the mr sanchez as you know was convicted of being a felon in possession of a firearm because he was dumb enough to be driving on the palisades parkway with tinted windows and got pulled over  t when he was sentenced for the second time by judge sheindlin he was sentenced at a base offense level of twenty four under the guidelines based upon t prior controlled substances offense offenses new york law at the time that he committed those two offenses in mid to late one nine hundred ninety eight criminal mere offers had been criminalized prior to that and that they they definitively said no it's got to be a bonafide offer you have to have the intent and the ability to carry out that offer and that's december third nine hundred ninety eight but was the same chess offens es were prior to that so i think that's broader than the sentencing guideline issue and means that judge sheindlin applied the incorrect  it but i think it i think it did soon i would have aren't there actually quite a few lower court cases even before my concluding appellate division cases holding that that you needed a bona fide offer there were there were some cases to that effect and worst sums up in these cases often is whether or not if there is a more lenient offense that might not fit within the federal guidelines whether there's a state actually prosecutes that  e and have a dozen prosecuted then it's it's there hypothetically but it's not for categorical analysis it's not really relevant i don't disagree with that but i don't think there's any way to know times the defendant can come up with prosecutions of these lesser offenses that the did occur and make the argument that there's a there's a history here of prosecuting for the name the to the to the officer i don't think constitutes obstruction of justice if you're if you if you're in possession of a weapon and it's a question of whether you're going to be charged as a felon in possession doesn't it make it more difficult for the government to find out whether you are run you through the butt databases and so forth to find out whether you are a partner felon i suppose if you're running only on the name then it might make it more difficult but there's indication yet but what to do with names right he does but of course his fingerprints were taken and run through the system and they knew who he was within hours of his arrest and i don't think that having a driver's license in a different name than the one you were born with is necessarily obstruction of justice and witness numerous people who use different names for different purposes or stage names  i don't think numerous people get driver's licenses and false names and this is seeking to avoid the consequences of their identification well particularly in my experience particularly no indication there's no evidence that a bill up occasionally actually ever took place the if the only thing we have is in the p s r they mention unnamed sources saying that he and asked his wife to destroy evidence or conceal evidence well and that she was asked to present something incorrect or phony at the bell hearing but number one i don't know that that ever happened there's no indication that it did and he certainly has been in jail since officer kimball arrested him in this case and i don't think that either of those amounts to obstruction in any event because actual obstruction or can an attempt i think it can i think record there's nothing else to prove so i don't see that any other evidence that could be concealed or destroyed and again we have no proof that any of that ever occurred then any of that is material to the  the offense that was actually changed i see i've gone over so you have hearing and the recent and saying but i did not represent the government in the original proceedings below i will keep my presentation briefer on or mostly rely on our briefs previously submitted just to address a couple points that came up during the appe presentation first as the people view mike we would certainly take the position that that was not a sea change in law the court of appeals was merely restating the law as it existed the government is aware of no cases in which any new york court said th mere offers were criminalized there are none in the record even the language of that case itself shows that this was not a sea change in the logs just sort of a statement by the court of appeals as to what the law was at the time it was stated  paragraph eight those both bases were relied upon in judge hill and adopted the factual findings in the p s r and the government would submit that suffices churchmen also detailed both of those bases a little bit further in her discussion of the thirty five fifty three a factors i think it's page a one seventy four of the record and the government would submit that both of those provide independent bases for the obstruction of justice in and spent taking that direction to someone to destroy the evidence in this case there's a plethora of evidence that could have been destroyed which would have obstructed the administration of this case for example you know what that i mean there are no details right that is correct your honor there is nothing there what the evidence was not on the record before the court you in the government's i don't how do we evaluate it if we don't even know what it was i think we value a based on the fact that the defendant attempted to do it he called someone and said i want you to destroy this evidence there is evidence that could certainly have we don't  the evidence was we do not your honor we do not know potentially because she was successful destroying it we don't know that but his attempt to have someone do that does fice in addition his asking his wife to in the process of obtaining bail because in this case obtaining bail i think the language from guns is always has the capacity to obstruct justice because if someone gets out on bail especially if they get out on falsely obtained bail all sorts of things could happen they could applied the the enhancement incorrectly then that that's a procedural error that has to be rectified and if it is you wouldn't have started from a different base that's usually what errors do is they put you in a different base to store the calculations and she said this wouldn't have well if she did but i still think that applying the obstruction and hence mint is incorrect and it has to be dealt with by the school whether she would have changed or not and i just have one other thing to say if i might with respect to mr richmond's argument that there was no evidence of the attempt to destroy or conceal