rebuttal if the court's questioning permits that with respect to the actual sentencing guideline calculation in this case this seems to be a situation of alternative facts i have argued attorney's office and adopted by the district court as written is legally fought because it specifically treated what i've referred to as the mexican murder as a separate calculated a separate a guideline for that offense and that it grouped it as a separate offense when it compared to the other three racketeers offenses therefore since as i've argued a foreign murder before national in a foreign country is not a racketeering activity i believe it was error to treated as such and therefore i believe the court needs to so under the guidelines section one the one point three there's a one in one are you saying that know order for that guideline to be used to calculate a base offense level that racketeering activity has to be calculation for an individual racketeering activity and in this case until the appeal nobody was arguing that the mexican murder was relevant conduct not be any good to go to reach my rebuild here and there with it or it could have been i guess part of the problem is that i don't think it's clear cut that the mexican governing offense guideline for heard in this case is to be one point one and that the relevant conduct guideline has nothing to do with the case because the specific rico guideline talks about racketeering activity and this isn't racketeering activity the mexican murder is not a racketeering activity i hope you will come to that conclusion i believe that's not disputed by the government right but i thought i heard you tell a judge soon tell that the relevant conduct issue should be open on remain an we should just say it's not racketeering activity and remain and for the district court to consider whether it comes in for relevant conduct on remey and seems like a true the government will argue that and i will try to argue that the government should not won because they didn't raise it earlier that they  re one that brought judicial istanbul into the into their brief but if that's denied then we would certainly be in a situation where a judge lamberth could consider that i do want to say one thing so so all you're asking for is remain and we knock out the racketeering activity theory and we re man for the district court to consider the relevant conduct issue question of what the court can do under thirty five fifty three a day in a discretionary guideline world i'm just focused on racketeering activity versus relevant conduct and you think relevant conduct is an open issue on remained i do ok i do want to say very briefly though that that less it be believed that i don't f the judge of course can still consider under thirty five fifty three essay the conduct of the defendant while acting as a zeta but that would be not an automatic mathematical calculation it would be a matter of discretion and we could of course bring in other evidence related to his assistance to the mexican government which was not the basis for the reduction that the government asked for below i see that my time is up i would let me  i just want to make sure that i understand what your argument is about how the sentencing guidelines calculation is properly you're saying that you believe that the government has now concedes or is not disputing the mexican murder cannot be predicted that for guidelines purposes for the rico conspiracy right if you think that the government has conceded there is no disputing of because their entire argument and their very privately if was based on the assumption that what the judge had done was conclude that the mexican murder was relevant conduct that had to be related back to some other racketeering activity and that was not what happened below it in the smiles it does intelligence gases yes it could have happened below but that's not what did happen below and the government actually never tries to argue its brief that the mexican murder was properly considered as a racketeering activity so when you just say that we're clear when you say consider this roving condo you mean under one b one point three i don't think it really well i'm not conceding that what relevant condom provision are you talking about well i'm frankly i would the government try to argue which one if it's under i'd argue way i think it probably would since they're talking about the mexican murder which mr carlisle for said that he committing it would probably be under the section that talks about his own activity which is one a one pm but i guess my point is you're saying that the government did argue that below correct but didn't isn't that the argument that the government made in response to the objection that you filed to report now that's when the government starts arguing that the murder of special agents the pot is relevant conduct they put in there something that the mexican murderer was in furtherance of the drug conspiracy but i don't think that that alone gets into relevant conduct that's when we get into the asine case and the bomb case and the when can foreign conduct be relevant conduct and so forth and i mean my view it's too tenuous but that's an argument i gree that would have to be made below so so i'm specifically talking about the language at appendix one twenty nine the government's response to your objections recent yes so that paragraph that begins with moreover where they say any person a g m were working  protection of the drug trafficking operation that cetera when they say as such the basis of the fence level of forty three set forth and paragraph ninety three of the p s r is correct but they don't objections they don't cite in specific guidelines provision when they say that the mexican murder can be can be considered but is a really the only one that they could be talking about one point one point three in one day  what else could the government be talking about in this paragraph and what else could the probation office have been talking about in the final p s r well with the let me just point out that that the probation office much but not all of the language in the government's opposition the whole sect the whole sentence about eight hundred forty one you know that he wasn't charged with that and the probation officer doesn't go there with respect to the language in the first sentence  