please the court my name is julia wright and i represent appellant and first i would like to apologize for my mr action this morning as i was in the other court i don't have to wreck sions i'm from new york and i have actually to the prosecutor who you know had to wait to the bottom of the calendar for an otherwise case that was first on the counter may please the court in this case and united states  court left the issue of the retroactivity of amendment seven ninety four for another day and i suggest to this court that this day has arrived i would first want to focus very very briefly on the facts of this case since it is senseless to spin our wheels and discuss the retroactivity or even the constitutionality of the adjustment role of fence if it's going to be held that the facts don't warrant such relief as has been done another care worked cases contrary to the government's argument this is a perfect vehicle to apply  determine the retroactivity of seven ninety four we would suggest even and of itself that the record suggests that appellant in this case did deserve the adjustment role at forty seven years old this was a man who is never before been convicted of a crime he's never before been involved in any drug dealing whatsoever he was nothing but a small pound pawn in a huge major conspiracy to transport cocaine international warders appellant wasn't listed as a mere crew member on this small boat we have no clue as to what his actual function on map was in fact i other two we don't know there is no proof at all that appellant had any and clink of the scope of this conspiracy who was involved whether he met any of the big players whether he knew the source of the cocaine where it was particular boat now both the government and the court below but leave that the fact that appellant received ten thousand dollars for would ever work he was doing in this boat  disqualifies him completely from any eligibility for a major role adjustment and also really is asking this court it doesn't have to consider the retroactivity of the members in this case because of this thousand dollars but what is important here it is clear that helen's participation in this venture and this is on the record was not to promote trade was not to say ok i'm going to be a member of this drug conspiracy and maybe i'll get more money in the future it was because he and his family were in a desperate financial situation in the strife  of desperation to obtain this ten thousand dollars for his family but what about the new the the amendment would lead you to think that the district court would come to a different conclusion what's in what's in it that you think would make a difference who compared what was it before because i understand the argument that he should have gotten the role reduction even under the old amendment that's fine but for the retroactivity issue to matter something in the new amendment hasta matter so what is it that you're identifying in that that would matter here is a number of provisions in that thing and i think that one is most important in this and that is the universal dealer in drugs they're no longer using that standard compared to the actual participants in the boat and how would that help your client because he's out of his his role is not in comparison to some abstract player in the drug world as this court has interpreted this particular tarm it is just in comparison to the role of his two co defendants why would comparison to the people in the conspiracy as well because i think that we show that he had nothing whatsoever to do with a conspiracy i don't know but i don't want you know in applying it or use soome you're supposed to even under the amended version apply in comparison to the actual conspiracy rather than to a hypothetical one and i think very good so he he clearly was relatively low down in the whole conspiracy is way down in the district court didn't think that was a not district court seems unlikely that the reason that just a court concluded that was because it was comparing him to some hypothetical other conspiracy i think that that's one of the reasons and i think also the other reason was a ten thousand dollars sent out of the right we i thought it was unlikely that the district court concluded that he didn't qualify as having a minimal role solely because it was comparing him to some hypothetical other conspiracy well the court district court very frankly very few facts and the pre sentence report as to what they were basing their determination i just said i just think just as a logical matter it seems that it was if the amendment takes away the comparison main argument of the prosecutor and it was the main position of the court you received ten thousand dollars that's an awful lot of money you don't get a minor role the amendment takes that away it says no longer is the fifth factor is the degree to which the offender to benefit from the criminal activity and here the court stated that the defendant receive ten thousand dollars but let's assume is a factor that can be considered it can be considered but really to which it can be considered and the court also stated and i'm saying the degree here ten thousand dollars compared to the ten million twenty million dollars that this venture was supposed to  receive is really peanuts in comparison to the overall conspiracy and i think one of the major other major points in contravention to the government's argument is that  this amendment also states that just because you're a transporter or a mule of these drugs doesn't mean you're not entitled to a major role are many getting role in the crime so i think that the application of the commentary would not be a frivolous act if this court should rule it retroactive and i and i would point out that it should be it was retroactive i would also point out that this amendment was enacted while this appeal is pending i think that's another important reason that this amendment should be held retroactive we've set forth the reasons in our grief and i would just like to state that if this court does not determine that the amendment is retroactive i think we have a very serious question here to the constitutionality of the adjustment for all i think that the terms are inherently under the johnson question at the recent chance and rationale i mean if we're going to use the standard of the universal  performer in a drug conspiracy i think that's a whole i think if you look in terms of the statute itself a minimal role minor role and something in between whatever that means i don't know i think i traditionally and i think only the commentary which clarifies what the role is supposed to be makes sense otherwise i think there's a serious question of the constitutionality and i think up to reserve sister counsel argued that the primary consideration by the united states was the payment of ten thousand dollars in this case and we submit that that's actually not correct what was predominant in this case was the fact that the appellant along with two  slavery you know the actually up what the significance of that test versus not focusing on the average participant of drug conspiracies nationwide would be in a case like this this is a very large drug conspiracy there's no five hundred dollars in a ten thousand dollar conspiracy i just i mean how would you do that i think we submit that the way you do that is to compare yes the amount of drugs involved in the case but i'm saying the amount of drugs only seems relevant for a mule relative to the size of the conspiracy as a whole to figure out how important a mule he was well and it's also relevant in terms of you know the united states statutes in the fight like for example you know five hundred no  terming whether he's a minimal participant or not just doesn't seem to make sense is that i have a lot of drugs in the normal conspiracy but now when i compare how important you are i'm going to look at how many drugs a cure in a very small conspiracy would have that doesn't make a lot of sense to do it that way doesn't understand your honor we submit that if it is a large conspiracy that the mule in that case would actually be culpable than a meal with you know a comparatively maybe percentage wise amount of are you saying that it's possible though that under the rule that we had it might be that a water mule with a lot of drugs in a very large conspiracy would be compared to a mule in a small conspiracy with less drugs and therefore be thought to be more important that that could have because that seems like a good reason to because i'd be comparing him to couriers in smaller conspiracies perhaps or on our butts but if that's possible then if it's right to an octave and we're not supposed to look at those anymore that would be important for the