not whether philip's felt threatened and it's not whether phillips felt that he could be harmed at some point in the future the question before this court is whether mr macaskill committed assault under nevada law when there is nothing in the record to support a finding of immediacy which is a necessary element of the crime so why is that communication none of the statements were made in person so is it your position them so they have to be made in first and you can't hear an immediate threat if they're on the phone even if they're next door so your honor in nevada the cases that have interpreted the assault statue the cases that interpreted the assault statute prior to the two thousand and one change to the statute which was anstead and anstead specifically found that medicine words are not enough there must be that next step that temp oral connection immediacy and then the statute was changed but the language to the statute pertaining to immediacy and the reasonable apprehension immediate bodily harm was again considered by the nevada supreme court and rose and rose the court again said there has to be immediate violent injury that was a case where somebody had a gun and they were threatening face to face that but that does that mean i strongly asking does that mean that a telephone call can't be an immediate threat there may be a situation where a  if there is a phone call and somebody the person is apprehending that there they are going to be harmed immediately so that that is a reasonable  belief because of the immediacy then that there is the why is this case different because in this case your honor there's absolutely no indication at all that officer phillips believed that he was going to be a media injured and he even says in his own words that all of these statements were made over the phone and that he was not in immediate bodily harm and that is e r eighty eight so he says he was nervous he says that hugh was worried and that is you are seventy five he's nervous he's worried he believes that he's being harassed that fifty one but at the next breath he says that he before people work themselves up to actually harming they make th do various things before something could happen in the future not that it was happening immediately not that his safety not that he was going to be harmed immediately but something may happen to him in the future that he was nervous very likely going to happen or if they were going to use the word immediate meaning temporarily this is going to happen right now so if somebody makes a phone call and says i'm going to come to your house and i'm going to get you and i'm on my way under the statute i do not believe that that would be assault because there is no temp oral connection with the bodily harm which is what the nevada supreme court has held repeatedly to be necessary that immediate apprehension of bodily injury and if there is not an immediate apprehension of bodily injury then the believe that such that you are going to be immediately injured is not a reasonable keep stressing this two concepts so what's the outer limit in terms of the amount of time between the verbal statement and you know the prospect of some physical violence and that's a good question your honor and the cases that we do have in nevada currently are anstead shark which is an unpublished you know about a supreme court decision and rose and in each of those cases we had face to face contact where somebody was lunging somebody was moving forward and they had either a knife or a gun and in anstead it was a knife in ro found that it was not enough for the truth in that case the plaintiff because i was a civil case but they were interpreted in the nevada assault statute it was not enough for the plaintiff to say to the victim in that case i'm going to get you i'm going to blow up your truck i'm going to shoot you in that case the court said at best these are threats of future harm this does not rise to the level of assault so no we do not have a nevada supreme court case analyzing whether those threats over the phone could potentially be assault but it's clear what the nevada supreme court has found is necessary under the cases that they've decided and what they found is necessary is immediacy rym i mean what was the from the government standpoint if you were going to pick out one of the verbal statements or climate what's the most sort of damning one from from the standpoint of this immedia your honor that's difficult to do because when you put his statement and what he's saying to his probation officer is i'm going to get you i want to go to the court i'm going to beg the judge on my knee to be rid of you i'm you're going to pay i'm going to post things on social media value i'm going to have your yes i'm going to go and file police report against you so although there are these statements of things that he's going to do at some point in the future in the context of what he was actually going to do it does not lead one to believe that those were threats of harm when the correct elements of the assault statute because there was a mishap location of law she found a category b violation this was not a category be a violation because a crime did not occur he should have been sentenced under a category  violation which would have been a three to nine month guideline range she sentenced him to a ten month guideline range under a b violation but this is the other side of point if your first argument is yes  client is still the even with the full ten months is scheduled to get out in like a month from now or something and his expiration date is december eighteenth ok so you mean if you were to prevail here for this to matter you need to mandate to issue immediately  the district court correctly found that by preponderance of the evidence in the light most favorable to the government after listening to the witnesses and with the knowledge and context of the background this case that about immediacy but that there was no there was no threat of a media that he would be immediately assaulted and