break down of the fact finding process this appeal represents three instances of this breakdown first based on assumptions that detective hankel made before he had all the facts the government argued and the district judge found that mr alvarez stole six thousand dollars even though the ported victim consistently denied having been a victim of the theft and detective pinkel himself did not observe it the government argues that the district court applied a clear and convincing evidence standard to find the facts even though the district court stated in its order granting bail that it had not applied the standard and the evidence did not whether or not it the court needs to find substantial evidence and if this court found that it needed to find clear and convincing evidence that the that it had here and this would likely result in a reduced sentence so there would have been no reason for it to engage evidence on which the district court said it would rely upon to increase the sentence and the district court warned that doing so would result in an even higher sentance this court's reverse revanth and reassign now why should we reassign i think the courts are reassigned because the judge has already said that if the if mr alvarez presented evidence the evidence that the  was not successful in convincing of a court to change his mind about evidence the court has already relied on and on which the government there's a burden of proof and even a higher sentence would be imposed and that  evidence is this is not outside evidence of something different this is the evidence on the very issues that the court relied on detective hinkle statements on the reliability of the d n a evidence if mr alvarez puts on  he said is that if it requires clear and convincing evidence we will take evidence but what he said before is if we take evidence and you don't change my mind if the evidence is compelling then the sentence will be even higher so again i'm not saying this is a case where he is so biased and his mind is so made up that recusal would be required but the appearance of justice and of requiring somebody to go back before a court who has already said that a full hearing would result an even higher sentence not just the higher sentence that the court imposed of a year plus six months home detention on a zero to six guidelines case where the government was asking for six months but and even the higher  multiple factors that the application of clear and convincing standard which was rigid pre book or should not apply here because of the subtleties complexities and it's so hard it has retained what's disproportionate and what the causation is when you've got six different factors what's your response to that my response to that is there may be a case in which that is true so if a judge says these are the ten different things that i've considered and some of them are studies and some of them are you know the guy's record and some of them are something else that may possibly be true that it would be difficult to apply a clear and convincing standard to a multi factor an here the record is very clear the district judge said if i make this finding then six months will not be enough if i make this finding and you can tossed it one you know will not be enough it's always been ration sentencing in cruise it's if you go to trial with no good defense i'm going to take that into consideration of them saying and crockery it was if you go to trial without any real defense i'm going to take that into consideration at sentencing and also your most cases the judge in fact did take it into consideration in sentencing and those court reversed and reassigned so i think it's clear that if mr alvarez had actually taken the job up on his offer and presented the evidence again to be clear the evidence that the judge said he was relying on and mr alvarez received a higher sentence that would be a violation of due process so the question is if mr alvarez is deterred and he for goes the opportunity to have the judge look at the very evidence the judge says he's relied on does that mean his due process rights have not been violated and i would argue that the answer to that has to be no i mean it would be  tyranny if judges were allowed to say if you do this is out of the other i'm going to slam you and and yet yeah the judge can say if this goes to trial versus a plea i mean it happens all the time because the way the guidelines work responsibility if it weren't for that safe harbor that would be problematic and the constitution and the courts have been very clear that you can punish somebody after crawl for a couple of things for not accepting responsibility but in this case even the the responsibility would have only been two levels you still would have been zero six you can do it for obstruction of justice obviously you go to trial and but this case all he wanted to do was show the judge the evidence that the judge is relying on and you can do it if the judge finds out different things at trial that really cast the entire thing in a different light but again all mr alvarez was asking was for the judge to look at the very evidence the judge said he was whining on and when i was possessed a measurable quantity of heroin it was equally legitimate for the defense to test the validity of that opinion through cross examination if the government is going to rely on him calls observations which were inconclusive it's legitimate to say well you should really see your from mr hinkle because what you learn is his observation was inconclusive if the government is going to rely on d n a evidence it's legitimate for mr alvarez to say a there's a high process at the time this vindictiveness issue arose the court had already issued its ruling it had found that the defendant had committed the theft and it ended the factual finding phase the defense counsel then started arguing the thirty five fifty three factors and and that is an aggravating factor and you're thirty five fifty three so he was considering it angered the thirty five fifty three factors correct and i'd like to address that when i get into the issue as to a plane there with the suspect to whether or not he stole the money claim i'm trying to establish the context in which this arose what happened then was when the defendant started allocute ing he then started digging a hole for him self making false statements to the district court he stated that the evidence had been misrepresented and i stopped the proceedings at that time to hear what these quote misrepresentations were we went through them all and there was no misrepresentation at all he also claimed that he didn't realize that was going to be an issue at sentencing when in fact that's flat contradicted by the change of fleet proceedings in which the district court actually put them over for a day so that the defendant could consider that process the issue even said that hank was viewed within the context or the container was obstructed and th he couldn't possibly see the defendant when he had already admitted that by not objecting to the pre sentence report by citing to hank olds observations in his own statement of facts and not sixteen pages prior to the defendant claiming that hankel could not have seen him his defense attorney was saying yes ankle saw him and he tried to explain away