we obtained convictions under correctly calculated sentencing guidelines now i want to start with our sufficiency claim which goes to have course only two of the four counts of conviction here and the issue here rial evidence that john doe was under the age of twelve at the time of the testimony and only his testimony but that testimony was irreconcil didn't apply until november so for a whole year i would say it was thirty eight fact it was thirty seven a lot of people do that right now there are a birthdays approaching they are going to be sixty they said sixty but known in this in a plane or sufficiency challenge where the government gets the reasonable inferences and the light the evidence is reviewed in the light most favorable but i think the proximity to to john doe's birthday that w question that the time of trial you know reinforces the idea that he would be more likely to know how old he was if his birthday was coming up and it isn't just the age itself of course right  consistent with being under the age of twelve at the time counsel once we got through direct and cross examination and redirect at the end of his testimony the judge  is no that she actually did but in the same in the exact very next breath at asked how old he was and he again reaffirms that he was twenty three at the time of his testimony a month away from what we now know would have been his  rd birthday so again i think that the these two things are simply they cannot both be true true and there is no explanation in this record for four for either one they are never corrected the discrepancy is never even really explained by the government and neither version is corroborated by any other evidence i think this is a very unusual case in that sense in that there is simply nothing that was before the jury that they could could look to to say this one is more likely correct than this one and that is not proof beyond a reasonable doubt it doesn't even  be appropriate consider for purposes of step four of a plane air review so you know i think it's it's it's not entirely you know i don't think there's any authority to suggest that you cannot consider it under i don't think you should but that even if you do you should still rule for mister sloan so many of them impact that a little bit i think there's a number of reasons why i think you shouldn't the st is that the government doesn't really changed the law so that the government didn't know that it had a burden of proof on a particular element that's not the case here there is no dispute you have to prove well it simply failed to do so and i think th think it risks opening a dangerous don't work as well to consider this type of material on the on the floor wrong in a case such as this where it is exceedingly clear what the experts and what the law require the government to prove and  reasonable doubt definitely outweighs that here and i think to the extent that i think it's even easier case here in the sense that this goes only to two counts of the conviction right mister sloan will still about overturning the verdicts in this case are even star even narrower not that that should necessarily matter in the sense of the constitutional violation should be vindicated regardless of the out but it's that much easier in this case and i sentencing challenge if you agree with us that plane error heard here on the on the sufficiency claim the government doesn't dispute that that we sentencing is warranted under the sentencing package doctrine and i think you can just leave it at that that you do not need to reach our additional sentencing plans now i think that they provide an additional and an alternative ground for reversal but  on that aspect of it i don't think that i don't think there's a lot your honor and really i don't think there's there's any expressed statements that the mandatory minimum drove it now i think the military minimum matters in two ways  in the sense that the mandatory minimum is always going to constitute sort of a baseline or an increasing point in terms of rational culpability and and importantly the mandatory minimums are also used by the sentencing commission of course to set the base offense level which in this case three to a three point one starts very high and that's because it has a thirty year mandatory minimum now if it were just here that the court searched for some reason to vary from that life term that that's enough to suggest that that mistakes in the process may have made a difference so instead of the court refused to consider evidence that it could have here as a result of the mistakes the court relied on evidence on sentencing backs that it should not including in accordance enhanced  policies good morning your honour's nicholas cage for the united states mister sloan demands of this court vacate two of his three convictions for the rape of a child under twelve years of age not because the child was in fact over twelve at the time of the sexual assault but rather because this victim witness understandably nervous about testifying about the most painful aspect of his life briefly stated the wrong birth the age at trial defense counsel did argue that in his closing argument there was some how can we say that everyone agrees that defense of the trials the evidence the government has and satisfied its burden of proof defense counsel in closing argument so that the victim was inconsistent in terms of how he spoke in terms of between his age whether that meant  he's unreliable as a witness or the underlying factor which he's testifying about was not shown that's a matter of conjecture and it's at the age an element of the stance absolutely you're on well then then isn't that what the argument went to is that the government has approved the age element and i would probably characterize defense counsel's closing argument was a little bit more scatter appeal and the p s r wasn't presented to the jury so are we just looking at the evidence that was presented at trial and needing to make a determination whether a reasonable jury could conclude beyond a reasonable doubt that the victim was a level as to that overarching point well i'm stating the standard isn't that isn't that the question that this panel is supposed to address yes all right go ahead