please the court good morning my name is daniel pereira's i represent marquez mcfadden this is the nd time this case has come before the court as the court is aware we are appealing from his re sentencing of one hundred and eight months imprisonment the issue in this appeal is very straightforward was the district court's determination factually that mr mcfadden put a gun in the mouth of his victim supported by a preponderance of the evidence and i would submit to the court that if this were a typical mine run case in which the victim said the defendant put a gun in my mouth and probation said we recommend that the court apply a six level enhancement for otherwise using the weapon we don't even raise this argument but this wasn't a typical case because this witness's credibility was profoundly problematic the district court itself in its own words cast doubt on bill alone as credibility when not only when mr mcfadden was originally sentenced when the court said i found the testimony about the mother's day lottery to be blatantly false but when the court during the trial while the witness was on the stand repeatedly questioned vil implicitly cast doubt on her version of the events for example the district court question ms vilonia as to how her foot was cut the court asked questions clarifying what room she was in the court asked about the policy slips and it is clear from the record that the court did not believe her denials about what policy slip about not knowing what policy slips were there was vivid testimony by the cooperating witness of the government about pink and line garbage cans on the table and that's what the money and the policy slips were being put into and yet this witness mentioned nothing about garbage cans and issued only a blanket denial of anything  illegal gambling and the court asked to go alone about whether she picked someone out of a lineup and whether she returned to the precinct days after the robbery bear in mind that this witness identified someone else as her assailant when she went to the precinct and a line so this was a witness whose credibility was suspect whose credibility was questioned by the court whose stories did not add up and his claim about the gun was not only questionable but uncorroborated entirely she was the only person who offered evidence about the gun being placed in her mouth there was no witness there was no direct evidence there was and if this had been the kind of case with the defendant came in and said i didn't commit the robbery or i didn't have a gun or i didn't display a gun that would be different and so the question becomes where the mr mcfadden said when he was reset and i did commit this robbery and i'm not going to deny my role i'm going to take responsibility for it i did have a gun and i did display that gun why would the district court believe the lowness testimony about a gun being put in her mouth if there were so many other aspects of her testimony that the district court questioned and that were point out in its brief that there was a passing comment by the district court that you know maybe she was shaky about the whether there was illegal gambling taking place in her or in her apartment but otherwise she was pretty clear about the robbery but that really is belied by the record here and if you look through her testimony and not not just on cross examination i'm not specifically talking we're not we're not we weren't there we have her testimony and all of the questions that judge stein himself asked the witness to clarify this was hardly a typical as i said at the outset this was not a mine run case in which you had a witness testifying and otherwise her testimony was credible her her testimony was problematic from beginning to end and so under those specific circumstances when the court itself characterizes a portion of her testimony as blatantly false that's not my spin that's not my term that was judge stein's term blatantly false then it should be incumbent upon the district court to explain although i found her testimony to be blatantly false about denying that there was an illegal numbers operation happening in her apartment i'm going to credit her testimony about the defendant putting a gun in her mouth when the defendant admitted everything i mean so isn't that essentially what the district court did well i think what's blatantly false and she doesn't want looking at herself in a criminal enterprise but i think that i find her credible restricted being assaulted respectfully judgment judge stein did not say that this witness was credible the specific statement about the blatantly false testimony about the gambling about not knowing about the gandy gambling was said at sentencing and i refer back to all of the clarification questions that judge stein himself had to ask on direct examination the government couldn't even get through the direct examination without judge s repeatedly interrupting to ask clarification questions and so yes ma'am but you know you don't necessarily disagree that it's possible for a witness to testify truthfully about an assault but not truthfully where doesn't fit within the framework or where if in the direct examination there were questions about how her foot got cut and she couldn't explain how her foot got cut there was obviously her foot got cut somehow and the truth of the matter is we don't know how because there was nobody else in the room just mcfadden obviously didn't testify she did but she could not explain how her foot got cut that there was there was a vase and either she bumped into the days and it broke i guess it's unclear somehow it cut her foot and there were questions by judge dynasty did you step on it did it break did did you knock into it and that again that was on direct examination that was not under the crucible the defense lawyers heated cross examination of a witness who's struggling that was inability of a witness to answer very  simple question how did your foot get cut and again i come back to yes this court wasn't there and yes judge stein certainly does have the ability to assess the credibility of a witness but bear in mind when ju across the board well i would have and that's obviously that's that's not my call to make but but again if it's the if this is a typical case and the witness has some quests some problems here and there and now they're a little shaky on this or that that's one thing but this is a witness who again couldn't even make it through direct examination without without the court itself for the benefit of the jury going back and repeatedly asking her to clarify  argument my position is that the proper course of action would have been to stay to find that he was a level twenty nine and if the court was inclined to go a level below that then sentenced him as a sentence him as a level twenty eight not make the argument because it would not be supported by the law that simply because there was disparity among the defendants in the case that therefore three thousand five hundred and fifty three dollars a six was violated our position though is that this court and  as the reviewing court can see what happened in this case this court can can see the very dramatic departures for the other defendants as well as in similar cases in these circumstances  where we had a re sentencing under these circumstances and say ok well some of these recent things come far below the guidelines this one did not and that's relevant to our analysis even if it doesn't carry the day  was trying to quiet her in the sense and really drilling down on the possible fabrication but then there was other testimony where she exhibited a memory is that an accurate way of viewing the testimony viewing the record that judge stein needed to prod her because she had difficulties remembering and rather than she was making things up is that the court entitled to do that he keep presiding over the trial he stopped testify and he did make a clear record which was that he found the testimony about not being an illegal gambling now but i prefer your honour's to page d a ninety four of the appendix mr thomas testifies in a way that fully corroborate mr delimiters testimony other than the gun in her this would still be a kilo guideline or within the guidelines excuse me if the court has any other questions or pathway to answer them just parker on no points to other parts of her just some money like the testimony or the bars where he had to keep being prodded so why why shouldn't we conclude that judge dunn's explanation for quitting one part of not the other one wasn't sufficient and that might be an error well i think as your honor pointed out the the case law says that jock stein is a kind of substantial deference in his credibility determinations and he's entitled to credit parts of his testimony is putting his hands around her mouth and putting a gun in her mouth and he's screaming that he's going to kill her and at some point this dog apparently breaks and cuts her foot and there's blood and i think ju clarify what exactly happened the government was arguing that the defendant that the witness was cut by the defendant it was just a clarification about a pretty violent episode and i don't think it was defendants but at some point disparities might be glaring that maybe we should take it under consideration is there some principle we should applaud when we think about those kinds of citizens there is there some limiting principle we might apply or is it something that we should court just never has to consider think i think the court this court has made clear that the court that a district court doesn't need to consider sentencing disparities among in the case i think it practices around is that sometimes the district court to do that  that and i don't think they're great disparities here as it is but as your honor noted particular white collar said that and the judges are certainly aware of what they are how they're sentencing other  i'm sorry let me be more precise with respect to what happened in that room what she claims it is our position that everything was fabricated that he put the gun in her mouth that intellectually take the position that everything that she said was devoid of credibility because at the end of the day she was robbed and mr mcfadden admitted during the sentencing that he committed the what i what i what i make of that testimony is that mr thomas was not in the room and he does not know what happened the only two people who know what happened were mr mcfadden and ms villa lon operated they were very clearly in different rooms there was they were in a mcfadden and bill alona were in a bedroom and thomas was clear in his testimony if you look at a ninety three at the top where was mr where was mixed during all of this answer he was in another room with the other lady so so whatever whatever he said on a ninety four couldn't have related to what was going on in the other room