they do talk about it right after they talk about it the probation officer says well you know any if you agree with the defendant then his offense that his guy like calculation is much lower the my point was that when the government below talks about relevant conduct there specifically talking about the relevant conduct of the murder of agents of pot and that occurs on page one twenty nine that occurs at several other points they curse that's what they talk about  it is it isn't there and there's no there's no there's no reference to that being relevant conduct ok and i'm sure that that's the language the government will try to shoehorn into what other guideline provision could they be trying to shoehorn this into if not one b one point three one well i don't see them trying to shoehorn it into anything that's the problem is because they've already treated the mexican murder as a separate rocketeer an offense and so to this language sort of seems irrelevant if you're going to take the the actual sentencing calculation from the final pre sentence report and adopted by the judge you don't have to talk about the mexican murderers row and conduct because you're treating it as a racketeering activity iranis like but that's how you're treated suppose we suppose we think that the relevant conduct was preserved by the government how could this not be relevant conduct right the underlying offense is a rico conspiracy if it's a see a fancy which is to conduct the affairs of the enterprise through a pattern of racketeering the defendant agrees to do that it's a drug cartel they exercise force and intimidation to protect their territory and their routes and such and this is a murder of a rival gang member committed in for the rights of the conspiracy and that that's this relevant is relevant can get well with all due respect judge on the problem is is i believe it to establish the mexican murder of rove and conduct you have to link it more directly to the drug trafficking which is the relevant which is the relevant racketeering activity that could possibly be linked to and i think it has to be more directly i think that's why these cases that we cite back and forth about when foreign conduct can be considered needs to be taken into account because part of the problem is if the zetas were only in the business of drug trafficking that would be perhaps some people but they're not they're also in the business of carjacking in kidnapping in human trafficking in assassinations was this kidnapping and murder was that they were going gays in the drug trafficking at the time  were they increase in a kidnapping that went wrong for money i mean i think there's factual aspects about this as to whether or not it's directly enough related and i seen cases a good example where they found that conduct that probably indirectly enhanced the organization because they made the money from selling the drugs in egypt but nonetheless the court didn't go there be and i think the conclusion to be drawn from looking at the cases cited by both the government and the defense is that there's got to be if you can be too tenuous at in its connection to the specific offense that you want to link it to roll a vote and conduct now you know my only argument at this point is that i don't believe that the simple language alone that this particular act was in generally in furtherance of the of the cartels in drug activities is a nuff to bring it into relevant conduct given that it occurred in a how directly does it affect the tickler charges the you want to call it relevant conduct for in the tom prior few cases i think it's a it's a no brainer he made they produced a child pornography in honduras and they're still in possession of that and and i don't i don't see them logically irrelevant or back in the top priority cases including the production in a foreign country as part of relevant conduct but in these other cases i think it becomes more tenuous and i think that's the factual x as relevant no i'm not because of that because of the top one i feel cases that i think represent the most direct connection between foreign conduct and the activities that were charged the united states there some sort of prejudice to the government here when you trying to figure out how to treat this case in two thousand and twelve they get an agreement that the parties think this is of base offense level forty three case and that's the baseline on which they proceed and they make their charging decisions and everything else on that assumption and then five years later when the evidence is stale and so on you come back and say oh no no it's not a forty three case thirty case doesn't that prejudice the government well first of all let me just point out that  twenty fifteen it's it's clear that the analysis that the parties agreed on in that you could fit fair enough you had the first p s r ok that's three years later instead of five years later but no i don't i think you know first of all if the government the draft of the letter and if you're going to talk about you know a statutory contract was so forth that i think i have to hold it against them but you're an independent branch of government and i i i don't think you want to find yourself  position where you're saying that the government through a plea agreement that's not binding on the court the finessing i like sports or not it's not binding on the court but nonetheless because of the plea agreement we're going to compel to argue or to not argue against something which is wrong and the sentencing guideline in the plea agreement was wrong they didn't go about it the right way and i agree that i signed on to that and i agree that i was wrong too but i don't think you want to be in a situation to say well when you realize that the calculation that you've tendered which is not binding on the court is wrong that somehow you still have to argue a position that you know is legally a correct thank you were from the government treated the murder of the mexican kidnap victim as racketeering activity instead of as relevant conduct and that simply not correct do you agree that it's not record tearing activity we do yeah  d what why isn't that the end of the case because the controlling offense guideline says apply the crater of nineteen or the offense level applicable to the underlying racketeering activity mexican