apply a sentencing guideline which among the two points would be require the government to show that there was a reckless conduct that occurred during the course of flight that the notion of darting across eight lanes of the dan ryan expressway even in the middle of the night my personal experience is and there's never a time that there are cars driving on that road strikes me as all of at least a district judge could rationally conclude without you know committing clear error that this is precisely the kind of reckless behavior maybe not everything that was mentioned that that is during flight should be construed broadly and she's clearly paying attention to the very risky behavior that racing across the dan ryan involves they certainly did point that out but this is the the basis for her decision was really a trilogy and by that i mean there were three factors that you repeated that the government argued and that were presented throughout the sentencing and that was number one whether or not say well the point there is whether or not that is during the course of flight because if it is not then it doesn't apply under these circumstances so my position is clearly that there was no life at that time as a matter of fact when he was driving line i don't think so your honor because well number one he did stop he stopped coming up to the roosevelt ramp and he got out of the scars so he stopped completely and there was no danger to anyone that's that's example of fight in the record in this case that anyone was in danger of death or great bodily harm when he was pulling all for on to the on to the rack so that the other factors that are required under this section are not met under those circumstances so what i'm saying essentially is that if we look at this in as a three legged stool one of the legs that the judge relied on just doesn't apply under the circumstances so this case then we go to the second one when he got out of the vehicle at least there's a decline at that point that connects with the with the lower part of the expressway so he took the gun he didn't point it at the police officer there's no evidence of that you know just a little bit right part it was loaded the gun we don't know for sure we know we know that there was a there was a like a drum they call it we had a lot of bullets in this round yeah around thing right but here's what we don't know that we don't know we don't know that it was in the gun at the time we do know that when it was found over the fence that it was in two parts in other words there was a gun and then there was a magazine but we don't know if there is no evidence in this record and the judge did not discuss whether or not the gun was loaded or the gun wasn't loaded or anything along that line ok but the judge or light on what other factor which is not supported by the this record writer and artist she said well he threw the gun in an area in a residential area so there was some elaboration on that and actually with everyone who was who was perhaps thinking on their feet to some extent as the site because i  know the area but there's no evidence that this was a residential area so then we ask you this i know you're focusing on the fact that she offers a couple of different thoughts discussing this if there  be independent grounds for the enhancement and you've got to get rid of all of them and it's impossible for you to get rid of the running across the dan ryan one if she means them somehow to to count only if they're all found that's a different situation seems to be the approach you're taking but i don't see that in your discussion she just kind of is talking about each one because there they are but it seems  for at a minimum the running across the freeway one she thinks is very reckless your honor with all the respect they think that that all of the disability of the decisions that she made there were a few of them along the way we're going to analyze this they all amalgamated all three predictions in other words she didn't separate and say well based on this this alone actually to some extent she indicated that driving slow on the way that she rules it it appears that and that this is my recollection as well as well that she was taking all of these circumstances confluence of circumstances and putting them all together and same driving slow on the expressway could cause danger someone throwing the gun away could create a problem because it's in a residential area and number three going across the expressway so if you take two of those away if we take the gun say that's the information not th two then in order to support us driving slower on the expressway just doesn't make it so now the question is what would the judge what would the trial judge have done if that was the only factor for her to consider now there are speed chase mr residential areas in the gun cases deal with throwing a gun in a briar patch or having it in your hand and planning to get it in a way that the officer of my consider that it would be a danger to him or dropping the gun and in a you feel that as a matter of law that running across the expressway at night it was two thirty in the morning is automatically as per se it's a supply lation of this section as far as the enhance that you can sit down now thank you  and then raced across the eight lane express right to avoid arrest had record created a substantial risk of death or serious bodily injury to another person like that the officer raced across the expressway right after him at least one of the officers dead one remained at the car the other on it seems from the record i apparently chased him across crossway when i wasn't reckless if there if that's happened to be an unusual moment on the dan ryan when there's just no traffic  and it's just a big wide expanse at that point there's no evidence in the record that there was no traffic as your interest pointed out there's almost no time on the dan ryan where there is no traffic and in his argument before the court there was in the district court the defendant conceded that there is traffic on the dan ryan any time of the day or night whether it was a good idea of the trooper to follow the defendant doesn't necessarily mean that the trooper wasn't acting reckless but our focus here is what's on the defendant's conduct and here consistent with this court's cases including united states versus brown what we have here is the same risk what the defendant is doing this time on foot as opposed to in a speeding car is posing a risk to other from that by stating maybe just a court wouldn't have found that the enhancement applied if the only evidence on the table was the gash across the dan ryan expressway if it weren't for the throwing of the guy and driving five miles an hour in a broken up car and the other factors i don't think that that's consistent with how the district court approached her decision here if you look at page eighteen of the sentencing transcript in giving her car accident trying to avoid hitting him in the first place in this car that is between the time the trooper hit the lights and the time he actually stopped and in the second place when he ran that is there's a separate risk that the district court identified that somebody on the dan ryan could simply driving at that speed in a stolen car no there's nothing additionally reckless about that that the strongest case for the recklessness of his actions is of course what he did when he exited the car which is make the decision to escape by crossin traffic because he figured that the police weren't going to be able to stop him thank you thank you your honor all right thank you very much i think that i said i would give you a minute  it's i quite frankly i don't i don't remember anything in the record in terms of what the police officer did as far as running across the expressway but certainly hearing it right here that it races to another question in my mind in terms of what the expressway traffic was like at that time there is no information no evidence in the record in terms of what the traffic was like at that time for sure there is traffic regularly on all of the expressways but that doesn't mean  that there are so there is a lot of him going to traffic that an off or somebody to go across the street this fellow was twenty years old he jumped over a high fence i don't think that the police officer was capable of doing that so somebody else got into that position and then they didn't actually want to find him across the street for i think there's a goodly period of time maybe twenty minutes or something like that it was not automatic so this is this is the problem  it would be roughly a little more than done a year or less so it's a serious of handsome for him and martin meant to to you was essentially the amalgamation the the trifecta if you will of all of the factors that went into the courts consideration that don't really nail it down to up to one and based on this and based on the record i think that the court should reverse the finding based on these circumstances thank you very much right thank you and trying to stand that you took this case by appointment  we appreciate your efforts very much for the party for your client thanks as well to the government will take the