sentencing now with respect to the issue of the new trial the claim violation is a violation of due will versus ohio i'm going to rest on the brief with respect to the actual violation and i just like  witnesses cooperating witnesses witnesses who were obvious three knew all that they did your honor and so the the issue then becomes whether or not the did jury could properly evaluate that testimony having heard what we are submitting is it is a violation of the will it's our position that our client was impeached although not directly was asked to find that he was impeach diyala while i wouldn't go so far as to say it was a surprise to everybody i do think it was a surprise to some people because i think that there were records or not certainly did not have but that's correct and i think that where there is this circuit split because there are other circuits that you know would not have held the way that this court held in diyala oh i think that we really we can't be sure that the decision was made properly but even when you look at but i think one of the one of the problems with this fact pattern is that i mean it's one thing when you have checks and everyone knows the amount of if there's no evidence of the criminal had any knowledge of the credit limits and you can't can't really intended with the credit limits it seemed i absolutely agree with which brings me to a factual matter that i don't know the the defendant had personally applied for frog you know really in the pain or were these credit cards that had been stolen from someone else who had properly had  the my understanding from the testimony we were actually the trial counsel you were hired after my understanding from the testimony and i'm sure that my colleague would be able to elaborate on this is well the cards issued were actually visa gift cards whips and then account numbers and access numbers were then using some sort of a device placed on to the visa cards all right so these were not credit cards  seems to me that will determine ultimately how this in and that was certainly so just again to see what i was saying the visa gift cards were then were stripped of their of their gift cards and then those visa gift cards were used as if they were credit cards but the record doesn't taint the analysis which formed the basis for the district court's ruling on sentencing as to the maximum amount of all these changed when they were still what the maximum amount that would have been on the cards that were seized by the huntington county or huntington township police in new jersey the the maximum amount on those cars would have been the maximum credit limit on any one of the numbers that were loaded on of the cards if that was clear i guess this line of questioning heightens the need for the i agree with the court because we have testimony of record i've noted in my brief five o seven where one of the coconspirators actually explains what he was doing in the store he would select the items and he would use one card from lee a few items because and i'm paraphrasing he didn't know what the value was and therefore he would look suspicious if if he's maxing out cards and you could probably figure out based upon how many cards and what what limit they were used to and how many cards remain you know that if they had kept going and maybe three or four hundred on each of these cards but again that would be a matter for evidentiary that that's that's correct i also did want to address the the one that the issue with respect to the actual evidence that was used to determine the cards we raised an objection to that at sentencing because we didn't feel that that was really sufficient enough there were you know not to suggest that the agent would have done anything when you actually look at the transcript of the set doesn't like deep analysis terms of what the i as i stated in my brief and as we raise this the sentencing memorandum in our objections to the pre sentence investigation report just because someone is found guilty does not mean that the jury made the correct decision and i draw the court's attention just to the big the recent cases where people have been exonerated by d n a evidence it would be absurd for any of us to say that somebody exonerated of let's say a rape or a homicide who had testified during trial and said i didn't do it it would be absurd to say that they committed perjury even by a preponderance of their own right so what if a jury were to convict that is absolutely the case and again it you know perjury was a charge that wasn't something that jury considered but with respect to the district court's findings it seems that we just assume that because he was found guilty  therefore that enhancement is appropriate realistically when this goes back and we instruct the court the court is going to say what judge roth said he said he didn't commit a crime that yuri's said he did he therefore didn't tell the truth and answer that it's not a very high bar and it's not your honor but we still submit that during sentencing you have an absolute right to be sentenced under correct guideline calculations under correct information and i mean the precedent of this court is that the first step for a court a district court is to determine the guideline range and so the error if any was needed was harmless beyond a reasonable doubt i will move on to the yellow issue because i hear supporters most interested in that and i'm surprised the government what judge munley the district court judge did at sentencing is he he made findings because he did not simply a duff what was in the pre sentence report what we have here and what was presented at trial was a conspiracy the key day of the conspiracy was february twenty ninth two thousand and nine when this the and it was actually in the act with his cohorts at that time and what the trial evidence established was that these cohorts traveled from new york armed with the eighty one fraudulent credit cards they were got the skies in the form of hit hard what had happened and what was established at trial was that these individuals attain physical carrier for that credit card number was a card it