case it was a valid plea mr ford was a felon in possession of a fire his criminal history category six he was not in immediate contact with the firearm when he was arrested but ultimately he pled guilty to actually being in actual possession of this issue here the only issue that i see in the case in the application of a guideline to k two point one with a pretty simple syllogism i think it goes like this ford is subject to enhanced moat if there's an underlying state felony second premise the facts demonstrate the violation of tennessee aggravated assault and if those two premises are true then ford is subject to the  engages in some supposition there's simply no evidence the officer testified had not interviewed lady who had he had supposedly pointed this gun at or had shown the gun we have just a variety of  facts that don't line up but to use the extent of he was looking for this lady's son a couple to a day earlier and she saw that he had a gun that's all that's all that we really know the court that he did come to her house point the gun at her and make some requests now granted in one sense wasn't making him directly of her but he was looking for the son right  i'm not sure that he pointed it says he threatened her with a firearm that's the pre sentence investigation you know that is subject to many things again where i come from everybody carries guns so what is the point of red meat but for these purposes if it w if it really was a threat then that gets us over that aspect you're focusing on reasonably fear imminent bodily injury if she's only your crew you're for the message then maybe she wouldn't have feared yes or there's no way there's no evidence that she was placed in fear for herself personally relief coming into contact with somebody who says i'm looking for your son i'm going to shoot him and have a gun doesn't mean that she would reasonably be fearful of the truck or just suppose that to be true and they are enter into this discussion about witnesses being threatened but without any real relation to mr ford's case under under tennessee law it is attempting to intimidate a witness also a did testify had not enough to told him what she said right yes or so we've got inference upon inference here and we don't know what the underlying facts are and i think under those circumstances it's improper to suppose your way into the four point handsome well but under under under sentencing is not a trial so it's it's not hearsay impermissible here so the evidence comes in the question is just how good is the evidence correct and what's our standard preponderance of the evidence and clearer i think it's clear area and i think i just think that there's without anything it has to be clear there's just there's no basis on which to what would be open that is essentially what we had and if you think of it as a civil sort of case you can send it back for a new trial in the government you know find ms billups now and bring her in i don't know your honor i would think that because it is the because the sentencing has effectively not happened upon the remains sort of restarting the clock i would think so yes or no for c kick and well it's plea or what but the bottom of this case is really the quality of evidence necessary to justify miles so it's a change in the other five years is about three as low as this evidence sufficient to justify adding five years to a sense that is the seem to have assumed the violation of tennessee statute with anybody maybe looking at it and you give me those numbers again was it one ten to one thirty seven i guess or one ten to one thirty seven was his was his basis he's a cool history category six and you said he would take it down to  this procedure would put him in jeopardy of saying with only one chance your honor i don't i would love to say yes he has to go to the bottom of the guidelines at ninety seven months or seventy seven months but i do i don't usually a remain and does an open reset unseen unless we limit it for a particular reason where we say you know there's some error of law or that you have to correct us your i don't know there are cases from a few morning press pool from the u s attorney's office in chattanooga first i think just the math i think it's a two year difference at the top of the guidelines from ninety six months to one hundred twenty months but but more importantly  he was just showing her that hey i have to have one and if she wasn't scared i don't see why she calls the police i think that's indicative of her fear when he made she just he have to be scared to call the place  terroristic threatening i mean if somebody pulls a gun and points so they had me i would think i would want to go to law books and find some crime but i mean the issue here is imminent bodily injury isn't that what for the order in order to  to to support what the judge did in this sentencing now that something else might happen but it in order just to not get a reversal don't we have to say that there is a preponderance of the evidence that there is not a player or that she was in fear of imminent bodily injury i mean isn't that the question you can answer it but is that the quest away and i will answer that i don't think in order to avoid reversal you have to find that i do think in order to avoid the application of the four level enhanced mut that you have to find a good judge call you also pointed out during sentencing hearing and it's not been argued this is not a substantially reasonable sinnott