this is a case of presents and proximity alone the defendant traveled to washington from california to attend a first communion think and the first communion was may twentieth or something like that yes so but i think they arrived on the eve of when they actually departed california i think they were arrived on the eve of the first communion it was like the next day or two days later some such thing with all the extra miles from that was unexplained  come to this first communion and it's seven hundred miles but somehow i had sixteen or miles mileage were going on there miles i don't think it's particularly relevant to the offense here because they're tracked from the time they arrived and actually in eastern or eastern oregon the miles are just not accounted for nothing is suggested that the miles were in appropriately i mean they didn't go anywhere they they seem to travel according to all accounts directly to the state of washington and and into eastern oregon which is just across the border from the tri cities actually it's like thirty miles in terms of any kind of criminal conduct  i don't think that it is i don't think it affects the credibility because there's no more level of purpose associated with the extra mile i mean no one is suggesting that they they they went to nevada or  somewhere to buy methamphetamine i mean i mean the miles are just there and we know where they went or what they did or whether the mileage was correct on the vehicle or i mean there's all kinds of there's no suggestion that those miles were used for some malevolent purpose they mostly the important thing i think in this case to me is the fact that yes i would give you that yes that's true but in this case the simpleness demonstrates itself and basically a refusal to answer the simplest question such as qasar and the reason for asking that question is real simple my client throughout these proceedings is never suggested to have a single conversation with mr fernandez or with m ayalon or with the confidential informant named dave it's interesting and in fact i actually i like the government statement of facts in that regard best they point out that mr bought in california  that mr gays are never had a significant conversation with mr ayalon ever mr ayalon would not even admit to having talked to mr games are he was merely there interesting point there is the supreme court gave us the promise that we were discussing the perjury suggestion in the supreme court gave us the promise that well a defend merely pleading not guilty doesn't run the risk of being paralyzed for that because the district court must make specific findings and that's to protect the defendant in this case at the urging of the government judge refused to make those findings and without those findings that increase is not possible and the judge specifically and intentionally did not make those find can go back to the promise that the supreme court gave says that the judge in order to provide for this increased the judge must make those particular findings and if the court  declines to do so then it's not many and that is a protection for the defendant it seems to me from the promise of the supreme court case in the way the statues that out i wanted to make one other point mr gays are in this case was convicted soley and has to be soley on the basis of while mr a yalit says mr fernandez sa even though it's referenced in the government's memorandum mr fernandez did not testify in this case and he refused to be interviewed so the only it's offensive to me that a defendant can be convicted based upon the pure here's a statement of particular witness like mr ayalon who's well the proposition of law you contest what i think is pretty well established inclusion in fact you can have a conviction based upon a here's a custom if it's and further and in this case it wasn't this was and it's clear from from the record that mr fernandez engaged in a conversation which would suggest to anybody that he was participating in anything other than a trip to a first communion yes thank you the government's witness i would respectfully disagree there was no other evidence there was that there was the fact that mr hayes our rented the car that he drove up from california that he was present at the place where the drugs were transferred from one car to another if he was just coming up here for baptism why staying at the place where the drug transaction guy were talking about how the deal was going to go down and so he was aware that it was going to be a drug deal because he was there when they were discussing it at the store early in the morning and later at the house outside by the car so mr his heart was aware of the drug deal clearly and then there was the testimony that said that he was going to share in the drug proceeds so that without the other circumstantial evidence showing  oregon and with no weather clothes no change of clothes for going to a church for baptism no presents very little money to return and yet they're just these things could not be explained away and then his own testimony it just seemed incredible that there particularly at one point he was explaining how they pay for gas coming up to washington he said that he and mr pappy equating first created are paying for the gas and the next question was oh so you've been up here together before oh no no we've never traveled up here before together and yet just before he said this is how we do it when we come up here and there's a little bit of confusion i would perceive as to the trips that there were there was a har fifteen sixteen hundred miles that occurred about a week before this trip and that would explain his statement when mr tapir quavers and i come up here we trade off paying for the gas i think circumstantial evidence and then those clear concrete statements that he was going to share in the money that there was the evidence was sufficient to support the conviction i would like to turn now to the issue of whether there should be in obstruction  it would be an abuse of discretion to say that mr h r did not abstract justice when he took the stand and he tried to convince the jury that he was an innocent person so in effect any time that offended takes the stand and testified in a manner that is contrary to the jury's verdict you would infer from that obstruction of justice the choir's the application of the two level announcement no i would not your honor i in a way that's contrary to the jury's verdict where there's a factual the distinction between what the defendant says and what the jury finds mean to say you like in xanth that may be factually false of the jury finds otherwise why is that any less than  where the defendant could take the stand and there would not be an obstruction of justice even though the jury found him guilty where they take the stand and say i am it was directs and the jury doesn't that if they judge has the discretion to never go down that road and the government would never be able to get a judge to follow the law well in that way the judge the ought to go down that road i mean it seems to me if the government's position is that the judge doesn't have discretion then the sentencing guidelines will be written in such a way to eliminate the discretion by saying if jury finds this then result is that by by asking the district court to make findings separate and apart from the jury's verdict doesn't that seem to suggest that the district judge is supposed to exercise judgment and discretion with regard to that particular question to why can't we say the district because of the evidence and because of the way the judge was that the judge acknowledged that there was not evidence support that's a part of the defendant's version of  the facts of support of the defendants testimony that it was an abuse of discretion to not do it i'm not saying that in every case that would be the end of the outcome but in this case where there was  memorandum the question to to mr ayalon was you talked to mr gaiser about what you were going to do with the case is that your testimony answered well about the cas i just simply told crystal ball and crystal ball was sure was to share the case against amongst the three of them and the four of us mr  jala received benefit for his testimony and he wanted to testify the way the government wanted him to testify in this case he never answered a single question straightforward regardless of how simple the question was this wasn't a complex question this wasn't a compound question it was did you talk to mr gays are and his answer was i talked to crystal  at no time is there anything in this record that mr games are a ceded to conceded or necessarily understood that there was a drug friends action going on there is zero evidence the fernandez got or didn't get because he didn't testify and in this case and wouldn't was not available to even interview so i don't believe that all i know is what mr ayalon who doesn't even understand spanish well says mr fernandez said but he was very careful never to answer the simple question did you talk to mr gays are the answer to that would have been yes i probably wouldn't be standing here today but the point is this your gays are was convicted soley i mean solely on the basis of that