there were two african american descendants my client the marston his brother a team when it appears that there was only one african american in the jury pool both coun sets the criteria forward for making the analysis i found case directly on point that would say a trial court could or could not move a person forward from the wheel in order to account for the fact that in a community court's discretion but i'm sorry but i have a question for you was there record made in the trial court evidence presented as to the community's racial composition that is the percentage of our african americans in the community because i was under the impression that no record was made on on that issue i think presented mr kerr and i were able because of our previous some years back the during the course of jury selection so we didn't really have time to put together a brief it's probably all of us would have preferred underscoring this and i realize that there are no cases and that we didn't have to  but underscoring this if you would put yourself in the shoes of these two gentlemen i'm looking at the people who are going to decide their fate and seeing that there's no chance of the only person the only african american person folks with the permanent funding the state court system that uses the permanent fund data itself which is considered to be the most reliable database in alaska because of the i guess the financial incentive behind address database is considered to be highly reliable well you know you have another issue right yes we have another issue about the enhancement for obstruction of justice based on perjury and that argument really because the judge felt that he had not been truthful in his testimony at the trial about his interaction with the individual sculpture of the firearms the verdict forms are really the key point to think about here the verdict forms the special verdict forms that we worked on and submitted and all the parties agreed to gave the jury the chance to check a box that says if you think that mr r said made a false statement we think you lied about being a felon based on that the government argued in the trial court agreed that mr r said had obstructed justice by not justifying truthfully when he said i told the firearms dealer that i said only and believed the firearms dealer representative entirely it could also mean that the jury found that it was a reasonable under the in travel advice stop a law for him to rely on whatever the whether the judge focused being read to mean that slow long as the guidelines are discretionary which was the you know the remedial order of just prior  to the judge can make findings but it has to be discretionary not mandatory sentencing under the guidelines that's what i think we all think kooker means now now and there's that there's an bank deserving of a downward departure he declined to grant our request for that because this obstruction issue what i would submit is that regardless of the how such thing of kind of arrived at the decision to conclude that justice a bit of structure it's it's there's nothing in the record that supports that there's no occurred here and that's what that is or permitted to do then i'm not sure where i'm at with that because it seems that he might if you're going to say look we're going to have a trial too because those are the three cases obviously that came out after the briefs were written and the recent one i want to address is two things first the government's position here is there was actually no sixth amendment violation for two reasons  on facts reflected in the jury verdict or admitted by the defendant and in this case the only out armed was facts reflected in the jury verdict and the reason we know that is you have to go to the jury instruction the jury instruction in this case that the defendant could only find that the jury could only find the defendant guilty if the false statement was intended or likely just to see the less the shooter supply and a false statement was made the jury had to have disbelieved the because we can't even have felons in here and we had mr armstead saying i told him i had felt when i was an ex felon from new york and he told me right no on the form we only care about alaska convictions and in fact judge singleton in his own finally said you know i find it beyond a reasonable doubt and when he discussed exceptions he basically said you know just singleton said you know the jury would not have you know almost a certainty wouldn't have convicted him if they had believed the defendant  you got a sentence that was within the range of the maximum that the jury could have imposed let's just say there's no to point out on here the seconds here was within the range the judge the jury could have got i mean you could have got up to eighty seven times even without that you point out on and therefore you don't even have a sixth amendment violation because the maximum giving the saying ok the guidelines are laws the jury has to find maximums or you have a violation you don't have  maybe four months for example well you know he couldn't have known that he had this question to do that unless he departed and he may not have grounds for departure so the judge didn't know that then why shouldn't he have a chance and the judge just said you know you've done a presume prejudice that is not and the supreme court in a line of said there are lots and there are cases where you can presume crocuses and those you cases where you just don't know what would have happened but here i believe that there is evidence on the record and why don't we presume procedures because we have no way in the world of knowing or guessing without this review it would have done if he had known he could go to eighteen months instead of eighty four i believe that we do with that record because the the as the judge s the perjury decision was i mean it was it was just straight out obvious from the trial itself there was no there's no way to go anywhere else the acceptance of responsibility judge singleton said and it's a commonsense analysis you don't accept responsibility when you stand up and and lives taking a while about it and i told him and it's his fault because he told me to do it and also under the player of our list you still have to discuss decide whether it seriously affects the fairness integrity or public reputation of judicial proceedings now in amma lying to the courts said you know it's does we have two things here we have a sixth amendment violation emmeline two and we had a huge impact on the sentencing and they said integrity or public reputation of the judicial seat proceedings again we have no sixth amendment violation am and we have basically no you know we don't have a maximum impact no warning that you were going to get this maximum sentence i mean you couldn't have a warning it was the defendant's perjury that added the two points so both of the main criteria i am aligned to that said we're going to remain and we find plain error don't exist in this record and your book remedial opinion wary of says not all cases are going to be remaining and this seems like the case that you know where you have very little impact under mayfield which i believe is still the law for you here no ma sentence is less than the maximum he could have gotten without a jury finding and you have a record that says you know the judge just finding was exactly what had to be decided here then i believe  thought that that the jury never got to think well the other hand we think you should be essentially medicated because of his good works they were never told about his good works that would have been in permissible to mention