right our third case for this morning is united states against g do you agree that that the best mr gill could do if he were to prevail on either of the points you mentioned would be to lop off twenty four more months and bring his sentence down to the mandatory minimum of two of the acceptance of responsibility because the flights what we usually see in there are quite a few cases the government just cited some cases i've cited a number of them the defendant has hea left the jurisdiction or what has happened very often the defendant has already been arrested or has surrendered and there are court proceedings going on the defendant is released he violates the release and he doesn't france or something counts and ordinary flight such as kill seems to have engaged in isn't something that the judge within his discretion can take into account there are other ordinary flight cases where this is often judges do you recall what he but that's a good argument to make to the district court judge and i'm sure it was made but it it's not really for outs that were there are cases where flight very comparable to mr gills was found to preclude acceptance of responsibility and i do think the judge the judge had gotten pretty familiar with mr guilt by this time yes he was york number one the prosecutor asked for denial of acceptance because of obstruction but serious obstruction if the judge had given it well and that could have and we could have led to an slagged this on page forty one of the transcript he says he's talking about the acceptance of responsibility and he says it was about the whole issue of flight in attempting to avoid bishop makes the argument well i didn't do that for other people here's the best i can say about that i think that the finding i made was correct but it wasn't a factor in the sentence and then i essentially gave him some responsibility so i understand him to be saying i did the best i could with the guidelines but then i factored in whatever you know ambiguities there were about it at the thirty five fifty three a level which is just what he's supposed to do well and if he court did order a limited recent unsing the first time it was here and explained the guidelines were not to be reconsidered but the second time the case was here the court said about what that reflects on this i'd like to know about it and nobody said if you there was no objection from the government at that point all right i think the case is pretty well covered in the briefs but i'll save my remaining minute that he had he was aware of the charges and that he had tried to avoid being arrested on the at the first sentencing defense counsel acknowledged that they could knock and task the fact that the defendant had lied in the charges and tried to avoid period of time whereas guilt was a member of the conspiracy for fourteen years had was a high ranking member by the time after receiving numerous promotions of the years had as lengthy criminal history most of which court addressed the issues that were raised by the defendant and was well within its discretion in determining that acceptance was not warranted in this case and as as you previously discussed in fact exceptions could have been denied on the sole basis of the incident involving aaron baddeley where the defendant went up to him at the m c c told him you know i hear you told the government that i can best to the murderer deal  and then send him a letter for him to rewrite and sign and said i never spoke on the phone with with gil about this incident bagley thought that he could get away with it because it was technically true the conversation they had had was in person and not on the telephone the judge deiced the facts pretty finally there too in order to not grant an obstruction enhanced meant but it certainly was sufficient to support the district court's finding that acceptance was not warranted but the just record here really does as mr sachs saying seem to place it on the on the flight as it were the making himself scarce i would say that that's correct your honor however this court can affirm on any of the bases supported by the record and the record certainly supports the district court's conclusion on other grounds other than the ones that the court state with respect to the waiver issue it is a complicated thing when that when cases go back but it will reach him dearly with opening it up to complete re sentencing the second time around that's true but it is it is also the law that a defend cannot cherry pick issues and senses over i mean and appeals over time and raise new appellate issues that were there from the beginning but that's a pretty risky strategy since you don't know you're going to get those new appeals but why doesn't this just definitely strategic reasons for picking and choosing when you go up on appeal but you don't know you're going to get i mean i guess it seems to me in this instance where this court opened it back up again  the fact that he didn't raise a point earlier it strikes me should count against him but not conclusively that maybe you are but the it seems to it seems to me that the rule about waiver setting is designed to encourage defendants to bring whatever they want to bring in their initial appeal i hear the defendant had two appeals before this one and brought this issue up and neither one of them  that is why the government argued waiver in this case the seems to be a pretty outrageous situation on that score but either way it doesn't matter what the standard of review is because this case should be affirmed under any standard of review  never easy to come before any appellate court in ask for review of a discretionary ruling by a trial level judge nevertheless  i continued to have a serious problem with with the judge can only use in my opinion if i joined a line between guideline conclusions of thirty five fifty three big factors and if here's a place where i can really pin a yes or no on discretionary legal peril that what he did yet would be if i know he doesn't want to see guidelines i practiced criminal law before the sentencing guidelines i practiced during the mandatory guidelines i practiced now and whatever god willing i'll practice with what's coming next for a little while