murders not record tearing out to it well what we're conceding or saying right now is that the murder of the mexican kidnap victim wasn't right racketeering activity but that and then you have the other predicates you have the drug predicates and accessory after the fact to murder predicates and those don't get you above thirty well i want to separate the two points because i think they're different one is how can we bring the rico conspiracy charge in the predicates for that are the murder and attempted murder of the ice agents and the drug conspiracy so in the information those are the facts  predicates that get you the rico conspiracy right so then the question at sentencing is what's relevant condoms you know the question of sentencing is what's the pace offense level and the guideline tells you look to the racketeering activity which is a term of art that means the rico predicates right so you get an offense level of thirty but you also include relevant conduct and that gets you to forty three the think it's a separate because we're talking now about the calculation of the sentence under the guidelines right and i and and and the guidelines direct us for rico conspiracy the guidelines tell us used to  one point one right just the guideline for rico conspiracy and that tells us not to focus on crime writ large or extra territorial acts or anything like that it tells us to focus on racketeering activity which is a term of art that means rico predicates rate so you get the events love on this is explained in the final pre sentence report it's i think it's at page to take into account relevant conduct the relevant and current conduct includes a first degree murder the offense level for first degree murder is forty three so that gets you to forty three of three for acceptance of responsibility so you start but they're explaining there how you get to forty three and they specifically cite the relevant conduct guideline this is also the second government's brief but it's in  of page one eighty and the probation officer says the murder of the kid that victim in january of two thousand and eleven was also on further and further that sounds like language rather than yeah that's what the guidelines said sorry this is a one a relevant conduct with respect to x committed by the defendant him or herself whereas a one b or acts committed by that are considered twenty committed isn't that the way that a guideline distinguishes it would be and i think that guideline writer would have it would have been better had the probation office at the end of that whole you from but when you're well and that there are other places where the government argues specifically that the murder of the mexican kidnap victim was relevant conduct inside  to i don't validate i don't know i mean they're talking about it sometimes for example during the government's allocution at sentencing at page one sixty one the prosecutor says and the other murders at is one a but the court doesn't need to do that because it's clear from the record and i can give you a bunch of instances where the government sad that what was going on was that the theory was that for coming to get this guideline calculation was that the neck the murder of the mexican kidnap victim was relevant conduct and it's so and so we're supposed to you know under read and all of the present that we have where our first obligation is to ensure that the guidelines calculation was correct we are supposed to presume that the district after responses your honor one is that it's conclusive conclusively shown through the record even without that specific citation that what the government and the district court are doing is to treat that which i would probably agree with but the parties are a pita at least sahar the are the court and the government repeatedly said that it was relevant conduct and that is the only provision it could be so that is what the record means and so what i'm saying is that the guidelines were correctly calculated so there is no reason to remain and if the court knows that that's what the court that that that is what was happening which so have been ages one company and one twenty nine where the government filed its its kind of a response to the objection i'm not seeing where the government uses the word relevant condo anywhere in that pleading it did do they used that word and now leaning not that i'm aware of and i think that the jest of that so why isn't that important they don't cite the guidelines provision that you want us to rely on and they don't use the word relevant conduct that would tell us what guidelines provisions so we're just supposed to assume that the only thing they could have meant the only thing that the that the district court could have meant was relevant condom as opposed to predicate act when predicate act was the theory that was most prominently advanced because the mexican murder was listed as a predicate act in the information it's listed name information as an overt act i mean but it's not one of the they should be bound by  the relevant conduct prison vision but it does it doesn't say a or b it just says one b one point three there's another spot in the record where the government specifically references the relevant conduct provision i think correctly it's document thirty five it's not in the joint appendix but the government filed in opposition to or objections to the first pre sentence report where it raised this issue of the murder of the mexican  kidnap victim and it specifically said that that murder was relevant conduct again that's document thirty five i mean it just records dr dockett the prosecutor i cite that in your brief kno have that at in document thirty five you have it on page one twenty nine you have it on page one sixty one so appalling is wrong today when he says the government never raised this he's also wrong when he says that the district court treated this as racketeering activity this being the murder of the kidnap victim that wasn't racketeering activity it was relevant conduct so the only question i think that we're debating now is whether the government of the district court ever correctly referenced one and i would suggest to the court that that doesn't really matter because that's the only thing that could be referenced in the course of all these pleadings that it's conclusive  doesn't need to