park and developed a little cancer and they got it out and  said well what happened to the other guy and i told him that i was going to take the afternoon off today so i could attend his but that's a joke you know said i don't know they said they're busy you know each one of them had a lobbyist in each ear and they weren't paying attention to me but  presented twenty eight j letters on the acceptance of responsibility issue i'd like to turn to that first the application of section three a one point one on the acceptance of responsibility states that a conviction trial court does not automatically pursu preclude acceptance of responsibility in a rare situation the senate may still demonstrate eligibility for acceptance the it did not say that there is one example where the senate goes to trial to a certain issues that do not relate to factual guilt and then a another example of that example the application of say for example a constitutional challenge to a statute or a challenge to the africa applicability of statute to the kind of conduct so we're talking about an example of an example of the entire universe of situations know if there is if the defendant can tell the factual basis of guilt whether it's an element or a defense then it's the same there what's the respect to your question your honor about whether there were cases in which the defendant raised factual elements there are in fact cases where the defendant challenged a factual element like intent in the i think in the martinez case you haven't and that's an and the factual elements of guilt but raised in the sense which included special and legal elements and the court nonetheless said he was and he was eligible for consideration there's another case the mckittrick case cited in rojas where the defendant challenge the element of intent he said he was charged with killing a protected wolf and he said i didn't know it was a wall therefore i didn't have the necessary intent for the offense and in those cases because it wasn't clear whether the district court understood that the defendant was eligible and some of the the factors that the sentencing guidelines tells us must be considered i was at the senate truthfully admitted his conduct and mr and i mediately came to the police station and admitted what he had done admitted that he had possessed the weapon another factor the sentencing guideline therefore he wasn't he shouldn't have been required to rely only on the restricted justification defense because in fact he had situations where there was an immediate danger and immediate threat of death and therefore he was in court he was also entitled to rely on the self zero which was modified to include a theory of the stance of others that was the correct instruction on these facts while the other two instructions requested six point seven self defense and six point five duress to refute an element of the offense were not proper on these facts both six point five and six point seven are significantly different from eight point six zero in the following respect both of them require the government to prove beyond a reasonable doubt the absence of duress or self defense however in the beautifully case which this court decided after a trial in this matter that's at three forty six that's thirty nine thirty this court decided affirmative defense on which the defendant bears the burden of proof by a preponderance of evidence as set forth and instruction eight point six zero the facts of beasley are very similar to the facts here and also involved a street fight in which the defendant grabbed a gun from a companion which he claimed he did in order to disarm this companion who was allegedly drunk and might shoot someone a court the areas here gave instruction eight point six zero modified to include defense of others as well as a defense of self the defendant argued that this was incorrect because the government had to negate self defense beyond a reasonable doubt and his estancia lee the difference here was self defense or affirmative defense on which the defendant for the burden of proof for that reason here is indeed lee the defendant was not entitled she was struction six point five or six point seven which place the burden on the government to disprove beyond a reasonable doubt the self defense or the dress i would also point out that with respect to the second count which was the possession of the unregistered firearm that likewise was not a specific intent crime and the district court correctly not make any factual or legal arrows into not an acceptance of responsibility the district court here stated it you are six hundred forty four but the defendants decision to go to trial did not rule out exceptions instead the district court stated that it was focusing on whether the defendant had accepted personal responsibility for his offense and the court found that the defendant had not under the martinez martinez case which the government discussed in its twenty eight cha still not precluded from a second some responsibility but under application to section three hundred one point one the court has to look primarily to the descendants preach trial statements and conduct those three principles  forth in martina's martina's and the application in that case is identical to the application that should jaffer in this case in martinez martinez and the defendant asserted a dispensed of voluntary intoxication and this based on their conduct at trial because if their testimony had been accepted they would not have been guilty and that is not an acceptance of responsibility that is exactly what the district court found here is the defen factual defense of justification had been accepted by the jury he would not have been guilty therefore that is not an exact and some responsibility at trial so the question in this case becomes as it was in martinez did the defendant and exercises his constitutional rights or her constitutional rights to a jury trial or a court trial and this found guilty just for going to trial and putting the government to a little extra trouble you know that that person would be punished i mean i had a falling off i see you know but after a while we get used to all of these rules and all these violations of constitutional rights so that we start splitting hairs about this or that you know it's some day they're going to look back at this era and just wonder you know whether we were sort of but that was in the context of an entire discussion in which it's pretty clear that he was concerned that he was going to trial over a factual issue well then just record here because it was not  was acting in self defense because someone had pointed a gun at him and at trial he asserted that he acted in defense of others because somebody had pointed a gun at the man on the balcony but immediately after the statement that your honor just quoted the district court went on and said you know frankly i don't find the defendants either version or multiple versions very credible these are just not believable that any of the facts that he described to support his defense happened but i don't because he said consistently from the time he was arrested and through trial i didn't commit a crime what i did was not wrong and the district court said you haven't accepted responsibility because what you did was wrong you were not justified and that could have been because the district court didn't believe the fact that the court that the defendant relied on and also did not believe that he was justified the defendant never accepted that i did something wrong that i could just be done but i was a child to do so morally justified but that's because that's why the district court is entitled to great discretion under the sentencing guidelines because morally just define a rule that would state in all cases how do you know when a defendant is truly accepting responsibility for his offense but that's what this reduction conference not admission of aliments it's acceptance of responsibility for situation it might be a different situation if the need government had the burden of proving these elements and the defendant contested factual guilt but had previously in his pretrial statements or conduct accepted responsibility but in this case the defendant was not entitled to those instructions because he's for the burden of proof by a preponderance and he offered additional facts which the court found were not credible and in falsely relevant conduct it is even more inconsistent with with acceptance of responsibility for a defendant to falsely deny or offer a false alternative set of facts to excuse the offense conduct and that's what happened here i just want to make one quick point with regard to the likely issue that was raised by the just fans i just wanted to apologize for an error in my rule twenty eight chain letter the defendant was in criminal history four not  five but nonetheless even if with that likely applied here it is that would still be facing a sentence of at least forty six months and therefore there's no reason for the court to reach that issue prior to the supreme court's disposition of these cases justification instruction and that's not at issue here were we're not contending the government has the burden of proof we admit that we have the burden of proof on the affirmative defenses then with respect to the acceptance of responsibility issues and she made a few points at one point