may please the court anthony colombo on behalf of david david never a day and age on an average day would ask this court to remand the case for a recent incident the reason why the sentencing was replete with a number of issues but what i'd like to focus on first is that the district court failed to apply the correct legal standard when denying the party's joint request for minor role in this case the district court failed to consider the amendment under sentencing guidelines three b one point two and the commentary notes that apply with the numerated factors that the court has to consider when determining whether an individual is substantially less culpable than the average participant in this case there was no one alice's done in this case there was no comparison among other defendants rather what the district court did was expound upon his particular view that the drug guidelines just don't work especially when considering the role in addition to just the district court expounded upon in his view the comparison with other defendants in other cases which was obviously not disclosed  notes it's clear that if there is some you know you started your argument by referencing the parties agreement doesn't matter legal difference ago no i don't think it makes a little difference or your honor but i do think it is is a persuasive difference it is it is important for the court to consider that both parties presented a united front that in this particular case both defendants adriana played a minor role within this conspiracy both of those individuals were only involved in the money laundering and only pled guilty to the money laundering portion of this particular drug trafficking conspiracy but the united states is now defending the district court's decision that's correct and although they are the language of the plea agreement is allows them to do that i don't think  i think that it's clear that they should not present any information that's inconsistent to this court and what they presented below and what they presented polow was a united front that minor role was appropriate and was appropriate because the government opposite operation it was taking money from ebay and putting it into the bank that was there discreet role that they played and there was quite right what i would call it there is video footage ok i'm watching one of the cars being pulled over of the high would be trolled doing what was a stop based upon the wiretap that had been there to determine whether or not there was drug money being transferred and he did report that to his older sister gloria  recollection of the events but but i don't believe that that is is any any expansion of his role in the particular case why not well because it was not just making a deposit there counsel he's on the highway the that's true your honor that happened but i think that that was part in parcel of of taking possession of the physical money and then bringing it to the back that had to occur but beyond that that was what his role was in this particular conspiracy and i think the government agreed that they didn't have any information during the year long wiretap that was conducted any information that would be inconsistent with him being involved in or or just being involved in money laundering they had no information that he took part in any of the drug transactions or had any information regarding the full scope and understanding as to what his mother his other relatives may have been involved about adriano but i think the situation is the same i think her her her role was was no different than david navarrette is where she was involved in the in the the money laundering portion of it opening bank accounts and and some certainly in this story she worked at the establishment right at that is that a furniture store your i don't i don't recall that specifically i believe that she both my client and her client were working at the time and during the course of the conspiracy they both had legitimate jobs my client was in college and he's too short to credit short of both individuals both individuals raise the same particular arguments right and so you're and i think you are going at first started to argue that both of these two brother and sister only deposit of fun was put put into the car and loaded in on the car carries and taken across the country she didn't play any special role in that part of the operation to my recollection you are no way she was not part of packaging cars into super compartments or or things of  that nature that's to my recollection i could be the second but well anyway so your time's ticking so you're argument is that there wasn't a comparison done by the that's right take it to be there wasn't a comparison by the  these two defendants and the other folks who participated in the operation is that it that's that's correct your honor and i think that there is the the record is unclear as to whether or not the judge considered a comparison and the judge in this particular case relied upon the pre sentence report which did not do any comparative analysis in addition the court stated that the drug guidelines don't work he said each of these individuals  criminal livelihood for so for count two the district court had a four level lower to deal one point one offense level which is plugged in to the two us guidelines which meant that the higher guideline in this case by four levels was count district court it matters because a district court said it wasn't going to get sixty one months which is what was recommended by the government but it never said anything about i'm going to give you one hundred twenty months you hell or highwater it gave one hundred twenty months they said it wasn't going to give sixty one it gave one twenty but it never indicated that it was going to give one twenty no matter what the guidelines or and so of course the reader carty those cases require the district court to start by properly calculating the guidelines they didn't do so in this case and so for that reason i think we need  is insufficient to satisfy the standard for either aggravating role or maintaining its nationals the district court based both of these on the fact that the defendant relayed a one time message to the stash house manager from the maintaining in that guy's life but they do point to two factors factor a is some sort of possessory interest dominion and control over the sasha factor is having some sort of significant involvement in the activities civically the guideline says having control over the access of the activities of the house now there's no question that gloria had legal title to it but her title her possession wasn't as strong  who was who was a den of five by the probation officer is the manager of the stash house she had actual possessor if she was actually in actual possession of the house and she was the tenant which means that she had superior legal control be eligible for this particular enhancement does must it be the case that gloria had the most control over the stash or maintained it more than anybody else is a comparative think well i think there's it's hard to tell because of the way the guideline is written because there's just very little guidance given any authority that says that that's the case it seems to me that i've always thought it was an honor office which she was there qualifies as somebody who maintained the house the stash house or not but i just wonder if you know of any thirty where we've gone the other way you know i think that's the problem is that when i look at the case law is case law that finds if you have factor b that is evidence of involvement in drug trafficking at the house that can be enough to get the enhancement even when there's only slight evidence of possessing a factor eg but i could find no case that's the opposite where if you have some sort of possessory interest but then there's no connection to the drug trafficking that you can get that but that's basically all that the the the district court relied on is the fact that she owns the house she owns the house on the title the only factor be the only involvement that the district court ever pointed to was this call to clean up the house yeah that's the only factor b that's the only involvement and i would say that that doesn't actually satisfy the legal standard because the legal standard as far as is laid out in the guidelines is controls access that doesn't show that she controls access to the house in fact she never showed up that surveillance didn't show