himself at the time of the plea negotiations in this case and as also at the time of sentencing a month before sentencing he requested the court to approve a twelve hundred dollars for a mental evaluation by dr hodgson bueller and that's contained and you are one sixty nine to one seventy one it set forth the basis for the need to mitigate his somewhere his wife's that also it should be noted that in the pre sentence investigation report at paragraph one zero four the pre sentence investigator noted that there was a potential for departures based on his age his mental and emotional state and potential diminished capacity or mental condition so those were noted in the presents investigation report as a result and mr ponza requested that the court simply denied it saying that it would not be relevant i think that the government in its reply brief says well you know if he'd been represented by counsel would counsel of asked for such an evaluation i think in this situation the counsel very well would have asked for that investigated what is right what is a prejudice and i say that because he also i believe told the court that he had other reasons well first of all the said he discussed morning already without an expert but he also said he had a lot of weapons because they were an investment and some of them belonged to his wife so i mean it's hard mental condition does not necessarily have to be related specifically to the nexus of the event and so that a person's mental condition and emotional state would be relevant in terms of mitigating factors we don't require it to nexus to that and so i think that the psychologist may very well have provided information do you really think that in the context of a person who's been indicted for all the things that he was indicted for this really would have made a difference and he he kind of a really great deal for himself yet there's no there's no question that is involved but also you have to remember that the allegations of what he was charged with back in massachusetts occurred twenty years before he was before the judge in this case and that he had suffered a number of mental issues related to his  wife spouse leaving with the child all those kinds of things and he had seen a psychologist in two thousand and ten and so now several years later and him being incarcerated i think it's important to have that aspect in the court just said no similarly when it talked about the what happened in ada county and the jail records and the court said basically you can't subpoena witnesses for that you're prevented from putting on two aspects and paragraph statement that he had ninety violations five and i could well that just didn't come out of the words of the prosecutor that was in the priest it was in the presents report yes and so he asked he did it was filed one day before he was in custody he was seeking to do that the court just ignored it and that and the government does point out well mr ponzo didn't ask for a continuance he didn't ask for it but when he raised the issue at the sensing the court said we don't have to worry about that and the court actually said statements about i know eight account in jail and they're a good jail and then basically said i'm going to essentially hold this against you so what you well i think the judge should have either said i'm not going to consider your behavior that would be one way to deal with it or to say let's continue the hearing and we'll come to a factual basis and have a hearing that's why i process violation if i may move to the issue of the sporting use the prater case is very clear that a person who is convicted or pleads guilty to possession of firearms in title to a six level offense reduction if the items are used for sporting purposes the judge in sentencing simply said that's immaterial i'm not going to that every single one of these weapons was unrelated to anything except supporting know i think the record well there's no it i think the record is because that because the the court said we're not going to consider that there was no real evidence other than his statements that they were locked away here's my problem with that i think the court said that i may be misremembering this we have a lot of cases today but i thought the court said that at least one of these weapons was possessed in connection with his flight from prosecution in massachusetts  about that and you know i think what happened in this case is that the court didn't make anything specific about that he made a finding that these were in relation to the flight for his flight from prosecution raise that issue on appeal and maybe i should have but he raised he objected to that finding in the district court and the the court rule on  i'm sure but wasn't there also evidence in front of the judge terms of what was in that safe that there were four or five false identities that had been developed over the years by using the seized children information that suggests an ongoing effort to avoid that there's still there may be an ongoing effort the question is whether the guns are related to that ongoing effort i mean they were certainly not there for defensive purposes they were locked away they were not anywhere he had completely changed in terms of his approach to things and i think it's just not supportive but if it is supportive then basically he's entitled to a concurrent sentence the guidelines require him to have it a concurrent sentence and that's what should have been done in the government argued against that you have a little less than a minute left if you'd like to save any file just let's say for public thank you had please the court my name is christian asker and i represent the appellee the united states in this matter i'll start with the plea agreement if i may and the plea agreement contained two sentences that addressed the sincere recommendations in this case first the government agreed to recommend sentence within the guidelines that sentence was to be really followed with the parties are free to recommend that the sentence run concurrently partially concurrently or consecutively to the defendant's previously impose federal sentence in the boston case when this plea agreement was made obviously this was before the pre sentence report came out and neither party was sure whether this was going where the guidelines were good or suggest a concurrent or a partially concurrent or consecutive sentence but both parties were aware of several important things both knew that the defendant already been sentenced to three hundred thirty six months in the district to massachusetts and both knew that even a statutory maximum sentence in this case if run concurrently well that sentence in boston greatly exceeded even the statutory maximum both parties knew that the government had previously dismissed the aggravated identity theft counts which carried a mandatory consecutive sentence and both parties knew that a concurrent sentence in this case with ultimately as the district judge put it would result in no sentence at all in construing these two sentences the court has to determine what the defendant