and the sex part and i believe it is has the sign of one of the issues and the position that you're taking on whether your client have to be specifically to her sentence so would you comment on why you think that's excessive came out wrong on that issue or i was preparing for this hearing all day yesterday and i it's it's a little complicated with the just keeping track of the different numbers  i would just argue the court that the sun clear innocent has been whether the defendant needs to be have actually engaged in the in the commission of a sex act or whether it can be done through parents or surrogates and that's basically the question just our position that this issue has not been clearly decided in the circuit and that's our argument here on involved a situation where the three sisters i believe or model sisters were not did not engage in sex with the victims that case and the issue for the court was the double counting and go to the case stated that the  the enhancement under before a which was the commission the sex act or sexual contact would not be double counting that situation because the having sexual contact with a minor was not an element of the based on the mannish capacity before you started on that i i recognize my client as a huge mountain to climb in that in this issue and i realize that the the standard of review is this is abuse of discretion  she testified that ms pastor suffered from various psychiatric problems including post traumatic stress syndrome she had been sexually abused as a child some of the abusers were police officers of these guidelines and the second step obviously is whether it was causation whether the substantial impairment substantially contributed to the commission of the crime and that's where we are in some difficulties with the court the court basically concluded that there was insufficient causation showing that there was a causation between the impairment and the and the commission of crime council how did the how did the doctor that p t s d caused reduced mental capacity understand that you may be an emotionally scarred may have been a terrible terrible thing but even when we have soldiers coming back with p t s d we don't usually we don't usually suggest that their i q is gone down but there's other ways suffering from but there's a recognizes that postmark stress syndrome can lead to a diminished capacity like the language in that case your honor it is the cantu case the court said basically defining that term i was really sexual abuse primarily led to the post traumatic stress syndrome which basically led to what she style than acute psychic this psychic disorder she also described other  inability to distinguish right from wrong and what was the nature of her learning disability she described it as a complex combination of intellectual disability and she also testified that that particular learning disability is present all the time is one of the problems the court had with the i guess it understand what the psychiatry means by learning disability what what learning disability that you have or ordinarily we talk about learning disabilities you might be talking about to one problem is that we might think that anybody who would commit a crime particularly an awful crime like this shows impaired judgment that's i mean i think that we could say gee you showed really bad judgment when my kids came back and did something wrong i think that was really bad judgment but i don't always describe that as having diminished capacity or a learning disability i think to come and it might if once somebody did have a learning disability you might have some difficulty linking the learning disability with the bad judgement so what's what's the link here are your suffered but the court is right to question the relevancy of it was never linked up it was never pointed to as a basis or a cause and do we have anything more specific as to what the mental impairment was that she was born with other than what is contained in the report can't to answer is a very old case interviewing a different version of the five k to where i don't even think the language didn't have to significantly cause it was just cause at the time for the link that language has  know if i might take a positive is that it did it did talk about voluntary intoxication in can two that defendant proved or at least his expert showed that his use of drugs was tied to time to this expert offer an opinion that the p t s d somehow made her an able or drove her to methamphetamine as a record stands right now she voluntarily used methamphetamine on numerous occasions for the course of her criminal conduct which and many much less although that doesn't seem like a very big leap to go from having p t s d to for drowning your drown your sorrows in it isn't but i still would i would still say i was dismissed something easily proven and it was one of the basis the court rendered in the course basis for finding that defendant did not carry a burden were causation the possibility of a lingering and voluntary drug use of the court was i see tons of meth in this case and no reason to conclude that that wasn't more reason for what you did then stuff that happened in the past if i may back up in time just to address very briefly the defense arguments regarding t j one point three whether sexual conduct is required it is politely as i can state of course it's not required to be committed by the defendant it's a completely logical in appropriate application of relevant conduct assuming relevant  by which it does the specific offense characteristics into g one point three clearly show that sense a commission knows how to differentiate when it's the defendant committed it and when it's the offense because in two g one point three it says the defendant point you know add two points if the defendant improperly influenced the one that we're talking less did the ins did the offense involves the commission obviously that is telling the court the sense in court something that was what we discussed yesterday but it is not acquirement in a sex act actually occur but if it does occur then you are going to get the two points and so that's again logical and in line with the plain language of sentencing guidelines returning  underpinning the court's decision was at no point in time for if you read the if you read the excerpts at no point in time to dr post ever say that she had a substantial impairment that significantly caused this crime it wasn't in any of her reports up until the day of sentencing and that's one of the reasons a usa the time objected because she said as she hadn't even connect the dots now so she shouldn't be able to connect the dots now in testimony she got up she testified  but the district court viewing the whole hearing reading the reports feeling that the live testimony in the end that the defense did not carry the day and i think based on the record based on the findings that were ticket weighted by the district court it is is impossible to health providers inside camera small island in fact in a very few psychologists or even psychiatrist on the island maybe one doctor posed as you'll see from the record was as i said earlier was an ex parte request of the court when i became concerned about  competency her doctor post she flew up from guam and was over there several times to visit with dr my client was in custody when this whole procedure proceeding excuse me two times and then repair present report spacing recommended ten years which is significantly less than seventeen and they file this out of time requests which a judge granted and asked for these two enhancements to which increased the potential