that was not brought up by defense counsel this is not a reasonable sense and judge calling her says based on the defendant's record and thirty five fifty three factors that he would have imposed wait a minute i may agree with you on that but isn't the law pretty clear that if you get the guidelines wrong you've got a story over the guy even if the judge says on the record that he would but still that's not that's not our business that's his business on remand yes or no let's try to focus on these you know your best argument the best argument is the man pulls a gun on someone points at  the court can't make a determination based on the case age you know i can make the argument the fact she didn't show up supports the fact that she's afraid it would make mental weapons to get her there and the point was he's trying to intimidate a witness and then she's afraid to show up as i read your footnoted just said he hadn't been able to contact her crate but there were i mean multiple efforts ok but you know i've been a trial could we have arrested her and brought her in and made her to spot yes have i done that in a trial situation before thirty five fifty three factors protection the public the fact that he's had a criminal conviction he's got twenty three i believe every year of his adult life yet in work that he did he was given the same sentence i don't think it cost to defend anything what i guess if you if you're hon and you keep saying that he's going to get the same sentence with no matter what it sounds like you're saying the judge isn't going to exercise and the sun is going to scrape when he gets back i what i'm saying is the judge pointed out that he was exercising considered them and the p s r and all of the sensing factors and there's been no argument that he did not properly consider all those factors just don't usually say what the sentence is going to be of some time in the future he may be creating a  i don't know that it's that unusual and certainly before book or we were kind of in flux in the end the judge did it in every case when we but i don't think it's that unusual he he's pointing out that under thirty five fifty three  very because of the thirty five fifty three factors i think you're right now also just stood trying to get back to the point about putting in fear that from a factual point of view there's really not an objection to the officer directly testified to what ms billups told him so other than the hearsay objection which doesn't matter at sentencing you have admissible evidence that he pulled the gu yes you know and i think but then you have to get to the second point and really what you're giving us and tell me if there's more is that when somebody pulls a gun on you you must be in fear of imminent bodily injury i think that's right in this case as i said i think that the fact that she called the police is important i think it's important that task force officer nevermore testified that the police responded to and in this this was the time i threats call and  that's and that's in the transcript of why the police were even the area looking for the defendant they were but your brother so the officer who testified about ms billups which one was that you i don't know if it was you person it was me electively yes and and i think in the court goes through this discussion at the at the district court level about a rational person how they respond to someone pointing a them someone who has had a gun pulled on them pointed at them and demands made of them and then in the court i think can infer that a rational person would be reasonable to be in fear of bodily injury there is no other reason for this man if he's just looking for her son why not just ask where her son is there is no reason to pull a firearm other than to scare that person and say i don't you know this answer give us the difference between being scared and being in in fear of imminent bodily injury that she could be this guy's going to kill my son right i mean that's scary that may be criminal in itself but it's not the that i'm going to kill your son i just need your son if he's pointing a gun to her i think it's a reasonable person a rational person thinks if i know when i don't tell him he's going to shoot me why else is he pointing a gun at me obviously if you're just looking for the sun if you want to threaten a son that's another issue but when you pull a gun on someone and say where is your son i think it's completely reasonable for the court to find by a preponderance of the evidence that that person was in reasonable was imminent fear of  i'd we were considering it on the facts of the record which the court can consider the only facts in the record at the sentencing hearing which the court can consider at the sentencing level yes or no and that those those are are my organs you're o not just to two quick issues your testimony was that they that we did attempt to contact ms billups in this case yesterday several times so we're not talking the fact that someone doesn't immediately return phone call i don't think is in the show of the so the yesterday is in the sentencing hearing somewhere i was going from the footnote in the briefs yes or i think it's page one twenty nine married guy law in twelfth thank you and then and then  second it's not an objective standard the question isn't whether a reasonable person would have been in fear of the test i did this the statute shows intentionally knowingly causes another another person so it's a