reasonably understood the terms of the agreement was when he pled guilty now it's true that the government did not spell out a hypertechnical scenario in which whether some guidelines required a concurrent are some guidelines required to consecutive it simply said that the parties reaching the defense is correct if there are certainly circumstances where the a mental evaluation can be of benefit to the court  even though it's not directly related to the issue in the case that as background information about the person in this case there were claims of o c d and post traumatic stress syndrome so why why shouldn't the judge you've allowed it well i think it's important to note that the suggestion of o c d was merely a self serving statement by the defendant that it was suggested that maybe he had o he didn't state that any doctor had suggested that or who suggested that most or if there were some medical records and there were medical records initially that diagnosed him with a t h t but it was the defendant's own suggestion that it had been suggested to him he didn't state who suggested that and i think the court correctly noted that in the context of the ongoing litigation this case the defendant started the defense was held responsible for obstruction of justice because he it attempted to influence a witness i think he was convicted of that in boston and so after he was arrested there were jail phone calls in which he was telling his common law wife that she needed to take responsibility for these guns and then that didn't work and then he suggested well these were an investment and it was a joint operation by my common law wife and myself that we were going to invest money in these guns and then when that didn't work it was well these are really for sporting purposes you know we would go target shooting and that's and then the fourth decision or the fourth choice was you know i collected these because been stronger arguments had he had an expert group with you know if if if an expert said that he was suffering from o c d the court has to look to whether that would override the situation in which a defendant who was fleeing charges of conspiracy to commit murder extortion racket tearing cocaine distribution who was currently living underneath a false name  had identification making kits in his possession numerous fake i d s logs of deceased children of who whose identity he could steal what was the true motivation for possessing these firearms and so i i think you are correct when your response to defense counsel are to so mr parsons that would that made any difference well that was a question violation of the evidence you're hearing regarding the well are there any other questions on that before and i don't think so i guess i'll spend the last few minutes i have talking about the collection for sporting purposes i'm sorry i apologize i have one question i want to ask the judge the the dialog between the judge and the defendant and page twenty four of the record whether talking about the incidents at the jail and that the senator says is the court not going to use that as a sentencing factor is what you're saying in the in the judge said the fact there were ninety disciplinary action seems very likely to be taken into consideration and then later on when he was imposing sentence he made reference to that shouldn't the defendant have had an opportunity to challenge that for me he did and he was given an opportunity he was the best witness as to those allegations and i think it's important to note that the defendant well a motion that the government was obviously unaware of and he was provided the opportunity to call witnesses he called to he was asked if there were any other witnesses he wished to call he said no and the court would have to look at the purpose there was no justification that this witness this this deputy that he provided the night before sentencing would prevent would present evidence that was favorable to him and you have to look at it in the context of the civil suit that he had filed against the county jail and his desire to litigate that civil suit at his criminal sentencing and that's why in my brief i said you have to look at the context of the judge's statement that we're not going to get into this right now that was only after he said i believe this opens up my civil case against the ada county jail and the court said no we're not going to go into that but the court did allow him to present his side of the story and i think  as to the sporting collection purposes i want to correct something and that's that on the on the sealed documents twenty eight i'm sorry excuse me on on e thirty four the district court stated that the court finds the probation officers comments adequately addressed the concerns and objections of the defendant and the court adopts the same as its own response to the objections now while it is true that the district court on two occasions so that it was immaterial that he possessed firearms because he was a felon the reasoning why he adopted or why he denied the defendant's motion as to the sporting or collection purposes reduction is set forth that he adopted in the in the dent into the pre sentence report that the probation officer crafted and that was on seal documents twenty eight and the probation officer said that he wasn't entitled to the four level reduction for collection or sporting purposes because he possessed those at least some of the firearms in connection with another felony offense and that being his unlawful flight to avoid prosecution and allen i mean if he possessed it in relation with fleeing there twenty years ago well it and i believe it was addressed previously that these firearms were kept in the same safe as a fake identity set all the log books on how to have of a false identity if it was still living underneath the name j saw j shah he was produces a painting in family court in the district of idaho under the assumed name of james j shaw and that's all the time i have if there's no further questions i don't believe so thank you thank you mr burns you says i mentioned just a moment it's immaterial you're a convicted felon you have no right to possess firearms that that's why the decision was made it was made on the fact there was a material i talk about five g one point three in the thirty seconds or so i have remaining in the the government negotiated this plea agreement they agreed to it within guidelines since there was no discussion of five g one point three when the initial report was filed which is in the sealed p s i i this is the government made no objection to the the five g one point three finding that the the present investigator requested it was only in an initial sentencing memorandum close to the time of the sentencing that the prosecutor acknowledged that that this was in contradiction to five g one point three but that is a guideline to the a plea agreement and again m not represented by counsel says this the government will recommend a sentence within the guideline range the guideline range is said that if there is a finding that it's in relation to another crime it