good morning in may have please the court charged with possessing a gun ask a rash proceeded to trial and he testified and he told his own jury that he possessed a gun nonetheless at sentencing the district court having perceived other aspects of mr rash is testimony to a pin false applied the two level increase under section three c one point one for obstruction of justice rash now contends that that was a roni as any as this court to his sentence so that that error can be fixed the starting point of this morning's analysis can be found in this court's opinion in a case called a rant below where it was noted that not all instances of a defendant's false testimony constitute obstruction of justice that's because the supreme court in a case called done again has said that false testimony obstructs justice under the sentencing guidelines only when it satisfies all the elements necessary to prove a perjury and proof of a perjury as we all know requires a finding of materiality to be that the false testimony was capable of influencing the outcome it's hasta rashes position that any false testimony that he gave wasn't capable of influence in the outcome that requires that we somewhat follow the bouncing ball dating back to the trial which in this case occurred way back in two thousand and eight rashed was accused of possessing a gun on a date certain the government's direct evidence of that possession was compelling they presented a police officer who said i saw a rash walking down the street i watched as red withdrew a gun dropped to the ground walked away we apprehended rationally scooped up the gun the jury heard rashes post arrest statement in which rash basically said i was walking down the street i saw a law enforcement i drop the gun and i tried to walk away i was compelling evidence and then of course it was compound it by rashes decision to testify in his own defense and testifying on his own behalf on both direct examination and cross examination rash remained unequivocal there was a gun in my apartment i needed to return it to my girlfriend i grabbed it i knew i couldn't have one i put it in my pants i walked down the street i saw a police officers i dropped it to the ground and i tried to walk away that was the government's proof of oscar rashes possession of a gun on the date alleged the government as was its right decided to prove its case by broader evidence during the government's case in chief it introduced evidence of rashes involvement or participation in the guns purchased and it acquisition some days earlier so that and this is what caused judge clover concern rash primarily on cross examination quibble with the prosecutor about the depth of his involvement in his participation judge for her to sensually you this is a scenario where rash was trying to sort of cast himself as a bystander to the transaction whereas judge clerk saw the evidence is indicating that rashes involvement was more hands on direct and he maybe even controlled the transaction be that as it meant that proof was unnecessary it was peripheral to the extent that the jury had believed in credit rashes testimony about sort of passive presence during the guns acquisition it was still the jury's charge was to decide whether the government had met its burden of proving that rash possessed the gun on the date charged to that no one's ever suggested that rash was less than truthful in saying that he armed himself he walked down a city street when he saw the police he threw it on the ground he stuck to that story all  put simply to the extent that he may have minimized his involvement in the gun the earlier involvement in the guns acquisition that was peripheral it wasn't material because it wasn't capable of influencing what the unequivocal evidence was of his possession of the gun on a date certain in two thousand and nine when judge clover originally sentenced mr rash he made the finding at least implicitly that the testimony about russia's involvement in the guns purchase an acquisition was false he never made any reference to materiality and it wasn't really the subject of much dispute because at that time in two thousand and nine rush was an armed career criminals subject to a fifteen year minimum sentence that trumped any application of three c one point while it was only fast forwarding to earlier this year after a rash had undone his e c c sentence under the supreme court's decision in johnson that obstruction became in meaningful play and there went ranch suggested the materiality of his testimony judge clerk for the first time addressed materiality initially his question of defense counsel was are you trying to say that a defendant can testify on truthfully and not obstruct justice the answer defense counsel gave us the answer the supreme court has provided in dunnit yes this court has said so in a random from their judge  injected his definition of materiality and it went something like this any time a witness testified under oath before a finder of fact there are two way the credibility of the evidence complots he asked defense counsel anything else defense counsel said no without inquiry of the government the prosecutor then had something to say about obstruction shifting gears the government attempted to take the focus off the peripheral testimony about the guns purchase an acquisition to focus intrinsically on ranches possession of the gun on the d c charged and now the government was saying that rash was sanitizing his possession that night and doing so according to the government with the hope of inducing jury nullification well just clever never actually found that portion of the testimony false but even if that testimony was false it's my suggestion that that too is immaterial because seventh circuit law is crystal clear that the reason for a felony possession of a gun is not a defense the extent to nature of the defendant's possession of a gun is not a defense to the charge and again rash at all times was unequivocal e acknowledging that he armed himself he walked down the street and he tossed the gun to the ground when law enforcement came to his attention on this issue of jury nullification it creates an interesting academic question does the defendant obstruct justice if his testimony is intended to induce the jury to act on lawfully way back on the night of his arrest when he told the same story it just doesn't speak to some premeditated calculated up attempt at jury nullification quite frankly an attempted jury nullification suggests some degree of sophistication in the broader record in this case and i see i'm out of time the broader record in this case indicates a defendant with considerable deficits rather than savvy and sophistication so we do s this court to vacate the sentence and remain on the matter for re may please the court benjamin tables and united states about the nature and circumstances of his friends and his lies were material because that could have affected his verdict and it could have affected the sentence his counsel at closing argument said the jury cruel and two facts in order to acquit and both of those facts the nature of the acquisition of the gun and whose gun it was with exactly the things that oscar rush lied about on the stand and the nature and circumstance of the offense are the very first factor a sense in court is required to consider under thirty five fifty three as it is factor a one so rationalize attempting to minimize a couple guilty could receive labor affected his verdict and sentence for those reasons the material for jarius and that's exactly what the district court found found as much in two thousand and nine and as much again in two thousand and sixteen but even if this court finds there was someone from many in the district courts finding they didn't supposedly sufficiently explicitly making curiosity findings first of all some should be affirmed because there are complicit materiality findings in the record and second any error was harmless because russia's eyes were as i just described material the law is correctly applied to the facts as found below which are not disputed here will lead to the exact same obstruction has meant the exact same guidelines range and defendant was charged and convicted of a conspiracy offense and was found by the court to have lied to route to a substantive offense and so those lies could not possibly have affected his conspiracy charge compare that instead to the this court's case san that that was a lie and the court said it and even though centaur argues quote that because he admitted to the elements of the offense any on truthful testimony relating to other matters is immaterial not perjury the court rejected that argument and said although centaur was margins and not material and not obstructing justice as to the capacity of any false testimony offered by rash to influence the verdict again so long in the seventh circuit the instructions are clear to possess something is to control it so so long as the jury followed the instructions russia's testimony to the extent that it was false on the margins could of influence that and as to sentencing he was subject to a fifteen year mandatory minimum if convicted regardless of whether he did or didn't testify testified truthfully or untruthfully so this wasn't a case where the sentence was subject to manipulation by false testimony at trial thank you thank you so thanks to both counsel