of justice and hence meant based on statements mr la donna made to the pretrial services officer regarding his criminal history that were immediately corrected the court found that the initial denial was false and it was material because criminal history is used to determine the failand bond status however the court did not make additional findings in compliance with the commentary to the guidelines including that not all in accurate statements count as obstruction of justice the court must consider whether the statements are in result result of confusion mistake or faulty memory given the factual posture of this case mr le don was being interviewed with pretrial services fourteen years after he had fulfilled his doubts or society by finishing the term supervisor we use in federal court now you may have initially denied it perhaps believing that he was no longer under the court's jurisdiction which he wasn't and then corrected it immediately this cannot be anything other than the usual mistake it was not material to the court's decision didn't even make it to the magistrate judge the probation officer knew at the time that mr le don had criminal history knew all of his criminal history and said testify that it's not unusual for a defendant to minimize or forget all of his current furthermore one of the convictions that was not mentioned the arizona conviction actually occurred twenty five years prior to the pretrial services interview and resulted in mr logan spending only five days in jail something that is probably not easily forgotten but over and done with twenty five years later and he simply responded that he didn't feel he had criminal history this christmas and should make a difference to us that the underlying conviction is flawed versus some of the type of street crime i don't think it makes a difference for the obstruction of justice your honor i think that it's not uncommon for defendants to have a criminal history similar to the criminal offense that they're currently being held for and the evidence against mr le don that the government her government presented anyway was significant for fraud and after question he said he didn't deny that he had the federal fraud conviction and other state convictions wrapped up i'm not sure that the nature of the crime is relevant in the obstruction of justice determination it also didn't make any difference and any other part of the press so unlike many defendants who received this in the houseman for pretrial service interview false statements it was immediately corrected it was not corrected when someone found out later and confronted him with with it it was not corrected at sentencing at the change of police was immediately corrected by mr want lived on and never denied again he never said at any point that he didn't have that criminal history after his initial denial the court also failed to look at application five which lists types of conduct that are not obstruction of justice that it says granting incomplete or misleading information is an obstruction of justice and in this case that mr don statement falls into this application he was asked about criminal history that was significantly in the past he completed his restitution his prison term and a supervised release on all of the convictions and he simply answered no he didn't because it's been fourteen years since he had to deal with the criminal justice system and while we may understand that this is criminal history in the way criminal history is is determined in federal court it was in the long past for mr were done when the probation officer asked him he admitted it again and this ties into my argument that the court relied on improper information is not factual information necessary that was improper it was the court's improper omission of considering the commentary and the facts that underlie that commentary that didn't didn't consider that this could have been simply a mistake in thinking that it was not such what the judge found right you if you've spent years in prison you remember if you're asked if you have any to i'm not saying the judge was required to by the argument that was made that the judge was required to consider the commentary to the guidelines and yes i think i don't that mr don or anyone who's spent any time in prison forgets that they were in prison however if it's been fourteen years since your or you were released from any jurisdiction of the justice system then i think that you would answer no i don't have a criminal history you know there are cases like gatty where or fact often by i guess i'm not saying the judge has to buy it i'm saying the judge has to make the considerations that it might have been something else and so if he says it was a mistake because he sent you spent time in prison then it can still be confusion about what the question is and i understand that most people who would like to forget they were convicted particularly of fourteen years have passed so i understand this court's point and it was misrepresentation was clearly intentional as well he's a convicted felon and spend years in federal prince prison there's no chance he simply forgot he had a criminal he's been five years in federal prison on a previous rush  the court didn't just say this was an inference that no one who spent time in federal prison could forget because the court goes on and talks about somebody who spent time in federal prison who would forget sure some if you sit around you will find that are not our final case for argument today deals with somebody who has serious memory related problem there can be such problems as i said in the social security case we all too often get arguments in which one side says no doctor could find that and the other side upon that when the only question on the table is whether it is permitted to find something your honor we're not saying that the judge couldn't find that in my point is that if you go to the next page page eighteen judges giulio outlines that what actually happened in this case which is the probation officer says do you have any criminal convictions he says no they say again you have any criminal convictions he says no and then he says the rd time when confronted they're all tied together  leaves little doubt that mr letang was attempting to conceal his criminal so the district court is finding in this case based on that sequence that he intentionally lied and that finding is not clearly erroneous which is the standard here because it is a factual question lay down argues that he immediately corrected it again i don't think that's what the record shows in this case i think that the record shows he fessed up when he was confronted with his criminal convictions and i think judge brennan your questions good one about should the fact that it's fraud matter and the answer to that is yes it should matter in terms of whether the judge just finding an intentional lie is clearly erroneous mr le don'ts history shows he's a liar the fact he's convicted of fraud  did ask him do you have any criminal history and the exact responses he stated he did not have any criminal history probation officer to continue to testify about his previous federal case and he said he did not recall any of that then he said everything was tied correct which is also sentencing exhibit twenty three so when there was the objections the evidence you're hearing would be introduced this transcript as sensing as if your honour's in just one other point i guess i'd like to address which is mr le dunn's contention that this wasn't material the question is whether it's capable of influencing a decision maker this court has held in cases for roughly thirty years now that giving false information about criminal history to a probation officer is material because it affects the decision whether in this case to hold that person on bond mr lay down as the record shows in this case was intent on trying to get out on pretrial release his previous conviction he had been out once and then he had his bond revoked pending that trial so he understood the difference between being out for trial and being out on bond he files five i believe represented motions to get out numerous other pro se motions to get out and the district court was entitled to conclude that he was trying to live the probation officer because he understood his criminal history was going to affect the magistrate judges determination as to whether to hold and pending ultimately it doesn't matter whether the probation officer sitting there with a criminal history or not because attempted to me attempted obstruction also qualifies under the guidelines and so the fact that he didn't trick the probation officer is ultimately irrelevant for that your honour's unless this court has any further background is part of your argument hinges on the distinction between being asked about liabilities and there being judgments is that the terminology that i don't know i don't think that's what my argument hinges on he was asked about liabilities the two that were at issue that weren't disclosed were business type liabilities one was through bankruptcies that his business went through and another one i believe was related to a contract dispute among understood the question to be and there is no testimony from the probation officer on that point particularly aside from i believe that she said that he didn't disclose those to liabilities close others medical and house and car loans that sort of so again i don't think that there's enough in the record to show that that was obstruction of justice i would like to close by saying that there are many different times that go through this pretrial services interview and may make a misstatement that they immediately correct it cannot be the standard that that's obstruction of justice and particularly where it regarding his criminal history if someone has a misdemeanor that perhaps they didn't serve any time for