that this is this this is a requirement that the district court which was in the best position hearing all the evidence and having the background made a determination by preponderance of the evidence in likeness favorable to the government that this probation officer that there was it was reasonable for him to have a reasonable apprehension of immediate bolli harm that the telephone what's your definition of the media then because the most damning threats i think your opponent fairly characterize them they don't if i could respond by saying i don't believe that the nevada supreme court or the statute as far as i could i could determine in my preparation has given a a definition i think it's for the trier of fact i think to to make that all that that concept has some legal content to it i'm asking for you obviously have in mind something that encompasses this case and so what is it like within a week within a month what's the time to i don't think i can parse out exactly but i can say that the statute had was modified or amended where in the past it required the president ability coupled an unlawful attempt coupled with the present ability to to commit the assault that language was was done away with and that was for a very specific reason right that has nothing to do with the facts of this case and i think the legislature is our legislative history was the reason was to encompass threats and these were threats and we don't know where mr macaskill was exactly when he made these telep telephonic threats and over by texting it could have been immediate it was certainly reasonable for this this probation officer knowing that this mr macaskill had made these very explicit threats of death to law enforcement officers that were the basis of his underlying offense yes yes i understand help me with the facts here if i understand it that what what prompted this didn't want the marijuana from his mother's house where he lived that that's that's the best that i can piece together as to what motivated him to go sideways if you will with the probation officer i think was going to work with him on these substance abuse violations and was trying to get him and rolled in and aftercare or intensive patient or sometimes some type of substance abuse treatment it was going to work with him but when for whatever reason when mr macaskill learned that the probation officer had been to his residence and had had interaction with his mother and there been some marijuana in the residence that seemed to be what the  set him off on the probation officer it's not exactly clear it doesn't make an entire sentence why get so angry with the probation officer the one in he was not in imminent danger of being hauled before the district court and violated i don't believe that that was evidence i would submit that here the district court had this institutional knowledge of mr macaskill observed him both in the underlying proceeding knew full well what he was certainly capable of of threatening to law enforcement officers and this probation officer was on the receiving end of language that was not quite as explicit certainly didn't leave much room for the imagination as to what you know where to find  reasonable apprehension if you can i know you weren't the a u s a who handled this well ok you know your honor but i mean i don't know if there's a way you could just send a message back to your colleagues in this kind of case it would make so much more sense if you all would encourage the district court judge to just make an alternative pronounce alternative sentences when this kind of thing is contests we're talking about a month and you've we have to have had this entire appeal over a month's time when i fully suspect the judge would have said even if it's three  to ten you're going to get some extra time for this or because you're not i'm not going to permit you even if it's not an imminent threat i'm not going to permit you to threaten my probation officers and you're going to get and i'm going to go up a month above what the guidelines would otherwise call for and so  if i'm wrong in thinking that this satisfies nevada whatever this nevada something is i was still given ten months if you would just encourage the judge to do that you could save all of us a lot of of time so i just message received a message well taken your honor  and i was searching for evidence of that throughout the record and i know i look forward as well because it seems like this is totally reasonable i understand why he got the high end of whatever was going to be and i think the judge made the terminations at ten months was the right sense but threatened statements he was going to get and he was going to pay again we have a situation here where the elements have to be met by a preponderance of the evidence just because there is a lesser and we do your honor for sentencing purposes so if this was a situation where when she was pronounced in her sentence and she was saying i do not believe that the elements of the statute were met in this case by a preponderance of the evidence but given all of the facts and circumstances surrounding this individual i will said no that's not what i'm asking i'm not saying don't we in deciding whether or not the statute is satisfied take into account the circumstances of prior history whether or not t because you or i just i personally don't buy the argument that because it's on a phone it's not immediate well yes your honor but i think it will be could also do if we're going to look into additional circumstances look into the fact that when after all of these communications occurred officer phillips asked justin to come to his office the next day so if this was a person who truly believed that he was in danger of harm he would not ask that person to come to his office he was clearly he of well i don't i'm not saying that he was incredible i'm just saying that so if we're looking at all of the facts and circumstances it wouldn't lead a reasonable person to believe that they were in immediate bodily harm because of the additional