testimony as basically a swearing contest between the two and it came down to a credibility issue of mike my concern about the way that this issue was decided as that i do think that mr nichols actual state of mind matter significantly and the courts permit a straight cracker acknowledge that mr perhaps mr nichols had convince himself that the probation officer boy did offer him a abstract and i think that his perception of what his probation officer promises verite it's really important factor well i mean oath although it's true that the magistrate judge  district court speculated at one point as to whether he believed and granted immunity ultimately just record address the issue directly at the hearing and found that of their reasons for determining that he made a you will full statement and willfully basically lied i'm is that they were in determine the credibility they use the january seventh incident as the basis for saying that he can't be credible today because on january seventh he was able to readily access a gun that was it is a fact that it is controverted others and there's evidence suggesting that he didn't and to basically determine credibility and base a sentence on a factual assertion that is not proven in this and had statements to the contrary saying it wasn't a gun i think that's a big problem should be obstruction there has to be a willful intent to obstruct and i that doesn't make it doesn't make any sense that mr nichols would go down in his basement two weeks for me a few weeks after he consented to a search warrant there's no ammunition found his probation officer comes for another home visit and i can't imagine why someone would say hey by the way to mary got a bag of any mission for you and turn it over if they weren't under the impression that they would not get any more trouble for that and i think that that state of mind is very important  that it's basically central to the determination of whether his confession was voluntary and then that goes to whether or not he will fully obstructed justice so i i think the willfulness again this all goes back to the fact that the court that was the case that was harmless error i don't know how that can be harmless when that was central to the determination of both credibility can look for us in the instruction matter  that all ties into whether or not mr nichols should have received the downward i'm adjustment for acceptance of responsibility i think the law is very clear that i'm merely pursuing and it's a think you going to go on to fencing decision saying there's virtually no weapon that you couldn't say that wasn't used in the sporting way if you consider target practice to be a sporting activity so i don't know how we get around considering that but that's not proper that's not what the law is target shooting is a sporting activity that was held and that's been held already by the court the government doesn't just cute that both the court  evidence did you put in that that's what he had this ammunition for believe well i believe the evidence was contained throughout the record it was in the objections of the pre sentence and the evidence did you put in to show that that's why he had this just as just a statement in the present the best occasion i believe that the peel actually also conceded in it in both the pre addition to the shotgun and rifle right and i think that's what the judge was focusing on it was a look at the court the government will focus on whether or not a handgun could be a weapon used for target shooting and i think to say frank what was the evidence that that's why he had the handgun an unlikely given that he was a prohibited writers he did not it's just mentioned in the objections from the right and your burden so it is that the my problem is that some of the court found the court didn't say that we didn't mean a burden of proof the court place because if what we're talking about are prohibited persons possessing firearms in other words felons or persons who are otherwise prohibited under this statute from possessing firearms sporting purpose and right i mean i know what it said but i don't know why it exists it doesn't make any sense to me because this population is not permitted to use handguns or any firearm for any purpose sporting included as i understand it but if that's true i just think that probably goes to you know he had been a film for that long you might he may have still had it there and they're trying to make a distinction between someone who uses those things for illegal purposes and those who use them for sporting or i mean isn't it fair or a reading of the court's credibility there were two different versions of what happened the court listened to both sides in the court made a determination that the probation officer was credible and the defendant was not it really is the mere conclusion without any underlying fact finding sufficient hear it where it contradicted some other language it's the court in this particular case the court did go through some of the its reasons as to why it found that the probation officer credible in the defendant and that specifically as far as a commonsense type argument why would a probation officer with twenty three years of experience it's office policy that you don't give immunity agreements given immunity agreement to a defendant specially after this probation officer knows on january seventh this particular defendant was involved in a domestic dispute in which they threatened a victim and basis for the court's recent and yes the court did mention the january seventh incident as another factor and i don't know if it's all that an reasonable of a leap for the court when you look at everything given the deference given to the trial court i'm credibility determinations defendant can natural clear of the obstruction and acceptance of responsibility of justice flow from that i think that's been adequately briefed in our priest i won't go through that i will touch on the lawful sporting use a provision i think judge cites here not it it's the defendant's burden in this case that the sewer stablished at this sporting exception applies and there is no evidence of it there is no evidence of target shooting that was found at the residence no targets no on spend or no spent shell casings there's no witnesses that were produced to say yes we would go to this residence and target shoot  there's no evidence that defendant went to any sort of shooting range no membership to any shooting range the only evidence was this unsworn statement that occurred in the sentencing memorandum as the first time that target shooting came up in my interpretation of what the court said in this is the exception does follow the rule if all you have to say is i'm a target shooter without offering any evidence of it that's your best guess that's what this is supposed to cover is it supposed to be some kind of safe harbor for recently convicted felons to not be hammered for failing to divest themselves of their collections fast enough handguns i agree with even you think about this and why are they getting reduction for sometimes this is confusing do you think we can be certain that the court understood that  is far as what with the statement that it made in regards to target shooting my interpretation was that that that the court understood i thought it wasn't crystal clear i think from the record i think there can be multiple  interpretations but again when the court said i think the exception would swallow the rule i think that's what the court was getting at that look at how can we just say target practice without any monday morning until monday morning