for a new sentencing hearing at sentencing hearing i'd like to address two issues this morning the first being the instructional error in beginning of the broad general definition of knowingly instruction number nine which we contend conflicts with the knowledge elements necessary for conspiracy and possession and also of the district court's failure to articulate its reasons for imposing sentence at the high end of sentencing range that exceeded twenty four months let me start with the plain error in instructing the jury on the that the government was not required to prove that mr delgado knew that his actions yes and it seems to be that there was contradictory facts both from the defendant his accomplice and me and the confidential informant but it seems to be the jury felt that yeah that mr delgado tha participated with his codefendant in distributing drugs if you will sewing them to the confidential informant and in fact the confidential informant said guy actually met on the logging road and he said to go do so fast th the jury found not so well not necessarily true because if you were looking at the jury instructions the government gave a penguin instruction so they could have found his possession was vicarious merely through being a now the jury could have easily found that at a time when if he was completely innocent of what was going on until he got to the driveway and then well you know maybe he should have known that there was something suspicious in in the government's favor we have to look at the facts in favor of the verdict i see your problems theoretically that's nine and ten could be read to be inconsistent but i don't see how that helps you on the facts here because under instruction tran the jury was properly instructed on the elements of conspiracy and that have to be planning and knowing that he was something unlawful and it so but then you go back to number nine and number nine is saying but no they don't have to prove that he knew that he was engaging in illegal conduct so we do in fact have a conflict between what has been instructed in the conspiracy charge and what they've been instructed in number nine so they could have said well whether he knew or not knew he should have known we don't know that that's how we raised the due process problems because we simply don't know they were instructed improperly as to what the appropriate knowledge element was now closing that at least a minimum he knew at the time he got back into the vehicle when vasco santiago picked him up from the store in olympia and they decided to guide together to bremerton he should have known at that point because the drug and then when they drove to showers home he got out of the vehicle and then totaled oscar take off the screws find this package this wal mart bad that i put in the car let me briefly touch on the sentencing prior transactions and he sought sentencing at the lower and based on his lack of criminal history which was in direct contrast to santiago who had three prior drug convictions and there was no evidence at contest and i think what the defense is trying to do in that sense is turn it from an this is this mens rea into mens rea that would be sort of a cheek analysis by the supreme court is made in consideration of all the circumstances including the strength of the evidence that's a defense and a cat in this case the evidence is overwhelming the defendant knew exactly what was going on the defendant talked about that the  stands now is there anything in the record that explains judge turner's sentencing decision yes the sentence in the session was based on really two points that were set forth in the recommendation one as the defendant had a managerial transaction i that was my question the only thing i found was part of the three cents report factors that may warrant departure where the the for evasion report negates the role but nevertheless exercise he may have exercised management a motion to strike that i had filed and i have the order granting the motion to strike the reason it was stricken with because it doesn't appear in the district court's record so even if the storm was in fact a part of the district court's record managerial responsibility over the other participants and in fact there seems to be concession by both the probation office and the government that in fact he did not play or there was not sufficient evidence