right and i don't think that the district court actually addressed the issue of whether or not the pay a ledger was let's hear say and of itself because it was offered to prove the truth of the matter in the district court seem to make their decision based upon a coconspirator statement and then the defense again brought up the argument and the payola ledger being hearsay because it was offered to prove the truth of matter and and that fate that elements of the coconspirator statement might be in question and  then and then there wasn't really any further indication from the district court at that point that the elements had been that what the district court said and i think it's in  to whether the agent that was going to be testifying about it could testify where it was found in the in the chain of custody as to whether or not he could come in and meet all the requirements of the elements  that i didn't really think that he was a member of the conspiracy simply because of how limited his actions were within the whole scheme he brought the truck  i didn't get such a close connection between identification of mr graziano hominy and ramon think and i i think i was just curious on your approach   which is that based on that guideline range was seventy eight to ninety seven months what the government has requested is another two level unhandsome it which would bring the guideline range from one to ninety unaffected by blakely or that we're still in the same playing field that we were on at the time this case was briefed that of course we do have the issues of whether the court did make sufficient findings to warrant an obstruction enhanced meant the government's materiality we've reached the appropriate standard of materiality in our sentencing position and we argued with respect to argued on its view when he made those standard your honor i don't believe i articulated the materiality standard orally at the hearing i believe i focused on the can't remember any mistakes he's pretty scholarly that really very careful a very fine judge i was privileged to try three cases before you know had a good heart but he was always under the impression that that it had been was discretionary been is appropriate because applying the correct standard of materiality i don't think it was material or because i don't think it was willful the government would not be here appealing across appealing this matter but the judge how gave two reasons for not applying the enhancement and it's the government's position position that both of those reasons given constitute errors of law the first but it was never going to be accepted by a jury where the correct standard is it's believed what it tends to influence the verdict which clearly in this case had the jury believed found its disclaimer of knowledge that clearly would have influenced the verdict that was the only issue a trial second judge tough statement that i have a hard time applying this and have spent because i think we're at a high enough offense level or too high offense level i believe you said already which again regardless of what our personal views of the guidelines might be the case law from this circuit is clear that district judges are not free to disregard the guidelines simply because of dissatisfaction with the resulting sentence so it's not just the fact that such high decline the enhanced meant but it's the fact that he gave to justifications for that declaration neither of which the government believes are properly supported by this court's law and if the court has no questions with respect to the ledger issue on the direct appeal government w certainly have to make one final point with respect to the blakely issue and i didn't address this in the twenty eight j letter but the defendant is facing a five year mandatory minimum sentence so that's there that i did this course decision in castro we believe that would not going to apply the obstruction of justice and hanssen based on that