thank you so initially the witness stated that he was born in one thousand nine hundred and four and stayed he was twenty three years and she then proceeds thirteen times to give testimony consistent while he's testifying just want to get out that stand that he's twenty three years of age is one month away from his birthday he says yes so we're not sure that that is the level of inconsistency that defense counsel would argue it is so a reasonable jury make a determination as to which they which is what they believe based on the testimony that he provided so defense counsel argued is correct that simply saying one inconsistency is another two ways in the well of the other thirteen consistent statements then that that's a new rule that's an that's that's a new way of doing business simply at the moment those words left left his lips government council should pack up his briefcase and go home because no amount of sharing would be sufficient no amount of him testifying as the correct it would be sufficient for a jury to reach that conclusion and certainly no court  and the appellate court in reviewing that said well you know this evidence is an echo poise so a couple of issues with that number one it's a different standard of review the appellate court is reviewing four were clear error not reviewing as it is here under sufficiency which is a much more forgiving standard and secondly there the fact finder themselves was was the district court as opposed to here where the just a court or the court is taking a much  more not relaxed view but a much more expansive acceptance of what the what is your what a reasonable jury would do in that situation and along those lines courts have been extremely reluctant to apply the nd poise princip incursion into the role of the jury as fact finder for an appellate court to review the factual record to engage in i think what the th circuit described as a fine parsing of the evidence and perhaps more importantly  the courts have determined that this would be applying a different standard than the supreme court is mandated in jackson person for genuine is of course the any rational witnesses your honor that is something we did look into we those cases i think don't speak to that there is there's another case remeron sara was on the panel it was it was a single witness case but it was largely all of you haven't came from a single witness who evidence was presented that was largely contradictory to that witness's testimony and the circuit sort of rejected that principle saying we do not weigh conflicting evidence consider witness credibility as these duties are delegate exclusively to the jury so i don't have handy a case where there is only a single witness but i think that would be the close approximation would be nice his st remeron from into question the fairness integrity of these public proceedings and for that you know the united states cited united states versus good there and good there was a in doubt at all that this firing traveled in interstate commerce even if not proven and citing johnson versus the united states and the supreme court's holding there which was a perjury case where the demand prove materiality at trial  the quote was that there was no basis for concluding that the error seriously affected the fairness integrity or public reputation edition proceedings indeed would be the reversal of a conviction such as this which would have that effect the th circuit indoor slee the idea that that reversing in that particular case they are not privy to the foreign travel interstate commerce which undoubtedly did would rip down to the detriment of public and public perception of the integrity proceed which we would argue is the same situation here here you have somebody who was under twelve years of age repeatedly rape since he was three years old by the mister sloan and to reverse those convictions  on the basis that mister sloan at the outset of his testimony staring down the person who had sexually assaulted him his entire life gave the wrong year i think would again impugn the public integrity of the proceeding when i mean it's anecdotal when i took a driver's test i was sixteen years old i was so know her parents love getting getting back to the certificate is is this a matter of judicial notice of the certificate  clarify that but we do not understand offenses actually contesting that he was twelve or older at the time he was sexually assaulted and why do we need certificate in the st place your honor of the course free to to reject the certificate as in the air power of the court but the united states again would point to the p s r there's numerous statements of it's of the victims age was not contested by defendant at sentencing and certainly if there was a legal issue that the united to not proven that he was the correct age to do it was incumbent on mister sloan to bring that to the attention of the court the court could resolve it at that time and we would not be in the situation we're in today and along those lines that would be the united states is response in regard to the sentencing errors alleged in this case is number one none of them are prejudicial some of them actually redounded to the extent there was a  benefit or a detriment they respect that they doubt it to his benefit but none of those affected the guideline range as admitted by mister sloan's counsel that they all resulted in a guideline range of life and in offen level forty three none of it affected his criminal history category therefore you cannot claim prejudice and in any sort of way from these the sentencing errors and again these could have been corrected at the time of sentencing had they been brought to the attention of the district court which they were not unless the court has additional questions thank you very much you c was twelve or under at the time of the offense alleged offenses your honor i don't dispute that what the government is attached to its brief is what it purports to be so i don't he testified to both ninety four in one thousand nine hundred and five any testify that he was twenty three at the time of trial which would have been consistent with not being born in one thousand times of the at the time of the offense under either scenario you would have