was a physical card but the numbers were compromised credit card account numbers of such that the number that appeared in the front of the car card did not match the number that came up was there any evidence that the defendants had any idea what the credit limits were on these cards no you're on your cell and would not the testimony of the one saying what did that he didn't charge too much on one car you know what the current limit is and if you're a district court judge don't you have to take into account in determining the intended loss exactly how much they probably were going to charge done i think that the district court judge did that in this case your honor and here's why the evidence that was presented in the filings pre sentence the arguments were were laid out to be this record judge had the benefit of a percent its report we made arguments at sentencing on one hundred into credit parts that were involved in the overall conspiracy and that was the recommendation that was made in the present it's report that this judge did not ad that finding what this judge did after reading the papers and listening to the arguments and having been the trial judge he said i'm only holding this one and accountable for the eighty one cards that were found in his possession on this day with the maximum limits of his actions tell us that he and his cohorts intended to use those cards until they were exhausted and also it's important that they came from new york on that day armed with those eighty one certainly reasonable to presume that they would have continued to use those cards until they were overdue but you're now making findings that we don't that we don't have from the district court and that's why the deed i mean you're giving us what you think is the deeper analysis that it wasn't done i think that it can be found your honor in the fact that judge munley held him accountable for only the eighty one cards and having what evidence was there that there were more more cards than that because this was an overall conspiracy and different dates were evidence at trial of the same individuals in gage in the same fraud at other wal marts prior to the day they were caught those credit card numbers were included in the overall he was a trial judge so he he heard about the use of but that doesn't help us in terms of reviewing his reason for the ultimate value court judge stated on the record at sentencing i am going to be using his exact words he said the loss is the is going to be based upon eighty one cards that were found in the possession of the defendant and his co defendants and i think i believe that that is something that was not present in india was was it a different factual scenario where mr diallo was held accountable for over two hundred credit card numbers that were found on various media harddrive and in a jump drive and the court was concerned that there was no evidence that he even control those numbers it's it's different here and i think by the virtue of the fact that judge munley only barry accountable for the eighty one only have him accountable for the ones he controlled and intended to use use throughout that crime spree that occurred and for right twenty ninth two thousand and nine and there was no law how we show what's going on in the defendant's mind is his actions and i think that was evidenced here and because jesse if we determine it by circumstantial evidence and some of the circumstantial evidence here actually  it was more than circumstantial if it is evidence of other of another participant saying that by design we weren't trying to run up a maximum that certainly would seem to run and he put four hundred wanted to put four hundred dollars on and the card was rejected that's not evidence of intended loss of balance if on the other hand he wanted to buy four games and that the price was going to be thirteen hundred dollars  apples and oranges and again your honor the finding nature made by judge munley which i think is critical in that he only held mr barry accountable for the parts he possessed on this one day which they continue to use repeatedly throughout the night but was he given evidence of other current specifically that he then rejected misjudgement he was your honor because there were one hundred in two credit cards that were presented in evidence at trial said he specifically how mr very accountable for each one that's on the record and that was the one that was about two hundred thousand dollars less than the intended so i hear where they had done so far they charged thirteen thousand four hundred or so and you say the intent was six hundred seventy five thousand it just the other needs to be some explanation and to that your honor i would say that the only thing that stopped these individuals from as long as we can infer from the judge's decision that he considered he her jewelry is testimony that is sufficient and that occurred in this case because on again actually says that the judge doesn't have to make element element he does not your honor in this court has said that and certainly in in this case because a defendant could have been charged with perjury on on multiple aspects of his her and because the  the filings of the parties argued this there were there was arguments act on sentencing from both parties and judge money specifically said i am considering these arguments in these filings and to that point you reach the conclusion that enhancement for perjury that obstruction charge was appropriate and there is no need to send this case back on that issue so you have this district court judge state the obvious attention to facts that were elicited during trial definitely born sentencing that there were certain cards that were recovered that were either duplicate this were had vowed that that was cancelled and certainly that would lend a little bit of an explanation to where they're saying well we tried to use the card it came back so i mean it's possible that there were more cards there because they don't know what's going on and therefore they they just bring extra to get to whatever it is they want to get and again it just goes back to what i need that