the significance of his observations it's then that the defense suggested to the district court that they should have a second opportunity a second hearing to impeach hankel persons whose observations the defendant had already adopted in his papers and in his arguments at that time there was no obligation on the district court's part to grant any further hearings they could simply say that i've ruled on this matter you've had opportunity to litigate it and now you're backtracking on what you've already admitted there's no need for a further proceeding and it is entirely appropriate for the court to offer the defendant incentive if you accept responsibility for this rather then they get a further hole for yourself i will give you a lesser sentence than what i was contemplating now the defense counsel says that this is not what he did that's not what the it looks like that's not what the compelling i'm going to give you even more then what i was going to give which is already in excess of what the government asked i don't read that way because the term that being said he talks about the severe sentence that he wants to close and then he says that enough after hillary just said you're going to get well when you're plus home detention confinement even if the court disagrees with me and views it not as an incentive rather a warning of an increase this is entirely appropriate by the court because it's not a warning that further litigation is going to be punished because that if the court said it could cut both ways it could benefit you if you convince me to change my opinion it was a warning that further false statements by the defendant that he was being engaged in at that time and baseless accusations against the police officer who actually had the courage to expose the defendants that would have consequences in bad behavior by the defendant during the sentencing proceeding or challenge that angle ever had an opportunity to see what he saw he had already conceded that in his papers and his earlier argument yes as i think that the threat was if you come in mr defendant and give furthe false testimony that was where is going to cut the other way and i don't see that in here was there or was there is some indication from counsel that he wanted this hearing or to bring in to have his defendant testify on the stand and commit perjury not necessarily false testimony by the defendant but certainly fall recants in his prior admissions by trying to challenge the observations that he'd already conceded and exercising his right of cross examination as you would say inconsistent with his earlier concession but like i said it's where we are in these y the name of another officer when he has no basis whatsoever to support it for example the other point that they raised was that the accused they said that in the ninth circuit that the ninth circuit had found that  observations in another case were inaccurate and that is flatly untrue i've addressed that point in the government's appellate brief page forty four they were making false and spurious allegations against an officer took the excess over that amount the if if we go to some of the record shows he said he had twelve five or something before christmas and and he i thought he had he at some point i thought he had given some explanation of how he got the ten thousand in the fact that he would that was his full piggy bank and he would closely keep track of that no he never said his piggy bank and in fact what he said was contrary to what the findings of the court were when they forfeit that money as proceeds of drug activity but  december remembered having twelve five of which he used twenty two hundred for christmas and five hundred pay for his motor home so he was it wasn't just relying on her net alvarez told him or somebody else i mean this was based on his own independent memory of what he thought he had and i think we're talking past one another what i mean is that the defendant spoke to her hand as asked him how much money he had there and the defense and hernandez told him ten thousand dollars it's then that the defendant goes into the lockbox and then when the money is seized from the lock box there's ten thousand dollars my point is that defendant when you discovered there were sixteen thousand dollars in a locked box he took the access the money and the evidence i believe was rather overwhelming there was an element of doubt is that a reasonable doubt perhaps but the government never believed that it didn't rise to the clear and convincing standard i want to point to some things that might not be clear to the court in the record here and that is that it's important to realize that hernandez was had been charged in a complaint in unrest warrant was issued for him for money laundering in connection with a drug operation the ten thousand dollars was seized and it was later forfeited as proceeds of drug activity and so when hernandez is going through the calculus of adding and subtracting he's not saying that oh this was proceeds of drug activity what he was saying was that these were legitimate business transactions which the courts later found to be not the case it was in fact proceeds of drug activity so the defendant mr hernandez was not telling the truth about that and it's interesting also that the amount that he says is in the context of a storage container is precisely one dollar under the currency transaction reporting amount of ten thousand dollars so it's the government took the view and it's almost found was and i would refer the court to the excerpt of record two zero six which is the pull cam video evidence that actually shows that hank was outside the contacts civility for at least one and a half minutes they say that the other officer john had have seen what was happening and there's nothing in the record that supports that they could have introduced john's interview and they did not and also that they argue that the district court disregarded the defendant's tampering with a rubber band arrangement when i explained to the district court about the rubber band arrangement that it's curious lee bundle that one and the money stays from the car and one and the stuff found in the panics container and that mr hernandez says he pulled at both ends and that meant the defendant had tampered with that bundling arrangement at the time that he sees the money the district courts response was yes that's not disregarding that's agreeing with the government's argument and i'm way over my time and i apologize if i'm right thank you very much counsel i'll give you a minute  and it's not or not at all by the record the first thing that the government says was that type of misrepresentations what mr alvarez said was you know it was i didn't go immediately to my car after the incident it was forty five minutes  the government conceded that up that it was in fact forty five minutes and the government did not misrepresent it was the court that i had misunderstood the second thing the government has said is that mr alvarez said he didn't realize that he was going to be fighting a  i'm sure his lawyer explained it to him but sometimes they don't hear exactly that's not a misrepresentation probably most importantly he was not saying that hinkle why what he was saying was that he called observations were inconclusive as his