that she came there she didn't the evidence seems to be as she didn't have a key and of course she's only the landlord which means she can't control access the tenant does and it doesn't show that she control the activity because of one time she relays a message from the ringleader clean up the house she's just a conduit she's not issuing orders she's not controlling security should also house she does she's on the title yes i'm not sure what you mean by she's a long time ago yes and people and therefore you are in fact maintaining so you don't have to have actual day to day involvement it's enough that you provide a venue for them to conduct the verdict of a tease well you know it doesn't seem like that's the case from the case laws of the cases where they've held it there is some sort of possessory interest or some sort of dominion and control whether it's title or actual possession something like that and the person also has to be from the cases they have to be cited by both parties there's been a lot of involvement the defendant had quite a bit of involvement ongoing multiple involvement with different transactions activities but the only thing here is the one call an ownership interest they had some sort of possessor answers is that as i'm saying is the case is have found that there's been sufficient factor a possessory interest even when it's kind of weak but when they find strong evidence of involvement then that then that's fine but here we have the opposite we have some evidence we have conflicting evidence of who is in possession who has control over access and the active over the access because there are two different people have a legal right to control access the landlord  the tenant i would say the tenet has a stronger interest because they have actual possession so let me just make sure the stand your position your position is if your landlord if you own a house and you know that somebody at the market and they else yes you think that is not enough in your view to say you are maintaining a stash of you know what it reminds me of it seems like some of the body house cases that i learned about in law school where a landlord knows that there's prostitution going on but he's not doing anything encourage it he just knows about it he's not he's not stopping it but that wasn't even enough as i remember these cases correctly that wasn't enough to be a conspirator because he wasn't actually agreeing to it it was simply tolera back to that the question is you know your view is you actually have to get your hands dirty just providing a place that you know is being used by other people  drug dealing is in your view not enough to look yes you know i'm i'm this inclined to believe that and i'm wondering is there any case that says no that's not enough you know your honor there's no case i want to do what i describe the case law as like the cases that allow weaker evidence of possessory interest when there's strong evidence of actual involvement in the illegal activity showing actual control but i didn't i couldn't look at all the cases that have been cited there's no case that i control over the activities this one incident of making a phone call relaying a message not issuing an independent order on your own discretion off her own bat but just conveying as the prosecutor below said that the ringleader was speaking in gloria's here just passing on his being a relay doesn't make you a controller of the activities at that house even if you know what's going on there you're not controlling them if you simply pass on a message any more than a question is whether the court properly applied the money laundering plus to when calculating the drug guidelines yes we can talk about that's what i'm hoping you're going to get to that well then just briefly to touch on the first one your honor i asked does it matter that the court applied the plus to under the drug guidelines and it's our position that it doesn't matter that ultimately that the end result in this case would be the same two s one point one a requires t court to start with the basic sense level for the drug guidelines one the one point five says that when you're transferring that base offense level over you include not only the drug offender they suspended level but any specific offense characteristics including the stash the drug guidelines back into the money laundering before adding that plus two but that the outcome was correct and there's no need to remain and for the court to essentially explain that last  the document itself if anyone can access it by clicking on the c f we would ask that that document the motion itself be under seal it i believe the docket entry itself also me mentions so yes that should be essentially removed from public view as well that was my only question unless the court has any other question i take it this video video of this hearing should also be hearing i think what we did a similar case earlier this year was because no one had talked about any details that was ultimately the hearing video was also evidence that gloria had her hands dirty at the house i was on the phone call but the evidence so there is there's an instance where she picks someone up from the house and drove into the airport that person then go on a flight to new york and containing drugs from arizona to the house it was ultimately intercepted so there's a lot of evidence that she was abundantly aware that this house was being used for drug trafficking and as part of her family's conspiracy i asked the question about adriaan i think the p s r says that she worked at the furniture store that was used as the address where these cars loaded with controlled substances were going to be shipped to and from these are from is that wrong no that's correct she worked at a furniture store in bassett furniture there were cars being shipped to that found that simply relaying information about the drug deals just being the go between information a conduit of information doesn't qualify you for an aggravating role that's being a conduit it's not  not a go for this is not somebody who's hired to be a messenger this is somebody you own is a significant piece of property that's being used in the drug trade that's correct your honor but that's just one of the two factors and the guideline says and which means that it seems like you have to have proof of both of these factors factor a is a possessory dominion and control factored b is being significantly involved in the activities such that you can control access i ask you is the phone call for both of these guidelines what other phone calls that went there that evidence the glory it was right in the thick of these communications she maybe not maybe i grant you i think there's just one as to the how stash house but what about i think there are many were she's involved in relaying communications back and forth for her mother to other members of the drug trafficking organization in iraq yeah i know that's true she but she was not the point is she was conveying information from her mother to other people and from other people to a mother she was calls are our other participants telling her tell henry other that tell her this tell her this and just exchanging information back there's nothing that shows that gloria was the person that this was being reported to her because she had some authority to do something lots and lots of human communications or a single communication i think the p s r points to the government in their response to to in addition to the call to clean up the house and i'm asking you you are pointing out that my two colleagues and that relaying information is not enough or aggravating while my question is in in that case so i'm not as familiar as apparently my colleagues are was that were the communications in that case limited to a single mean any no there was actually multiple conversations but the point in all of that was that he was simply conveying the information from the wholesaler to the buyers he wasn't setting the prices he wasn't making a determination he was simply conveying the information and there were multiple interactions that all of it was involved in but this was the point that the court made is that well he's not setting the price up if you give me the citation to yes it's ninety five  eight eighty seven thank you sure you very much one last point is that there was it was the boyfriend that she was simply picking him up to take him to the airport and the as the record say that the district court relied on this sole