ineffective assistance of counsel issue we withdrew after further discussion with the client we determined that this is one of those normal cases where a twenty to fifty five would be the  proper remedy not the peel so we filed a notice that we withdrawing that issue from direct appeal is foreigners are being issue argument in the brief about reasonable doubt unless the court has questions about that i'll just stand on the opening brief i have nothing to add to what we've said i really want to talk today about the sentencing issue particularly  under the guidelines the district court found that there were two incidents it involved perjury and with respect i think the court was wrong in both instances the first incident involved the statement that mr  driven from a location at which there was a meeting supposedly a drug related meeting that he had driven his red pickup truck from the meeting back to his step to his place of business the government's position on the government's evidence was that the agents who stopped him hit evidence stepped on the contrary he had driven a blue mountain near to a place where a drug deal took place it in your rape the court concluded there the statement was untrue that he made a false statement and knowingly made a false statement in for  purposes of this argument i'm not quarreling with the district judge on either of those findings i will accept for purposes of argument that the statement was false i will accept for purposes of argument that mr  perjury it's enough that there's a reasonable probability that it could affect the outcome of of the legal process or influence the decision of the court and in he shared off for that statement at trial it would have been material by position is it was not material on the motion to suppress because there was no allegation that the officers who shot him knew that this was his contention that he had been driving that we're looking at on the motion to suppress  the trial would be different but on the motion to suppress we're looking at g d p officers have grounds for suspicion our focus is what did deep officers know or what did the officers i could be wrong of course often  no no but it seems to me that dillard was fairly lucky on the sentencing he was only found responsible for three grams of cocaine despite evidence that he left the garage with eight teen kilograms of cocaine and evidence that this was not his first drug deal i mean does he really want to take his chances with a new trial and sentencing withdrew we did we have a new sentencing issue in front of the core we do not have a new trial issue in front of the court the new trial issue at sentencing and if your honor were to just study the record i think your honor would realize why the sentencing judge do you want to make finding i don't want you to sit down before i tell you this a very small part of paragraph six of the defendant's affidavit is missing from the short way they are in our copies that's the way they are on the record if i can find that that original or something you can work up i will certainly try to make a complete copy for the court i had the same problem residence the question is whether or not the statements are capable of influencing the district court's decision and certainly a statement that the defendant left in an entirely different vehicle and traveled to his business directly was capable of influencing the district court's decision of whether there was probable cause for the agents to stop and detain him later that that evening the statement was intended to influence the district court otherwise there would be no reason to include that level of specificity in the affidavit his statement was not simply just that he he was after he was at the hyde park residence and he left his statement was that he left in a particular be a poll that was a different color and a completely model then you know killer makes a very interesting argument that it is not true that one must either believe turner or believe rail delivered argues that it's not impossible that some other person use mountaineer during the several days that it was outside of the control of neil and that turner couldn't track seemed someone other than dillard in the vehicle so what does the government make of that argument your honor the government's position as the district court found is that turner's explanation or testimony specifically was implausible when considered in light of all the other  circumstances that the district court had of its disposal when making this determination about suborning perjury for purposes of the enhancement specifically and to be very clear mr turner's testimony at trial on pages two seventy five to two seventy seven was not just that the mountaineer was parked outside of the business and that someone other the defense other than the defendant had been driving mr turner's testimony was that someone other than the defendant arrived and parked the mountaineer at that location and then left the area in the white suburban that was mr turner's testimony mr neil converse lee testified that during the entire weight over that memorial day weekend he had exclusive control over the white chevy suburban that he had taken from the motorcycle shop owners he had no access to his mountaineer during that time and that on the evening of may twenty sixth late in the evening at the gas station mr diller was the person who returned the mountaineer's keys to him with instructions on how to retrieve his mountaineer not only that so not only was mr turner's testimony directly contradicted or at least in terms of the timing of what who had what vehicle and when the district court was also in a position to consider the recorded statements by the cooperating sources vincent howard who both at the suppression hearing and at sentencing the district court was reminded and had previously heard the recorded conversation between mr howard and the agent in which mr howard described that the defendant was the person driving the blue mercury mountaineer that coupled with the surveillance testimony and all of this is are are elements are pieces that the district court explained it took into account when deciding that the enhanced it was separately appropriate for this reason the bottom line at least from the government's perspective is that mr turner's testimony was simply implausible based on everything else that the district court had at its disposal to consider for this  including evidence that was not presented to the jury unless there are other questions i apologize or i thought maybe you're going to ask the question the government would have if i'm thinking of them i'm thinking but i think i think that's the government would ask that the defendant's conviction sentence be a fine thank you thank you i'll give you a three minutes you had no rebuttal time left i will give you three minutes or if you would like to use for purposes of the perjury question following mr turner it doesn't matter whether mr dillard drove the mountaineer to the parking lot yet was the question that was at the but the motion to suppress  presentations today and we will proceed to the next case this case we take it under advisement