same plea agreement doesn't invalidate you know one specific waiver provision and smith really cites nothing to support his argument on that point but even on the merits the district court's sentence in this case was substantively and procedurally reasonable substantively accurate term of eighty four months was certainly appropriate in a case where mr smith still forty nine firearms forty  nine that is forty nine more guns on the streets of new york city according to the informant and the five k letter and the weight that the district court gives to anyone three thousand five hundred and fifty three a factor this court has held is firmly committed to the sentencing judge's discretion and that's exactly what happened here the district court acknowledged mr smith's rehabilitative efforts it congratulated him on his progress between the st sentencing and the resentencing but it also highlighted the seriousness are no magic words that need to be recited at sentencing and the district court didn't have to verbatim cite the enhancement before making its findings if you look at it we do acquire the findings being named yes and the district court is also present said that the court finds quote there is sufficient basis for that two point application for obstruction of justice based on the defendant's actions and posting that information on facebook two at and then he says i think you know even though it was only up there for a short time what is  also direct this cortex silly i know so is so yes most of the time this court does want to see a finding as to the mens rea a but it has also clearly said that in some cases conduct can be so inherently obstructive of administration of justice intent it simply acknowledges his stated motivation in obstructing justice so by his own admission he was trying to influence that person's conduct by outing them on facebook maybe he was trying to deflect attention but he did by intentionally intimidating another witness and i i'm not quite sure that i understand since argument that he didn't know this person was a witness because he got the name he posted the police reports from his own case he forbade him copied them from the discovery in his case the police reports that said this person by name is a witness cooperating with law enforcement in his and his co defendants cases so and he then called that person a rat and then he encouraged others to say he said yeah you should send he perceives to be a rat they're not mutually exclusive i don't and i i think when you look at what he actually did which is post discovery documents to facebook accusing someone of being a rat and encouraging them to think that in what i'm trying to ask is you know i think judge bianco is asking the same thing is how does that impact the proceedings how does that impact his case or is he simply outing  well there's there's there's a reason i think that three c one point one specifies that it can also be during the sentencing phase and that's because a lot of things could happen at sentencing people people could submit letters you know that the district court can take into account and i understand that i don't i don't disagree with that but how does this particular conduct impact the ongoing criminal proceedings i intimidate i mean i just it just seems it nothing but any time they are automatically obstructing justice because of the schools and someone's cooperations of the government and they are specifically intending merely by the disclosure itself to try to impact a proceeding morning best against every tongue i wouldn't go that far and you don't need to go that far in this case when when he's calling them a rat and posting police reports and encouraging others to send it to the jail so i just it seems just so certainly don't think focus on on me and i certainly don't think this court wants to send the message that that's an acceptable way to distraction from someone cooperating with the government and you know whatever the the the time of night it was or if you could marshal what are your reasons for saying it self evident here because it sounds from i mean so the absence of a finding is the thing we're stumbling over and if the district court had addressed specific intent and told us why we wouldn't be  nking of alternative scenarios so what makes it conclusive in this case and not in all cases if we accept your argument i don't see my time is expired if i could just quickly can you can and yes please go ahead ok so there is so there were a number of things that make the government's position is that makes itself evident here ok st is the fact that smith has never disputed what he actually did so he admits that he looked through the police reports that were given to him in discovery that he posted them to facebook that he typed the content of those reports of verbatim identify that person by name as that individual co ops when with law enforcement he said in his letter and he said through counsel at sentencing that his intention was to change that person's conduct he didn't want that person he believed to  you know be calling him a rat so there is there is a perception on his part that he wants to influence this person conduct that he's going to do it by and this person he knows is a witness and his and his co defendants cases and he's going to do that by calling them a rat posting discovery documents and when someone suggests you should send it to the jail where that person is incarcerated he says yeah that's a great idea and it's after considering all of that  and his admission his half hearted explanation oh he didn't really mean it you know it's late at night i just in this specific instance those early indicators the fact that he didn't dispute that what happened the fact that it's self evident by by what he did and his admissions that this is just inherently obstructive and i would i would submit to the court that this is the kind of case because really i was talking about but in any  facebook posting i just want to point out to the court commentary note for a it would have to be unlawfully influencing it's not just influencing someone the comparison to what a judge has to consider under th fifty three and i think you'll see that in the government's brief e c m page twenty nine they do they say to fernandez for the proposition that all these things are in front of the courts of court the court of course the court knew and understood the argument but of course that's not the like forwarding address and and the court went down the road recognizing inciting to upon today that perhaps there could be a situation where there could be an inherently obstructive act where we're not going to focus in on the mens r this comes nowhere close to that i respect i think opposing counsel plays down too much the position that they took below it was their reaction to this that this was to distract and they were frankly lukewarm throughout the proceedings if you look at and ten of the appendix there's their sentencing factors they basically just said well we consent to the findings of the p s r i don't think i don't i don't think their position really changed too much from the so if i believe if i have the name correctly i believe that was the situation where the defendant had provided information to a target of a pending f b i investigation the facts were very clear and i think that's i