not being a very good person that doesn't mean he loses his acceptance or responsibility pursuant to the guidelines well he doesn't he doesn't have an entitlement to it and you would agree with you  i would your honor you can obstruct and get this so you know you're going to have to persuade us that he falls outside of the normal run of case i agree it's really the provision under three c one one  because of the obstruction issue which puts us in a different category all that's right and so the obscure and you're not challenging the obstruction and hansen not so why is really i would say given what he did judge he pled guilty well in advance of the trial it was i was trial counsel for mr friend o and so i can indicate what difference does it make it all comes down to the fact you care that he put guilty early if you tell us ready witness later well i think two things judge that makes the difference we had in a plea agreement with the government that really began and the like part of december of two thousand and fourteen january of two thousand and fifteen the government then brought an allegation involving his prior conduct which then requested the government to redraw the plea of guilty so we've gone through a proffer it washington d c with him we had indicated to him and the government that we we're going to plead guilty we had a written signed plea agreement which the government then in january of two thousand and fifteen pull based upon mr friend or us conduct involving kristen alexander clearly that had nothing to do with the case itself it was a situation where miss alexander had been a personal assistant and during that period of times it had nothing to do with the case itself she actually is implicated in his scheming and i guess i want to get back to the the whole concept of three one point one is that somebody has really accepted responsibility they're remorseful they they're sorry they did it they're not just sorry they got caught the sorry they did it the district court makes a factual determination about that to which we give deference we give clear air review and judge barker looked at mr frond o's conduct and said i don't think he's sorry i don't think he's remorseful look at this behavior even after the guilty plea guilty pleas good that it's not an issue or in civics that you know i agree with the court that it's not an assurance but clearly that when the indication is that the information that the government presented was kind of collateral not in effect on you keep calling collateral to oh well two things happened one the incident involving kristen cat as she's referred to in the transcript was clearly pretrial and plea plea and that was an indication when she had worked for him and became part of the company that all those activities and anger between those two really didn't relate at all to him interfering with her in that case the second incident involving when mr friend o makes his plea to the court after he spent one year almost in jail on the pretrial release violation and so he's got the punishment that the court already met it out him based upon the fact of his conduct and his misconduct and that happened clearly prior to the guilty plea and so mr friend oh i've only received the punishment of the year on pretrial release where he was detained but then when we come up for the guilty plea the government indicated that mr brando had pled to the case three other co defendants immediately followed suit and pled to those same clients cases post mr friend those and so he saved the government the required period of time for trial he was given his proffers in advance so there was nothing it indicated that information that the government sought all the way through that would indicate that he hadn't accepted responsibility well but except you're you're focusing on the savings to the government which is a factor that the bigger question is is whether it's the whole reason why you give somebody a shorter sentence because if you think they're genuinely sorry for what they did then the likelihood of recidivism is less they're you know you maybe don't need to punish them as much they're incommensurables that go along with that he isn't that person well judge relevant conduct beyond the offense of conviction in order obtain a reduction under subsection a right but is not usually due to practice law prior to the sense of guidelines do i look like i did yes do you think you could have possibly the problem we had was that the period of time from the beginning of the first plea until the government pulled the police a whole series of conduct with didn't change mr friend oh in his but i'm going to plead guilty i'm going to acknowledge we even had a separate proffer with justice prior to the plea where they had additional information they were seeking for mr friend or where he agreed to do that so we have a whole series of things they didn't change in his attitude his conduct about his plea of guilty and a lot of the information that the government used at the time of his actual sentencing certainly related to the fact of that period of time from the when the original obstruction of justice provision and during that period of time not only did he participate and admit it is clearly participation in the huge fraud of fifty five million dollars he didn't c the other guidelines and so we're just focusing now on the guideline in question which we think the judge parker should have given him credit for in spite of the obstruction of justice in spite of her also punishing him on the side really of having him spend a good morning i'm a please a court my name is jeff bueller i'm here on behalf of the united states there is nothing extraordinary about this case that would warrant giving mr fernando an adjustment for acceptance of responsibility i think is the court rightfully recognized the sentencing guidelines are meant to give a defendant credit for voluntarily giving up criminal activity in this case mr friend who discusses how these are somehow collateral actions that his misconduct somehow had nothing to do with the conduct that he was charged with and under this court's precedent it's well accepted that any post arrest conduct can be considered by the district court and even here we looked at post clique conduct when judge parker had to consider whether mr fernando had accepted responsibility she specifically referred to the conduct that he had committed while incarcerated waiting to be sentenced and as the court correctly recognized he threatened to kill two witnesses he threatened to kill two witnesses who were going to testify against him at the sentencing and obeidi the way he went over to is some eight and asked him to participate in a drug trafficking activity to bring l from new jersey to just trying to give him so back to keep his hand and those actions are exactly what warrant the district court to say that he does not deserve credit for accepting responsibility the district court did exactly what she was required to do here and in another case in kedar this court looked at the deferential standard of review that applies and said that when the district court has found that it's not an extraordinary case it makes it almost impossible to gainsay what the district court did and that's exactly right here all the conduct that mr fernando committed from the time of his arrest from the time of the indictment supports a finding by the district court that he had not accept responsibility so you know am i correct the only things on the if you think of the balance on the except inside are number one the guilty plea clued in the timing and number two the proffers so th cooperate with us and then the government learns about this so called misconduct in december of two thousand and thirteen which was the activity where he smashed one of the witnesses face to the ground bent her fingers back stole her cell phone from or smashed that you know ripped her hair out i mean this was this was a violation of not only his pretrial release but also it was an attack and they went to the hospital she did go to the hospital your honor and she was transported from the court judge at the revocation hearing so this when the government learned about those activities yes it pulled the agreement that it was in place mr for endo ended up pleading guilty in april of two thousand and fifteen as a government discussed this was going to be a forty five week trial at that time it was about one month before the beginning of the trial and the government obviously had taken steps to prepare it was going to be a long trial there had been a pretrial conference the government had filed pretrial motions there's nothing to suggest that a one month period before fraud itself and some of the witnesses that in the past finding it at the sentencing but even let's just assume that he did let's assume that they did seize a government time and half or all of that time and effort that was somehow saved can be outweighed the misconduct that is that the district court correctly recognized and i will refer to the cellmates testimony which the district court credited the district court credited the testimony of mr robinson the cellmate and said that  she didn't believe that he accept the responsibility so it outweighs any effort by mr fraser to suggest that somehow save the government time and effort in this case as the court recognized acceptance of responsibility is not a matter of right there is no bright line rule that says that when a defendant pleads guilty he automatically gets credit for acceptance of responsibility and given the deferential standard of review and judge parker's careful consideration of this matter the government to think a couple of the you indicated the fact that he pled guilty in the government may very well it saves expensive trial there were experts that the government had intended to call on the issue of the fraud involving the fuel but that cuts both ways of course because if there were experts they certainly didn't find them thirty days before the trial they would have knowledge that they were in the pairing that's correct that clearly he was punished significantly for his pretrial misconduct even before sentencing when we re for back to the fact that judge parker you know august of two thousand and fourteen found that and in march imposed the sense of pretrial release was violated why is pretrial release an actual punishment for a murder threat mean that was to me that that the pretrial release happened really as a result of the physical altercation that happened between the the woman referred to his cat in the transcript and mr friend who was also injured as she used her car against him so that matter was dealt with at the local level and note ultimately no charges were filed against either want so we believe that the fact that he did spend the year in jail is an exception that under the provision of three c one