remain in for that purpose because at that point the court and even a pallet would be i mean if you set aside a pounce issues about whether foreign conclusion that district court judge could range after hearing the government's heart i think so i'm suggesting that it is conclusive that when you're talking about relevant conduct either the murder of the mexican cannot victim is relevant conduct or it's not and if so is of course it's one or the other that's the ultimate decision but in reaching that decision that this record judge has to consider well is it really closely connected to the drug trafficking rico conspiracy or is it just part of the rest of the criminal activity that is not part of the charge conspiracy here and the court did consider that the parties made that argument at pages one sixty one sixty two in the sense in transcript they on page one eighteen the pre sentence or report offer from the probation office drug trafficking as opposed to other activities but of tolerance in entering his plea admitted that the murder of the mexican kidnap victim was committed in furtherance of the drug trafficking conspiracy th pages i think it's pages fifteen to seventeen of the government actually brutalization right he stipulated that you know some of the things the court discussed earlier this morning that the point of the  or part of the point was to protect its territory from rival cartels to engage in lucrative drug trafficking in the way that it did that was by committing murders carjacking cartel activity so that is a finding that's part of the record that's part of a palance would agree that it was part of the cartel activity or part of this secret comes heard of the underlying conspiracy and it's cited in the government's brief i think that transcript page and i'm going from memory now is something like four fifty eight or fifty nine but it is  murder of the kidnapping victim was in furtherance of the charge conspiracy order which meant that so that facts been resolved so the only question would be whether the district court actually cited the provision and again my response to that is that's what the record means and the court doesn't need to remain and to do that anyway because you know that that's what was happening just so that we understand guidelines calculation and the defense lawyer realizes later that that guidelines calculation is in correct that the defense lawyer has to sit on his or her hands and can't bring that to the attention of the court because of the agreement that the attorney can raise it in the district court but the attorneys not allowed to raise it in the court of appeals well i mean argument is that it fells the criteria for judicial stoppel but i just so so the lawyer is supposed to commit in effect of assistance of counsel one appeal by not making the argument by a by if if there's of meritorious argument because they are bound as at the way this works well he did make that argument and he could make that argument we're just suggesting that it's stopped that like any other argument if i defense counsel may be under some sort of professional obligation to raise in and preserve claim in the government wouldn't turn argue that their view would be so so so so if the plea agreement said that the parties agreed that the offense level was thirty in the probation you do we would seem to be the extension of our argument that we would be under our view that we would be a stop from arguing for the higher guideline range range at least as to the allocution it would be a breach of the plea agreement for the government to allocute for more than the thirty but i guess there's a another principle at play in the course hypothetical which is the government's ultimately defending what the district court did so in that sense we may say first which include a obtaining a favorable judicial decision right which here the only thing that could be used the acceptance of the plea in two thousand and twelve back credit isn't except ends of a plea really focused on the facts the facts of the underlying agreement and does it doesn't the court normally reserve the right to impose sentence after it gets the pre sentence report without prejudice right i mean this wasn't so why is it a favorable judicial decision because he has a poly got the benefit of his bargain he made a bargain with the government and he it's but what he got what he got from the district court was in two thousand and twelve was a reservation of determining the appropriate right the district court would assess the factors and it's somewhat i quibble and such right to the government raise judicial stoppable well it didn't because of that so why you have everything you need to support and to stop all argument and you didn't make well i would suggest that the that we did make it in our brief in the very beginning in the factual section we say that in response to when this we did not do that but we said that he's bound by his representation in the plea agreement or his agreement which i think is the same in your point is the court didn't get that kind of weighing the factors which is true which is correct we didn't raise it now the way the court has no further questions i would urge on the part to affirm the judgment of the district court thank you thank you mr gilbert will give you two minutes kindness oh i just want to take issue with the fact that the government was repeatedly referring specifically to the mexican murders specifically as relevant  conduct i don't see where that appears anywhere i understand there are places where the government talks about it being in furtherance of the conspiracy i'd imagine that that would be an issue to be discussed below with a judge  relevant conduct being the murder of agents a pot and an act in furtherance of the rico conspiracy they are not mentioning the mexican murder down at the bottom they say we think not only the murder and in the pot i guess of the pot but the other murders are that are referenced here we're all certainly foreseeable as part of the activity and that's you know that's a factor but not x it's necessary but not sufficient to find between the two thousand and fifteen and the two thousand and seventeen percent report the difference being specifically treating the mexican murder as a separate rocketry activity thank you thank you mr gilbert we will take this matter